B73 (flnrnpU ICam irl^nnl ICibtary KF /ss.B/sTgis"'"*"'"-"'"^ mmmmimlllfir^. '"^ administration 3 1924 018 802 425 Cornell University Library The original of tiiis bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018802425 THE LAW OF WILLS AND THE ADMINISTRATION OF ESTATES ENLARGED EDITION BY WILLIAM PATTERSON BORLAND OF THE KANSAS CITY BAR REPRESENTATIVE IN CONGRESS, LECTURER ON WILLS IN FACULTY OF KANSAS CITY SCHOOL OF LAW, DEAN OF KANSAS CITY SCHOOL OF LAW 1895 TO I9O9 A COMPREHENSIVE WORK IN ONE VOLUME KANSAS CITY, MO. VERNON LAW BOOK COMPANY 1915 OOI'YRIGHT, 1907 BY WILLIAM PATTERSON BORLAND OOPYKIGHT, 1915 BY WILLIAM PATTERSON BORLAND (BoEL. Wills) PREFACE TO ENLARGED EDITION This volume is a revision and an enlargement of Notes on the Law of Wills and the Administration of the Estates of Deceased Persons published by me seven years ago. That work was the publication in book form of lectures on the sub- ject which I had delivered yearly to the senior class of the Kansas City School of Law. It was confined in its citations mainly to the law of Missouri and Kansas. It proved a very useful book both for students and practitioners. The present volume is an enlargement of that work by in- cluding all of the leading cases in this country and in Eng- land on the subject. It is intended to make this the best one- volume work on the subject. It contains a concise statement of all the principles, in language supported by authority. It contains also an exposition of the reason and relative bearing of the rules. In other words, it is designed to be what the lawyer and student need — a text book which places them in possession of the subject, and not a running digest of ill- assorted cases. It will be found of especial value to the Western lawyer and student, as it cites every case and discusses every rule em- bodied in the common or statute law of the following group of states : Missouri, Arkansas, Nebraska, Kansas, Oklahoma, Texas, Wyoming, Colorado, New Mexico, Arizona, Utah, Ne- vada, and California. It cites, also, every case bearing upon the subject decided in the Federal Courts, including the Su- preme Court of the United States, the Circuit Courts of Ap- peals, the Circuit and District Courts, the territorial courts, and the courts of the District of Columbia. The law of wills in this country unfortunately is in a badly tangled condition. The best-posted lawyers are puzzled when they approach this subject, and their embarrassment is not (iii) iV PREFACE TO ENLARGED EDITION relieved, but only increased, by the huge three-volume works on the subject which are thrown at them. They find the sub- ject filled with obsolete rules and archaic principles that plainly have no reference to modern ccmditibiis. This work ife de- signed to fill the real purpose of a text book by harmonizing ' and analyzing the decisions and bringing the law in concrete and definite form down to to-day. In a good workshop a good tool never grows rusty. It is used until it is worn out, and then, haVing done its work and earned more than its keep, it is discarded for something bet- ter. I hope that will be the case with this book. Wm. p. Borland. September 1, 1914. TABLE OF CONTENTS CHAPTER I gg^_ HISTORY AND NATURE OF WILLS p^^^ L History 1 2. Natural distinction between real and personal prop- erty 14 3. Nature of wills 15 4. Definition of will 17 5. Codicils 17 6. Right to exclude heirs 19 7. Rights of pretermitted children by statute 21 8. Agreements to make disposition by will 26 9. Joint and mutual wills 30 10. Gifts causa mortis 32 11. Civil or Spanish law of wills 34 CHAPTER II EXECUTION OF WILLS 12. Purpose of requiring formalities of executiori 36 13. By what law governed 39 14. Forrnalities of execution 42 15. Form of instrument 44 16. Incorporating other papers 51 17. Signing , 53 18. Name signed by another 55 BoEL. Wills (v) Vi TABLE OF CONTENTS Sec. ^*S*^ 19. Publication 57 20. Attestation 60 21. Parties in interest as attesting witnesses 66 22. Competency of attesting witnesses in general 70 23. Alteration, corrections and additions 71 24. Holographic wills 72 25. Nuncupative wills 76 CHAPTER III REVOCATION OF WILLS 26. Revocation in general 81 27. By subsequent will 86 28. By burning, tearing, etc 90 29. Dependent relative revocation 97 30. Effect on prior will of revocation of subsequent will 100 31. By marriage and birth of issue 102 32. By sale of property devised 106 CHAPTER IV TESTAMENTARY CAPACITY 33. Aliens 108 34. Convicts 110 35. Infants 1 1 1 36. Married women Ill 37. Mental capacity 113 38. Idiots 115 39. Deaf, dumb, and blind persons 119 TABLE OF CONTENTS VU Sec. Page 40. Old age 120 41. Effect of drink, drugs, etc 126 42. Lunacy — Its nature 128 43. Lunacy — Lucid intervals 130 44. Lunacy — Restoration to reason 134 45. Lunacy — Suicide 135 46. Delirium from fever or disease 135 47. Drugs administered for fever or pain 137 48. Monomania or partial insanity 138 49. Monomania distinguished from eccentricity, moral perversion or bad temper 140 50. Insane delusion must affect the will 142 51. Insane delusion — Spiritualism and other religious beliefs 145 CHAPTER V PROBATE OF WILLS 52. Necessity for probate 147 53. Common law method of probate 149 54. Rights under an unprobated will 152 55. Ecclesiastical courts superseded by probate courts with broader powers 154 56. Equity has no jurisdiction to probate or cancel wills 156 57. Place of probate 161 58. Preliminary fact of death 162 59. Manner of probate — Ex parte proceeding 164 60. Manner of probate — On notice and hearing 166 61. Probate — Procedure 168 62. The issue — Devisavit vel non 175 63. Lost or destroyed wills 176 Vlll TABLE OF CONTENTS Sec. 64. Foreign wills 180 65. Recording will as a conveyance 185 EFFECT OP Probata 66. Under American statutes 186 67. Difference between proceeding in rem and in per- sonam 191 68. Decree of probate not subject to collateral attack. . . 192 CHAPTER VI CONTEST OF WILES 69. Distinction between common and solemn form of probate 197 70. Nature of contest proceeding 199 71. Jurisdiction of federal courts in will contests 200 72. Contest — Time for bringing 204 73. Contest — Form of action 207 74. Contest — Parties ; 209 75. Contest — Estoppel — Agreements and settlements between heirs and legatees 212 76. Contest — Procedure 215 77. Contest is statutory and therefore an action at law. .217 78. Contest — Burden of proof 219 79. Contest — The issue 223- 80. Contest — Trial by jury 224 81. Evidence — Attesting witnesses 226 82. Evidence of sanity — Opinion evidence of lay witnesses 227 83. Evidence of sanity— Medical witnesses 231 84. Evidence of sanity— Declarations of testator. . .231 85. Evidence of sanity — Range of testimony 234 TABLE OF CONTENTS IX Sec. Page 86. Privilege of physicians and attorneys 236 87. Admissibility of various matters 238 88. Contest — Directing a verdict 240 89. Contest— Judgment— Costs 242 90. Contest— Appellate courts 244 91. Contest— Administrator pendente lite 245 CHAPTER VII MISTAKE, FRAUD AND UNDUE INFLUENCE 92. Mistake 247 93. Fraud 250 94. Undue influence — General theory 252 95. Undue influence^ — Distinguished from the influence of affection 257 96. Inequalities between heirs, or injustice 259 97. Undue influence — In connection with physical or mental weakness 261 98. Undue influence — Confidential relations 262 99. Undue influence — Wife or husband 267 100. Undue influence— Evidence 270 101. Undue influence — Inadmissible evidence 273 102. Undue influence — Declarations of testator and dev- isees 275 CHAPTER VIII CONSTRUCTION OF WILLS 103. By the probate court 279 104. By the executor as umpire 281 Sec. TABLE OF CONTENTS Page 105. By courts of equity— Based on the broad powers over trusts 282 106. At the instance of testamentary trustees and ex- ecutors - 283 107. At the instance of heirs, devisees and others 285 108. Proper and necessary parties 287 109. Various principles governing construction by equity 288 1 10. In an action at law 291 111. By the federal courts 292 112. Canons of construction — Words and phrases 294 113. Extrinsic evidence — Latent and patent ambigu- ities 311 114. Construction as affected by the general law of descents and distributions 322 115. After acquired property 324 116. Presumption against intestacy 326 117. Recitals in wills 329 CHAPTER IX LEGACIES AND DEVISES 118. Extent of testamentary power 331 119. Specific legacies and devises 332 120. Demonstrative legacies 334 121. General devises or legacies 335 122. Residuary devises and legacies 336 123. Various forms of testamentary gifts 337 124. Annuities and provisions for support 339 125. Proceeds of insurance 340 126. Legatees and devisees 343 127. Gifts to religious persons, bodies, or purposes 345 TABLE OP CONTENTS XI Sec. Page 128. Gifts to a class 346 129. Per capita and per stirpes. 349 130. Ademption 350 131. Lapse 352 132. Conditions affecting entire will 355 133. Conditions affecting particular gifts 357 134. Non-contest clauses 361 135. Restraints upon marriage 363 136. Restraints upon alienation — Spendthrift trusts. .. .365 137. Conditions that devisee pay certain legacies or charges 370 138. Election 374 Provision for Widow or Widower 139. Public policy limiting the testamentary power of married persons 377 140. Widow's right of election 380 141. Equal division and community theory 383 142. Widower's share under statute 384 143. Right of election — How exercised 385 144. Effect of election on rights of others 388 144a. Homestead and other statutory rights 389 CHAPTER X QUANTITY OF ESTATE 145. When a legacy or devise vests — Meaning of term "vested" 391 146. Difficulty in determining when an estate is vested 394 147. Rules for determining vesting of future estates in remainder 396 XU TABLE OF CONTENTS Sec. Page 148. Remainders to a class — When vested 399 149. Postponement of possession or enjoyment 400 150. What words necessary to devise a fee 404 151. Absolute estate not cut down by inference 406 152. Devise of life estate 407 153. Powers, general and special, of life tenant 409 154. Life estate with power of disposition 411 155. Rule in Shelley's case 413 156. Executory devises 415 157. Rule against perpetuities 418 158. Powers defined 422 159. Limitation of powers 423 160. Manner of executing powers 425 161. Personal property — Life estates and future inter- ests 426 162. Protection of remaindermen in future estates in per- sonal property 429 163. "Dying without issue" — History of phrase 432 164. "Dying without issue" — Three theories prevail in the courts 439 165. "What remains" 445 166. "What remains" — Necessity for clearness of expres- sion 448 167. Analysis of the estate given by such provisions 449 CHAPTER XI TRUST ESTATES 168. Trust estates — Their purpose in wills 452 169. What is necessary to a valid trust 454 170. Limitation of trust powers 457 171. Testamentary trusts distinguished from trust deed. .459 *ABLE OP CONTENTS Xlll Sec. Page 172. Trusts ex maleficio 460 173. Trusts by precatory words 463 174. Executors as trustees — Modern distinction between the two functions 466 175. Powers as trustee expressed or implied in the will. .467 176. Administration of testamentary trusts 470 177. Testamentary trusts may be active or passive 472 178. When trust terminates 473 179. Trusts for accumulation 475 CHAfeifABtE OR Public Trusts 180. Their nature and kinds ■. 476 181. Statute 43 Elizabeth 478 182. Discretion in trustee as to objects 480 183. Designation of institution or association 481 184. Doctrine of cy pres 483 185. Void charitable uses 484 CHAPTER Xil ADMINISTRATION 186. History of probate jurisdiction. . , 487 187. Probate jurisdiction of ecclesiastical courts 489 188. American courts of probate 491 ExECUTQRS AND ADMINISTRATORS 189. Common law theory of executors 495 190. Executor de son tort 497 191. Appointment and qualification 498 192. Standard of responsibility 499 XIV TABLE OF CONTENTS Sec. Page 193. Administrators — General — With the will an- nexed — Pending contest 500 194. Title to real estate 502 195. Special powers of eicecutors 503 196. "Independent" administration 505 l\p7. Primary and ancillary administrations 509 198. Collection and preservation of estates 514 1^9. Allowance and classification of demands — Common ^ law provision for allowance of demands 518 200. American statutes providing for allowance in probate courts 520 Creditor should seek probate court 522 Statutes of non-claim 523 Jurisdiction of federal courts over claims 524 Statutory classification of claims 525 205. Debts ante mortem and post mortem 525 206. Payment of demands 527 207. Order in which assets are marshalled for payment of demands 528 208. Resort to land and contribution from legatees and devisees 530 209. Legacy to creditor 532 CHAPTER XIII DISTRIBUTION 210. Distribution is of statutory origin 534 211. When distribution may be made 536 212. When legacies bear interest 537 213. Distribution by agreement 538 214. Assent of executor 539 TABLE OF CONTENTS XV Sec. Page 215. Proceedings- to compel distribution — In probate court 542 216. In equity 544 217. In federal courts 545 218. Marshalling assets for the payment of legacies. . 547 219. Legacies not generally chargeable upon land 549 220. Legacies — When chargeable upon land 550 221. Advancements — Hotchpot 552 222. Equitable conversion 555 223. Directions for continuing a business 558 224. Advantages of incorporation 559 225. Testamentary guardians 560 226. The decree of distribution 561 227. Final settlement 563 TABLE OF CASES CITED (Page 567) INDEX (Page 685) t WILLS AND THE ADMINIS- TRATION OF ESTATES ENLARGED EDITION CHAPTER I HISTORY AND NATURE OF WILLS § 1. History. 2. Natural distinction between real and personal property. 3. Nature of wills. 4. Definition of will. 5. Codicils. 6. Right to exclude heirs. 7. Rights of pretermitted children by statute. 8. Agreements to make disposition by will. 9. Joint and mutual wills. 10. Gifts causa mortis. 11. Civil or Spanish law of wills. § L History The law concerning wills and the descent and distribution of the estates of deceased persons is a subject which has fascinated the greatest minds of the legal profession from the earliest dawn of the science of English jurisprudence to the present day; and it must continue to exercise a commanding BOEL.WILLS 1 2 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 influence over the attention of the moralist, the statesman and the jurist. The delicacy of the mat- ters with which it deals renders it extremely diffi- cult of appHcation, in spite of the simplicity to which the refinements of modern jurisprudence have re- duced its rules. Nowhere do the infirmities of hu- man nature appear in all their hideous nakedness, and nowhere do the hallowed and sometimes unsus- pected virtues of commonplace lives shine forth with so clear a lustre as in the musty records of the probate court. Those faded and yellow docu- ments reveal the secret springs of human motives as they are revealed nowhere else this side of the final judgment seat. To a student of human na- ture, the open pages of a dead man's will, no mat- ter how long ago he may have penned the words, have an absorbing interest from the volumes that may be read between the lines. The whole gamut of human passions finds expression in such instru- ments: pride, ambition, love, hypocrisy, avarice, charity — every motive from saintly benevolence to malignant revenge. And what of the living — those who are left be- hind? Every contest over a will brings to light and exposes to the public view the skeleton in the family closet. There is no wedge so powerful as a will to split families asunder. Rare is he who, like the rough but manly Esau, can find himself turned out upon the desert of life to wrest his fortune from a hostile world, while the supplanting broth- § 1) HISTORY AND NATURE OF WILLS 3 er Jacob enjoys the parental blessing and the fam- ily influence; and yet return without bitterness and greet that brother with kisses and with gifts. In the science of jurisprudence there are but four separate and distinct legal conceptions. They are like primary elements of the law, which, how- ever much they may, at times, blend into each oth- er or interlock, yet remain separate and distin- guishable as legal conceptions ; each the center of a distinct group of legal rights. These are: First: A crime, which is an invasion of the rights of organized society, through the person or property of an individual. Second: A tort, which is an invasion of the rights of an individual, through his person or property, and which may be also a crime, or be connected with a contractual relation, but is legal- ly independent of either. Third: A contract, the essence of which is a voluntary agreement between individuals. Fourth: The devolution of property, the title to which has become vacant by the death of the own- er. This embraces (a) wills, which are the ex- pression of the desires of the last owner as to the future title to the property; and (b) the descents and distributions provided by law, which are the expression of the desires or policy of the state as to the disposition of the vacant title. The first point of view from which to consider this subject is its historical aspect. Wills are of 4 WILLS AND ADMINISTEATION OF ESTATES (Ch. L very ancient origin; so ancient, in fact, that their earliest beginning cannot be determined. They have been traced back through the Roman law to the Grecian, Egyptian and Chaldean. It was once thought that the earliest disposition in the nature of a will was Jacob's bequest to his son Joseph of double the share of his brethren; thus implying that by the custom of that day, in the absence of such will, all the brothers would have shared eqtially.^ The law of wills reached a great state of refine- ment under the Roman law. In the science of law and of government the Romans can lay claim to originality and greatness, however much they ma}^ have been dependent upon weaker races for their literature, art and other branches of learning. All the various parts of the group of subjects which are now known in this CQUntry and England under the general title of probate law are borrowed from the Roman source." The very names and legal terms used are acknowledgments of this debt. It is true the word "will" is sturdy Saxon, but "testament," "probate," "codicil," "executor," "administrator," 1 But an earlier instance than this has lately been discovered in researches in Egypt. A written will was found which had been ex- ecuted 2500 years before Christ, in which the testator left his prop- erty to his wife for life, with power of appointment among his chil- dren, forbidding her to pull down any of the houses. This will was duly signed, witnessed and attested in a manner very similar to the modern form. 2 Starr v. Starr, 2 Eoot (Conn.) 303 -30S. § 1) HISTORY AND NATURE OF WILLS 5 "guardian," "curator," etc., are Latin derivatives which have become technical terms in the law. Many of the rules of this branch of jurisprudence as they exist to-day are substantially borrowed from the Roman or civil law. We say they are borrowed because with us the Roman law as such has no force or validity. Only in so far as its rules and principles have been adopted and incorporated into the law of England are they a part of our common law. We are the heirs and successors of the Saxons and not of the Romans, and upon this principle all our civil polity rests. When we search among the records of the ancient Saxons for traces of wills and the disposi- tion of the real and personal property of deceased persons, we find very little. The early Saxon law of real property is involved in the greatest obscuri- ty, and hence, also, the law of descent and distribu- tions. As a people they despised those luxuries and refinements of civilization which would lead to the accumulation of personal property, and therefore they treated it as of the most insignifi- cant value. Their real property was bound up in their tribal and national relations and was not at the disposal of private persons. Hence we find nothing definite or of practical value on this sub- ject prior to the Norman conquest of England. There seems, indeed, to have been a Saxon cus- tom, which survived the conquest and is referred to in the Magna Charta, that a man's personal prop - 6 Wir^LS AND ADMINISTRATION OF ESTATES (Ch. 1 erty should be divided into three parts, one of which went to his wife, one to his children, and the third was at his disposal by will. If he had no wife or family, then half was at his disposal. The shares of the wife and children were called their "reasonable parts." ' The Norman conquest introduced, or rather es- tablished, in England the feudal system of land tenures, and this great change brings us sharply in contact with the distinction, which continued in English jurisprudence down to the last century, between wills of real property and wills of personal property. The right to will personal property, even by parol, seems to have been tacitly admitted and al- lowed. Such property was insignificant in value and few disputes arose over it. The doctrine of reasonable parts gradually fell into disuse and the testator could will all of his goods; but the feudal lord claimed the best of the chattels of the de- ceased tenant under the name of heriot and the church also took its pick of the goods. If a man failed to make a will his goods were seized by the king's officers to secure these rights, and what re- mained after their tender ministrations of the scanty effects of the medieval peasants, was hard- ly worth fighting over. s Custom of London as defining the common law of reasonable parts and bequests of personal property. Grain v. Grain, 17 Tex. 80-92. § 1) HISTORY AND NATURE OF WILLS 7 Afterward, as a special privilege to the church, the right to administer the effects of intestates — i. e., those who died leaving no will — was granted to the bishop of the diocese. The bishop admin- istered these estates in the ecclesiastical courts. If the deceased left a will, as he might still have done, even by parol, or in the most lax or informal way, this will ousted the bishop of his rights in the es- tate. It was not intestate, and therefore the bish- op lost jurisdiction over it. The executor or those claiming under the will must probate it in the ec- clesiastical court; that is, prove in some ex parte way the existence of the will. Having done so, the bishop and the ecclesiastical court had no fur- ther control over that estate. The change wrought by the introduction of the feudal system had little effect, it will be seen, upon dispositions by will or otherwise of personal prop- erty. The main effect was to hinder and discour- age the accumulation of that species of property and thus render it of little importance in the law. But its effect upon dispositions of landed property was immediate and tremendous. As we learn from Blackstone feuds were originally precarious in their nature, and were held by the tenant purely at the will of the lord. At most they were regard- ed as life estates only, and reverted to the lord as a matter of course at the death of the tenant. It was not until some time after their establishment that they became inheritable; and even then the 8 WILLS AND ADMINISTEATION OF ESTATES (Ch. 1 heir was admitted more as a matter of grace than a matter of right. Very heavy exactions were impos- ed upon him for this privilege of succeeding to his ancestor's estate. The unfortunate heir was obHg- ed to pay the first year's revenue of his estate to the lord as a penalty, under the name of primer seisin. If the heir happened to be a minor, he was under the guardianship of the lord until he became of age, and the guardian appropriated all the rents and profits of his land without rendering any ac- count therefor. On arriving at age the heir was obliged to pay the primer seisin out of his dilap- idated and plundered estate as a finishing touch to this system of blackmail and extortion. If the ten- ant died leaving an infant daughter as his heiress, her situation was worse than that of a minor son. Not only was she deprived of all revenue from her patrimony until twelve months after arriving at majority, but the value of her marriage also be- longed to the lord. He was entitled to dispose of her hand in marriage to the highest and best bidder for cash; and in this case she never got control of her lands at all unless she survived her husband; for by the marriage a life interest in the rents and profits of her land and an absolute interest in all of her personal property went to her husband. We see, therefore, that there was no place in the feudal system for a disposition of landed property by will. Wills of landed property, if they had pre- viously existed, were brought to an end by the in- § 1) HISTORY AND NATURE OF WILLS & troduction of that code of law; except as to a few scattering local customs.* At this period of our legal history the feudal sys- tem, which had begun in all the ardor of military glory, and which in the hands of the great Con- queror, had been a nationalizing power and a splendid scheme of common defense had degener- ated into a mere system of plunder, petty tyranny and extortion. Such was the condition of the law and of society at the time when the doctrine of uses came into vogue. Uses are said to have been invented by the ecclesiastics for the purpose of evading the stat- utes passed to restrain religious bodies from ac- quiring land. Under this plan, real property was conveyed to one person accompanied by secret in- structions as to how that property should be held, used or disposed of for the benefit of another per- son. These secret instructions were supported and enforced by the courts of equity. A use was, therefore, a cunning legal device or invention for separating the right to the beneficial interest and enjoyment of land from the legal title to the land itself. It was a pure fiction of law by which the title to the land was divided into two branches ; one still known as the legal title, and the other known as the use, or equitable title. The legal title was held and conveyed according to the * No power at common law to devise lands. The power was op- posed to feudal policy. U. S. v. Fox, 94 U. S. 315-321, 24 L. Ed. 192. 10 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 rigid rules of the feudal law. It bore all the feudal burdens and was the only title recognized by the courts of common law. It was in truth, however, a dead husk, an empty shell, a mere title in name only, for the only living and valuable attribute of ownership, namely, the beneficial use and enjoy- ment, had been taken away from it and invested in the holder of the use or equitable title. This use or equitable title was recognized and enforced only in courts of equity, but it was the controlling force and the only valuable part of the title. The legal title was like the body chained down to earth, obedient to fixed laws and moving within narrow limitations: the equitable title was like the spirit when it left the body; it took all that was of value with it and soared above the limitations that had formerly held it down. As the equitable title was a mere ideal thing, a product of the ju- dicial imagination, it is apparent that it was very flexible and elastic. It could be put to many uses and dealt with in many ways that were not pos- sible with the legal title. It could emerge from the legal .title at any time at the mere wish of the owner of the legal title. Similarly it could sink back into the legal title when no longer needed. In fact, it could appear and disappear by the magic of a lawyer's quill. It was absolutely unfettered by the natural laws of the science of jurisprudence. It could take any form required, and its duration, character and extent were entirely within the con- § 1) HISTORY AND NATURE OF WILLS 11 trol of its creator. When once this spirit of a title had left its natural body, the legal title, it needed no solid ground to stand on. It did not require actual possession or livery of seizin of the land. No particular estate was needed to support it. A gap or interregnum was not fatal to its life, for the old natural body, the legal title, was always there to catch it if it fell. In short, it could assume any form or fit any purpose that the imagination of a cunning lawyer could devise. As soon as the doctrine of uses was firmly estab- lished it was taken advantage of by all manner of landed proprietors as a means of escaping the in- tolerable hardships of the feudal burdens. Uses grew rapidly into favor. One of the most impor- tant purposes to which they were put was to en- able an owner to devise his land by will. A, being a landowner, would convey his land to B upon such uses as he would appoint by his last will. This was a good use which courts of equity would enforce by requiring the holder of the legal title to convey the land to such persons or in such man- ner as the testator should designate in his will. Thus the door was opened wide to all manner of conveyances and settlements of property which were not only secret, but might be and often were merely oral; thus largely increasing the difficulty of proof and the liability to fraud and perjury. This was only one among the many evils which 12 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 the lack of regulation of this useful form of con- veyance engendered, and which occasioned the passage of the famous Statute of Uses, in the twenty-seventh year of the reign of Henry the Eighth, A. D. 1535.° That statute attempted, and was intended, to abolish uses entirely by providing that the legal estate should merge in the equitable estate. Parliament, instead of making the equitable title — the spirit — go back into the legal title — the body — and stay there, attempted to provide that the legal title — the body — should follow the equitable title — the spirit. This proved to be impossible. Courts construed the statute very strictly. Only a very few uses were abolished by the statute. Most of them survived under the name of trusts. It was at first supposed, however, that the stat- ute had accomplished a sweeping reform and that the legal title would in all cases follow the bene- ficial ownership. This would limit very much the purposes to which these equitable titles could be put. It would destroy the power of appointment by will, for the legal title could not follow the eq- uitable title in such a case. It seemed a great hardship to abolish entirely the power to will lands ; and so within five years after the Statute of Uses another statute, called the Statute of Wills, was enacted; 32 Henry VIII,, 5 Knorr v. Raymond, 73 Ga. 749-765. § 1) HISTORY AND NATURE OF WILLS 13 A. D. 1540; explained by statute 34 Henry VIII. These statutes provided that a man might will all of his lands not held directly of the king, and two- thirds of such lands as he held directly of the king, by his last will in writing. Here is the first direct statutory authority to convey lands by will, and it is distinctly required that the will should be in writing. What form that writing should assume does not appear.* The Statute of Wills, 32 Henry VIII, did not make any change in regard to wills of personal property, which were still governed by the ecclesi- astical and common law.'' The next important legislation on this subject was in 1676 when the Statute of Frauds, 29 Car. II, c. 3, was passed. This statute, except the two sections (the fourth and seventeenth) referring to contracts, is mainly devoted to wills of real and personal property. It provides that a will of real property shall be in writing signed by the testator and witnessed by three or four witnesses. It also restricts the right to make oral wills of personal property. This statute and the English decisions construing it are the basis of the modern English 6 It is well settled that by the common law lands were not devisa- ble except in particular places where custom authorized it. This dis- ability of the common law was partially removed by the statute of 32 Hen. 8, c. 1, which authorized persons having title to land to dis- pose thereof by will. Hardenbergh v. Ray, 151 U. S. 112-119, 14 Sup. Ct. 305, 38 li. Ed. 93. 7 Lewis V. Maris, 1 Call. 278-286, 1 L. Ed. 136. 14 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 and American legislation on the subject of wills and testaments. § 2. Natural distinction between real and person- al property The trend of modern legislation has been to abolish all artificial distinctions between real and personal property and to reduce the rules of wills and the descent of such property to as perfect uni- formity as possible. This legislation has not, how- ever, repealed the laws of nature or abolished the inherent difference between the two classes of property, as some jurists and lawyers have hastily concluded. The difference in their legal status is not wholly the accidental result of the feudal system or of the growth of jurisprudence. Real property is permanent as to place and en- during as to time. It cannot be moved out of its situs and therefore must always be subject to the local law. It cannot be destroyed or consumed, and its quantity or general quality can be but little altered by successive owners. Personal property, on the other hand, is movable from its very nature; it can and usually does fol- low the person of the owner, or may be sent by him to any sovereignty or jurisdiction he may see fit. Its situs therefore is attached by law to the domicile of the owner for the time being, as its destination and use rests largely in his volition. It is usually of a consumable or perishable char- § 3) HISTORY AND NATURE OF WILLS 15 acter or capable of being changed in form or mingled with other property whereby its identity is practically lost. It is clear that real property, having the fixed and enduring character described, is susceptible of many rules governing successive and divided ownership, which could not, except in the most bungling way, apply to personal prop- erty with its movable and perishable nature. § 3. Nature of wills Blackstone, after a careful examination, both historical and philosophical, of the origin and right of property, lays it down that no one has a moral or natural right to be the heir or successor of an- other. No child or relative, however near, has any moral claim upon the property left by the de- ceased; neither has any man any natural or inde- feasible right to say what shall be done with his property after his death. All such rights are con- ferred by the State by general law, and the State in so doing looks not to private rights or interests, but to sound public policy. This must be regarded as a fixed principle of our jurisprudence and a starting point in the investigation of this subject. No right of descent or disposition exists unless it is authorized by existing law. A will is a creature of the statute, the State's privilege to the testator to dispose of what, without the statute of wills and statute of descents, would otherwise belong to the State.' 8 Marshall, J., in Briant v. Garrison, 150 Mo. 670, 52 S. W. 361 ; Gantt, J., in Stowe t. Stowe, 140 Mo. 602, 41 S. W. 951. The right to 16 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 The whole subject may be regulated by the State according to its own view of what is best for its own citizens, and may be changed or remodelled a,s often as it pleases without infringing the pri- vate rights of any one.* take property by will or descent is derived from and regulated by municipal law. Plummer v. Coler, 178 U. S. 115, 20 Sup. Ct. 829, 44 L. Ed. 998; Estate of Walker, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104; Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. R. A. 414 ; Wilmerding's Estate, 117 Cal. 284, 49 Pac. 181 ; Sharp v. Loupe, 120 Cal. 91, 52 Pac. 134 ; Spreckels v. Spreekels, 116 Cal. 344, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170 ; Ben- nalack T. Richards, 116 Cal. 408, 48 Pac. 622 ; Barker v. Bell, 46 Ala. 216; Stone's Appeal, 74 Conn. 301, 50 Atl. 734; Hatheway v. Smith, 79 Conn. 506, 65 Atl. 1058, 9 L. K. A. (N. S.) 310, 9 Ann. Cas. 99; Paul V. Ball, 31 Tex. 10-14. » A will conveys no interest till the death of the testator, and is afCected by change of statute in the meantime. O'Brien v. Ash, 169 Mo. 298, 69 S. W. 8; Hoffman v. Hoffman, 26 Ala. 535; Welsh v. Pounders, 36 Ala. 668; Estate of McCloud, Myr. Prob. (Cal.) 23; Barkers' Estate, Myr. Prob. (Cal.) 78; Jones v. Johnson, 67 Ga. 269; Heidt V. Heidt, 115 Ga. 965, 42 S. E. 263 ; Carroll v. Carroll, 20 Tex. 731-746. The right to dispose of one's property by will is not a vest- ed right, beyond the power of the legislature to withdraw or limit. Ferguson v. Gentry, 206 Mo. 189, 104 S. W. 104. A statute was passed after the death of the testator, validating an unattested will, so as to entitle it to probate. Held, not unconsti- tutional as an exercise of judicial power. Question whether heirs had any vested rights at time of passage of the statute which could not be taken away by legislative act, was not decided, because no heirs appeared. Only interest involved was held to be state's right of escheat which it might waive. In re Estate of Sticknoth, 7 Niev. 223. § 5) HISTORY AND NATURE OF WILLS 17 § 4. Definition of will A "will" is defined to be the legal declaration of a man's intention touching the disposition of his property to take effect after his decease." The words "will" and "testament" are now used interchangeably and there is no distinction in our modern law in the meanings of these two words. Formerly, a testament was one in which an ex- ecutor was appointed. There was also at one time a distinction existing by which a disposition of personal property was called a testament and that of real estate a will, but all of these distinctions have been abolished and the words now mean pre- cisely the same in law.^^ § 5. Codicils A "codicil" is a supplement or addition to a will made by the testator and is annexed to or to be taken as part of the will, by which the original dis- positions contained in the will are explained, add- ed to or altered.^^ For all general purposes a cod- 10 2 Blackstone's Commentaries, p. 499; Rice v. Rice, 68 Ala. 216; Jordan v. Jordan, 65 Ala. 301 ; Daniel v. Hill, 52 Ala. 430 ; Woods' Estate, 36 Cal. 75; Colton v. Colton, 127 U. S. 300-309, 8 Sup. Ct. 1164, 32 L. Ed. 138; Starr v. Starr, 2 Root (Conn.) 303-308; Jacobs V. Button, 79 Conn. 360, 65 Atl. 150 ; Hatheway v. Smith, 79 Conn. 506, 65 Atl. 1058, 9 L. R. A. (N. S.) 310, 9 Ann. Cas. 99 ; Griffin v. Morgan (D. C.) 208 Fed. 660. 11 There is no distinction between "will" and "testament." Comp- ton V. McMahan, 19 Mo. App. 505. 12 2 Blackstone's Commentaries, p. 500; Home for Incurables v. Noble, 172 U. S. 383, 19 Sup. Ct. 226, 43 L. Ed. 486 ; In re Zeile, 74 Cal. 125, 15 Pac. 455. BoKL. Wills — 2 18 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 icil is to be considered included in the term "will," wherever it occurs in the statutes or otherwise; a codicil is simply one kind of will, i. e., a supplemen- tary will, and has the same attributes, and must be executed with the same formalities and is con- strued and carried out in the same manner as any other kind of will/' The distinction between a will and a codicil properly so-called, is this : a will is usually intended to revoke and has the effect of revoking all previous wills ; whereas a codicil ac- knowledges the existence of and leaves in full force the previous will to which it is supplemen- tary, except so far as it undertakes expressly to ■ alter its terms/* A codicil, therefore, usually com- prises a part of a previously executed will; but a will is an independent instrument and if valid re- vokes and takes the place of previous testamentary instruments. A codicil need not be attached to the original will, if it clearly identifies the will to which it relates/" 18 Watson V. Turner, 89 Ala. 220, 8 South. 20. 1* Kelly V. Richardson, 100 Ala. 584, 13 South. 785 ; Grimball v. Patton, 70 Ala. 626; Hemphill v. Moody, 62 Ala. 510; Mason v. Smith, 49 Ala. 71; Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Boyd V. Boyd (C. C.) 2 Fed. 138; Estate of Plumel, 151 Oal. 77, 90 Pac. 192, 121 Am. St. Rep. 100 ; Flinn v. Frank, 8 Del. Ch. 186, 68 Atl. 196; Grigsby v. Willis, 25 Tex. Civ. App. 1, 59 S. W. 574; Simon V. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441. 15 Ferrell v. Gill, 130 Ga. 534, 61 S. E. 131, 14 Ann. Cas. 471. § 6) HISTORY AND NATURE OF WILLS 19 § 6. Right to exclude heirs In most of the civilized nations of the world a restriction has been placed on the power of parents to deprive their children of all share in their es- tates. In ancient Rome, the power of fathers over their estates was unlimited. They had also the absolute power of life and death over their sons. In process of time the children became entitled to a legal portion of the estate of their parents, of which they could not be deprived, and this is the rule, with various modifications, very generally adopted by civilized nations. Such was the an- cient rule of the common law as it stood in the time of Henry the Second. By this a man's goods were to be divided into three equal parts, one for the heirs, another for the wife, and the third was at his own disposal. By imperceptible degrees this law has entirely changed, and the deceased in England and in most of the states under the com- mon law can dispose by will or otherwise of his estate. By the Roman law, as quoted by Blackstone," "testaments were set aside as being inofificiosa, de- ficient in natural duty, if they disinherited or total- ly passed by (without assigning a true and sufli- cient reason) any of the children of the testator." But if the child ha;d any legacy, though ever so 18 2 Blackstone's Commentaries, p. 502. 17 This was the rule of the Spanish law. Meegan v. Boyle, 19 How. 130-149, 15 L. Ed. 577. 20 WILLS AND ADMINISTRATION OF ESTATES (Ch. L small, it was a proof that the testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause; and in such case no querela inofficiosi testamenti was allowed. Hence probably has arisen that groundless vulgar error of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually; whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore though the heir or next of kin be totally omitted, it admits no querela in- officiosi to set aside such a testament." In the English and American law it is well set- tled that, in the absence of some local statute, a testator has the right to dispose of all his property to the exclusion of his heirs." 18 Elliott V. Welby, 13 Mo. App. 19; Benoist v. Murrin, 58 Mo. 326; Guitar v. Gordon, 17 Mo. 411; Block v. Block, 3 Mo. 594; Estate of McGinn, 3 Coffey Prob. Dec. (Cal.) 26 ; Morris v. Watterson, 130 Ga. 442, 60 S. E. 1045 ; In re McMillen, 12 N. M. 31, 71 Pac. 1083 ; Ldn- ney v. Peloquin, 35 Tex. 29. The effect of adopting a child under the statute is to put it in the same attitude towards the adopting parents as if it had been their child, but does not prevent their disposing of their property by will in disregard of the rights of such child as heir. Clark v. West, 96 Tex. 437, 74 S. W. 797; Pemberton y. Perrin, 94 Neb. 718, 144 N. W. 164. § 7) HISTORY AND NATURE OP WILLS 21 § 7. Rights of pretermitted children by statute As the right to make a will and transfer prop- erty by bequest is not a natural right, but a crea- tion of positive law, it may certainly be so regulat- ed as to harmonize with the institutions and policy of the country, and especially so as to require one who can no longer enjoy his property to so dis- pose of his acquisitions as to secure a portion for the comfort of those who by his agency were brought into the world, and for whose support he is bound by the dictates of natural duty and the im- pulses of affection. And as the reasons for restric- tions on testamentary power are expressed with great cogency and brevity in the following extract from Cooper's Justinian (page 486) I shall cite it in its terms, viz. : When we consider the many capricious, not to say senseless and unjust dispositions of property, that take place in coun- tries where an unlimited right of devising is permitted, the neglect of children and relations for the sake of gratifying a selfish vanity or a death bed superstition ; the culpable fond- ness of power that would extend for a century or two, or perpetuate if possible the control of a weak and dying man, over property that he can no longer enjoy, as in the will of Mr. Thellusen; when we consider, further, that those whom we bring into existence have a right to call upon us to make that existence as comfortable as we are able, without unreasonably sacrificing our own comforts — we shall probably incline to think that some restrictions on the right of devising are neither inexpedient nor unjust.^* 19 Grain v. Grain, 17 Tex. 80-89. 22 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 In most if not all of the States of the Union, therefore, there are statutory provisions securing to children or their descendants not mentioned or provided for in the will the rights they would have had in the estate of the ancestor if he had died in- testate. These statutes dififer in wording, but their general purpose is the same — the protection of the child against unintentional omission. They do not go to the extent of the civil or Spanish law, making the child a forced heir who cannot be disinherited without legal reason set forth in the will." The statutes still leave the an- cestor free to disinherit the child in accordance with the English policy provided it is deliberately and intentionally done." 20 This was the early law of Texas. Statute of 1840 as to forced heirs repealed in 1856. A will made previous to the act of 1856 is governed by that statute if the testator died after its passage. Forc- ed heirs as they existed formerly had no rights in the property of the ancestor which might not be defeated by a change of the law. Hamilton v. Flinn, 21 Tex. 713. 21 Peters'v. Siders, 126 Mass. 135, 30 Am. Rep. 671; Terry v. Fos- ter, 1 Mass. 146, 2 Am. Dec. 6; Wild v. Brewer, 2 Mass. 570; Church V. Crocker, 3 Mass. 17 ; Wilder v. Goss, 14 Mass. 359 ; Wilson v. Fosket, 6 Mete. (Mass.) 400, 39 Am. Dec. 736; Merrill v. Sanborn, 2 N. H. 499; C, B. & Q. Ey. v. Wasserman (C. C. Neb.) 22 Fed. 872; Bresee v. Stiles, 22 Wis. 120; Walker v. Hall, 34 Pa. 483; Waterman T. Hawkins, 63 Me. 156 ; Bloom v. Straus, 70 Ark. 483, 69 S. W. 548, 72 S. W. 563 ; In re McMillen, 12 N. M. 31, 71 Pac. 1083 ; Morris v. Morris Ex'r, 4 Houst. (Del.) 414-428 ; Loring v. Marsh, 6 Wall. 337, 18 L. Ed. 802 ; Brown v. Brown, 71 Neb. 200, 98 N. W. 718, 115 Am. St. Rep. 568, 8 Ann. Cas. 632 ; Hargadlne v. Pulte, 27 Mo. 423; Brad- ley V. Bradley, 24 Mo. 311 ; Smith v. Sweringen, 26 Mo. 551 ; Block V. Block, 3 Mo. 594 ; In re Brown's Estate, 22 Okl. 216, 97 Pac. 613 ; § 7) HISTORY AND NATURE OF WILLS 23 Where a child appears to have been omitted, the statutes generally raise a presumption that the omission was unintentional/^ although some put the burden of proof on the omitted child. ^^ When the burden of proof is on the omitted child to show that the omission was by mistake or inadvertence, parol evidence is admitted for that purpose/* But where the statute itself raises the presumption in favor of the omitted child, parol evidence' is some- times admitted to rebut this presumption,''^ but Arnold v. Arnold, 62 Ga. 627 ; Branton v. Branton, 23 Ark. 569 ; Mor- gan V. Davenport, 60 Tex. 230; Evans v. Anderson, 15 Ohio St. 324 ; Lowrey v. Harlow, 22 Colo. App. 73, 123 Pac. 143. The law having provided that minor children have rights in the homestead of their father, such rights cannot be destroyed by the will of the father providing otherwise. Hall v. Fields, 81 Tex. 553, 17 S. W. 82. Statute of omitted children applies to foreign will which seeks to transmit lands in this State. Orossett Lbr. Co. v. Files, 104 Ark. 600, 149 S. W. 908. FaUure to name or provide for nephews or nieces raises no presumption that they were forgotten. Keegan's Estate, 139 Cal. 123, 72 Pac. 828. 22 In re Atwood's Estate, 14 Utah, 1, 45 Pac. 1036, 60 Am. St. Rep. 878; Coulam v. DouU, 4 Utah, 267, 9 Pac. 568; s. c, 133 U. S. 216, 10 Sup. Ct. 253, 33 L. Ed. 596. The object of the statute in regard to pretermitted heirs is not to compel the testator to make provision for any child, but solely to protect the children against forgetful- ness, omission or oversight, and the failure to allude to them in the will is made evidence that they were omitted through forgetfulness of their existence. Estate of Callaghan, 119 Cal. 571, 51 Pac. 860, 39 L. R. A. 689. 23 Brown v. Brown, 71 Neb. 200, 98 N. W. 718, 115 Am. St. Rep. 568, 8 Ann. Cas. 632. 24 Brown v. Brown, 71 Neb. 200, 98 N. W. 718, 115 Am. St. Rep. 568, 8 Ann. Cas. 632. 2 5 In re Atwood's Estate, 14 Utah, 1, 45 Pac. 1036, 60 Am. St. Rep. 878 ; Coulam v. DouU, 4 Utah, 267, 9 Pac. 568 ; s. c, 133 U. S. 216, 10 Sup. Ct. 253, 33 L. Ed. 596. 24 WILLS AND ADMINISTEATION OF ESTATES (Ch. 1 more often not. The general rule is that whether the child is mentioned or provided for must ap- pear from a fair construction of the will, unaided by extrinsic testimony.'' This has given rise to many cases on the question whether the will shows by a fair construction that the particular child was not overlooked or forgotten by the testator, but was either intentionally excluded or intended to be included in some general provision.^^ 26 Thomas v. Black, 113 Mo. 66, 20 S. W. 657 ; Bradley v. Braaiey, 24 Mo. 311; Wetherall v. Harris, 51 Mo. 65; Pounds v. Dale, 48 Mo. 270; Ehoton v. Blevin, 99 Cal. 645, 34 Pac. 513; Garrauds' Estate, 35 Cal. 336 ; Utz's Estate, 43 Cal. 200 ; Painter v. Painter, 113 Cal. 371, 45 Pac. 689. Except to correct a misnomer. Gordon v. Burris, 141 Mo. 602, 43 S. W. 642. 27 Naming of a son-in-law, sufficient to exclude his wife. HoeUen- smith V. Slusher, 26 Mo. 237. Bequest by name to son-in-law is not a naming of his children, the grandchildren of testator by a deceas- ed daughter. Meyers v. Watson, 234 Mo. 286, 136 S. W. 236. Pro- riding for testator's children as a class is sufficient naming. Brown V. Nelms, 86 Ark. 368, 112 S. W. 373 ; McCourtney v. Mathes, 47 Mo. 533 ; Beck v. Mietz, 25 Mo. 70. Contra : Arnold v. Arnold, 62 Ga. 627. Mention in codicil sufficient. Payne v. Payne, 18 Cal. 291. Mention of children in committing them to discretion of mother is sufficient to avoid statute providing that omitted child shall take a child's part Unless it shall appear that the omission was intentional. Hunt V. Hunt, 11 Nev. 442. Mentioning a child who was dead at the making of the will is not sufficient mention of his living children. Gray v. Parks, 94 Ark. 39, 125 S. W. 1023 ; Estate of Ross, 140 Cal. 282, 73 Pac. 976. Contra: Guitar v. Gordon, 17 Mo. 408; Fugate V. Allen, 119 Mo. App. 183, 95 S. W. 980. Devise to grandson does not show intentional omission of living children as matter of legal construction. Bush v. Lindsey, 44 Cal. 121. Contra : Woods v. Drake, 135 Mo. 393, 37 S. W. 109. Naming of testator's grandchild is sufficient naming of her child. King v. Pyrre. 92 Ark. 88, 122 S. W. 96. Grandchildren not embraced in term "children" so as to be expressly excluded by terms of will. § 7) HISTORY AND NATURE OF WILLS 25 As to the remedy of a pretermitted heir to re- cover his share of his ancestor's estate there has been some diversity of opinion. The will is not for that reason void;" it is entitled to probate, the title of the devisees under it is good against stran- gers, and the title remains in the devisees until the pretermitted heir asserts his rights/' A suit to set aside the will, therefore, is not proper/" In a few cases the heir has been permitted to maintain an action for the property, such as ejectment and partition; ^^ but, inasmuch as the statute requires that the pretermitted heir be charged with ad- vancements and provides that the devisees shall re- fund only their proportional part of the estate re- ceived, a bill for contribution in equity would seem to be the better remedy/^ The interest of a pre- Utz Estate, 43 Cal. 200. Sufficient mention. Khoton v. Blevin, m Cal. 645, 24 Pac. 513 ; Estate of Callaghan, 119 Cal. 571, 51 Pac. 860, 39 L. R. A. 689. Child "mentioned" within meaning of statute avoid- ing will in favor of afterborn child not provided for or mentioned. Authorities in U. S. reviewed. Pearce v. Pearce, 104 Tex. 73, 134 S. W. 210. 28 Trotter v. Trotter, 31 Ark. 145 ; Orr v. O'Brien, 55 Tex. 149. Except in the case where all the heirs are omitted and the entire estate is devised to a stranger in blood. Burch v. Brown, 46 Mo. 441. 29Chouguette v. Barada, 23 Mo. 331; Id., 28 Mo. 491. 30 Schneider v. Koester, 54 Mo. 500. 31 McCracken v. McCracken, 67 Mo. 590; Thomas v. Black, 113 Mo. 66-69, 20 S. W. 657; Breidenstein v. Bertram, 198 Mo. 328, 95 S. W. 828 ; Vantine v. Butler, 250 Mo. 445, 157 S. W. 588 ; Rowe v. Allison, 87 Ark. 207, 112 S. W. 395. 32 Levins v. Stevens, 7 Mo. 90; Hill v. Martin, 28 Mo. 78; Beyer v. Dively, 58 Mo. 510; Branton v. Branton, 23 Ark. 569; Evans v. Opperman, 76 Tex. 293, 13 S. W. 312; Morris v. Morris Ex'r, 4 Houst. 26 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 termitted heir is a vested interest with the usual incidents, and will pass to his heirs and representa- tives in case of his death." The will, though a nullity as to him, is yet color of title in the devisee which will ripen by adverse possession." § 8. Agreements to make disposition by will A contract to make a particular will, or to make a particular disposition of property by will is vaHd and binding, if founded upon a sufficient consid- eration.'^ Partial performance of a verbal con- tract of this kind will take it out of the operation of the Statute of Frauds when a refusal to complete the contract would work a fraud ,on the other party.'" (Del.) 414-431 ; Warren v. Morris, 4 Del. Ch. 289 ; Trotter v. Trot- ter, 31 Ark. 145 ; In re Brown's Estate, 22 Okl. 216, 9T Pac. 613 ; Ross' Estate, 140 Cal. 282, 73 Pac. 976. Parties cannot litigate their rights as forced heirs in an action of trespass to try title to land. A direct action is necessary on the part of those elaiiQing rights as forced heirs. Acklin v. Paschal, 48 Tex. 147. Pretermitted heir who sues for his share may be charged with advancements he receiv- ed in testator's lifetime. Parker v. Parker, 10 Tex. 83-89. Contract for contingent fee for recovery of estate of pretermitted minor heir Is subject to supervision by court. Everson v. Hum, 89 Neb. 716, 131 N. W. 1130. 33 Schneider v. Koester, 54 Mo. 500; State ex rel. v. Pohl, 30 Mo. App. 321. 3i Charle v. Safeold, 13 Tex. 94 ; Portis v. Cummlngs, 14 Tex. 171. SB Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton V. Hayden, 62 Mo. 112 ; Napier v. Trimmier, 56 Ga. 300 ; Banks V. Howard, 117 Ga. 94, 43 S. E. 438; Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802 ; Cobb v. Macfarland, 87 Neb. 408, 127 N. W. 377 ; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486. S6 Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. St. Rep. § 8) HISTORY AND NATURE OF WILLS 27 The case out of which such a contract usually arises is where parents agree to will certain land to particular children in consideration of care and support, or a child has been adopted under an agreement that in consideration of affection and dutiful obedience on the part of the child, a partic- ular provision shall be made in his favor. Sometimes the contract grows out of business transactions between partners, relatives or oth- ers." These contracts will support an action at law against the estate of the deceased contractor,^^ 270, reversing s. c, 16 Mo. App. SO ; Fuchs v. Fuchs, 48 Mo. App. 18 : Gupton V. Gupton, 47 Mo. 37; Ackerson v. Fly, 99 Mo. App. 116; Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279; Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222, 29 Am. St. Rep. 517 ; Winne v. Winne, 166 N. Y. 263, 59 N. B. 832, 82 Am. St. Rep. 647; Svanburg y. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. Ed. 427, 74 Am. St. Rep. 490; Car- michael v.Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528 ; Best v. Gralapp, 69 Neb. 811, 96 N. W. 641, 99 N. W. 837, 5 Ann. Cas. 491. A will, lease and deed made at the same time may be construed together. Jack v. Hooker, 71 Kan. 652, 81 Pac. 203. Agreement to will lands taken out of statute of frauds by performance. Where father for valuable consideration agreed to will land to his daughter and did execute the will and afterward destroyed it, the contract will be enforced against his heirs. Execution of will in pursuance of the contract takes it out of Statute of Fraud. Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117, Ann. Cas. 1914A, 394 ; Dalby v. Masfield, 244 111. 214, 91 N. E. 420, 135 Am. St. Rep. 312 ; Johnson v. Hub- bell, 10 N. J. Eq. 332, 66 "Am. Dec. 773. 37 McKinnon v. McKiimon, 56 Fed. 409, 5 C. C. A. 530, reversing s. c, 46 Fed. 713 : Crofut v. Layton, 68 Conn. 91, 35 Atl. 765. 38 Hudson V. Hudson, 87 Ga. 678, 13 S. E. 583, 27 Am. St. Rep. 270; Hull V. Thoms, 82 Conn. 647, 74 Atl. 925; Banks v. Howard, 117 Ga. 94, 43 S. E. 438 ; Heery v. Reed, 80 Kan. 380, 102 Pac. 846. But not during lifetime of proposed testator. Warden v. Hinds, 163 28 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 or may be enforced specifically in equity," or by fastening a trust upon the property in the hands of the heirs or devisees." For equity to enforce Fed. 201, 90 C. C. A. 449, 25 L. R. A. (N. S.) 529. Declarations of testator are not admissible. Gunter v. Gunter, 174 Fed. 933, 98 C. C. A. 545. 39 Hood V. McGehee, 189 Fed. 205, 117 C. C. A. 664 ; Jones v. Per- kins (C. C.) 76 Fed. 82 ; Berg v. Bloreau, 199 Mo. 421, 97 S. W. 901, 9 L. R. A. (N. S.) 157 ; Wright v. Tinsley, 30 Mo. 389 ; Newton v. Lyon, 62 Kan. 306, 62 Pac. 1000 ; Id., 62 Kan. 651, 64 Pac. 592 ; Whit- ney V. Hay, 15 App. D. C. 164; Coveney v. Oonlin, 20 App. D. C. 303; McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396 ; Forrister v. Sullivan, 231 Mo. 345, 132 S. W. 722 ; Purcell v. Corder, 33 Okl. 68, 124 Pac. 457 ; Peterson V. Bauer, 76 Neb. 652, 107 N. W. 993, 111 N. W. 361, 124 Am. St. Rep. 812; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Bless V. Blizzard, 86 Kan. 230, 120 Pac. 230; Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, 9 L. R. A. (N. S.) 229; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685 ; Schoon- over V. Schoonover, 86 Kan. 487, 121 Pac. 485, 38 L. R. A. (N. S.) 1752 ; Best v. Grillapp, 69 Neb. 811, 96 N. W. 641, 99 N. W. 837, 5 Ann. Gas. 491 ; Howe v. Watson, 179 Mass. 30, 60 N. E. 415 ; Bird v. Jacobus, 113 Iowa, 194, 84 N. W. 1062; Whiton v. Whiton, 179 111. 32, 53 N. E. 722; Merrill v. Thompson, 252 Mo. 714, 161 S. W. 674. io Dean v. Oliver, 131 Ala. 637, 30 South. 865 ; Allen v. Bromberg, 147 Ala. 317, 41 South. 771 ; Nible v. Metcalf , 157 Ala. 295, 47 South. 1007 ; Russ v. Mebius, 16 Gal. 350; Owens v. McNally, 113 Gal. 444, 45 Pac. 710, 33 L. R. A. 369 ; McCabe v. Healy, 138 Cal. 81, 70 Pac. 1008 ; Belt v. Lazenby, 126 Ga. 767, 56 S. B. 81 ; Price v. Price, 111 Ky. 771, 64 S. W. 746, 66 S. W. 529 ; Duvale v. Duvale, 54 N. J. Eq. 581, 35 Atl. 750; s. c, 56 N. J. Eq. 375, 39 Atl. 687, 40 Atl. 440; Bruce v. Moon, 57 S. C. 60, 35 S. E. 415; Fogle v. St. Michael Church, 48 S. C. 86, 26 S. E. 99 ; Smith v. Pierce, 65 Vt. 200, 25 Atl. 1092 ; Burdine v. Burdine, 98 Va. 515, 36 S. E. 992, 81 Am. St. Rep. 741 ; Best v. Gralapp, 69 Neb. 811, 96 N. W. 641, 99 N. W. 837, 5 Ann. Gas. 491 ; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486 ; Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802; Brown v. Webster, 87 Neb. 788-791, 128 N. W. 635 ; Keefe v. Keefe, 19 Cal. App. 310, 125 Pac. 929. § 8) HISTORY AND NATURE OF WILLS 29 Specifically an oral contract under such circum- stances the proof of the contract must be very- clear and cogent," especially if the deceased left a valid will making a different disposition of the property." The Courts have lately shown a tend- ency, while not departing from the rule, to hold the plaintiff to the strictest proof of the exact terms of the agreement A binding promise to dispose of property m a certain way cannot be affected by a subsequent will, although the will itself is valid and entitled to probate." Where there is an attempt made in the will to fulfill the obligation and the person en- titled accepts the provisions of the will, the con- tract is discharged.** It seems that the promisee 41 Asbury v. Hicklin, 181 Mo. 658, 81 S. W. 390; Grantham v. Gos- sett, 182 Mo. 651, 81 S. W. 895 ; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S. W. 200; Russell v. Jones, 135 Fed. 929, 68 C. 0. A. 487; Russell V. Agar, 121 Cal. 396, 53 Pac. 926, 66 Am. St. Rep. 35 ; Schaadt V. Mut. Life Ins. Co., 2 Cal. App. 715, 84 Pac. 249 ; Ockstadt v. Bowles, 34 App. D. C. 58 ; Peterson v. Bauer, 76 Neb. 652, 107 N. W. 993, 111 N. W. 361; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Baumann v. Kusian, 164 Cal. 582, 129 Pac. 986, 44 L. R. A. (N. S.) 756. Proof insufficient to establish contract. Studer v. Seyer, 69 Ga. 125 ; Cooper v. Claxton, 122 Ga. 596, 50 S. E. 399 ; Bunting v. Dob- son, 125 Ga. 447, 54 S. B. 102; Wilmer v. Borer, 4 Kan. App. 109, 46 Pac. 181 ; Brand v. Ray, 156 Mo. App. 622, 137 S. W. 623 ; Labs V. Labs, 92 Neb. 378, 138 N. W. 561 ; West v. Clark, 28 Tex. Civ. App. 1, 66 S. W. 215 ; Pugh v. Bell, 21 Cal. App. 530, 132 Pac. 286. 42 Kinney v. Murray, 170 Mo. 674, 71 S. W. 197 ; McKee v. Higbee, 180 Mo. 263, 79 S. W. 407. 43 Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107 ; Brown v. Webster, 87 Neb. 788-791, 128 N. W. 635. 4 4 Miller's Adm'r v. Miller, 5 Har. (Del.) 333; Lee's Appeal, 53 Conn. 863, 2 Atl. 758. See a curious and unsuccessful attempt to 30 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 in such a contract, who has performed his part of the agreement, has remedies even dm-ing the Hfe- time of the promisor, to restrain alienation or charge the property with a trust where the prom- isor conveys or attempts to convey it away in fraud of the agreement. *° § 9. Joint and mutual wills A joint will is a single instrument executed by two or more testators, and is usually made for the purpose of disposing of some joint property." It is ordinarily considered to be revocable as the sep- arate will of either." Mutual wills are those made by two or more testators each executing his sep- arate will in favor of the other or others." If this is done by virtue of a valid agreement, it is evident settle a tort by agreement for a legacy and the dishonest result which legal chicanery accomplished. Drinkhouse v. Merritt, 134 Cal. 580, 66 Pac. 785; Sutro's Estate, 139 Cal. 87, 72 Pae. 827. 45 Teske v. Dittberner, 65 Neb. 167, 91 N. W. 181, 101 Am. St. Rep. 614; Gregor v. Kemp, 3 Swans. 404; Jones v. Martin, 5 Ves. 266 Fortescue v. Humal, 19 Ves. 67 ; Grain v. Grain, 17 Tex. 80-98. 46 Romjue v. Randolph, 166 Mo. App. 87, 148 S. W. 185 ; March v Huyter, 50 Tex. 243 ; Estate of Anderson, 14 Ariz. 502, 131 Pac. 975. 47 Gawley's Estate, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93 ; Allen V. Allen, 28 Kan. 18 ; Paton v. Robinson, 81 Gonn. 547, 71 Atl. 730 Lewis V. Scofleld, 26 Conn. 455, 68 Am. Dec. 404 ; Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751 ; Hill v. Harding, 92 Ky. 76, 17 S. W. 199, 437 ; In re Davis' Will, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771; Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135. 48 Estate of Cross, 163 Gal. 778, 127 Pac. 70; Carle v. Miles, 89 Kan. 540, 132 Pac. 146 ; Frazier v. Patterson, 243 111. 80, 90 N. E. 216, 27 L. R. A. (N. S.) 508, 17 Ann. Cas. 1003; Ex parte Day, 1 Bradf. Sur. (N. T.) 476 ; In re Will of Diez, 50 N. Y. 88. § 9) HISTOUY AND NATUEE OF WILLS 31 that a careful practitioner should preserve some extrinsic evidence of the agreement. It has been held by some courts that mutual wills do not in themselves raise a contractual re- lation and the validity of each is to be judged sep- arately." But by other courts it has been held that a joint and mutual will may, of itself, be evidence of an agreement which, after it has been performed by the death of one of the parties, may become a fixed obHgation upon the property of the other."* The better opinion seems to be that even though the will be made in pursuance of a contract, it is nevertheless revocable, leaving the party for whose benefit the contract was made to his remedy in equity or otherwise on the contract." These cases are rather difficult to deal with on account of the principle that wills are ambulatory, i. e., rev- *» Mullen 7. Johnson, 157 Ala. 262, 47 South. 584; Coveney v. Conlln, 20 App. D. C. 303-329 ; Edson v. parsons, 85 Hun, 263-265, 32 N. Y. Supp. 1036 ; s. c, 155 N. Y. 555-565, 50 N. E. 265. 50 Bower v. Daniel, 198 Mo. 320, 95 S. W. 347; Wyche v. Clapp, 43 Tex. 543. 61 Matter of Gloucester (Sur.) 11 N. Y. Supp. 899; Eastetter v. Hoenninger, 151 App. Div. 853, 136 N. Y. Supp. 961 ; s. c, 157 App. Div. 553, 142 N. Y. Supp. 962 ; Frazier v. Patterson, 243 111. 80, 90 N. E. 216, 27 L. R. A. (N. S.) 508, 17 Ann. Cas. 1003; Ross v. Wool- lard, 75 Kan. 383-386, 89 Pac. 680. Mutual or reciprocal wills based on a contract, the consideration for which is the mutual promise — such contract is performed by the survivor by allowing her will to remain unchanged during lifetime of the other. Where either party to such contract commits a breach of the. same by subsequently executing another will, devising and be- queathing his estate contrary to the terms of the contract and dies, the survivor upon proof of a continued performance thereof in good faith is entitled to a specific performance of the contract as against 32 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 ocable at any time during the life of the maker. Ordinarily they are probated as the separate will of the one that dies first," but it has been held that if the will so provide and the disposition made of the property requires it probate may be delayed until the death of both or all of the testators." 53 § 10. Gifts causa mortis Another form of testamentary disposition of property which is closely akin to wills, and which yet is of a distinct class, is gifts causa mortis. Such gifts occupy a middle ground between wills and transactions inter vivos, partaking partly of the nature of each. A gift causa mortis is a gift of per- sonal property made by the donor in contempla- tion of and immediately prior to his death, and consummated by delivery to the donee, subject only to the condition that if the donor does not die the heirs, devisees, legatees and executors of the decedent. State- ment that such wills made in pursuance of contract are not ambula- tory is dicta. Brown v. Webster, 90 Neb. 591, 134 N. W. 185, 37 L. R. A. (N. S.) 1196. 52 Wyche v. Clapp, 43 Tex. 543 ; In re Estate of Hansen, 87 Neb. 567, 127 N. W. 879. There can be no such thing as a joint will to take effect upon the death of the survivor. A will must take effect at the death of the testator and not at some time in the future. Hershy v. Clark, 35 Ark. 17, 37 Am. Eep. 1. A joint will disposing of property owned in common, out of which debts and legacies exceeding the single share of either testator are to be paid, and postponing probate until the death of the surviving testator, presents a scheme which is legally impossible to carry out on the death of one only of the joint testators, and hence such tes- tator must be held to have died intestate. State Bank v. Bliss, 67 Conn. 317, 35 AU. 255. 63 Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Eep. 135. § 10) HISTORY AND NATURE OF WILLS 33 the title shall revert to him." The delivery may be made either to the donee or to some one in trust for him,°° but it must be such a delivery as would be sufficient to vest the title in the donee." De- livery to the donor's own agent is not sufficient," nor is mere intent to deliver, such as verbal direc- tions to the bailee of the property to dispose of it 5*2 Blackstone's Commentaries, p. 514 ; 2 Kent's Commentaries, p. 444 ; Keyl v. Westerhaus, 42 Mo. App. 49 ; Newton v. Snyder, 44 Ark. 42, 51 Am. Rep. 587 ; Ammon v. Martin, 59 Ark. 191, 26 S. W. 826 ; Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030. Gift held not conditioned on death and therefor not a gift causa mortis. Robertson v. Robertson, 147 Ala. 311, 40 South. 104, 3 L. R. A. (N. S.) 774, 10 Ann. Oas. 1051. 5 5 Nelson v. Sudiek, 40 Mo. App. 341; Trorlicht v. Weizenecker, 1 Mo. App. 482; Shackleford v. Brown, 89 Mo. 546, 1 S. W. 390; Kilby V. Godwin, 2 Del. Ch. 61 ; Robson v. Robson's Adm'r, 3 Del. Ch. 51. 56 Hamilton v. Clark, 25 Mo. App. 428 ; Dunn v. German American Bank, 109 Mo. 90, 18 S. W. 1139 ; Bromberg v. Bates, 112 Ala. 363, 20 South. 786 ; McHugh v. O'Conner, 91 Ala. 243, 9 South. 165 , Knight V. Tripp, 121 Cal. 674, 54 Pac. 267. Gift of passbook or evidence of chose in action is not usually suffi- cient. Jones V. Weakley, 99 Ala. 441, 12 South. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84; Noble v. Garden, 146 Cal. 225, 79 Pac. 883, 2 Ann. Cas. 1001 ; Basket v. Hassell, 108 U. S. 267, 2 Sup. Ct. 634, 27 L. Ed. 719. But a valid gift of bank stock may be made if transfer- red to name of donee. Hatche v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507; Jones v. Deyer, 16 Ala. 221. Deeds and bills of sale executed by one to his heirs in anticipation of death and delivered to one of the grantees to be placed in the chest of the grantor, to be delivered at grantor's death, but subject to his dominion as long as he lives are ineffectual as gifts causa mortis. Ashley v. Ashley, 93 Ark. 324, 124 S. W. 778. 57 Bieber v. Boeckmann, 70 Mo. App. 503 ; Walter v. Ford, 74 Mo. 195, 41 Am. Rep. 312 ; Tomlinson v. Ellison, 104 Mo. 105, 16 S. W. 201. BoEL. Wills — 3 34 WILLS AND ADMINISTRATION OF ESTATES (Ch. 1 in a particular way/* Oral instructions to the donor's own agent cannot constitute a, gift causa mortis for death terminates the agency." Delivery during the lifetime of the donor is, in fact, the vi- tal point in this class of cases; for it is that which distinguishes a gift causa mortis from a nuncupa- tive or oral will."" A gift causa mortis differs from a will in that it need not be probated, the title of the donee becom- ing absolute upon the death of the donor, It is like a will, however, in that it is revocable during the life of the donor," and being a testamentary dis- position of property, it is subject to the donor's debts,''^ and cannot be made for the purpose of de- priving the widow of her rights in the personal es- tate."' § 11. Civil or Spanish law of wills At one time the civil law of Rome as embodied in the law of Spain prevailed over all of the terri- 58 McCord V. McCord, 77 Mo. 166, 46 Am. Rep. 9. B 8 Knight V. Tripp, 121 Cal. 674, 54 Pac. 267; Sparks v. De La Guerra, 14 Cal. 108. «oTygard v. McComb, 54 Mo. App. 85; Smith v. Wiggins, 3 Stew. (Ala.) 221; Knight v. Tripp, 121 Cal. 674, 54 Pac. 267; Ragan v. Hill, 72 Ark. 307, 80 S. W. 150. 61 But it is held that the making of a will by which the testatrix bequeathed all of her property to plaintiff was not a revocation of a gift causa mortis, as such revocation could only be made during the life of the donor, while the will did not take effect until after the death of the testatrix. Hoehn v. Struttmann, 71 Mo, App. 399. 62 Gaunt V. Tucker's Ex'r, 18 Ala. 27. 63 Dunn V. German-American Bank, 109 Mo. 90, 18 S. W. 1139. § 11) HISTORY AND NATURE OF WILLS 35 tory embraced in the States of the Union west of the Mississippi River. This body of law was sup- planted by the common law of England, by ex- press statutory enactment by each state as it came into Territorial existence or into Statehood. The Spanish law as such has given way entirely to the English, as the Transmississippi region was set- tled by Americans from the older States east of the Mississippi." Only in the earlier history of the western States are there any outcroppings of the Spanish law. It will be of interest and possibly of value to refer to these cases : A comparison of the civil and feudal law on the subject of wills by Judge Leonard of Missouri;*" Roman law of wills;*® Mexican and Spanish law of wills discuss- ed;'"' Spanish law of execution and probate;'' Spanish law of forced and instituted heirs ; °° Span- ish words "Sucesion legitima" mean "issue" and not "lawful heirs." " «* Louisiana retains a large measure of the French law. 6 6 Liggat V. Hart, 23 Mo. 133. 66 Lewis V. Maris, 1 Ball. 278-286, 1 L. Ed. 136 ; Adams v. Norris, 23 How. 353, 16 L. Ed. 539. 6 7 Panaud v. Jones, 1 Cal. 488; Scott v. Ward, 13 Cal. 458 ; Cas- tro V. Castro, 6 Cal. 158 ; Tevis v. Pitcher, 10 Cal. 465. 6 8 Clark V. Hammerle, 27 Mo. 55; Bent v. Thompson, 5 N. M. 408- 418, 23 Pac. 234; Ortiz v. De Benavides, 61 Tex. 60. 6 9 Parker v. Parker, 10 Tex. 83-90 ; Hagerty v. Hagerty's Ex'r, 12 Tex. 456 ; Charle v. Saffold, 13 Tex. 94-105 ; Portis v. Cummings, 14 Tex. 171; Grain v. Crain, 17 Tex. 80-90; Meegan v. Boyle, 19 How. 130-149, 15 L. Ed. 577. JoKodriguez v. Vivoni, 201 U. S. 371, 26 Sup. Ct 475, 50 L. Ed. 792. 36 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 CHAPTER II EXECUTION OF WILLS § 12. Purpose of requiring formalities of execution. 13. By what law governed. 14. Formalities of execution. 15. Form of instrument. 16. Incorporating other papers. 17. Signing. 18. Name signed by another. 19. Publication. 20. Attestation. 21. Parties in interest as attesting witnesses. 22. Competency of attesting witnesses in general. 23. Alteration, corrections and additions. 24. Holographic wills. 25. Nuncupative wills. § 12. Purpose of requiring formalities of execu- tion It is the policy of the modern English and Amer- ican law to give to every one of sufficient mental capacity and freedom of choice, the unlimited pow- er to dispose of all his property by will as well as by any other form of alienation.^ The formalities imposed by statutes upon the execution and attes- tation of wills are solely with a view to secure and 1 "It has been the policy of the laws of this State, as well as of the common law wherever it prevails, to permit, to the fullest extent con- sistent with the public welfare, the testamentary disposition of prop- erty." Bensberg v. Washington University, 251 Mo. 641-654, 158 S. W. 330. § 12) EXECUTION OF WILLS 3T preserve this right, and not to defeat it. The law- seeks to render it as certain as possible that the ■alleged will is really the will of the testator and not a forged, feigned or fraudulent one. The stat- utes of all of the states therefore prescribe certain solemnities in the execution of a will to insure its genuineness, and these solemnities must be abso- lutely observed, otherwise the will is inoperative.^ A will cannot take effect until the testator is dead when it is too late to correct mistakes, or to ascer- tain his real intentions if he has not put them into the form required by law to constitute a valid will. The law considers that if the execution is irregular or informal, it is better to reject the will and admit the claim of the heir than to assume the risk of es- tablishing what may not have been the will of the testator.* 2 In re McCabe, 68 Cal. 520, 9 Pac. 554 ; Johnson's Estate, 57 Cal. 532 ; Walker's Estate, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104; Seaman's Estate, 146 Cal. 455, 80 Pac. 700, 106 Am. St. Rep. 53, 2 Ann. Cas. 726 ; Estate of Meade, 118 Cal. 428, 50 Pac. 541, 62 Am. St. Rep. 244 ; Russell v. Switzer, 63 Ga. 711 ; Hei- denheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St Rep. 29; In re McMillen, 12 N. M. 31, 71 Pac. 1083 ; Estate of Price, 14 Cal. App. 462, 112 Pac. 482. 3 The legislature has absolute power to prescribe formalities for the execution of a will, a compliance with which is necessary to the exercise of the right. The rule that the intention of the testator must govern, which is applied to the interpretation of wills, does not apply to their execution. Estate of Walker, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104. The fact that testator was mentally sound and capable does not dispense with necessary formalities of execution, and is not mate- rial on that issue. Estate of Price, 14 Cal. App. 462, 112 Pac. 482. 38 WILLS AND ADMINISTRATION OP ESTATES (Ch. 2 The policy of the Statute of Wills like the Statute of Frauds is that it is better that occasional injustice should be done, iri exceptional cases through a failure of legal proof, than that transactions within the statutes should in all cases be left to the uncertainties of parol evidence.* The formalities required, being entirely the crea- ture of statute law, differ in different states/ Most of the American statutes follow in a general way the provisions of the statute 29 Car. II, c. 3. In some of the states this statute has been held to be part of the common law; in others, as in Mis- souri, it has been substantially re-enacted. In Engl9,nd, the whole subject is regulated by a late statute, 1 Vict., c. 26. This latter statute has also been liberally copied by American legislatures. 4 Clark V. Turner, 50 Neb. 290-301, 69 N. W. 843, 38 L. R. A. 433. 5 In the absence of statute it is not necessary that a will of per- sonal property should be in the handwriting of the testator, or sign- ed by him, or have any subscribing witnesses, provided It was drawn at his request, and according to his dictation, he being of sound and disposing mind. Darrell v. Brooke, 2 Hayw. & H. 329-331, Fed. Cas. No. 18,287. § 13) EXECUTION OF WILLS 39 § 13. By what law governed We have laid down the cardinal principle that a will of real estate must be executed in accordance with the law of the place where the land lies/ The several states of the Union possess power to regu- late the tenure of real property within their re- spective limits, the modes of its acquisition and transfer, the rules of its descent, and the extent to which a testamentary disposition of it may be ex- ercised by its owners.'' It does not comport with the dignity or security of an independent state that lands within its borders should, be affected by for- eign law/ It is competent, however, for a state to provide by statute what effect, if any, it will give to wills of land executed according to the laws of another state or country. Only a very few states permit lands to pass by a will executed according to a law differing from their own." Such a statutory rule is regarded as 6 Higgins V. Eaton (C. C.) 188 Fed. 938 ; Varner v. Bevil, 17 Ala. 286 ; Pope v. Pickett, 51 Ala. 584 ; Pennel's Lessee v. Weyant, 2 Har. (Del.) 501 ; Key v. Harlan, 52 Ga. 476 ; Kerr v. White, 52 Ga. 362 ; Castens v. Murray, 122 Ga. 396, 50 S. E. 131, 2 Ann. Gas. 590; Crol- ly V. Clark, 20 Fla. 849 ; Frazier v. Boggs, 37 Fla. 307, 20 South. 245 ; Ware v. Wisner (C. C.) 50 Fed. 310 ; Lynch v. Miller, 54 Iowa, 516, 6 N. W. 740 ; Holman v. Hopkins, 27 Tex. 38 ; Crossett Lumber Go. V. Files, 104 Ark. 600, 149 S. W. 908. 1 U. S. V. Fox, 94 U. S. 315, 24 L. E(J. 192. 8 Brock V. Frank, 51 Ala. 85 ; Daniel v. Hill, 52 Ala. 430 ; Good- man V. Winter, 64 Ala. 410, 38 Am. Rep. 13. - From 1807 to 1845 the law of Missouri permitted a will executed In any other state or territory, according to the forms provided by the laws of such state or territory, to pass lands in this state. In 40 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 extremely loose and dangerous, as it tends to in- troduce confusion into land titles, which should be kept as settled and uniform as possible. If a will is designed to affect land situated in different jurisdictions, it must be executed in ac- cordance with the law of each place; otherwise it will operate only upon the land situated in the place to the law of which it conforms; and the maker will be held to have died intestate in those jurisdictions whose formalities have not been ob- served." A will ot personal property must be executed in accordance with the law of the testator's domi- cile," even though the property be situated in an- 1845, this law was changed, and lands lying In this State could not be devised, unless the will was executed with the formalities requir- ed by our law. But such statute is not retroactive. (1851) Schulen- berg V. Campbell, 14 Mo. 491. A will executed without this State in conformity to the laws of the testator's domicile will not be a valid will of lands situated in this State unless made in accordance with the requirements of the laws of this State. Crossett Lbr. Co. v. Files, 104 Ark. 600, 149 S. W. 908. 10 Keith V. Johnson, 97 Mo. 223, 10 S. W. 597; Applegate v. Smith, 31 Mo. 166 ; McCormiek v. SulUvant, 10 Wheat. 192, 6 L. Ed. 300 ; Armstrong v. Lear, 8 Pet. 52, 8 L. Ed. 863 ; Wilson v. Hall, 67 Ga. 53. Where a testator executes two separate and distinct wills, one re- lating solely to property at his domicile and the other relating solely to property situated in a foreign state or country, both are valid if executed, a:ttested and proved in accordance with the laws of the place where the property disposed of is situated. Parnell v. Thomp- son, 81 Kan. 119, 105 Pac. 502, 33 L. R. A. (N. S.) 658. iiWatkins v. Baton (0. C.) 173 Fed. 133; Marcy v. Marcy, 32 Conn. 308; St James Church v. Walker, 1 Del. Ch. 284; Holman V. Hopkins, 27 Tex. 38. § 13) EXECUTION OF WILLS 41 Other jurisdiction." This is the general rule, but it is quite common for local statutes to recognize the validity of wills executed either according to the law of the testator's domicile, or the law of the state where the property is situate, or where the will was made/^ The reason of public policy which requires the title to lands to be controlled by the local law does not apply to personal property. It may happen therefore that a will disposing of both personal and real property may be valid and entitled to pro- bate as to the personal property, but void as to the real estate,^* or vice versa.^° As a will goes into effect at the moment of the testator's death and not before, it is this period of the death which fixes the legal status of his prop- erty for testamentary purposes. The execution of the will must conform to the statute law as it ex- 12 Hlgglns V. Eaton (C. O.) 188 Fed. 938 ; Grote v. Pace, 71 Ga. 231. In general the law of the domicile of tlie owner governs his capac- ity to bequeath personal property. But this rule depends on comity, since the state or country of the domicile has no right to extend its laws beyond its borders, and every state as an incident of sovereign- ty has power to establish and regulate the succession of all property, real and personal, within its territory. Higgins v. Baton (N. Y.) 202 Fed. 75, 122 C. O. A. 1. 13 Illinois: Palmer v. Bradley (0. 0.) 142 Fed. 193. Kansas: Gemmell v. Wilson, 40 Kan. 764, 20 Pac. 458; Calloway V. Cooley, 50 Kan. 743, 32 Pac. 372. 1* Lake v. Warner, 34 Conn. 484; Brown v. Avery, 63 Fla. 376, 58 South. 34, Ann. Gas. 1914A, 90 ; Knight v. Wheedon, 104 Ga. 309, 30 S. E. 794. 15 Holman v. Hoptins, 27 Tex. 38. 42 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 isted at the time of the testator's death and not as it existed at the time of the execution of the will." Similarly in a will of personal property the execu- tion of the will must conform to the law of the domicile the testator held at the time of his death, rather than the domicile at the time of the execu- tion of the will. If a testator execute his will ac- cording to the law of his then domicile, and there- after change his domicile to a place where the laws in regard to execution are different, and die with- out republishing his will, it may be inoperative." § 14. Formalities of execution Most of the American states follow substantial- ly the provisions of the Statute of Frauds, 29 Car. 11, c. 3, as to the execution of written wills." The formalities are that all wills, except nuncupative wills when specially permitted by statute, (1) shall be in writing, (2) signed by the testator or some 18 Colonna v. Alton, 23 App. D. C. 296; Sutton v. Chenault, 18 Ga. 1; Hooks v. Stamper, 18 Ga. 471. Contra: Lane's Appeal, 57 Conn 182, 17 Atl. 926, 4 D. R. A. 45, 14 Am. St Rep. 94. 17 Nat V. Coons, 10 Mo. 543. 18 Statute of Frauds, 29 Car. II, c. 3, § V: "That from and after the said four and twentieth day of June (1677) all devises and be- quests of any lands or tenements, devisable either by force of the Statute of Wills, or by this Statute or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said de- visor by three or four credible witnesses, or else they shall be utterly void and of none effect." Armstrong v. Armstrong, 29 Ala. 538 ; Bai- § 14) EXECUTION OF WILLS 43 one in his presence and by his direction, and (3) witnessed by the number of attesting witnesses re- quired by the statute, not less, usually, than two, sometimes three. It is essential that the instrument be executed animo testandi, i. e., with the intention that it, in its then condition, should constitute the last will of the maker. The mere fact that all of the require- ments as to execution were observed will not give the will force and efifect unless this intention ex- isted. Thus, where by mistake the wrong instru- ment was duly signed and attested as the will of the testator, it could not be allowed to have that effect. It was so held in a case where two sisters made their wills and each executed by mistake the ley V. Bailey, 35- Ala. 687 ; Barnewall v. Murrell, 108 Ala. 366, 18 South. 831. Requirements of California statute as to execution. Does not copy the English statute. Estate of Walker, 110 Cal. 387, 42 Pac. 815, 30 li. R. A. 460, 52 Am. St. Rep. 104. Wyoming: Neer v. Oowhiek, 4 Wyo. 49, 31 Pac. 862, 18 L. R. A. 688. Oregon Statute of Wills was copied in 1849 from the Missouri stat- ute and the decisions of the Missouri statute are followed. Harden- bergh v. Ray, 151 U. S. 112, 121, 14 Sup. Ct. 305, 38 L. Ed. 93. The law of wills and probate as existing in Maryland on February 27, 1801, is the law of the District of Columbia, except as since al- tered by Congress. Campbell v. Porter, 162 U. S. 482,, 16 Sup. Ct. 871, 40 L. Ed. 1044. Statutes of Arkansas on Wills and Descents and Distributions was in force in Creek Nation and Indian Territory in 1905. In re Brown's Estate, 22 Okl. 216, 97 Pac. 613 ; Taylor v. Hilton, 23 Okl. 354, 100 Pac. 537, 18 Ann. Cas. 385. Act of Congress for execution of In- dian wills. Proctor v. Harrison, 34 Okl. 181, 125 Pac. 479. 44 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 will intended for the other. Neither will could be established. The paper actually signed was not the will of the testatrix, and the paper intended to be signed was not duly executed. § 15. Form of instrument The will must be in writing, but the law does not attempt to prescribe what form the writing shall assume. It may take any form that the con- venience or caprice of the testator may suggest, provided that he intended it to operate only at and after his death, and the instrument be executed with such formalities as local legislation may have imposed. A will need not call itself a will or tes- tament. It may be in the form of a contract or of a deed, but if it is intended to operate after the death of the maker, and it and the property con- veyed remain under the control of the maker, it may be held to be a will." The question has often arisen whether a particular instrument was a will or was a deed reserving a life estate to the grantor. The distinction between a deed and a will is clear; 19 Miller v. Holt, 68 Mo. 584 ; Reed v. Hazleton, 37 Kan. 321, 15 Pac. 177 ; Id., 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86 ; Smith v. Holden, 58 Kan. 535, 50 Pac. 447 ; Jackson v. Rowell, 87 Ala. 685, 6 South. 95, 4 L. R. A. 637 ; Gage v. Gage, 12 N. H. 371 ; Ingram V. Porter, 4 McCord (S. 0.) 198. An instrument may be a contract in part and testamentary in . part. Powers v. Scharling, 64 Kan. 339, 67 Pac. 820 ; Gomez v. Hig- " gins, 130 Ala. 493, 30 South. 417; Kyle v. Perdue, 87 Ala. 423, 6 . South. 296; Kinnebrew's Dis. v. Kinnebrew's Adm'rs, 35 Ala. 628;. Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150. § 15) EXECUTION OF WILLS 45 the former takes effect from delivery and vests a present legal estate in the grantee ; the latter, on the other hand, conveys no present interest, is rev- ocable at the pleasure of the maker, and is not de- livered.==" 20 Distinction between deed and will. Bowdoin College v. Merritt (C. C.) 75 Fed. 480 ; Frosch v. Monday, 34 App. D. C. 338 ; Hester v. Young, 2 Ga. 31; Givens v. Ott, 222 Mo. 395^11, 121 S. W. 23; Ains- woi-tli V. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753. Deed and not will. Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St Bep. 334 ; Durand v. Hlggins, 67 Kan. 110, 72 Pac. 567; Cross v. Benson, 68 Kan. 497, 75 Pac. 558, 64 L. E. A. 560 ; Dozier v. Toalson, 180 Mo. 546, 79 S. W. 420, 103 Am. St. Rep. 586 ; Christ v. Kuehne, 172 Mo. 118, 72 S. W. 537 ; Griswold v. Gris- wold, 148 Ala. 239, 42 South. 554, 121 Am. St. Rep. 64; Harper v. Reaves, 132 Ala. 625, 32 South. 721 ; Adair v. Craig, 135 Ala. 332, 33 South. 902 ; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244 ; McCloskey V. Tierney, 141 Cal. 102, 74 Pac. 699, 99 Am. St. Rep. 33; DriscoU V. Driscoll, 143 Cal. 528, 77 Pac. 471 ; Kenney v. Parks (Cal.) 54 Pac. 251 ; Adams v. Lansing, 17 Cal. 629 ; Hall v. Burkham, 59 Ala. 349 ; Hall's Estate, 149 Cal. 143, 84 Pac. 839 ; Cummings y. Cummings, 3 Ga. 460; Jackson v. Culpepper, 3 Ga. 569; McGlawn v. McGlawn, 17 Ga. 234; Watson v. Watson, 22 Ga. 460; Bunn v. Bunn, 22 Ga. 472 ; Meek v. Holton, 22 Ga, 491 ; Daniel v. Veal, 32 Ga. 589 ; Bass V. Bass, 52 Ga. 531 ; Fulcher v. Royal, 55 Ga. 68. Deed not will. Williams v. Tolbert, 66 Ga. 127; Youngblood v. Youngblood, 74 Ga. 614; White v. Hopkins, 80 Ga. 154, 4 S. B. 863; Seals V. Pierce, 83 Ga. 787, 10 S. E. 589, 20 Am. St. Rep. 344 ; Worley V. Daniel, 90 Ga. 650, 16 S. E. 938 ; Kaufman v. Ehrlich, 94 Ga. 159, 21 S. E. 377 ; Gofe v. Davenport, 96 Ga. 423, 23 S. E. 395 ; Guthrie V. Guthrie, 105 Ga. 86, 31 S. E. 40; Gay v. Gay, 108 Ga. 739, 32 S. E. 846; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378; West v. Wright, 115 Ga. 277, 41 S. E. 602 ; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843 ; Watkins v. Nugen, 118 Ga. 372, 45 S. E. 262 ; Griffith v. Doug- lass, 120 Ga. 582, 48 S. E. 129 ; Jones v. Lingo, 120 Ga. 693, 48 S. E. 190; Sharpe v. Mathews, 123 Ga. 794, 51 S. E. 706; Hamilton v. Carglle, 127 Ga. 762, 56 S. E. 1022 ; Kytte v. Kytte, 128 Ga. 387, 57 S. B. 748; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Hughes v. 46 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 An instrument may be upheld as a deed that re- serves the entire use and enjoyment of the prop- erty to the grantor during Hfe and inures to. the Hughes, 135 Ga. 468, 69 S. B. 818 ; Rogers v. Kennard, 54 Tex. 30 ; Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 759 ; McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284; Freeman V. Jones, 43 Tex. Civ. App. 332, 94 S. W. 1072; Bevins v. Phillips, 6 Kan. App. 324, 51 Pac. 59 ; Millican v. Millican, 24 Tex. 426 ; Miles V. Miles, 78 Kan. 382, 96 Pac. 481 ; Harrod v. MeComas, 78 Kan. 407, 96 Pac. 484; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Fiscus v. Wilson, 74 Neb. 444, 104 N. W. 856 ; Pentico v. Hays, 75 Kan. 76, 88 Pac. 738, 9 L. R. A. (N. S.) 224; Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A. (N. S.) 317, 12 Ann. Cas. 677. Promissory note and not will. JIaze v. Baird, 89 Mo. App. 348; Bristol v. Warner, 19 Conn. 7 ; ICirkpatrick v. Kirkpatrick's Ex'r, 6 Houst. (Del.) 569 ; McCord v. Thompson, 131 Ga. 126, 61 S. E. 1121. Contract and not will. Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107; Refeld v. Bellette, 14 Ark. 148; Pryor v. Ry- burn, 16 Ark. 671; Williams v. Noland, 10 Tex; Civ. App. 629, 32 S. W. 328. Antenuptial contract not testamentary. Huguley v. Lanier, 86 Ga. 636, 12 S. E. 922, 22 Am. St. Rep. 487. Letter held not to be of a testamentary character. Estate of Meade, 118 Cal. 428, 50 Pac. 541, 62 Am. St. Rep. 244; Estate of .Richardson, 94 Cal. 63, 29 Pac. 484, 15 L. R. A. 635 ; Scott's Estate, 128 Cal. 57, 60 Pac. 527; In re Jensen's Estate, 37 Utah, 428, 108 Pac. 927. Will and not deed. Mosser v. Mosser, 32 Ala. 551; Walker v. Jones, 23 Ala. 448; Jordan v. Jordan, 65 Ala. 801; Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. R. A. 576 ; Moore v. Campbell, 102 Ala. 445, 14 South. 780 ; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28; Ziegler v. Carter, 94 Ala. 291, 10 South. 260; Dunn V. Bank of Mobile, 2 Ala. 152 ; Shepherd v. Nabors, 6 Ala. 631 ; Gillham v. Mustin, 42 Ala. 365; McGuire v. Bank of Mobile, 42 Ala. 589 ; Thompson v. Johnson, 19 Ala. 59 ; Trawick v. Davis, 85 Ala. 342, 5 South. 83 ; Dudley v. Mallery, 4 Ga. 52 ; Cravy v. Rawlins, 8 Ga. 450; Symmes v. Arnold, 10 Ga. 506; Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235; Hall v. Bragg, 28 Ga. 330; Brewer v. Baxter, 41 Ga. 212, 5 Am. Rep. 530 ; Bright v. Adams, 51 Ga. 239 ; § 15) EXECUTION OP WILLS 47 benefit of the grantee only at the death of the gran- tor." When there is a general reservation or some- thing like a general reservation of the maker's right to deal with the property as his own, not- withstanding the instrument, and no conclusive Nichols V. Chandler, 55 Ga. 369 ; Arnold v. Arnold, 62 Ga. 627 ; Sper- ber V. Balster, 66 Ga. 317 ; Blackstock v. Mitchell, 67 Ga. 768 ; John- son V. Sirmans, 69 Ga. 617 ; Heard v. Palmer, 72 Ga. 178 ; Ward v. Campbell, 73 Ga. 97; Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367; Barnes v. Stephens, 107 Ga. 436, 33 S. E. 399 ; Dye v. Dye, 108 Ga. 741, 33 S. E. 848 ; WilUams v. Claunch, 44 Tex. Civ. App. 25, 97 S. W. Ill; Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411; Carlton V. Cameron, 54 Tex. 72, 38 Am. Rep. 620. Will and not a promissory note. Johnson v. Yancey, 20 Ga. 707, 65 Am. Dec. 646. Contract held testamentary and vesting no present interest. Glo- ver V. Fillmore, 88 Kan. 545, 129 Pac. 144. Masonic will. Whitney v. Hanington, 36 Colo. 407, 85 Pac. 84. Authorities collected as to when an instrument is a deed and when a will. Moore v. Campbell, 102 Ala. 452, 14 South. 780; Gomez v. ■Higgins, 130 Ala. 493, 30 South. 417; Whitten v. McFaul, 122 Ala. 623, 26 South. 131 ; Abney v. Moore, 106 Ala. 134, 18 South. 60. 21 Griffith V. Marsh, 86 Ala. 302, 5 South. 569 ; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28 ; Adams v. Broughton, 13 Ala. 731; Elmore v. Mustin, 28 Ala. 309; Golding y. Golding's Adm'r, 24 Ala. 122 ; Griffith v. Marsh, 86 Ala. 302, 5 South. 569 ; Galloway V. Devaney, 21 Ark. 526 ; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563 ; Parker v. Walls, 75 Ark. 86, 86 S. W. 849. In a deed a present estate or interest is passed, while in an in- strument testamentary in character no part of the title passes until the death of the grantor. When the grantor's intention appears to be that no estate or interest is to pass untU his death, then the in- strument is testamentary, and if not executed in the form and man- ner required of a will it is of no force or effect for any purpose. Instrument held to be a deed creating an express trust with power of revocation and not a wUl. Sims v. Brown, 252 Mo. 58, 158 S. W. 624. 48 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 effect can be given to it until the death of the mak- er, the law regards the instrument as testamen- tary." The courts in applying these prmciples attach considerable weight to the fact of delivery or non- delivery of the instrument to the grantee, as well as to the wording of the instrument itself. It may therefore happen that an instrument which for want of delivery cannot operate as a deed, may also for failure to comply with the statutory forms of execution be invalid as a will.°^ In case of doubt whether an instrument is a deed or will it will be held to be whichever will make it legal and effec- tive.^* If it can operate as a deed the presumption is that it is a deed rather than a will in favor of the early vesting of estates. ^^ 22 Gillham v. Mustin, 42 Ala. 365. Deeds testamentary in character should be probated, but this objection may be waived by an attack on Other grounds. Grain v. Grain, 21 Tex. 790. 2 3 Murphy v. Gabbert, 166 Mo. 596, 66 S. W. 536, 89 Am. St. Rep. 733; Withinton y. Withlnton, 7 Mo. 589; Griffin v. Mcintosh, 176 Mo. 392, 75 S. W. 677; Skerrett's Estate, 67 Cal. 585, 8 Pac. 181; Demartini v. Allegretti, 146 Cal. 214, 79 Pac. 871 ; Young's Estate, 123 Cal. 337, 55 Pac. 1011. A provision In a will for the future delivery of deeds is inefCective. Such delivery, if performed as directed, would amount in law to nothing. Estate of Young, 123 Cal. 337, 55 Pac. 1011. A deed in the nature of a testamentary disposition, placed in es- crow by the maker to be delivered after his death, held good in Con- necticut by local custom. Bryan v. Bradley, 16 Conn. 474. 24Dismukes v. Parrott, 56 Ga. 513. 2B Owen V. Smith, 91 Ga. 564, 18 S. E. 527; Westmoreland v. West- moreland, 92 Ga. 233, 17 S. E. 1033. § 15) EXECUTION OF WILLS 49 It may be written in pencil,"" ink, or on the typewriter; although as to pencil and typewritten wills, while no objection to their legality exists, their use is condemned as a matter of prudence, on account of the ease with which they may be erased or altered. They are liable also to fade in course of time. But wills written with a metal pen and the common nut-gall ink cannot be erased or altered without the traces of the change being apparent un- der the microscope. Wills may be written in any language " or even in shorthand. They may be wholly written or partly written on a printed or engraved blank. They may also be in any form of words or expres- sions that will convey with reasonable clearness the testator's meaning. Even abbreviations will not affect the legality of the will, if the sense in which the testator used them can be arrived at. Bad grammer or spelling does not invalidate a will if the meaning is clear.^' 26 Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. 2 7 What is the correct English translation of a will written in the Hawaiian language is a pure question of fact, and in this case this court follows its usual course in regard to the finding of fact of the lower court and adopts its finding. Gray v. Noholoa, 214 U. S. 108, 29 Sup. Ct. 571, 53 L. Ed. 931, 18 Hawaii, 265, affirmed. 28 Mitchell V. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279. Irrelevant recitals do not vitiate a will otherwise good. Conoly V. Gayle, 61 Ala. 116. Instrument which merely nominates an executor without making any disposition of property is a will. Hickman's Estate, 101 Cal. 609, 36 Pac. 118. BoBL. Wills — 4 50 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 The real question is said by the courts to be, was the instrument executed "animo testandi," i. e., with the intention that it should operate as a will/' From the fact that the will is written in lead pencil, or from the use of abbreviations, the presumption sometimes arises that the instrument was intended merely as a draft or memorandum notes of a will, and not as a final deliberate testa- mentary instrument." An unfinished paper is prima facie not a will." If it appears that the testator intended to do some further act before finally adopting the instrument 2 9 Brown v. Avery, 63 Fla. 376, 58 South. 34, Ann. Cas. 1914A, 90; Meade's Estate, 118 Cal. 428, 50 Pac. 541, 62 Am. St. Rep. 244.. The law does not require that a will shall assume any particular form or be couched in language technically appropriate to its tes- tamentary character. However irregular it may be in form or in- artificial in expression, it is suflScient if it discloses the intention of the maker respecting the disposition of his property, and that it was intended to take effect after his death, and is in its nature ambula- tory and revocable during his life. Ferguson v. Ferguson, 27 Tex. 339. 30 Ex parte Edward Henry, 24 Ala. 638 ; Bamewall v. Murrell, 108 Ala. 366, 18 South. 831; Boling's Heirs v. Boling's Ex'rs, 22 Ala. 826. 31 In re Mclntire, 2 Hayw. & H. 339, Fed. Cas. No. 8,823a; Power V. Davis, 3 McArthur (10 D. C.) 153 ; Cruit v. Owen, 21 App. D. C. 378- 392; Frierson v. Beall, 7 Ga. 438; Ferguson v. Ferguson, 27 Tex. 339. That the amount of a bequest is left blank is no evidence that will is incomplete. In re Flint, 100 Cal. 391, 34 Pac. 863 ; Kultz v. Jae- ger, 29 App. D. C. 300. Inference to be drawn that an incomplete paper was not intended as a will is slight, and may be rebutted. Ainsworth v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753. § 16) EXECUTION OF WILLS 51 as his will, it cannot operate unless that final act has been done/^ Thus where a testator made a draft or memorandum notes of a will and handed them to his attorney to be copied, or preserved them among his valuable papers, such instruments cannot operate as his will even though they may conform to the statutes; because it is clear that they are not his final and deliberate act. So, where a testator executed his will in due form, but men- tioned in it certain other papers, schedules or lists which he intended to attach to and make part of it, the will is not complete or valid in the absence of such supplemental papers. § 16. Incorporating other papers It is proper for a testator to refer to other writ- ten instruments and make them part of his will, whether they be attached or not. Such instru- ments will be admitted to probate as part of the will, but subject to two important rules : First: The paper intended to be incorporated must be clearly identified. ^^ The clearest identi- fication, of course, is that it is attached to the will; but the physical attachment is not essential. 32 Mealing r. Pace, 14 Ga. 596. But held that the absence of a seal spoken of in the testatum clause did not show that the testator did not consider the will final- ly executed. Ketchum v. Stearns, 8 Mo. App. 66, aflSrmed 76 Mo. 396. 33 Matthews v. McDade, 72 Ala. 377; Jordan v. Jordan, 65 Ala. 301 ; Lucas v. Brooks, 18 Wall. 436, 21 L. Ed. 779 ; Estate of Young, 123 Cal. 337, 55 Pac. 1011; Hatheway v. Smith, 79 Conn. 506, 65 52 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 Papers incorporated in a will mUst be clearly- described, so that they may be identified from the words of the will itself. If parol evidence were necessary to identify them the will would not be wholly in writing as the law requires.'* Second: The paper must be in existence at the time of the execution of the will.*° For if it is not then in existence, but is made afterward it would amount to an unattested addition or codicil to the will; and the safeguard of attestation which the law throws around a will would be defeated." The document referred to in the will, if in exist- ence, need not be present or attested by the wit- nesses." Although an unattested will is inoperative, such a will may be given effect by being referred to and identified in a properly attested codicil. This is Ati. 1058, 9 L. R. A. (N. S.) 310, 9 Ann. Cas. 99 ; Estate of Anthony, 21 Cal. App. 157, 131 Pac. 96. What is not a sufficient reference to make paper part of will. Myer's Estate, Myr. Prob. (Cal.) 205; Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Kep. 29. 34 Estate of Young, 123 Cal. 337, 55 Pac. 1011. 36 In re Estate of Hopper, 90 Neb. 622, 134 N. W. 237. 3 6 Newton v. Seamans' Friend Society, 130 Mass. 91, 39 Am. Rep. 433; Appeal of Wm. J. Bryan, 77 Conn. 240, 58 Atl. 748, 68 L. R. A. 353, 107 Am. St. Rep. 34, 1 Ann. Cas. 393 ; In re Shillaher, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433 ; Jones v. Habersham, 63 Ga. 146 ; Phelps V. Robblns, 40 Conn. 250-271 ; Vestry v. Bostwick, 8 App. D. C. 452. 37 Willey's Estate, 128 Cal. 1, 60 Pac. 471; Bacoa v. Nichols, 47 Colo. 31, 105 Pac. 1082. § 17) EXECUTION OF WILLS 53 under the rule that a testamentary instrument duly executed may incorporate into itself other ex- isting papers.^^ § 17. Signing The execution of a will really consists of three parts ; the signing, the publication and the attesta- tion. At the common law there was no requirement that a will of personal property be signed," and even the statute of wills which conferred the pow- er to will freehold lands made no reference to a signature. The execution of wills was very in- formal until the passage of the Statute of Frauds, 29 Car. II, c. 3, which required wills to be signed and attested.*" The signature should properly occur at the foot or end of the will like the signature to any other document. If it be so placed, it is more clearly to be inferred that it was intended as an authentica- 38 Harvy v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120 ; Estate of Plumel, 151 Cal. 77, 90 Pac. 192, 121 Am. St. Rep. 100; Burge v. Hamilton, 72 Ga. 568. The execution of a codicil has the effect to republish the whole will, as modified by the codicil, as of the date of the codicil, and its effect is not limited to a republication of the only clause which the codicil purports to modify. Ladd's Estate, 94 Cal. 670, 30 Pac. 99. Will and codicil may be executed as one instrument. Fowler v. Stagnep, 55 Tex. 393. S9 Frierson v. Beall, 7 Ga. 438 ; 2 Blackstone Com. 501 ; Cruit v. Owen, 21 App. D. C. 378-392. *o Instrument held not will, because not signed and attested by testator, but a written memorandum of testator's wishes, signed by another person. Ostorne v. Atkinson, 77 Kan. 435, 94 Pac. 796. 54 WILLS AND ADMINISTRATION OP ESTATES (Ch. 2 tion of the will as a whole." Ordinarily, no terms can be read as part of the will which are written after the signature." The testator's signature should precede the attestation clause, for such clause is not strictly part of the will, but the signa- ture is not invalidated by being placed below the attestation clause.*' The matter is now regulated in England by the Act of Vict, which requires a will to be signed at the foot or end thereof, and this requirement is copied in some of our American statutes.** A will may consist of more than one sheet oi paper if the parts are connected by their internal sense.*'' Where a will consists of more than one sheet of paper, it is considered the better practice to have the testator write his name or his initials on each sheet of the manuscript for identification. *° This is in addition to the regular signing at the end of the will. 41 Signature not so placed as to authenticate will. Estate of Sea- man, 146 Cal. 455, 80 Pac. 700, 106 Am. St. Eep. 53, 2 Ann. Cas. 726. 42 A will signed above the clause appointing executor is valid as to all that precedes the signature. Estate of McCuUough, Myr. Prob. (Cal.) 76 ; Owens v. Bennett, 5 Har. (Del.) 367. 43 HufC V. HufC, 41 Ga. 696 ; Underwood v. Thurman, 111 Ga. 325- 334, 36 S. E. 788. 4 4 Blake'? Estate, 136 Cal. 306, 68 Pac. 827, 89 Am. St. Eep. 135. 45 Barnewall v. Murrell, 108 Ala. 366, 18 South. 831 ; Mitchell v. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279 ; Murphy's Estate, 104 Cal. 554, 38 Pac. 543 ; Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214. 4 8 Jones V. Habersham, 63 Ga. 146-150. § 18) EXECUTION OF WILLS 55 The signature of the testator may be a mere mark or symbol, or even a fictitious name; but it must be something which is placed upon the in- strument as a signature and intended to operate as such.*' It has been held that a signing by a mark is sufficient even though the testator was able to write." § 18. Name signed by another The testator's name may be written either by himself or by some other person by his direction and in his presence.*" When the name is written by another than the testator, two things are essen- tial — that the signing be done by his direction and in his presence. ^^ Mere knowledge by the testator 47 MuUin's Estate, 110 Cal. 252, 42 Pac. 645; Mosser v. Mosser, 32 Ala. 551; Bailey v. Bailey, 35 Ala. 690; ScliiefCelin v. Schleffelin, 127 Ala. 36, 28 South. 687; In re Will of Cornelius, 14 Ark. 675; Guth- rie V. Price, 23 Ark. 396 ; Lipphard v. Humphrey, 209 U. S. 264, 28 Sup. Ot. 561, 52 L. Ed. 783, 14 Ann. Cas. 872 ; Stephens v. Stephens, 129 Mo. 422, 31 S. W. 792, 50 Am. St. Rep. 454 ; Estate of Dombrovv- ski, 163 Cal. 290, 125 Pac. 233 ; Smith v. Dolby, 4 Har. (Del.) 350. *8 Will of Guilfoyle, 96 Cal. 598, 31 Pac. 553, 22 L. R. A. 370 ; St. J^ouls Hospital Ass'n v. Williams, 19 Mo. 609 ; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; Vernon v. Kirk, 30 Pa. St. 222; Will of Jenkins, 43 Wis. 610 ; Nickerson v. Buck, 12 Gush. (Mass.) 332. 4 s> Riley v. Riley, 36 Ala. 496; Abraham v. Wilkins, 17 Ark. 292; Estate of Toomes, 54 Cal. 509, 35 Am. Rep. 83 ; Elliott v. Welby, 13 Mo. App. 19; Moore v. McNulty, 164 Mo. ill, 64 S. W. 159; Estate of Dombrowski, 163 Cal. 290, 125 Pac. 233 ; Rash v. Purnel, 2 Har. (Del.) 448-458 ; Robertson v. Hill, 127 Ga. 175, 56 S. E. 289 ; In re Estate of Powers, 79 Neb. 680, 113 N. W. 198. 50 McCoy V. Conrad, 64 Neb. 150; 89 N. W. 665 ; Waite v. Frisbie, 56 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 that his name is being signed by another has been said to be insufficient." But proof that the testa- tor presented the instrument to the attesting wit- nesses as his will with his name signed thereto by another, is some evidence that such signing was done in his presence and by his direction. An illiterate' man is not precluded from making a will; neither, under the modern law, is a blind man or a mute. Such misfortunes as these call for additional caution on the part of a legal adviser if he be in charge of the execution of a will. The question as to what may be said to be in the pres- ence of a blind man, or what will constitute direc- tions or request by a mute has received a liberal and reasonable construction by the courts, where no suspicion of imposition, appears. Physical weakness may often render a dying man unable to sign his name, and in such case his name may be 45 Minn. 361, 47 N. W. 1069 ; Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec. 567 ; Snyder v. Bull, 17 Pa. 60. Sufficient evidence of request for signing by another. Elliott v. Elliott, 3 Neb. (Unof.) 832, 92 N. W. 1006; Isaac v. Halderman, 76 Neb. 823, 107 N. W. 1016. SI Murry v. Hennessy, 48 Neb. 608, 67 N. W. 470. Under the Missouri statute existing in 1851 if the name of the testator was signed by another, the person signing must subscribe his own name as a witness, and state that he subscribed the testa- tor's name at his request. Walton v. Kendrick, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701; (1858) Simpson v. Simpson, 27 Mo. 288; (1855) St. L. Hos. Ass'n v. Wegman, 21 Mo. 17; (1855) Northcutt v. Northcutt, 20 Mo. 266 ; (1854) St. Louis H. Ass'n v. Williams, 19 Mo. 609 ; (1851) McGee v. Porter, 14 Mo. 611, 55 Am. Dec. 129. § 19) EXECUTION OF WILLS 57 signed by another, or his hand may be guided in forming the letters." § 19. Publication The next step in the due execution of a will, after the drafting and signing, is the publication. The term "publication" used in this connection means nothing more than that the testator should make known by some word or act his intention to adopt the instrument as his will. Publication is thus the act which precedes or accompanies the attestation by the witnesses. It is not, in general, necessary for the subscribing witnesses to see the testator sign the will; °^ but if they do not see him sign, they should at least see his signature, and he should acknowledge to them that he has affixed his signature to the paper as his will." There would undoubtedly have been a formal execution of the will in compliance with the statutes if the witnesses had, at the time, seen the signature of the testator to the will. Subscribing witnesses to a will are required by law for the purpose of attesting and identifying the signature of the tes- tator, and that they cannot do unless at the time of the attesta- tion they see it.'° 5 2 Vines v. Clingfost, 21 Ark. 309; In re Guilfoyle, 96 Cal. 598, 31 Pac. 553, 22 L. R. A. 370. 53 Crittenden's Estate, Myr. Prob. (Cal.) 50; Brown v. McBride, 129 Ga. 92, 58 S. E. 702. 5* Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145 ; Rash v. Purnel, 2 Har. (Del.) 448-458 ; Russell v. Russell's Ex'rs, 3 Houst. (Del.) 103 ; In re Porter, 20 D. O. 493 ; Webb v. Fleming, 30 Ga. 808, 76 Am. Dec 675. 5 5 Mackey's Will, 110 N. Y. 611, 18 N. E. 433, 1 L. R. A. 491, 6 Am. St. Rep. 409. 58 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 In that case the testator had handed his will to the subscribing witnesses folded in such a manner that his signature was not visible, and' they never in fact saw his signature to the instrument. It was held that the will was not duly executed. In some states the statute requires that the testator should call the attention of the attesting witnesses to the fact that the instrument is his will. Even where this is not required in terms by the statute, it should be done,^° although it is held in some states that it is not necessary the witness should know that the paper is a will, provided he can identify it as. the paper to which he put his name." The declaration that the instrument is his will, and the request to witness it need not be verbal; an act or sign will suffice. °* While it is ordinarily 56 Sufficient publication. Barnewall v. Murrell, 108 Ala. 366, 18 Soutli. 831 ; Johnson's Estate, 57 Cal. 529 ; Mullln's Estate, 110 Cal. 252, 42 Pac. 645 ; Beret v. Moxom, 163 Mo. App. 123, 145 S. W. 857 ; Lindsay v. Stephens, 229 Mo. 600, 129 S. W. 641; In re Estate of Ayers, 84 Neb. 16, 120 N. W. 491. Not sufficient publication. Taney's Estate, Myr. Prob. (Cal.) 210; Fusilier's Estate, Myr. Prob. (Cal.) 40. 5 7 Canada's Appeal, 47 Conn. 450; Notes v. Doyle, 32 App. D. C. 413; In re Porter, 20 D. 0. 493.. Nebraska statute does not require that witnesses subscribe at re- quest of testator. Thompson v. Thompson, 49 Neb. 157-168, 68 N. W. 372. ssEogers v. Diamond, 13 Ark. 474; McDaniel v. Crosby, 19 Ark. 533; Crittenden's Estate, Myr. Prob. (Cal.) 50; Martin v. Bowdern, 158 Mo. 3S9, 59 S. W. 227; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604 ; Odenwaelder v. Schorr, 8 Mo. App. 458 ; Hughes v. Rader, 183 Mo. 630, 82 S. W. 32 ; Estate of Johnson. 152 Cal. 778, 93 Pac. 1015 ; Huff v. Huff, 41 Ga. 696. § 19) EXECUTION OF WILLS 59 required that the witnesses know that the instru- ment is a will, it is not necessary or proper that they should know its contents," except in cases where imposition is likely to be practiced on the testator. Where full opportunity exists, knowl- edge by the testator of the contents of the will is presumed/" But if the testator be illiterate or blind, or if he must convey his wishes to the scrivener through an interpreter, further evidence may be necessary to show that he fully understood the contents." 5 9 Notes V. Doyle, 32 App. D. 0. 413. 60 In re Shapter's Estate, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216; Gaither v. Gaither, 20 Ga. 709; Smith V. Dolby, 4 Har. (Del.) 350 ; Hess' Appeal, 43 Pa. 73-78, 82 Am. Dec. 551 ; King v. Kinsey, 74 N. C. 261 ; Toe v. McCord, 74 111. 33 ; Sheer V. Sheer, 159 111. 591, 43 N. E. 334; Beall v. Mann, 5 Ga. 456; Kelly y. Settegast, 68 Tex. 13, 2 S. W. 870. It Is not necessary to show that testator understood all the tech- nical terms and legal phraseology of the will. O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202. Usual presumption that testator knew contents of instrument he signed, in absence of any lack of capacity, is not overcome by show- ing that one who assisted in its preparation was beneficiary under the will. McConnell v. Kelr, 76 Kan. 527, 92 Pac. 540. 01 Jliltenberger v. Miltenberger, 78 Mo. 27, affirming s. c, 8 Mo. App. 306; Beyer v. Hermann, 173 Mo. 295, 73 S. W. 164; Grimm V. Tittman, 113 Mo. 56, 20 S. W. 664; Ortt v. Leonhardt, 102 Mo. App. 38, 74 S. W. 423; Potts v. House, 6 Ga. 324-346, 50 Am. Dec. 329; Barker v. Bell, 49 Ala. 284; Leverett's Heirs v. Carlisle, 19 Ala. 80; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500; Carlson v. Lofgran, 250 Mo. 527, 157 S. W. 555. If testator had no knowledge of contents of will, it will be set aside. Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289. But a will was sustained although testatrix could not read, signed with a mark, and there was no affirmative evidence that she knew 60 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 It is not imperative that the will be read over to the testator in the presence of the witnesses, but it is safe practice to do so.°^ In some states, by stat- ute, if the scrivener of the will or his immediate relatives are beneficiaries under the will greater proof is required to show knowledge of the con- tents by the testator.'* § 20. Attestation After the publication, or simultaneously with it, the will should be attested and subscribed by the statutory number of witnesses. In most of the states the statutes require that every will shall be attested by two or more competent witnesses sub- scribing their names to the will in the presence of the testator."* contents of will. Llpiihard v. Hnmpbrey, 209 U. S. 264, 28 Sup. Ct. 561, 52 L. Ed. 783, 14 Ann. Gas. 872. See, also, Latour's Estate, 140 Cal. 414, 73 Pac. 1070, 74 Pac. 441. 6 2 Clifton V. Murray, 7 Ga. 564, 50 Am. Dec. 411; Meeks v. Lofley, 99 Ga. 170, 25 S. E. 92 ; Lipphanl v. Humphrey, 28 App. D. C. 355. 63 Hughes V. Meredith, 24 Ga. 325, 71 Am. Dec. 127 ; Carrie v. Cummings, 26 Ga. 690; Martin v. Mitchell, 28 Ga. 382; Adair v. Adair, 30 Ga. 102; Harris v. Harris, 53 Ga. 678-683; Vickery v. Hobbs, 21 Tex. 570, 73 Am. Dec. 238; Kelly v. Settegast, 68 Tex. 13, 2 S. W. 870 ; Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas. No. 6,141; Wheeler v. Alderson, 3 Hogg. 574; Billinghurst v. Vickers, 1 Pliillimore, 187-199; Paske v. Ollat, 2 Phillimore, 323. 64 Elliott V. Welby, 13 JIo. App. 19 ; Poore v. Poore, 55 Kan. 687, 41 Pac. 973 ; Clark v. Aliller, 65 Kan. 726, 68 Pac. 1071, 70 Pac. 586 ; Perea v. Barela, 5 N. M. 458, 23 Pac. 766. In the absence of statutory provisions a will of personalty is good without the attestation of subscribing witnesses. McGrews v. Mc- Grews, 1 Stew. & P. (Ala.) 30; Hilliard v. Binford, 10 Ala. 977; :§ 20) EXECUTION OF WILLS 61 The word "attest" means something more than the word "subscribe." '' It xneans that the witness must be prepared to testify to the valid execution of the instrument as a will. Such a valid execution includes the signing, the publication, the identity of the instrument and the mental capacity and freedom of choice of the testator. All these, there- fore, should be in the contemplation of the wit- nesses at the time they are called upon to witness the will.*" Witnesses should subscribe their names after the will is signed by the testator, there being noth- ing to attest until his signature has been affixed." But the witnesses may sign before the testator if the acts are practically contemporaneous. °' In some states it is made necessary by statute that the witnesses sign in the presence of each oth- Couch V. Couch, 7 Ala. 519, 42 Am. Dee. 602; Ex parte Henry, 24 Ala. 638. Such a will may te good as to the personalty and void as to realty. Instrument held to be testamentary in character and void as not duly attested. Cunningham v. Mills, 102 Ga. 584, 30 S. E. 429. 5 International Tr. Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 L. R. A. (N. S.) 1002, 16 Ann. Cas. 1087. 66 Crowson v. Crowson, 172 Mo. 700, 72 S. W. 1065 ; Withinton T. Withinton, 7 Mo. 589. Parol evidence of execution of will. In re Estate of Hopper, 90 Neb. 622, 134 N. W. 237. 6 7 Brooks V. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160; Duffie V. Corridon, 40 Ga. 122 ; Lane v. Lane, 125 Ga. 386, 54 S. E. 90, 114 Am. St. Rep. 207, 5 Ann. Cas. 462. 6 8 O'Brien v. Galagher, 25 Conn. 231; In re Shapter's Estate, 35 >Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216. 62 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 er, as well as of the testator;" and wherever this is the case, such statutory requirement must, of course, be complied with. There seems to be no logical reason for this, as the theory of the law is that the testator is the one to be assured that the paper attested by the witnesses is the identical pa- per executed by him, and this is accomplished if they all sign in his presence/" It is not necessary that the attesting witnesses should see the testator sign: an acknowledgment of his signature is sufficient/^ The rule on this important point is thus laid down in a Missouri case: It is not necessary for the testator to sign his name in the actual presence of either of the witnesses, provided they sign in his presence, and at the time they sign he acknowledges, or makes known to them by word, act or sign, that he execut- ed the writing as his will.'^ 8 9 Ward v. Co. Com'rs, 12 Okl. 267, 280, 70 Pae. 378. 70 Hoffman v. Hoffman, 26 Ala. 535 ; Snider v. Burks, 84 Ala. 53, 4 South. 225; Moore v. Spier, 80 Ala. 129; In re Will' of Cornelius, 14 Ark. 675 ; Abraham v. Wilkins, 17 Ark. 292 ; Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664 ; Cravens v. Faulconer, 28 Mo. 19 ; Smith V. Holden, 58 Kan. 585, 543, 50 Pac. 447; Woodcock v. McDonald, 30 Ala. 411 ; Barnewall v. Murrell, 108 Ala. 366, 18 South. 831 ; In re Porter, 20 D. 0. 493; Notes v. Doyle, 32 App. D. C. 413; Steele V. Helm, 2 Marv. (Del.) 237, 43 Atl. 153 ; Webb v. Fleming, 30 Ga. 808, 76 Am. Dec. 675. Insufficient execution. Estate of Walker, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104. 71 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145 ; In re Porter, 20 D. C. 493 ; Thompson v. Davitte, 59 6a. 472; Notes v. Doyle, 32 App. D. C. 413. 72 Grimm v. Tittman, 113 Mo. 57, 20 S. W. 664 ; Cravens v. Faul- coner, 28 Mo. 19; Walton v. Kendrick, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701; Moore v. McNulty, 164 Mo. Ill, 64 S. W. 159. § 20) EXECUTION OF WILLS 63 In the presence of the testator means, generally, in his sight: not necessarily in the same room with him, but within the range of his vision, and so close as to exclude the opportunity for fraud or substitution of papers. It is not necessary that the testator should actually see the witnesses sign; provided the act is done in such proximity that he could have seen them if he had chosen to look, and had had the use of his vision. If the testator is blind, or is suffering from an injury which pre- vents him from turning his head, or is too ill to move or look around, and the signing by the wit- nesses is done in such close proximity that if he had had the ordinary powers of vision and freedom of motion he might see them, the attestation is good, even though he did not in fact see them.'^ As said in a Michigan case: In the definition of the phrase "In the presence of" due regard must be had to the circumstances of each particular case, as it is well settled' by all the authorities that the statute does not require absolutely that the witnessing must be done in the actual sight of the testator, nor yet within the same room with him. If they sign within his hearing, knowledge 73 Hill V. Barge, 12 Ala. 687 ; Pool's Heirs v. Pool's Ex'rs, 35 Ala. 12 ; Spoonemore v. Cables, 66 Mo. 579 ; Robinson v. King, 6 Ga. 539 ; Eeed v. Roberts, 26 Ga. 294, 71 Am. Dec. 210 ; Lamb r. Girtman, 26 Ga. 625 ; Hamlin v. Fletcher, 64 Ga. 549. Not in presence of testator. International Tr. Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 L. R. A. (N. S.) 1002, 16 Ann. Cas. 1087 ; Lamb v. Girtman, 33 Ga. 289. If testator is in a stupor when witnesses attest will, he may be bodily but not mentally present. Ragan v. Ragan, 33 Ga. Supp. 106, 119. 64 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 and understanding, and so near as not to be substantially away from him, they are considered to be in his presence.'* An attestation clause is usually annexed to a will just above the signatures of the attesting wit- nesses ; and in such attestation clause is recited the compliance with all the statutory requirements. This attestation clause is not strictly necessary, as it has been held that the simple signatures of two or more competent witnesses is sufficient without an attestation clause." But it is always desirable to have such attestation clause, as a contemporane- ous record of the facts. A good form is as follows : Signed and attested by us as witnesses in the presence of the above named testator John Doe ; the said John Doe de- claring this instrument to be his last will and testament and the signature thereto attached to be his signature, this day of . A presumption of the due execution of a will arises from the presence of an attestation clause 7* Cook V. Winchester, 81 Mich. 581, 46 N. W. 106, 8 L. R. A. 822. 7 5 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145; Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 634; Murphy v. Murphy, 24 Mo. 526; Estate of Kent, 161 Cal. 142, 118 Pac. 523 ; Butcher v. Butcher, 21 Colo. App. 416, 122 Pac. 397; Kelly v. Moore, 22 App. D. C. 9; Deupree v. Deupree, 45 Ga. 415 ; Ward v. Co. Oom'rs, 12 Okl. 267, 280, 70 Pac. 378 ; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500 ; Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306 ; Monroe v. Huddart, 79 Neb. 569, 113 N. W. 149, 14 L. R. A. (N. S.) 259 ; Ferris T. Neville, 127 Mich. 444, 86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480; Lautenshlager v. Lautenshlager, 80 Mich. 285, 45 N. W. 147. § 20) EXECUTION OF WILLS 65 which recites the facts necessary to the valid exe- cution of the will." The omission to state in the attestation clause that the witnesses signed at the request of the tes- tator is immaterial." While it is perfectly valid for the name of an attesting witness to be signed by another, or for such witness to make his mark, yet for plain rea- sons this is a highly inconvenient and dangerous form of attestation. Writing is now so common that witnesses should always be selected who are able to write their own names.''* That the witness adds an official title or an offi- cial certificate, as of a justice of the peace, to his signature, does not make him any the less an at- testing witness.'* 76 Holyoke v. Lipp, 77 Neb. 394, 109 N. W. 506. 77 Crittenden's Estate, Myr. Prob. (Cal.) 50 ; Lucas t. Parsons, 24 Ga. 640, 71 Am. Dec. 147. 7 8 Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St. Rep. 89; Bailey v. Bailey, 35 Ala. 690 ; Riley v. Riley, 36 Ala. 496 ; Davis v. Semmes, 51 Ark. 48, 9 S. W. 434 ; Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738; Horton v. Johnson, 18 Ga. 396; Thompson v. Davitte, 59 Ga. 472 ; Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107, 30 L. R. A. 143, 51 Am. St. Rep. 121. One subscribing witness cannot sign for the other who is able to write. Riley v. Riley, 36 Ala. 496. Where witness wrote part of his name and stopped, held no suffi- cient attestation. Winslow's Estate, Myr. Prob. (Cal.) 124. 7 8 Payne v. Payne, 54 Ark. 415, 16 S. W. 1; Tevis v. Pitcher, 10 Cal. 465 ; Kelly v. Moore, 22 App. D. C. 9 ; Franks v. Chapman, 64 Tex. 159 ; Hawes v. Nicholas, 72 Tex. 481, 10 S. W. 558, 2 L. R. A. 863. BOEL.WlLLS 5 66 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 § 21. Parties in interest as attesting witnesses The Statute of Frauds was the first statute in England which required witnesses to a will, and immediately after its passage a question arose upon its construction — as to what was meant by credible witnesses. The same question would have arisen even though the word "credible" had not been used, as the mere word witness means a competent witness. Under the rules of the com- mon law a party in interest was not a competent witness; and this test was applied to attesting wit- nesses of written wills under this statute. All in- terested parties were excluded from testifying to the execution of a will. Unless the will was at- tested by the statutory number of disinterested witnesses it could not be admitted to probate, and the maker was held to have died intestate. The courts went to great length in determining who were interested parties, and, as such, incompetent to attest a will. Of course, any one to whom a devise or legacy was given by the will was a party interested in it; and so also was the husband or wife of such devisee or legatee. Where the will charged the debts of the deceased upon his real estate, or made other special provision for credi- tors over and above what they would have had in case of intestacy, such creditors became interested parties. These constructions of the statute by the courts, while undoubtedly correct on principle, § 21) EXECUTION OF WILLS 67 were the occasion of great hardships and alarmed purchasers and owners of landed property. As pointed out by Blackstone, the testator's wife, chil- dren, relatives, servants, business associates — all of the persons who would be likely to be near the bedside of a dying man and to be called upon to witness his will were excluded from doing so. Even a nurse, a physician or an attorney, whose very attendance made them creditors, were incom- petent as witnesses. To correct this matter, it was at length enacted by the 25 Geo. II, c. 6, that cred- itors should be competent witnesses to a will; and that where a will was witnessed by any person to whom any devise or legacy was given therein, such devise or legacy only should be void, and the will should otherwise be valid, and the witness should be competent to prove its execution.'" It was fur- so Jones V. Habersham, 63' Ga. 146 ; Williams v. Way, 135 Ga. 103, 68 S. E. 1023; Cornwell v. Isham, 1 Day (Conn.) 35, 2 Am. Dec. 50; Hawley v. Brown, 1 Root (Conn.) 494 ; Clark v. Hoskins, 6 Conn. 106 ; Goodrich's Appeal, 57 Conn. 282, 18 Atl. 49 ; Lewis v. Aylott, 45 Tex. 190 ; Fowler v. Stagner, 55 Tex. 393 ; Nlson v. Armstrong, 38 Tex. 2§6. Statute 25 Geo. II, ch. 6, § 1, rendering null and void any bequest or devise to an attesting witness, is in force in District of Columbia. Elliott V. Brent, 17 D. C. 98. In Alabama the English statutes were early adopted, making- leg- atees and other parties in interest competent witnesses to a will and rendering the legacy void. Later revision made them competent without affecting their legacy. Kumpe v. Coons, 63 Ala. 448 ; Perkins V. Windham, 4 Ala. 634; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St Rep. 22 ; Snider v. Burks, 84 Ala. 56, 4 South. 225. An attorney who writes will may attest same. Schieffelia v. Schief- felin, 127 Ala. 36, 28 South. 687. 68 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 ther provided that if a devisee or legatee, being an attesting witness, should, before the probate of the will, have paid to him or should have refused to accept the gift mentioned he should then become a competent witness ; but that he should never after- ward claim under the will. This statute has been substantially incorporated into the statutes of most of the American states. The statutes of some states are a little more liberal than the English act inas- much as they provide that where an attesting wit- ness would, in case of intestacy, be entitled to a share of the testator's estate, so much of such share shall be preserved to him as does not exceed his gift under the will, notwithstanding the devise or bequest to him becomes void by reason of his being an attesting witness.*^ The rule of the common law which disqualifies as a witness a party interested in the dispute has been abrogated generally in this country. A party in interest is fully restored to competency as a wit- ness in all cases except in the single matter of wills. In regard to wills, his competency is conditional, as we have seen; and a reference to the English acts and decisions is necessary to make clear the 81 Fortune v. Buck, 23 Conn. 1 ; Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664 ; Graham v. O'Fallon, 4 Mo. 601 ; Trotters v. Winches- ter, 1 Mo. 413; section 8679, G. S. Kan. 1905; Clark v. Miller, 65 Kan. 726, 68 Pac. 1071, 70 Pae. 586. But a husband may testify as subscribing witness to a will in which his wife is a legatee. Lan- ning V. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407. § 21) EXECUTION OF WILLS 69 present condition of our statute law on that par- ticular subject.*'' Even a person named as executor or testamen- tary trustee was incompetent formerly as a wit- ness to the will/^ But by later statutes the execu- tor or trustee is rendered competent, without avoid- ing his appointment, if he is not beneficially inter- ested in the will.^* The rule of the common law excluding devisees and other parties in interest, and the modern stat- utes making them competent upon condition of 8 2 Lewis V. Aylott, 45 Tex. 190. Credible witness means competent. Brown v. Pridgen, 56 Tex. 124 ; Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308. Review of the English Statutes of Wills and competency of attest- ing witnesses. Starr v. Starr, 2 Root (Conn.) 303-308. Wife is competent witness to will. Hatfield's Will, 21 Colo. App. 443, 122 Pac. 63. Pewholders in a church are not incompetent as attesting witness- es to a will giving a legacy to the church. Russell v. Russell's Ex'r, 3 Houst. (Del.) 103. Members of a fraternal order are competent as attesting witness- es to a will containing a bequest to such order. Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, 44 L. R. A. (N. S.) 544, Ann. Cas. 1914A, 592. Wife of legatee is competent as subscribing witness under statute. Neither her relationship nor interest affects her competency. Gam- ble v. Buteheer, 87 Tex. 643, 30 S. W. 861.' 83 Sutton v. Sutton, 5 Har. (Del.) 459; Davis v. Rogers, 1 Houst. (Del.) 44 ; Williams v. Wells (D. C.) Hayw. & H. 116, Fed. Cas. No. 17,746; Murphy v. Murphy, 24 Mo. 526; Elliott v. Welby, 13 Mo. App. 19. 8^ Panaud v. Jones, 1 Cal. 488 ; Peralta v. Castro, 6 Cal. 354 ; Spie- gelhatter's Will, 1 Pennewill (Del.) 5, 39 Atl. 465; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441 ; Hays v. Ernest, 32 Fla. 18, 13 South. 451 ; Baker v. Bancroft, 79 Ga. 672, 5 S. E. 46. 70 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 relinquishing their claims under the will, apply to attesting witnesses only, and not to devisees or legatees who might be called generally as witnesses in a will contest." § 22. Competency o£ attesting witnesses in gen- eral Aside from the matter which we have been con- sidering — of the attesting witnesses being inter- ested in the will — the competency and credibility of such witnesses is governed by the same rules which govern other witnesses. Attesting witness- es must be persons of sufficient age, intelligence and moral standing to entitle them to testify in other matters. Therefore a young child or a felon or a person of defective understanding is incompe- tent to attest a will.'° If two attesting witnesses are competent, the fact that another person who was incompetent also attested the will cannot im- pair its validity." The rule is that the witness should be competent at the time of the execution of the will; this is all that is necessary, and it is 8 5 Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214. 8 6 Curtiss V. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179. It is not necessary that witnesses should have sufiacient acquain- tance with testator to testify to his testamentary capacity. Huff v. Huff, 41 Ga. 696. Judge of Probate is competent witness to a will. Ford's Appeal, 2 Root (Conn.) 232 ; McLean v. Barnard, 1 Root (Conn.) 462. 8 7 Conoly V. Gayle, 61 Ala. 116. § 23) EXBCDTION OF WILLS 71 held that if he afterward becomes incompetent that fact does not affect the proof of the will. Any other rule would be singularly unjust, as it would leave the testator's most carefully planned disposi- tions of his estate at the mercy of the attesting witnesses/* § 23. Alterations, corrections and additions On principle, as we have seen, additions of any kind to wills, either upon the face of the writing itself or by codicils or other separate papers, can- not be made unless their execution is attended by the same formalities as a new will/' As to altera- tions and corrections the rule in regard to wills is directly opposite to that in regard to deeds. The modern rule in regard to a deed is that an alteration appearing upon the face of the deed un- explained is presumed to have been made before execution and delivery and hence to be read as part of the deed. The rule in regard to wills, which do not take effect until the death of the maker, is that alterations or erasures appearing upon the face of a will are presumed to have been made after its execution; and hence the alterations have no effect unless the will is re-executed in its altered condition, or the presumption is rebutted by a ref- erence to the alterations in the attesting clause."" 8 8 Holmes v. HoUoman, 12 Mo. 535; Hopf v. State, 72 Tex. 281, 10 S. W. 589. 89 Notes V. Doyle, 32 App. D. C. 413. 90 Varnon v. Varnon, 67 Mo. App. 534; Southwortli v. Southworth, 72 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 Unattested alterations of a will after its execu- tion are rejected, and the will must be probated with its altered parts restored to their original state." Alterations of any sort made in a will by a stranger to it, without the knowledge of the tes- tator, have no effect whatever, and the instrument must be admitted to probate as it stood originally. Such changes are a mere spoliation, and parol evi- dence will always be received to show the original contents of the will."^ § 24. Holcgraphic wills What we have thus far been considering applies to the ordinary form of written wills usually drawn up by some friend or legal adviser of the testator, and then read over to and signed by the testator. A will of this kind is now universally required to be witnessed and attested. There are two other forms of wills which are recognized by the law, 173 Mo. 74, 73 S. W. 129; Martin v. King, 72 Ala. 354; Burge v. Hamilton, 72 Ga. 568. Contra: There is no presumption of law as to when an attesta- tion was made. Scott v. Thrall, 77 Kan. 688, 694, 95 Pac. 563, 17 L. R. A. (N. S.) 184, 127 Am. St. Rep. 449. Immaterial alterations do not invalidate will. Mclntire v. Mcln- tire, 162 U. S. 383, 16 Sup. Ct. 814, 40 L. Ed. 1009 ; Id., 19 D. C. 482. 91 Hartz V. Sobel, 136 Ga. 565, 71 S. E. 995, 38 L. R. A. (N. S.) 797, Ann. Cas. 1912D, 165. Unless they amount to spoliation. Ragan v. Ragan, 33 Ga. Supp. 106. 82 Monroe v. Huddart, 79 Neb. 569, 113 N. W. 149, 14 L. R. A. (N. S.) 259 ; Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 Am. St. Rep. 639 ; Holman v. Riddle, 8 Ohio St. 384. § 24) EXECUTION OP WILLS 73 and which, though more unusual, require some at- tention. These are holographic wills and nuncu- pative wills. Holographic wills were of no greater sanctity under the common law than other written wills. Such a will did not have any greater legal force than a will written by a third party and signed by the testator. The Statute of 32 Hen. Vin, c. 1, explained by 34 Hen. VIII, c. 5, did not require witnesses to wills, and it was not until the enactment of the Statute of Frauds and Perjuries, 29 Car. II, c. 3, that wit- nesses were required to wills. Although under the Scotch law holographic writings were considered of higher value than other instruments because of the difficulty of success- ful forgery of them, this regard for such instruments does not seem to have been entertained by the English courts. Such wills grew in favor in this country during the colonial period, where they were generally held good as valid wills of personal property, were recognized by statute, and they were favored in the Code Napoleon in the civil law. The defi- nition of an holographic will is exact; it is a testament writ- ten wholly by the testator. In all the jurisdictions of the Union when such wills are recognized, the laws expressly provide that such wills need not be witnessed.'^ Holographic wills are so called because they are entirely in the handwriting of the testator. Thus they are deemed to bear upon their face the evi- dence of their genuineness. For this reason they are recognized as a distinct class by the statutes of some states and are not required to be attested by 93 Neer v. Cowhick, 4 Wyo. 49, 31 Pac. 862, 18 L. E. A. 588. The provision of the California Code relating to holographic wills is taken from the Code Napoleon. Estate of Fay, 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17. Being the same language as the Civil Code of Louisiana. 74 WILLS AND ADMINISTRATION OP ESTATES (Ch. 2 witnesses."* The fact that a will has one or more witnesses does not make it any the less a holo- graphic will for the attestation may be treated as surplusage." Such will, being prepared by the tes- tator without legal or other assistance, is usually very informal in character,"' and sometimes frag- mentary." It may be only a letter,"* and parol evidence may be necessary to prove the testamen- tary character of an instrument propounded as a holographic will."" Such a will must be wholly written, dated and signed by the testator.^ Thus, 94 Ex parte Hornier, 27 Ark. 443 ; Clarke v. Ransom, 50 Cal. 595 ; Skerrett's Estate, 6T Cal. 585, 8 Pac. 181 ; Estate of Learned, 70 Cal. 140, 11 Pac. 587; In re Shillaber, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433; Barker's Estate, Myr. Prob. (Cal.) 78; Taylor's Estate, 126 Cal. 97, 58 Pac. 454; Estate of Camp, 134 Cal. 233, 66 Pac. 227; Stead v. Curtis, 191 Fed. 529, 112 C. C. A. 463; Mclntire V. Mclntire, 19 D. C. 482 ; In re Jensen's Estate, 37 Utah, 428, 108 Pac. 927; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Ainsworth V. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753 ; Perkins v. Jones, 84 Va. 361, 4 S. E. 833, 10 Am. St. Rep. 863. Unless the statute expressly so provides the will must be witness- ed as other written wills. Neer v. Cowhick, 4 Wyo. 49, 31 Pac. 862, 18 L. R. A. 588. »6 Soher's Estate, 78 Cal. 477, 21 Pac. 8. 96 Clarke v. Ransom, 50 Cal. 595 ; Reith's Estate, 144 Cal. 314, 77 Pac. 942; Clisby's Estate, 145 Cal. 407, 78 Pac. 964, 104 Am. St. Rep. 58. 9T Mitchell V. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279 ; In re Stratton, 112 Cal. 513, 44 Pac. 1028. 9 8 Arendt v. Arendt, 80 Ark. 204, 96 S. W. 982; Estate of Cheval- lier, 159 Cal. 161, 113 Pac. 130; Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S. W. 1113. Two letters not connected by contents cannot constitute holograph- ic will. Estate of Anthony, 21 Cal. App. 157, 131 Pac. 96. 99 Clarke v. Ransom, 50 Cal. 595. 1 Martin's Estate, 58 Cal. 530. § 24) EXECUTION OF WILLS 75 if the will be upon a printed or engraved blank, though the written part is wholly in the hand of the testator, it is not a holographic will.^ The date is an important feature, in some states.* The sig- nature of the testator need not be at the end of the will, if wherever placed it is intended to authenti- cate the whole will,* and the part following the sig- nature may be construed part of the will." Holographic wills are not recognized in all the states, that is, they are accorded no special advan- tage and must be duly witnessed like other written wills. But even in states that. require the full for- malities of execution, the fact that a will is holo- graphic may aid in its construction and meaning, or furnish some presumptive evidence to repel an attack on the will, by showing the sanity of the testator, or the absence of undue influence." 2 Rand's Estate, 61 Cal. 468, 44 Am. Rep. 555; Billing's Estate, 64 Cal. 427, 1 Pac. 701 ; Estate of Plumel, 151 Cal. 77, 90 Pae. 192, 121 Am. St. Rep. 100. 3 Martin's Estate, 58 Cal. 530 ; Lakemeyer's Estate, 135 Cal. 28, 66 Pac. 961, 87 Am. St. Rep. 96 ; Fay's Estate, 145 Cal. 82, 78 Pac. 840, 104 Am. St. Rep. 17 ; Clisby's Estate, 145 Cal. 407, 78 Pac. 964, 104 Am. St. Rep. 58 ; Estate of Anthony, 21 Cal. App. 157, 131 Pac. 96 ; Estate of Price, 14 Cal. App. 462, 112 Pac. 482 ; HefCner v. HefCner, 48 La. Ann. 1089, 20 South. 281. The use of different pens and ink by the testator in writing the two sheets of the will does not amount to proof that the will was written as different dates. Taylor's Estate, 126 Cal. 97, 58 Pac. 454. i Camp's Estate, 134 Cal. 233, 66 Pac. 227; Johnson's Estate, Myr. Prob. (Cal.) 5 ; Barker's Estate, Myr. Prob. (Cal.) 78 ; Donoho's Es- tate, Myr. Prob. (Cal.) 140; Lawson v. Dawson, 21 Tex. Civ. App. 361, 53 S. W. 64. 5 In re Stratton, 112 Cal. 513, 44 Pac. 1028. e Harvey v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120 ; Rlggin v. 76 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2' § 25. Nuncupative wills Nuncupative wills are oral wills which are not committed to writing in the lifetime of the testa- tor. They are of very ancient origin and have al- ways been recognized and enforced by the law, though now their use is much restricted by statute. In the early ages of English jurisprudence wills of personal property were generally by parol. Writing was such a rare accomplishment at that period of the world's history that to have denied the validity of oral wills would have been almost to abolish testamentary power. Verbal wills of personal property could be made to any amount and under any circumstances, and even estates for years in real property, which were classed as chat- tels, would pass. So, also, uses and trusts could be created in real property by such wills which practically amounted to devises of the lands. When the Statute of Uses and the Statute of Wills were enacted in the reign of Henry VIII no men- tion was made in them of personal property. These statutes applied only to freehold lands; and hence personal property continued to be subject to disposition by nuncupative wills for a hundred years longer. The first restriction placed upon this right was by the Statute of Frauds, 29 Car. 11.'' Westminster College, 160 Mo. 575, 61 S. W. 803 ; Catholic Univer.«ity V. O'Brien, 181 Mo. 71, 79 S. W. 901; Ketchum v. Stearns, 8 Mo. App. 66, affirmed s. c, 76 Mo. 396; Catlett v. Catlett, 55 Mo. 330. ' Statute of Frauds: "XIX. And for prevention of fraudulent practices in setting up nuncupative wills, whicli have leen the occasion of much perjury § 25) EXECUTION OF WILLS 77 The portions of that statute relating to nuncupa- tive wills have been universally adopted in this be it enacted by tlie authority aforesaid, that from and after the said four and twentieth day of June (1677) no nuncupative will shall be good where the estate bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof, nor unless it be proved that the testator at the time of pronouncing the same did bid the persons present or some of them bear witness that such was his will or to that effect ; nor unless such 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 teen resident for the space of ten days or more next before the making of such will, except where such person was surprized or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. "XX. And be it further enacted, that after six months passed aft- er 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. "XXI. And be it further enacted that no letters testamentary or probate of any nuncupative will shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired, nor shall any nuncupative will be at any time received to be proved, unless process have been first issued to call in the widow or next of kindred to the deceased, to the end they may contest the same if they please. "XXII. And be it further enacted that no will in writing concern- ing any goods or chattels or personal estate shall be repealed, nor shall any clause, de\'ise or bequest therein be altered or changed by any words, or will by word of mouth only except the same be in the life of the testator committed to writing and after the writing thereof read unto the testator, and allowed by him and proved to be so done by three witnesses at the least. "XXIII. Provided always that notwithstanding this act, any sol- dier being in actual military service, or any mariner or seaman being at sea, may dispose of his moveal les, wages and personal estate as he or they might have done before the making of this act." I have never been able to find a full report of the celebrated case 78 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 country and remain the law of Missouri and many other states to-day, almost without alteration.' A nuncupative will cannot be sustained in any other cases than those prescribed by statute.* It is not a favorite of the law, and strict proof is re- quired of its existence and terms. ^° Authorities differ as to whether it can be established by the testimony of legatees, only.^^ A nuncupative will cannot affect real property; '^ and as to personal property it is confined within very narrow limits, both as to amount and as to of Coles V. Mordaunt. The only reference to it is a footnote in Math- ews V. Warner, 4 Ves. 195. This was the remarkable case of a nun- cupative will which occasioned the passage of the Statute of Frauds. 8 Sykes v. Sykes, 2 Stew. (Ala.) 364, 20 Am. Dec. 40 ; Bradley v. Andress, 27 Ala. 596 ; In re Askins, 20 D. O. 12 ; Nfewman v. Colbert, 13 Ga. 38 (1852) ; Scaif e v. Emmons, 84 Ga. 619, 10 S. B. 1097, 20 Am. St. Eep. 383; Smith v. Salter, 115 Ga. 286, 41 S. E. 621; Stone's Appeal, 74 Conn. 801, 50 Atl. 734.. Statute requires that no nuncupative will be proved until those entitled by inheritance be cited to appear. Perez v. Perez, 59 Tex. 322. 9 Jones V. Norton, 10 Tex. 120 ; Martinez v. De Martinez, 19 Tex. Civ. App. 661, 48 S. W. 532. 10 Mitchell V. Vickers, 20 Tex. 377; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Cas. 1128 ; O'CaUaghan v. O'Brien (C. C. Wash.) 116 Fed. 934. 11 A nuncupative will cannot be established by witnesses having an interest in the will as the only legatees. Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Cas. 1128; Watts v. HoUand, 56 Tex. 54. That a nuncupative will is proved by a legatee does not render his legacy void under Georgia statutes. Smith v. Grotty, 112 Ga. 905, 38 S. E. 110. i2WiU of Kelby (D. C.) 2 Hayw. & H. 150, Fed. Cas. No. 18,306; McLeod V. Dell, 9 Fla. 451; Lewis v. Aylott, 45 Tex. 190; Watts v. Holland, 56 Tex. 54; MofCett v. Moffett, 67 Tex. 642, 4 S. W. 70; § 25) EXECUTION OF WILLS 79 the circumstances under which it is permitted to be made A special privilege is extended to mariners at sea and soldiers in the military service to bequeath their property as at common law. In the case of others, the will must be made in the last sickness," and the testator must call those present to bear witness of his intention to make a will/* The words must be spoken animo testandi/° Verbal direc- tions for the preparation of a written will,^" or an improperly executed written will, cannot be set up as a nuncupative will.^^ Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818; Maurer v. Eeif- schneider, 89 Neb. 673, 132 N. W. 197, Ann. Cas. 19120, 643. Nuncupative will may authorize executor to sell real estate. Hurt V. Blackburn, 20 Tex. 601. 13 Bellamy v. Peeler, 96 Ga. 467, 23 S, E. 387. It is held in Kansas that a verbal will need not be made in articu- 10 mortis, nor need the testator be prevented from making a written will by sudden death. Baird v. Baird, 70 Kan. 564, 79 Pac. 163, 68 L. R. A. 627, 3 Ann. Cas. 312. Under the laws of the territory of Oklahoma, no one can make a nuncupative will except those in actual military service in the field, or those doing duty on shipboard at sea, and in these cases only when they are in actual contemplation, fear or peril of death, or at the time are in expectation of immediate death from an injury re- ceived the same day. One who at the time is engaged in the pur- suit of farming cannot make a valid nuncupative will. Ray v. Wiley, 11 Okl. 720, 69 Pac. 809. 1* Scales V. Heirs of Thornton, 118 Ga. 93, 44 S. E. 857 ; Godfrey V. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Cas. 1128. IB St James Church v. Walker, 1 Del. Ch. 284. 16 Knox V. Richards, 110 Ga. 5, 35 S. E. 295 ; Hunt v. White, 24 Tex. 643. 17 Ellington V. Dillard, 42 Ga. 361. 80 WILLS AND ADMINISTRATION OF ESTATES (Ch. 2 Nuncupative wills are now abolished in Eng- land by the Statute of Wills of 1 Vict." There is a very close similarity between a nun- cupative will and a gift causa mortis ; both are tes- tamentary acts ; they are revocable during the life of the donor and consummated only by death; both relate to personal property and are made in the last sickness; both also rely for their proof upon words and acts; and it frequently happens that in cases of this kind the circumstances and surround- ings are such as to render it an uncertain or dis- puted point whether the transaction was a nuncu- pative will or a gift causa mortis. The distinction between them is this; a gift causa mortis is com- pleted only by delivery; when such delivery has taken place the donee retains possession of the property and no probate is necessary to complete his title to it. A nuncupative will, on the other hand, contemplates no delivery, but it must be pro- bated and the other formalities of the statute ob- served. An interesting discussion of the distinc- tion between these two transactions will be found in a Missouri case." 18 Hunter v. Bryant, 2 Wheat. 32, 4 L. Ed. 177. isTygard v. McComb, 54 Mo. App. 85; 2 Blackstone's Commenta- ries, 500. § 26) BEVOCATION OF WILLS 81 CHAPTER III REVOCATION OF WII^IvS § 26. Revocation in general. 27. By subsequent will. 28. By burning, tearing, etc. 29. Dependent relative revocation. 30. ESect on prior will of revocation of subsequent will. 31. By marriage and birth of issue. 32. By sale of property devised. § 26. Revocation in general We have seen that it is a cardinal principle that a will is revocable during the life of the maker and only becomes irrevocable upon his death. A will is said to be ambulatory during the life of the mak- er, and hence no title passes by it, and no rights can accrue under it until his decease. It was stated in Holy Writ as an axiomatic truth, more than 1,800 years ago, that "a testament is of force after men are dead; otherwise it is of no strength at all while the tes- tator liveth," and this axiom has never been varied by legis- lature or court. Control over the property devised and power to revoke a will as a matter of course last as long as life lasts, and no title to property under a will can possibly pass until the death of the testator.^ 1 Hart V. West, 16 Tex. Civ. App. 395, 41 S. W. 183; Cozzens v. Jamison, 12 Mo. App. 452; Buckley v. Gray, 110 Cal. 339, 42 Pac. 900, 31 L. R. A. 862, 52 Am. St. Rep. 88. Before the death of the testator his will is not admissible in evi- BoEL. Wills — 6 82 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 This ambulatory character pertains to all wills, even those made in the form of a deed ^ or contract. The only apparent exceptions are cases where the testator has made a binding contract, founded upon a sufficient consideration, to dispose of property by will in a particular manner. But these are only apparent exceptions, as even wills made in pur- suance of such a contract may be revoked as freely as other wills, leaving the testator's estate hable for any damages that may arise by the breach of such contract.^ Revocation is an intent, evidenced by an overt act. It requires the same mental capacity to re- voke as to make a will.* dence to show title in a devisee. Thompson v. Thompson, 30 Neb. 489, 46 N. W. 638. Devise has no effect on deed of same property executed in testator's lifetime. Lewis v. Ames, 44 Tex. 319. In Kansas, the statute permits a testator to deposit his will with the probate court in his lifetime. No binding force attaches to a will so deposited, however. It is still revocable, as other wills ; and at the time of the testator's death it may not be his last will. On the whole these deposit statutes have proved a failure. Allen v. Allen, 28 Kan. 18. 2 A testamentary Instrument in form of a deed is revocable as oth- er wills, and is revoked by a subsequent conveyance by the grantor to other parties. De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95. 3 Allen V. Bromberg, 147 Ala. 317, 41 South. 771 ; Ross v. Wool- lard, 75 Kan. 383-386, 89 Pac. 680. Joint wills are the separate wills of each, and as such revocable. iSchumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135. But see the doctrine in Bower v. Daniel, 198 Mo. 325, 95 S. W. 347, as to revo- cation of joint and mutual wills. * A deed executed by testator after he became insane will not re- f 26) REVOCATION OP WILLS 83 It must be the act of the maker of the will, and the right is personal to him. It cannot be exer- cised by the guardian of one who has become in- competent after making the will/ What facts will constitute revocation is a ques- tion of law for the court, although the truth of the facts is for the jury.* It becomes important to consider in what man- ner this revocation may occur; for it is a practical necessity that the revocation should be evidenced in some manner so that it may be satisfactorily shown after the lips of the testator himself are sealed by death. Prior to the Statute of Frauds, a will in writing could be revoked by parol. This was an extremely loose and dangerous state of the law, for words are very rarely reported by witnesses with absolute correctness. What the testator said might have conveyed to the minds of those who heard him the idea that he was revoking his will when in fact such was not his intention. It is a well understood fact that testators frequently in moments of excite- ment make use of the most positive and emphatic language to the effect that they revoke certain pro- visions of their wills, or have revoked them, or will voke a previous will and devisee In will may maintain an action in equity to cancel the deed. Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530, 30 L. E. A. (N. S.) 194. 6 Mastick V. Superior Court, 94 Cal.. 347, 29 Pae. 869. 6 Dickinson v. Aldrich, 79 Neb. 198, 112 N. W. 293. 84 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 revoke them; when on deliberate and mature re- flection, their purposes would be directly the oppo- site of their language. It was this rule of law which allowed a written will to be revoked by parol that gave rise to the famous case which caused the enactment of the Statute of Frauds, and it was one of the purposes of that statute to point out explicitly the manner in which wills should be revoked/ This great statute, in this particular, as in many others, has moulded and governed the modern stat- ute law of this country/ As we have before had 7 statute of Frauds: "VII. And moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof shall at any time after the said four and twentieth day of June (1677) be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tear- ing or obliterating the same by the testator himself, or in his pres- ence and by his directions and consent, but all devises and bequests of lands and tenements shall remain and continue in force until the same shall be burnt, cancelled, torn or obliterated by the testator, or his directions In manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or four witnesses, declaring the same ; any former law or usage to the contrary notwithstanding." The verbal declarations of the testator showing a present revoca- tion, or an intention to revoke in the future are not admissible as evidence for any purpose, the statute not authorizing such mode of revocation. Slaughter v. Stephens, 81 Ala. 418, 2 South. 145 ; Coffee v. Coffee, 119 Ga. 533, 46 S. E. 620. Revocation must be as the statute provides. Kennedy v. Upshaw, 64 Tex. 411. 8 The sixth and twenty-second sections of that act provide : "Section 6. And moreover no devise in writing of lands, tenements or hereditaments, or any clause thereof, shall at any time after June 24, 1677, be revoked otherwise than by some other will or codi- § 26) REVOCATION OP WILLS 85 occasion to notice, the statute law of the American states has almost abolished all lines of distinction between wills of real estate and wills of personal property by making the same general require- ments apply to each. It may be seen by an examination of these stat- utes that there are substantially three ways of re- voking a testament once duly drawn and executed : First, by a subsequent will or codicil, in writing. Second, by doing some act to the instrument it- self, such as burning, cancelling, tearing or oblit- erating. Third, by a change in the circumstances of the testator. cil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his direction and consent ; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn or obliterated by the testator or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses de- claring the same ; any former law or usage to the contrary notwith- standing." "Section 22. That no will in writing concerning any goods or chat- tels or personal estate, shall be repealed, nor shall any clause, de- vice or bequest therein be altered or changed by any words, or will by word of mouth only, except the same be in the lifetime of the testator committed to writing, and after the writing thereof, read unto the testator and allowed by him, and proved to be so done by three witnesses at the least." 86 WILLS AND ADMINISTRATION OF ESTATES (Ch. S § 27. By subsequent will We shall consider these three modes of revoca- tion in their order: first, revocation by a subse- quent vi^ill or codicil in w^riting. It w^ill be noticed that the Statute of Frauds said, "or other writing declaring the same" but our statutes have wisely omitted this vague expression, and the subsequent writing, to have the force of revoking an earlier testamentary act must be a valid will or codicil. In order to be such valid will or codicil it must be executed with all the formalities required by law to admit it to probate.' This is so, even though it contain no disposition of property but its sole intent and purpose is to revoke a previous will.^" An informal or incom- plete will does not have this effect but leaves the prior will in full force. This second or subsequent will is governed by all the rules as fraud, duress and undue influence that affect other wills. It follows, therefore, that if the testator be mentally unsound, he cannot « Lawson v. Morrison, 2 Dall. 286, 1 L. Ed. 384 ; Gaines v. New Orleans, 6 Wall. 642, 18 L. Ed. 950; (S. C.) Gaines v. Lizardi, 154 U. S. 555, 14 Sup. Ct 1201, 18 L. Ed. 967; West v. West, 144 Mo. 119, 46 S. W. 139; Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620; Barker v. Bell, 49 Ala. 284; Notes v. Doyle, 32 App. D. C. 413; Cas- tens V. Murray, 122 Ga. 396, 50 S. E. 131, 2 Ann. Gas. 590; Leard V. Askew, 28 Okl. 300, 114 Pac. 251, Ann. Gas. 1912D, 234. Revocation of prior wills by subsequent will of Gen. Thaddeus Kos- cuisko, whicb was probated by Thomas Jefferson. Ennis v. Sniitb, 14 How. 400, 14 L. Ed. 472. 10 Conoway v. Fulmer, 172 Ala. 283, 54 South. 624, 34 L. R. A. (N. S.) 963 ; Lucas v. Parsons, 24 Ga. 640, 71 Am. Dec. 147. § 27) REVOCATION OF WILLS 87 make a valid .will for any purpose, and his prior will, made while he was sane, will remain in force. The same is true if the subsequent will was made through fraud or by reason of pressure of duress or undue influence. When a subsequent will is attacked and set aside on these grounds, the prior will then becomes the last will and testament of the deceased and as such is entitled to probate. In fact, it frequently hap- pens that the contest is entirely between the claim- ants under different wills. '■^ If the subsequent will be valid, however, being executed by a competent testator with the proper formalities, it has the effect of revoking the prior will,^^ even though it does not refer to it.^* A republication at any time may revive a re- voked will, but such republication must be with the same formalities as an original execution.^* In states where holographic wills are recognized there are opposite lines of authorities on the ques- tion whether a duly attested will can be revoked by a later holographic one." This depends some- what on the statute authorizing holographic wills. 11 Will once executed remains valid until revoked as provided by statute. Ainsworth v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753. 12 Wilson V. Bostick, 151 Ala. 536, 44 South. 389. 13 Clarke v. Ransom, 50 Cal. 595. 14 Barker v. Bell, 49 Ala. 284; s. c, 46 Ala. 216. 15 Holographic instrument will revoke prior attested will. Soher's Estate, 78 Cal. 479, 21 Pac. 8. Holographic instrument will not revoke prior attested will. Par- ker V. Hill, 85 Ark. 363, 108 S. W. 208. 88 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 The later testamentary instrument may not be intended to have the effect of revoking the prior will/" It may be designed as a supplementary will or codicil. In such case it is a revocation pro tanto only." The very purpose of a codicil is to make certain changes in the original will, usually revok- ing some of the gifts and making different dispo- sition of the property." The codicil therefore op- erates as a republication of the will as altered, and the two must be construed as one instrument speaking from the date of the codicil.^' In the bitterly contested case of the Miles' will in Nebraska, the question involved was whether a written will which had been produced and pro- bated had been revoked by a subsequent will, which could not be produced and the contents of which 10 Odenwaelder v. Schorr, 8 Mo. App. 458; Whitney v. Haning- ton, 36 Colo. 407, 85 Pac. 84. i^Grimball v. Patton, 70 Ala. 626; Kelly v. Richardson, 100 Ala. 584, 13 South. 785; De Laveaga's Estate, 119 Cal. 651, 51 Pac. 1074; Home for Incurables v. Noble, 172 U. S. 383, 19 Sup. Ct. 226, 43 L. Ed. 486; Bosley v. Wyatt, 14 How. 390, 14 K Ed. 468; Homer v. Brown, 16 How. 354, 14 L. Ed. 970 ; Estate of Domlnici, 151 Cal. 181, 90 Pac. 448 ; Estate of Barclay, 152 Cal. 753, 93 Pac. 1012 ; Estate of Cross, 163 Cal. 778, 127 Pac. 70 ; Wheeler v. Fellowes, 52 Conn. 247; Blakeman v. Sears, 74 Conn. 516, 51 Att. 517; Miller v. Metcalf, 77 Conn. 176, 58 Atl. 743 ; Russell v. Hartley, 83 Conn. 654, 78 Atl. 320 ; Govan v. Wiley, 15 App. D. C. 233 ; Colquitt v. Tarver, 45 Ga. 631. 18 Higgins V. Eaton (C. C.) 188 Fed. 938. 10 Payne v. Payne, 18 Cal. 291; Estate of Cross, 163 Cal. 778, 127 Pa& 70 ; Smith v. Dolby, 4 Har. (Del.) 350. § 27) REVOCATION OP WILLS 80 could not be shown.^" This case laid down the fol- lowing principles: First: A subsequent will may have the effect of revoking a prior one, if it contain the necessary revoking language, even though the subsequent will, for lack of proof of its dispositions, cannot be carried out, or because being lost or destroyed it is presumptively revoked itself.^^ Second: The mere fact that a subsequent will was made is not sufficient of itself and without some proof of its actual contents to show the revo- cation of a prior will. Unless the subsequent will expressly revokes the former one, such former will is only revoked so far as it is inconsistent with the later one/^ Third: When a subsequent will is lost or cannot be produced it is competent to prove by parol that it contained a clause revoking a former will/^ 20 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306 ; s. c, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769 ; s. c, 87 Neb. 455, 127 N. W. 904. 21 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306 ; In re Cunning- bam, 38 Minn. 169, 36 N. W. 269, 8 Am. St. Rep. 650; Stevens v. Hope, 52 Mich. 65, 17 N. W. 698. A conditional will revokes a former will, even though by failure of the condition, the will does not take effect. Dougherty v. Holschei- der, 40 Tex. Civ. App. 31, 88 S. W. 1113. 22 Williams v. Miles, 87 Neb. 455, 127 N. W. 904; Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306. 23 Williams v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769. 90 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 § 28. By burning, tearing, etc. The next mode in which a testator may revoke a testament once validly executed, is by some un- equivocal act of destruction to the instrument. Some states follow the Statute of Frauds literal- ly in using the words, "burning, cancelling, tear- ing, or obhterating." The Kansas statute says: "tearing, cancelling, obliterating or destroying." And here again the modern English cases on this subject cannot be accepted as precedents in all par- ticulars in these states. By the late Statute of Wills, 1 Vict., these words are changed to "burning, tearing or otherwise destroying," and this word- ing is adopted in some of the American states. This seems to exclude the method of cancelling, which cannot be said to be destroying. Statutes following the Statute of Frauds must be construed like that statute.'* The first thing to be noted is that these acts of destruction must be committed by the testator him- self, or by some one in his presence and by his di- rection. A destruction of the instrument out of his presence or without his consent, does not destroy its legal efifect. It is still his will, and still opera- tive as such, even though the paper evidence of it may be gone.'° 2* Morgan v. Davenport, 60 Tex. 230. 2 5 Mann v. Balfour, 187 Mo. 306, 86 S. W. 103. A letter from a testator to his agent, directing him to destroy the testator's will, does not ipso facto operate as a revocation of the will. Ynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619. Under Alabama statute revocation by destruction of will by a per- § 28) REVOCATION OF WILLS 91 It will readily be seen that it would not be a proper or safe rule that would permit a will to be revoked by a destruction of the instrument by some one else not in the presence of the testator. If this were the case, the will might be destroyed by some one with a malicious or fraudulent motive, and then it would become a question of uncertain oral proof whether or not the destruction had been au- thorized or directed by the testator. The person who had destroyed the will would of course swear that he had been empowered to do so, and the leg- atees who were the sufferers by the act would be at great difficulty to prove the contrary. It will be observed, however, that the Kansas stat- ute says "in his presence or by his direction," thus implying that if the act be done by the testator's direction it need not be in his presence. This be- ing the plain reading of the statute, the courts can- not aid it by construction, and thus the most salu- tary feature of the rule is lost. In the presence of the testator means in his con- scious presence, and with his consent, and these facts must affirmatively appear in order to give to the destruction the force of revocation.^* Even where the act of destruction is done by the testator himself he must have done so with the in- son other than testator must be proved by two witnesses. Wilson v. Bostick, 151 Ala. 536, 44 South. 389. 26 Schaff V. Peters, 111 Mo. App. 447, 90 S. W. 1037. 92 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 tention of revoking." The best evidence of testa- tor's intention is his declaration or statement at the time, which thus becomes part of the res gestse.^^ Some courts hold that declarations made before or after the act are entirely inadmissible, being in effect but an oral revocation.^" But other courts, on the issue revocavit vel non, admit such declara- tions made before or after.^" The testator might have destroyed the will by mistake, under the im- pression that it was some other instrument, or he might have been induced to do so by undue in- fluence,^^ or he might have committed the act while of unsound mind;^^ in either of which cases, the act would not be a revocation. A sound mind is just as necessary to the revocation as to the execu- tion of a will." 2 7 Law V. Law, 83 Ala. 432, 3 South. 752; Mclntyre v. Mclntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Rep. 71, 1 Ann. Cas. 606. 28 Woodruff V. Hundley, 127 Ala. 655, 29 South. 98, 85 Am. St. Rep. 145 ; Glass v. Scott, 14 Colo. App. 377, 60 Pac. 186 ; Kimsey v. Alli- son, 120 Ga. 413, 47 S. E. 899; McElroy v. Phink, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025. 28 Lang's Estate, 65 Cal. 19, 2 Pac. 491. so Spencer's Appeal, 77 Conn. 638, 60 Atl. 289 ; Throckmorton v. Holt, 12 App. D. C. 552; Surge v. Hamilton, 72 Ga. 568-625. But see Kimsey v. Allison, 120 Ga. 413, 47 S. E. 899. SI Batten v. Watson, 13 Ga. 63, 58 Am. Dec. 504. 32 In re Johnson's Will, 40 Conn. 588. 33 Mcintosh V. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611. A case illustrating this is found in the English courts: "The evi- dence showed that the deceased went to his bed-room one morning- at 2 a. m. very drunk, and opened his iron safe in order to put away the money he had taken the previous day. That, seeing the will there, he deliberately tore it up into fragments, and threw them on. § 28) REVOCATION OF WILLS 93 The act of destruction in order to revoke the will must be completed; for if the testator starts to tear or burn his will and is persuaded to change his mind and preserve the will, this does not amount to a revocation even though the will be partly torn or burned.** We have seen that the act of destruction must be accompanied by an intention to revoke ; and the converse of this proposition is true, that the inten- tion to revoke must be accompanied by some act in order to have that effect.*^ An intention to re- the table at the same time muttering to himself. That on his leav- ing the room his wife collected the pieces together and locked them up, without saying anything to her husband at the time, although she afterwards informed him of the fact and he expressed great re- gret at what he had done. The judge said: 'In this case a will was propounded which it was alleged the testator had destroyed when suffering under delirium tremens, that is,, when he was in- sane. The evidence satisfied me that the testator was in an unsound state of mind when he tore up the will ; he was suffering from de- lirium and therefore not capable of exercising any judgment in the matter. The pieces were collected and put together so that the will is now restored to the condition in which it was before the destruc- tion. The testator after the recovery of his senses expressed regret at what he had done, and said he would make another will. I am of opinion that under these circumstances there was no revocation of the will by destruction. The act done by the testator can in no sense he considered his act, for he was then out of his mind, so that there has never been anything at all amounting to a revocation.' " Brunt V. Brunt, L. R. 3, P. & D. 37. 34 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Eep. 145. 35 Law V. Law, 83 Ala. 432, 3 South. 752 ; Barksdale v. Davis, 114 Ala. 623, 22 South. 17 ; Manogue v. Herrell, 13 App. D. C. 455. Will may be revoked by tearing signature therefrom. King v. Pon- ton, 82 Cal. 421, 22 Pac. 1087. SuflBcient allegation of revocation by destruction. Barksdale v. Davis, 114 Ala. 623, 22 South. 17. 94 WILLS AND ADMINISTRATION OP ESTATES (Ch. 3 voke or destroy a will, no matter how deliberate or positive, will not be sufficient unless accompa- nied by some act of destruction upon the instru- ment itself; for otherwise it would operate- as a mere oral revocation of a written will which is con- trary to the statute/" The rule is that the inten- tion to revoke and the act of destruction must con- cui;. Thus it has been held in some cases that where the testator asks to have his will destroyed and is told that it has been done, when in fact the will has been preserved, this does not amount to a revocation. This is because there was no suffi- cient act within the statute. But a fine distinction is made by some cases on this point on the ground of fraud. It has been decided that where a testator requested that his will be brought to him and torn up or burned, and instead of complying with his wishes, another paper is fraudulently brought and destroyed in his presence which the testator is in- duced to believe is his will, this amounts to a revo- 38 Spoonemore v. Cables, 66 Mo. 579 ; Goodsell's Appeal, 55 Conn.. 179, 10 Atl. 557; Hargroves v. Redd, 43 Ga. 142. By a statute no written will may be revoked except by written revocation or by destruction of the will by the testator or by his order in his presence. Fraudulent promise of devisee to destroy a will is not equivalent to revocation. Locust v. Handle, 46 Tex. Civ. App. 544, 102 S. W. 946. If one having possession of will fraudulently refuses to surrender it to the testator for cancellation, this does not amount to a revoca- tion, as nothing more than the intent to revoke exists. Brown v.. Scherrer, 5 Colo. App. 255, 38 Pac. 427. § 28) REVOCATION OP WILLS 95 cation even though the will is actually preserved." The testator has done the act as far as lay within his power, and the beneficiaries under the will should not be permitted to take advantage of their fraud. Some state statutes include the word "cancel- ling," following the language of the Statute of Frauds, and differing in this respect from the mod- ern English statutes and from the statutes of some of the other American states. Thus a will may be revoked by cancelling it and preserving it in its cancelled condition. It need not be wholly de- stroyed or wholly obliterated. Under the Statute of Frauds, it was decided that drawing the pen through the signature of the testator or writing across the face of the will "Cancelled" was a suffi- cient cancelling to revoke the will.''^ Under this word "cancelling" some courts have held that a par- tial revocation is permissible; that a single clause of the will may be cancelled by drawing lines through 87 Card V. Grinman, 5 Conn. 164. 38 Glass V. Scott, 14 Colo. App. 377, 60 Pac. 186 ; Witter v. Mott, 2 Conn. 68 ; Mclntyre v. Mclntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Eep. 71, 1 Ann. Cas. 606. Unattested writing across back of will signed by testator held not to be a revocation in writing nor a revocation by cancellation. How- ard V. Hunter, 115 Ga. 357, 41 S. E. 638, 90 Am. St. Rep. 121 ; Oet- jen V. Oetjen, 115 Ga. 1004, 42 S. E. 387. No revocation by cancellation shown. Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214. 96 WILLS AND ADMINISTRATION OP ESTATES (Ch. 3 it, leaving the rest of the will unrevoked.** Other courts have held drawing a pen through a particu- lar legacy was not a partial revocation, but was either a total revocation or inoperative.*" Of course where the word "cancelling" is not used, and the statute follows the language of 1 Vict., "burning, tearing or otherwise destroying," a total revocation only is contemplated No witnesses are required to the cancellation or destruction of the will*^ and therefore if a will, once shown to be duly executed, remains in the testator's possession, and is not found at his death,*^ or is found in a torn, mutilated or defaced 39 Chinmark's Estate, Myr. Prob. (Cal.) 128 ; Wlkman's Estate, 148 Cal. 642, 84 Pac. 212 ; Varnon v. Varnon, 67 Mo. App. 534. While a will may be revoked in part by cancellation in accordance witb the statute, yet if the cancellation works an alteration of other portions of the instrument, either by way of addition or substitution, the attempted revocation is invalid, since if held valid it would permit a new and different testamentary disposition to be made in violation of the statute relating to the execution of wills. Miles Ap- peal, 68 Conn. 237, 36 Atl. 39, 36 L. R. A. 176. 40 Law V. Law, 83 Ala. 432, 3 South. 752; Hartz v. Sobel, 136 Ga. 565, 71 S. E. 995, 38 L. R. A. (N. S.) 797, Ann. Cas. 1912D, 165. *i Witter V. Mott, 2 Conn. 68. 42 McBeth V. McBeth, 11 Ala. 596 ; Weeks v. McBeth, 14 Ala. 474 ; Collyer v. Colly er, 110 N. Y. 487, 18 N. B. 110, 6 Am. St. Rep. 405; Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389 ; Scott v. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. Rep. 263; Spencer's Appeal, 77 Conn. 638, 60 Atl. 289; Dawson v. Smith's Will, 3 Houst. (Del.) .335; In re Johnson's Will, 40 Conn. 588 ; Lively v. Harwell, 29 Ga. 510 ; Mcintosh V. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611; Boyle v. Boyle, 158 111. 228, 42 N. E. 140 ; Collyer v. Collyer, 110 N. T. 484, 18 N. E. 110, 6 Am. St. Rep. 405 ; Behrens v. Behrens, 47 Ohio St § 29) KEVOCATION OF WILLS 97 condition," a presumption arises that it was de- stroyed by the testator animo revocandi. This presumption may be rebutted by showing that it was destroyed by accident or mistake, or when the testator was insane," or by some unauthorized per- son, § 29. Dependent relative revocation We have seen that the destruction of a former will or the making of a new one, either standing alone, will suffice as a revocation. But what is the effect of both of these acts in conjunction? Strange as it may seem, this has been a much litigated 323, 25 N. E. 209, 21 Am. St. Eep. 820; Gardner v. Gardner, 177 Pa. 218, 35 Atl. 558. TMs is a presumption of fact only. Legare v. Ashe, 1 Bay (S. 0.) 464 ; Davis v. Sigourney, 8 Mete. (Mass.) 487 ; Minkler v. Minkler, 14 Yt. 125. Where two copies of a will are made, failure to produce both copies raises no presumption of revocation. Snider v. Burks, 84 Ala. 53, 24 South. 225. SuflSciency of evidence to support a finding that will, proved to have been executed, but not found, had not been revoked. The presumption that a will last seen in the custody of the tes- tator has been revoked, if it cannot be found, does not apply where it was last shown in the possession of one whose interest was ad- verse to its preservation. McElroy v. Phink, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025. 43 Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663; Wikman's Estate, 148 Cal. 642, 84 Pac. 212; Mclntyre v. Mc- Intyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Eep. 71, 1 Ann. Gas. 606. 44 Weeks v. McBeth, 14 Ala. 474; Patterson v. Hickey, 32 Ga. 156; Estate of Johnson, 152 Cal. 778, 93 Pac' 1015 ; Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N, W. 151, 62 L. R. A. 383, 110 Am. St. BOEL.WILIB — 7 98 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 point." Suppose a testator, intending to make a new will, destroys, or causes to be destroyed his old will, and then neglects to make his new will or is overtaken by insanity, weakness or death before he has an opportunity to do so. In this case does the old will stand revoked? This depends some- what on the time when the destruction occurred. For if the testator destroyed his old will with the intention of revoking it, but with the further in- tention of some time in the future making a new one, and then neglects to carry out this latter in- tention, the revocation of the old one is neverthe- less complete and efifectual.*® If the new will is not in fact made or is not executed in a valid man- ner, the deceased dies intestate. If he never makes the new will, it does not appear but that he may have changed his mind and concluded not to make one; and if he does make one which is invalid, the courts cannot enforce it; neither can they enforce his old will for it was clearly not his intention that Rep. 431, 4 Ann. Cas. 306; Williams v. Williams, 142 Mass. 515, 8 N. E. 424. Declarations of testator are admissible to rebut the presumption of a cancellation or revocation of lost or destroyed will. Tynan V. Paschal, 27 Tex. 286, 84 Am. Dec. 619 ; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Barring v. Allen, 25 Mich. 505; McDonald V. McDonald, 142 Ind. 55, 41 N. B. 336. *ii Canceling old will, as part of act of making new one; "depend- ent relative revocation." Authorities collected. Mclntyre v. Mcln- tyre, 120 Ga. 67-71, 47 S. E. 501, 102 Am. St. Rep. 71, 1 Ann. Cas, 606. 46 Olmsted Estate, 122 Cal. 224, 54 Pac. 745. § 29) REVOCATION OF WILLS 99 it should operate as his will. But suppose the new will is prepared or executed and then as part of the same act the testator destroys his old will for the purpose of giving effect to the new one. In this case, if the new will for any reason cannot take eft'ect, can it be assumed that the revocation of the old will was only to operate when superseded by a valid new one? In a leading English case, a tes- tator prepared his second will and then cancelled the first, but the second will proved void for non- compliance with the statutory forms of execution ; and the court accordingly decided that the first will remained in force, inasmuch as the revoking act, which depended upon the validity of the sub- stituted paper, never took full effect.*^ It seems, however, that this rule must and should be confined within very narrow limits. It should clearly appear that the testator did not intend in any event to leave himself without a will before the court can fall back on the instrument which has been repudiated by its maker. The limits of this doctrine are well shown in a case in Missouri. A testator, intending to revoke a will, caused it to be burned. He had already prepared and signed a second will making materially different disposi- tions of the property. At the time of the burning of the first will, the second will was not attested and the testator understood that until attested it would 4 7 Onions v. Tyrer, 2 Vern. 742; Strong's Appeal, 79 Conn. 123, 63 Atl. 10S9, 6 L. R. A. (N. S.) 1107, 118 Am. St. Rep. 138. 100 WILLS AND ADMINISTKATION OF ESTATES (Ch. 3 not be complete. It was subsequently attested, and after the death of the testator it was offered for probate but was rejected by the probate court on the ground that at the time of the attestation the testator was not of sound mind. It was then sought to set up and establish the first will on the theory that the first will was only intended to be revoked by the substitution of the second; and that, if for any cause the second failed to take effect, the first will remained in force. But it was held that the burning operated as a complete revocation and this result was not changed by the fact that the second will never took effect.** § 30. Effect on prior will of revocation of subse- quent will It was formerly the rule that if a prior will was revoked or superseded by a second will, the can- cellation or destruction of the second will revived the first.*" This was under the theory that the first Tvill was revoked only by the second, and that Avhen the second passed out of existence the first again became the last will and testament of the de- ceased. This was the rule of the common law. The ecclesiastical courts, however, made it a ques- ts Banks v. Banks, 65 Mo. 432 ; Varnon v. Varnon, 67 Mo. Apj) 534. 4 9 Dawson v. Smith, 3 Houst. (Del.) 92; Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685 (overruling James v. Marvin, 3 Conn. 576); Witter V. Mott, 2 Conn. 68 ; Harvs'ood v. Goodright, 1 Cowp. (Eng.) v87 ; Goodriglit v. Glazier, 4 Barr. (Eng.) 2512. § 30) REVOCATION OF WILLS 101 tion of the intention of the testator."" In this coun- try by statute most states have abandoned the com- mon law rule and adopted that of the ecclesiastical courts." These statutes settle the rule of law with sub- stantial accuracy although it does not appear dis- tinctly in what manner the intention to revive the prior will should be shown in the terms of the rev- ocation. Probably the testator's declarations at the time, being part of the res gestae, would be sufficient evidence of his intention to revive the prior will; but the safest plan in a case of this kind is to republish the prior will. This statute has been construed in Missouri as follows : The testatrix executed two wills, one in 1867 and the other in 1869, and then destroyed the second will. After her death the first will was 60 Usticke v. Bowden, 2 Add. Bcc. 116. Biln re Gould's Will, 72 Vt. 316, 47 Atl. 1082; McClure v. Mc- Clure, 86 Tenn. 173, 6 S. W. 44 ; Bohannon v. Walcot, 1 How. (Miss.> 336, 29 Am. Dec. 631; Harwell v. Lively, 30 Ga. 315, 76 Am. Dec. 649 ; Williams v. Williams, X42 Mass. 515, 8 N. E. 424. The statute law of Missouri and Kansas has reversed this rule r "If, after making any will, the testator shall duly make and execute a second will, the destruction, cancelling or revoking of any such second will shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to the first will, or unless he shall duly republish his first will." Ross V. Woollard, 75 Kan. 383-386, 89 Pac. 680. Texas: Hawes v. Nicholas, 72 Tex. 481, 10 S. W. 558, 2 h. R. A. 863. CaUfornia: Lon^s v. Lones, 108 Cal. 688, 41 Pac. 771. Nebraska: WUliams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. E. A. 383, 110 Am. St. Rep. 431, 4 Ann. Gas. 306. 102 WILLS AND ADMINISTRATION OP ESTATES (Ch. 3 found preserved among her papers in the envelope which had formerly contained the second will. It was held that under our statute the first will was not revived by the destruction of the last, except where an intention to that effect is expressed at the time of the destruction, or where the first will is republished. In this case the first will was not allowed to be probated.^^ § 31. By marriage and birth of issue The third manner of revoking an existing will is by such a decided change in the circumstances of the testator after the making of the will that the law infers that he no longer intended it to operate. By the common law if a man, after making a will marry and have issue, the will is deemed revoked. The revocation was a presumption of law and hence no evidence was admissible to rebut it." Both marriage and birth of issue must occur after the making of the will.'* The common law rule B2 Beaumont v. Keim, 50 Mo. 28. From the fact that a prior will is found among the testator's pa- pers and a subsequent will is not, the presumption arises that the testator destroyed the subsequent will with intention of revoking, but the further presumption that testator intended thereby to re- vive the prior will does not arise, as this would be a presumption based upon a presumption. Williams v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769. 53 Shorten v. Judd, 60 Kan. VH, 55 Pac. 286. 5 4 Card V. Alexander, 48 Conn. 504, 40 Am. Rep. 187; Easterlin V. EasterUn, 62 Fla. 468, 56 South. 688, Ann. Cas. 1913D, 1316; Hoitt V. Hoitt, 63 N. H. 475, 3 Atl. 604, 56 Am. Rep. 530 ; Bowers v. Bow- ers, 53 Ind. 430; Marston v. Roe, 8 Ad. & El. (Eng.) 14; Brady v. § 31) REVOCATION OF WILLS 103 Still prevails in many of the states. In others vari- ations of the rule by statute occur.°° In s5me, ei- ther marriage or birth of issue revokes a prior will,''* in others marriage alone," while in others the will is revoked unless made in contemplation of the marriage or the birth of issue,^* or provision is made for the issue by the will or by antenuptial Cubitt, 1 Doug. (Eng.) 31 ; Christopher v. Christopher, 4 Burr. (Eng.) 2182 ; Havens v. Van Den Burgh, 1 Denio (N. T.) 27 ; Brush v. Wil- kins, 4 Johns. (N. Y.) 506 ; Webb v. Jones, 36 N. J. Bq. 163 ; Mor- ton V. Onion, 45 Vt. 145 ; Nutt v. Norton, 142 Mass. 242, 7 N. E. 720. 5 5 Written will can only be revoked as provided for in statute. Marriage and birth of issue after making will do not revoke. Mor- gan V. Davenport, 60 Tex. 230. 5 8 Goodsell's Appeal, 55 Conn. 179, 10 Atl. 557; HoUoman v. Cope- land, 10 Ga. 79 ; Ware v. Wisner (C. C.) 50 Fed. 310 ; McCullum v. McKenzie, 26 Iowa, 510 ; Negus v. Negus, 46 Iowa, 487, 26 Am. Rep. 157; Fallon v. Chidester, 46 Iowa, 588, 26 Am. Rep. 164; Carey v. Baughn, 36 Iowa, 540, 14 Am. Rep. 534 ; Sanders v. Simcich, 65 Cal. 51, 2 Pac. 741. 57 Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 427, affirmed 21 Colo. 481, 42 Pac. 668 ; Ragan v. Ragan, 33 Ga. Supp. 106-115. Under statute of Arizona a will is revoked by marriage unless the wife is provided for by marriage contract or in the will, or men- tioned therein so as to show an intention not to revoke. Estate of Anderson, 14 Ariz. 502, 131 Pac, 975. Will of testator made no provision for widow or for child born after making of will ; widow renounced will and child's share was the other half. Held that while this did not revoke the will, it ren- dered all its provisions nugatory. Hobson v. Hobson, 40 Colo. 332, 91 Pac. 929. 5 8 Freeman v. Layton, 41 Ga. 58 ; Deupree v. Deupree, 45 Ga. 415 ; Sutton v. Hancock, 115 Ga. 857, 42 S. E. 214 ; Belton v. Summer, 31 Fla. 139, 12 South. 371, 21 L. R. A. 146 ; Gay v. Gay, 84 Ala. 38, 4 South. 42. 104 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 settlement.'* A posthumous child is issue within the meaning of these statutes/" There seems to be no logical reason why the birth of issue subsequent to the will should revoke the entire will. The birth of a single child, per- haps one of many, perhaps a posthumous child, cannot be conclusively presumed to alter all of the testator's plans of distribution. The rights of such after born child can be amply protected by provid- ing that it shall inherit a child's part, notwithstand- ing the will, or that the will shall be deemed re- voked pro tanto as to such child. °^ In the case of a woman the common law rule was that marriage alone revoked the previous will.°^ The statutes of some states qualify this by saying unless the will was executed in contemplation of marriage."' Whether the will of a married woman is revoked by the death of her then husband and her subsequent marriage has been decided both B9 Corker v. Corker, 87 Cal. 647, 25 Pac. 922. An adopted child is not "issue of tlae marriage," within the mean- ing of the California Code. Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. E. A. 414. eo Hart v. Hart, 70 Ga. 764. 81 WolfCe V. Loeb, 98 Ala. 426, 13 South. 744. 62 2 Blackstone's Commentaries, p. 499; Smith v. Clemson, 6 Houst. (Del.) 171 ; Blodgett v. Moore, 141 Mass. 75, 5 N. E. 470 ; In re Kaufman's Will, 131 N. T. 620, 30 N. E. 242, 15 L. R. A. 292; Stewart v. Powell, 90 Ky. 511, 14 S. W. 496, 10 L. R. A. 57. 63 Ellis V. Darden, 86 Ga. 368, 12 S. E. 652, 11 L. R. A. 51; Gib- bons V. McDermott, 19 Fla. 853; Colcord 7. Conroy, 40 Fla. 97, 23 South. 561. § 31) EBTOCATION OF WILLS 105 ways." Under statutes which have removed most of the disabilities of married women and conferred express power upon them to dispose of their prop- erty by will it has been held that the common law doctrine of the revocation of a will of a married woman by her subsequent marriage is abrogated." The revocation occurs in these cases by opera- tion of law, independent of the act of the party, and if it is desired to avoid such revocation it is necessary to republish the will after the events have occurred.®* «* Revoked: McWhorter v. Oneal, 121 Ga. 539, 49 S. E. 592. Not revoked: Comassi's Estate, lOT Cal. 1, 40 Pac. 15, 28 L. R. A. 414. 6 5 Baacke v. Baacke, 50 Neb. 18-21, 69 N. W. 303; In re Fuller's Will, 79 111. 99, 22 Am. Rep. 164 ; In re Hunt's Will, 81 Me. 275, 17 Atl. 68 ; In re Ward, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174 ; Noyes v. Southworth, 55 Mich. 173, 20 N. W. 891, 54 Am. Rep. 359. A will executed by a single woman is revoked by her subsequent marriage, at least to the extent it would operate to exclude her hus- band from his right as tenant by curtesy in any lands of which she dies seized in her own right of an estate of inheritance. Vandeveer V. Higgins, 59 Neb. 333, 80 N. W. 1043. 88 A singular doctrine is announced in Nebraska — revocation by implication from change of circumstances, which is determined in each case by the court. This would certainly make the law a guess- ing match, in which the court would have the last guess. "While our statute recognizes revocation of wills by implication of law, it has not undertaken to designate or specify what subse- quent changes in the condition and circumstances of the testator will produce such revocation, but it is for the court to determine from the facts of each particular case, under the rules and forms of law, whether the testator Intended the will to stand notwithstand- ing the changes in his condition and circumstances." Baacke v. Baacke, 50 Neb. 18-23, 69 N. W. 303. Happily this is mere dicta. 106 WILLS AND ADMINISTRATION OF ESTATES (Ch. 3 § 32. By sale of property devised Wills of land originated as appointments to uses, prior to the Statute of Uses, and therefore they could operate only upon the title which the testa- tor had at the time of the execution of the will. If he parted with such title, either by a valid convey- ance or a binding contract to convey, this had in law the effect of revoking the devise even though the same estate became reinvested in the testator during his life." Now by the modern rule, with the help of some statutes, the revocation is only pro tanto or condi- tional ; that is, the will operates on such title as may happen to remain in the testator at the time the will takes effect. °° If the devise be specific an ab- solute sale and parting with the property neces- sarily revokes the devise."" If there is no estate left in the testator/" or a title which cannot pass oTMcGowan v. Elroy, 28 App. D. C. 188-199; Estate of Benner, 155 Cal. 153, 99 Pac. 715. 6 8 Cozzens v. Jamison, 12 Mo. App. 452; Marshall v. Hartzfelt, 98 Mo. App. 178, 71 S. W. 1061 ; Moore v. Spier, 80 Ala. 129 ; Till- man's Estate, 3 Cal. Unrep. Cas. 677, 31 Pac. 563; Bissell v. Fley- ward, 96 U. S. 580, 24 L. Ed. 678 ; Dean v. Jagoe, 46 Tex. Civ. App. 389, 103 S. W. 195. The revocation of a will cannot be implied from the subseaueut acquisition of property by the testator which is not affected by the will. Baldwin v. Spriggs, 65 Md. 373, 5 Atl. 295. 6 9 Conn. T. & S. D. Co. v. Chase, 75 Conn. 683, 55 Atl. 171. 7oMcGowan v. Elroy, 28 App. D. C. 188-199; Epps v. Dean, 28 Ga. 533. § 32) REVQCATION OF WILLS 107 under the terms of the devise," the revocation is complete. But the will passes any portion oi the title which remains in the testator or any rights relating to it that may fairly pass." Powers of attorney," con- tracts to sell the land devised,'* sales with lien re- served," mortgages or encumbrances placed upon it by the testator" or an incomplete taking under eminent domain " are revocations pro tanto only. Ti Howard v. Carusi, 11 D. C. 260. 7 2 Woodward v. Woodward, 33 Colo. 457, 81 Pac. 322. 73 Estate of Kllborn, 5 Cal. App. 161, 89 Pac. 985. ■ 74 Ostrander v. Davis (S. D.) 191 Fed. 156, 111 C. C. A. 636 ; Welsh V. Pounders, 36 Ala. 668 ; Slaughter v. Stephens, 81 Ala. 418, 2 South. 145 ; Bruck v. Tucker, 32 Cal. 425. 7 Fields v. Carlton, 75 Ga. 554. 76 Stubbs V. Houston, 33 Ala. 555. 7 7 Parker v. Chestnutt, 80 Ga. 12, 5 S. B. 289. Where a testator by codicil revokes a specific devise in his will on the ground that he has sold the property when in fact he has not sold it, but still owns it at his death, the revocation Is presumed to be founded upon a mistake of fact, and the gift is unrevoked. But this rule is one in aid of ascertaining the intent of the testator and must yield to the intent gathered from the will. Dunham v. Averill, 45 Conn. 61-80, 29 Am. Rep. 642; Giddings v. Giddings, 65 Conn. 149, 32 Atl. 334, 48 Am. St. Rep. 192. 108 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 CHAPTER IV TESTAMENTARY CAPACITY § 33. Aliens. 34. Convicts. 35. Infants. 36. Married women. 37. Mental capacity. 38. Idiots. 39. Deaf, dumb, and blind persons. 40. Old age. 41. Effect of drink, drugs, etc. 42. Lunacy — Its nature. 43. Lunacy — Lucid Intervals. 44. Lunacy — Restoration to reason. 45. Lunacy — Suicide. 46. Delirium from fever or disease. 47. Drugs administered for fever or pain. 48. Monomania or partial insanity. 49. Monomania distinguished from eccentricity, moral perver- sion or bad temper. 50. Insane delusion must affect the will. 51. Insane delusion — Spiritualism and other religious beliefs. § 33. Aliens The most natural point from which to begin an investigation of this subject is the proposition that under the policy of the modern law every one has a right to dispose of everything he possesses, by will or otherwise, in any manner he chooses, except where special restraints are imposed by law. In discussing those who are disabled by law from § 33) TESTAMENTARY CAPACITY 109 making a testamentary disposition, we follow the familiar classification of aliens, convicts, infants, married women, and persons of unsound mind. And first, as to aliens. The disability of aliens is a very ancient one at the common law, and re- ferred chiefly to dispositions of real property. As real property held by an alien was not permitted to descend to his heir, it would have been inconsis- tent to permit the alien to devise such property. As to personal property, alien friends CQuld always dispose of it to the same extent as natural born subjects. In this country the disability of aHens to hold, convey and devise real property has been abolished by state constitutions and statutes in most of the states. Some states extend these priv- ileges to all aliens, and some confine them to resi- dent aliens. The extent of this right, therefore, becomes a matter of investigation in each state, bearing in mind that aliens had no common law power to convey title to real property either by descent or devise.^ i Utassy V. Giedinghagen, 132 Mo. 53, 33 S. W. 444 ; sections 2915, 4T62, 4763, 4764, R. S. Mo. 1S99 ; section 17, Bill of Kiglits, Constitu- tion of Kansas; Brigham v. Kenyon (0. O. Wash.) 76 Fed. 30; Cros- grove V. Crosgrove, 69 Conn. 416, 38 Atl. 219 ; Jost v. Jost, 12 D. C. 487. Residence within Confederate lines did not destroy testamentary capacity during Civil War. Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976. The extension of the law of wills of Arkansas to the Indians by act of congress, enabled the Indian to dispose by will of all his alien- 110 WILLS AND ADMINISTRATION OP ESTATES (Ch. 4 § 34. Convicts The next question arises upon the capacity of persons who have been guilty of a felony. By the early common law the mere commission of treason and other felonies, including suicide, destroyed tes- tamentary capacity as to personal property, be- cause such acts involved a forfeiture of the goods of the felon. Parliament might go farther and by a legislative act, known as a bill of attainder, de- clare the inheritable blood of the felon corrupted so that he could convey no title to real property, either by descent or devise; and this might be done either before or after conviction. This matter is only of historical interest to us now in this coun- try, as by the constitution of the United States, congress and the states are equally prohibited from passing bills of attainder.^ And the constitutions of the states provide further security against for- feiture of estates and corruption of blood.' There seems to be no reason why a person, even though convicted and imprisoned for a crime, may not exercise full testamentary powers. The act does not take effect until after his death, when his punishment is ended. The most that can be said is that his imprisonment might give occasion for able property, but did not remove the restrictions on alienation as then applied to Indians. Taylor v. Parker, 33 Okl. 199, 126 Pac. 573. 2 Article 1, §§ 9, 10, article 3, § 3, Constitution of United States. 3 Article 2, § 13, Constitution of Missouri; section 12, Bill of Rights, Constitution of ICansas. § 36) TESTAMENTARY CAPACITY 111 the exercise of some form of duress or undue in- fluence.'' § 35. Infants At common law females of the age of twelve and males of fourteen could make a valid disposition of personal property by will.^ At present the law is settled by statute in most of the states/ and the age is fixed, usually, at eighteen and twenty-one. The definiteness of the statute law leaves little to be discussed on the subject of infants, except to . call your attention to the curious rule of the com- mon law that a person is of age at the earliest mo- ment of the day preceding his twenty-first birth- day, or eighteenth birthday, as the case may be. § 36. Married women Married women are now clothed with the same powers of testamentary disposition as men.'' All of the law in regard to the consent of the husband being necessary to the validity of the will of a mar- 4 2 Blackstone's Commentaries, p. 497. 5 Banks v. Sherrod, 52 Ala. 270. «Will personal property at 18. Allen v. Watts, 98 Ala. 384, 11 South. 646 : Daniel v. Hill, 52 Ala. 430 ; Banks v. Sherrod, 52 Ala. 267. Personal and real at 14. O'Byrne v. Feeley, 61 Ga. 77. Person under 21 cannot make a will by act of 1840. Heirs at law are not estopped from averring the minority of the testator by having dealt with him as sui juris. Moore v. Moore, 23 Tex. 637. ^ Emmons v. Gamett, 18 D. C. 52 ; Ferrell v. Gill, 130 Ga. 534, 61 S. E. 131, 14 Ann. Cas. 471 ; Urquhart v. Oliver, 56 Ga. 344 ; Vande- veer v. Higgins, 59 Neb. 333, 338, SO N. W. 1043. 112 WILLS AND ADMINISTEATION OF ESTATES (Ch. 4 ried woman is rapidly becoming obsolete. Occa- sional reference to it may be necessary, however, in examining wills which took effect prior to the passage of the enabling statutes. Instead of going into the labyrinth of rules and principles which formerly hedged about the power of a married woman to make a will, it may be said briefly that at common law a married woman could not make a valid will of personal property without the con- sent, express or implied, of her husband;' and she could not make a valid will of real property except under a power of appointment reserved to her in the instrument by which the property was con- veyed to her or settled to her use.* As will be here- after noted the statute law gives to each spouse certain rights in the property of the other that are not subject to disposition by will. But subject to 8 Hines v. Gordon, 2 Hay w. & H. (D. C.) 222, Fed. Cas. No. 18,302 ; aiyers v. Egguer, 6 Houst. (Del.) 342; Cavenaugh y. Ainchbacker, 36 Ga. 500, 91 Am. Dec. 778; Chapman v. Gray, 8 Ga. 337; McGowan V. Jones, R. M. Charlt. (Ga.) 184. » ChurcMU V. Corker, 25 Ga. 479 ; Fitch v. Brainerd, 2 Day (Conn.) 163; Mitchell v. Hughes, 3 Colo. App. 43, 32 Pac. 185; Weeks v. Sego, 9 Ga. 199 ; Barnes v. Irwin, 2 Dall. (Pa.) 199, 1 L. Ed. 348, 1 Am. Dec. 278; Hamilton v. Rathbone (D. C.) 175 U. S. 414, 20 Sup. Ct. 155, 44 L. Ed. 219; Baker v. Chastang's Heirs, 18 Ala. 417; Bur- ton V. Holly, 18 Ala. 408 ; Gannard v. Eslava, 20 Ala. 732 ; O'Don- uell V. Rodiger, 76 Ala. 222, 52 Am. Rep. 322 ; Coleman v. Robertson, 17 Ala. 84 ; Murphree v. Senn, 107 Ala. 424, 18 South. 264 ; Torrey V. Burney, 113 Ala. 496, 21 South. 348 ; Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. R. A. 414; Martin v. Fort (Tenn.) 83 Fed. 19, 27 C. C. A. 428 ; Blake v. Hawkins (N. C.) 98 U. S. 315, 25 L. Ed. 139 ; Lee v. Simpson (S. 0.) 134 U, S. 572, 10 Sup. Ct. 631, 33 L. Ed. 1038. § 37) TESTAMENTARY CAPACITY 113 these rights a married woman may now make a will as freely as a married man." § 37. Mental capacity We now enter upon the broad field of inquiry as to what persons are incompetent to make wills by reason of being of unsound mind. The study of mental phenomena is one filled with the greatest difficulty, for the reason that such phenomena are even at this day very little understood. Trained medical experts are devoting their whole lives to the investigation of the causes of mental aberra- tion ; but the result of their investigations thus far has been to produce so many refined distinctions and classifications, and such a mass of conflicting theories, that they confuse more than they en- lighten the ordinary man." Much attention has been directed recently to the study of the mind and some curious theories have gained a footing among scientific men; but nothing practical has yet been developed which can be incorporated into the law of wills. It has been said that very few persons possess a perfectly sound mind. In the sense of a mind evenly balanced in all its parts and faculties, this is undoubtedly true: but most persons possess 3 sufficiently sound mind to distinguish right from wrong and to look after their own affairs. Those 10 Bngleman v. Deal, 14 Tex. Civ. App. 1, 37 S. W. 652; Brown v. Pridgen, 56 Tex. 124. 11 Dunham's Appeal, 27 Conn. 192, 201. BoEL. Wills — 8 114 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 who do not are the exception. The only rule that can safely be adopted in the administration of the law, therefore, is that every man must be presumed to be sane until he is shown to be otherwise. Spec- ulative theories are more injurious than helpful in this subject, and the law knows but one test; it submits the wfhole subject of soundness or un- soundness of mind in the particular case to the de- cision of a jury of average citizens. Mental un- soundness embraces a wide range of causes and an infinite variety of efifects; and each of the nu- merous classifications is subject to variation in in- dividual cases by reason of temperament and sur- roundings. The same general rule is applied to all cases of mental unsoundness from whatever cause. It is this: The proper question to submit to the jury is, "Were the testator's mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will?" The supreme court of Missouri lays down the general rule of law when it says : One who is capable of comprehending all his property, and all of the persons who reasonably come within the range of his bounty; and who has sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property, has sufficient capacity to make a will.^^ 12 Jackson v. Hardin, 83 Mo. 175. In some recent cases the supreme court of Missouri has added to this a requirement that the testator not only comprehend the per- § 38) TESTAMENTARY CAPACITY 115 § 38. Idiots Among those mentally deficient, the first class to consider is idiots. An idiot is one who is born with a mind so naturally deficient that he cannot exer- cise ordinary intelligence. Swinburne, one of the oldest English writers on wills, says, that an idiot is he who cannot count twenty or tell the name o£ his own father and mother. This is not regarded as a test, but only as an illustration of idiocy; for a sons who reasonably come within the range of his bounty, but "their deserts with reference to their treatment of him." This comes dan- gerously near giving the jury a roving commission to pass upon the justice and propriety of the particular dispositions made. The ques- tion should be confined to competency, not justice. It is to be hoped that this innovation will disappear from our law. Turner v. Ander- son, 236 Mo. 523, 139 S. W. 180; Crum v. Orum, 231 Mo. 626, 132 S- W. 1070. Testamentary capacity. McElroy v. McElroy, 5 Ala. 81 ; Colemam V. Robertson, 17 Ala. 84 ; Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. loO : Stubbs T. Houston, 33 Ala. 555 ; O'Donnell v. Rodiger, 76 Ala. 223, 228, 52 Am. Rep. 322; Kramer v. Weinert, 81 Ala. 416, 1 South- 26; Schieffelin v. Schieffelin, 127 Ala. 34, 28 South. 694; White v. Farley, 81 Ala. 563, 8 South. 215 ; Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St. Rep. 89 ; Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33 ; McBride v. Sullivan, 155 Ala. 166, 45 South. 902 ; Mullen v. Johnson, 157 Ala. 262, 47 South. 584 ; Ab- raham V. Wilkins, 17 Ark. 292; Ouachita Baptist College v. Scott,. 64 Ark. 349, 42 S. W. 586; Taylor v. McClintock, 87 Ark. 243, 112" S. W. 405 ; Black's Estate, Myr. Prob. (Cal.) 24 ; Tittel's Estate, Myr. Prob. (Cal.) 12; Estate of Nelson, 132 Cal. 182, 64 Pac. 294; Mn- Clintock V. Curd, 32 Mo. 411 ; Benolst v. Murrin, 58 Mo. 307; Delaney V. City of Salina, 34 Kan. 532, 9 Pac. 271 ; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701 ; Barnes v. Wakeman, 69 Kan. 853, 76 Pac. 1128 ; Gor- don V. Burris, 153 Mo. 231, 54 S. W. 546; Sturdevant's Appeal, 71 Conn. 393, 42 Atl. 70 ; St. Leger's Appeal, 34 Conn. 439, 91 Am. Dec. 735; Havens v. Mason, 78 Conn. 410, 62 Atl. 615, 3 h. R. A. (N. S.) 172 ; Nichols v. Wentz, 78 Conn. 429, 62 Atl. 610 ; Steele v. Helm, 2 116 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 person may be able to do these, and yet not have the capacity to make a will or a contract. Idiots or imbeciles are totally wanting in capacity for business or for intelligent labor, and are incapable of mental improvement; they are wholly deficient both in the perceptive and reflective faculties ; they possess neither observation nor judgment, and the little memory they have is wholly passive; they have no ability to recollect at will past transactions, Marv. (Del.) 237, 43 Atl. 153; Chandler v. Ferris, 1 Har. (Del.) 454: Duffield V. Morris Ex'r, 2 Har. (Del.) 375 ; Ball v. Kane, 1 Pennewil'. (Del.) 90, 39 Atl. 778; Smith v. Smith's Adm'r, 2 Pennewill (Del.) 245, 45 Atl. 396; Pritchard v. Henderson, 3 Pennewill (Del.) 128, 50 Atl. 217 ; Cordrey v. Cordrey, 1 Houst. (Del.) 269 ; Jamison v. Jami- son's Will, 3 Houst. (Del.) 108 ; Hall v. Dougherty, 5 Houst. (Del.) 435 ; Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813 ; Hall t. Hall, 18 Ga. 40; Stancell v. Kenan, 33 Ga. 56; Ragan v. Eagan, 33 Ga. Supp. 106 ; Slaughter v. Heath, 127 Ga. 747, 57 S. B. 69, 27 L. R. A. (N. S.) 1; Holton v. Cochran, 208 Mo. 814, 106 S. W. 1035; Gibony V. Foster, 230 Mo. 106, 130 S. W. 314; Weston v. Hanson, 212 Mo. 248, 111 S. W. 44 ; Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606 ; Garri- son V. Blanton, 48 Tex. 299; Sutton v. Sutton, 5 Har. (Del.) 459; Berst V. Moxom, 157 Mo. App. 342, 138 S. W. 74 ; Id., 163 Mo. App. 123, 145 S. W. 857 ; Luebbert v. Brockmeyer, 158 Mo. App. 196, 138 S. W. 92 ; In re Estate of Nelson, 75 Neb. 298, 106 N. W. 326; Es- tate of De Laveaga, 165 Cal. 607, 133 Pac. 307. An instruction that overstates the capacity necessary. Couch r. Gentry, 113 Mo. 248, 20 S. W. 890. Finding of lack of capacity sustained. In re Estate of Frederick, 83 Neb. 318, 119 N. W. 667, 120 N. W. 1131. Instructions approved. Estate of Higglns, 156 Cal. 257, 104 Pac. 6 ; Comstock v. Hadlyme, 8 Conn. 264, 20 Am. Dec. 100 ; Kinue \ . Kinne, 9 Conn. 102, 21 Am. Dec. 732 ; St. Leger's Appeal, 34 Conn, 434, 01 Am. Dec. 735 ; Mowry v. Norman, 223 Mo. 463, 122 S. W. 724 ; Naylor v. McEuer, 248 Mo. 423, 154 S. W. 772; In re Estate of Wil- son, 78 Neb. 758, 111 N. W. 788. Instruction disapproved. Denson v. Beazley, 34 Tex. 191. § 38) TESTAMENTARY CAPACITY 117 and no forecast. All these powers in a greater or less degree enter into the act of an understanding disposition of property to take effect after one's death, and without the basis of these faculties it is confessedly impossible for one to execute a valid will. The courts at one time went very far in holding that the least spark of intelligence would enable one to make a valid will; and in the famous case of Stewart v. Lispenard, 26 Wend. (N. Y.) 255, it was held that an idiot under legal guardianship could make a will. But this decision of the New York Courts was afterwards overruled in the same state in the case of Delafield v. Parish, 25 N. Y. 27. By that. and subsequent decisions the rule is settled in accordance with the general rule before stated, that it is a question of fact whether the testator had sufficient capacity for the act performed. In Mis- souri a case arose ^^ in which the evidence showed that the testator, Casper Rueggesick, was a weak- minded man. He had suffered from a sun-stroke at one time in life and after that event his mental powers seemed to be impaired. He never married, and took no interest in anything except his farm- ing occupation, in which he was fairly proficient. He cared nothing for money, and had no business transactions or contracts with anyone, and never attended elections or spoke of matters of public con- is Brinkman v. Eueggesiek, 71 Mo. 553. 118 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 cern. He worked for twenty or thirty years for his brother and sister-in-law on their farm without compensation — simply making his home with them. After his brother's death he continued to reside with his sister-in-law. Upon the death of his brother, he inherited from his estate about five hundred dollars, which the administrator tendered to him, but which he declined to receive, and it was handed to his sister-in-law to keep for him. At one time a guardian was appointed for him but when it was found that he was simply a harmless old man and not likely to squander, his property the guard- ian resigned his trust, and no other was afterward appointed. The only property he had was this $500 from his brother's estate and he died leaving a will by which he bequeathed it to his sister-in- law, to the exclusion of his own brothers and sis- ters. The will was contested by the brothers and sisters on the ground of want of testamentary ca- pacity and the trial resulted in setting aside the will. On appeal to the supreme court, the judg- ment was reversed and the will sustained on the ground that the testator at the time he executed it had sufficient capacity to understand what he was doing and to whom he was giving his property. This will seems to have been sustained under these circumstances principally because it was such a simple will and a very natural and proper one. In other words, the internal evidence of the will itself, and the evidence of the surrounding circumstances § 39) TESTAMENTARY CAPACITY 119 had a great influence on the result. If the will had been a complicated one, or unnatural in any of its provisions, it would not have been sustained." § 39. Deaf, dumb and blind persons Deaf, dumb and blind persons were formerly in- cluded in the same class with idiots, among those who lacked testamentary capacity; and the reason given was that they were deprived of the use of those senses through which intelligence could be communicated."^' The modern law has restored their capacity and sustains their testamentary acts where the proof of their intention is clear and no circumstances of imposition appear. Ordinarily when a testator subscribes and executes a will in the mode prescribed by law, the facts of such subscription and execution are sufficient proof that the instrument speaks his language and expresses his will; but when the testator is deaf and dumb, or unable to read and write or speak, some- thing more is demanded. There must then not only be proof of the factum of the will, but also that the mind of the testator accompanied the act, and that the instrument executed speaks his language and really expresses his will.^° This is undoubtedly the better rule and the safer one for a practitioner to keep in mind if he be di- recting the execution of the will of such a person. 14 Weak-minded, but capable of executing will. St. Joseph's Con- vent V. Garner, 66 Ark. 623, 53 S. W. 29S. Arrested development of mind. Estate of De Laveaga, 165 Cal. 607, 133 Pac. 307. 15 2 Blackstone's Commentaries, p. 497. 16 RoUwagen v. RoUwagen, 63 N. Y. 504. 120 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 Some courts have held, however, that even in the case of persons w^ho cannot read, it is not neces- sary as a matter of law to prove that the will was read to him." § 40. Old age The next form of mental weakness, nearly allied to idiocy, is the childishness of old age. This is known in the law of wills as senile dementia. It is nothing else than a decay or wearing out of the mental faculties, which frequently occurs in ex- treme old age, and sometimes earlier in life. If this decay of the mind has reached a point where our test would apply, namely, that the testator did not understand the act in which he was engaged, then the capacity of the testator to make a valid will is gone, whatever his age may be.^* But mere age, however great, is not alone sufificient to defeat a will : for persons may be and frequently are very clear in mind, though very weak and infirm in body. The courts are very careful not to lightly interfere with a will on the ground of old age mere- ly Guthrie v. Price, 23 Ark. 396. 18 Roberts v. Bartlett, 190 Mo. 696, 89 S. W. 858 ; Langley's Es- tate, 140 Cal. 129, 73 Pac. 824 ; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Estate of Loveland, 162 Cal. 595, 123 Pac. 801; Estate of Huston, 163 Oal. 166, 124 Pac. 852; Holton v. Cochran, 208 Mo. 314, 106 S. W. 1035 ; Luebbert v. Brockmeyer, 158 Mo. App. 196, 138 S. W. 92; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74; Id., 163 Mo. App. 123, 145 S. W. 857; Mason y. Rodriguez, 53 Tex. Civ. App. 445, 115 S. W. 868. § 4:0) TESTAMENTAET CAPACITY 121 ly; no matter how old the person may be, nor how infirm in body/® The testamentary power is a valuable right which should be preserved and 19 Van Alst V. Hunter, 5 Johns. Ch. (N. Y.) 148; McFadln v. Ca- tron, 120 Mo. 267, 25 S. W. 506 ; Id., 138 Mo. 216, 38 S. W. 932, 39 S. W. 771 ; Wood v. Carpenter, 166 Mo. 487, 66 S. W. 172 ; Hamon V. Hamon, 180 Mo. 685, 79 S. W. 422 ; Eule in Benoist v. Muriiu, 48 Mo. 48 ; Id. 58 Mo. 307, affirmed. Mental weakness from sickness and old age. (1884) Jackson v. Hardin, 83 Mo. 175; (1889) Myers v. Hanger, 98 Mo. 433, 11 S. W. 974 ; (1889) Thompson v. Ish, 99 Mo. 160-180, 12 S. W. 510, 17 Am. St Rep. 552; (1892) Norton v. Paxton, 110 Mo. 465, 19 S. W. 807; (1892) Couch V. Gentry, 113 Mo. 249, 20 S. W. 890; (1892) Maddox V. Maddox, 114 Mo. 44, 21 S. W. 499, 35 Am. St. Rep. 734; (1S95) Farmer v. Farmer, 129 Mo. 538, 31 S. W. 926 ; (1897) Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576; (1897) Von De Veld V. Judy, 143 Mo. 364, 44 S. W. 1117 ; (1898) Riley v. Sherwood, 144 Mo. 363, 45 S. W. 1077 ; (1898) Fulbright v. Perry Co., 145 Mo. 442, 46 S. W. 955 ; (1899) Sehr v. Lindemann, 153 Mo. 288, 54 S. W. 537 ; (1900) Riggin v. Westminster College, 160 Mo. 579, 61 S. W. 803; (1901) Kischman v. Scott, 166 Mo. 227, 65 S. W. 1031 ; (1901) Wood V. Carpenter, 166 Mo. 487, 66 S. W. 172; (1902) Crowson v. Crowson, 172 Mo. 701, 72 S. W. 1065 ; (1903) Catholic University v. O'Brien, 181 Mo. 90, 79 S. W. 901 ; (1906) Hill v. Boyd, 199 Mo. 438, 97 S. W. 918 ; Estate of Dole, 147 Cal. 188, 81 Pac. 534 ; Waddington v. Buz- by, 45 N. J. Eq. 173, 16 Atl. 690, 14 Am. St. Rep. 706 ; McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590 ; Huffaker v. Beers, 95 Ark. 158, 128 S. W. 1040; Estate of Motz, 136 Cal. 558, 6d Pac. 294; Latour's Estate, 140 Cal. 414, 73 Pac. 1070 ; Dougherty's Estate, 139 Cal. 10, 14, T2 Pac. 358; Estate of Morey, 147 Cal. 495, 82 Pac. 57; Kinne v. Kinne, 9 Conn. 105, 21 Am. Dec. 732 ; Richmond's Appeal, 59 Conn. 245, 22 Atl. 82, 21 Am. St. Rep. 85; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314; Ken- nett V. Kidd, 87 Kan. 652, 125 Pac. 36, 44 L. R. A. (N. S.) 544, Ann. Cas. 1914A, 592 ; Wolfe v. Whitworth, 170 Mo. App. 372, 156 S. W. 715; Gaston v. Gaston, 83 Kan. 215, 109 Pac. 777; Harper v. Harper, 83 Kan. 761, 113 Pac. 300; In re Estate of Owen, 73 Neb. 840, 103 N. W. 675 ; Estate of Packer, 164 Cal. 525, 129 Pac. 778. 122 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 guarded by the courts; for as said by Chancellor Kent: It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property, is one of the most efficient means which he has in protracted life to command the atten- tion due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent arts, but contains those very dispositions which the circumstances of his situa- tion, and the course of the natural affections dictated. It is not soundness of body but of mind that is requisite to sustain the execution of instruments. The law looks only to the competency of the under- standing, and neither age nor sickness, nor extreme distress nor debility of body will affect the capacity to make a conveyance, if sufficient intelligence re- mains.^" The loss of memory is one of the earliest and surest indications of mental decay. As this is an important faculty to be exerted in composing a will, the loss of it will necessarily be fatal to the validity of a testamentary instrument. But a mere partial loss of memory is not sufficient, otherwise many very shrewd and intelligent people would be 20 Bowdoin College v. Merrltt (0. C.) 75 Fed. 480; Estate of Hus- ton, 163 Cal. 166, 124 Pac. 852 ; Wood v. Lane, 102 Ga. 199, 29 S. E. 180 ; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641 ; Mcintosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611; Stull v. StuU, 1 Neb. HaU's Heirs v. Hall's Ex'r, 38 Ala. 131; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 ; Jackson v. Hardin, 83 Mo. 183 ; Sayre V. Trustees, 192 Mo. 126, 90 S. W. 787. The mere fact that a testator disclaimed the paternity of children born of his marriage, and disinherited them, carries no presumption that he was suffering from an insane delusion. If his belief was founded upon a mistake of fact or false testimony it is not an in- sane delusion. But if he retained the belief when under the condi- tions shown every sane mind would reject or surrender it, it may be classed as a delusion. Morgan v. Morgan, 30 App. D. C. 436, 13 Ann. Cas. 1037. BO Fulton V. Freeland, 219 Mo. 494, 118 S. W. 12, 134 Am. St. Eep. 576 ; Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132. No belief that has any evidence for its basis is an insane delusion. StuU V. Stull, 1 Neb. (Unof.) 389, 96 N. W. 196. 142 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4r tion on the part of the testator as to the feelings or intentions of his relatives." The same may be said of suspicions/^ arbitrary and capricious likes and dislikes/* prejudices, resentments and aver- sions, w^ell or illfounded, for heirs and relatives," or high temper,°° unkindness or brutality." But it is said that unexplainable aversion to a child may be an insane delusion." § 50. Insane delusion — Must affect the will An insane delusion must exist which has some direct influence upon the will, or which caused it to be made in the particular form in which it was made; otherwise the will is valid. An insane delusion is said to consist essentially in believing that to be true or to exist which no man in his senses can admit. The standard of com- oiMcBride v. Sullivan, 155 Ala. 166, 45 South. 902; Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101; In re Ruffino, 116 Cal. 317, 48 Pac. 127. 62 Estate of Scott, 128 Cal. 57, 60 Pac. 527; Kendrick's Estate, 130 Cal. 360, 62 Pac. 605 ; Calef 's Estate, 139 Cal. 673, 73 Pac. 539. 03 Spencer's Estate, 96 Cal. 452, 31 Pac. 453. Si Kendrick's Estate, 130 Cal. 360, 62 Pac. 605 ; Dunham's Appeal, 27 Conn. 192 ; Robinson v. Duvall, 27 App. D. C. 535 ; Riddle v. Gib- son, 29 App. D. C. 237 ; Carter y. Dixon, 69 Ga. 82 ; Wynne v. Har- rell, 133 Ga. 616, 66 S. E. 921; In re Clapham's Estate, 73 Neb. 492, 103 N. W. 61 ; Estate of Rlordan, 13 Cal. App. 313, 109 Pac. 629. 66 Current v. Current, 244 Mo. 429, 148 S. W. 860. 68 Weston V. Hanson, 212 Mo. 248, 111 S. W. 44. 67 Buford V. Grufcer, 223 Mo. 231, 122 S. W. 717; Estate of Rior- dan, 13 Cal. App. 313, 109 Pac. 629. § 60) TESTAMENTARY CAPACITY 14S parison being the average man with the average range of mind/* The case of Benoist v. Murrin, 58 Mo. 307, is often cited by other courts and text writers as lay- ing down with great clearness the rule of law upon this subject. The court said: Whenever a person imagines something extravagant to exist, whidi really has no existence whatever, and he is incapa- ble of being reasoned out of his false belief, he is in that re- spect insane ; and if his delirium relates to his property, then he is incapable of making a will. But to invalidate the instru- ment it must be directly produced by the partial insanity or monomania under which the testator was laboring. °° 58 The case of Cutler v. Zollinger, 117 Mo. 92, 22 S. W. 895, was a case of a sale of real estate which the plaintiff endeavored to have set aside on the ground that she was under an insane delusion at the time it was made. It was shown that she believed herself tor- mented by devils, but Judge Black held that this had nothing to do with her property, and refused to set the deed aside, Inasmuch as a fair price had been paid by the purchaser. A late case on this subject is the case of Farmer v. Farmer, 12& Mo. 530, 31 S. W. 926, where it was claimed that the testator had an unnatural and insane dislike for his wife and children. He had received a blow on his head about twenty-four years before his death. In 1886, a year or so before his death, he had shot and killed one of his sons in a fight, after having been shot by the son four or five times. After these events he became of a morbid and restless frame of mind. By the will in question he had devised all of his property to one of his daughters to the exclusion of his other sons and daugh- ters, subject however to a life estate of his wife in one-third. The will was drawn by a leading attorney, and there seemed to be no question of the testator's general capacity. The will was therefore sustained. 5 Paranoia, partial insanity or insane delusions defined. Taylor v. McCIintock, 87 Ark. 243, 112 S. W. 405; Kendrick's Estate, 130 Cal. 360, 62 Pac. 605 ; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307; Knapp v. Trust Co., 199 Mo. 667, 98 S. W. 70; 144 WILLS AND ADMINISTRATION OP ESTATES (Ch. 4 In this particular case it was claimed that the testator was under an insane delusion that his son had ruined him and that he was a pauper. He left a will by which he disposed of an estate worth a million and a half dollars, and the will was sus- tained. While an unnatural or unreasonable will is not of itself sufficient to show want of mental capacity it may be corroborative evidence of delusions. °° Holton V. Cochran, 208 Mo. 314, 106 S. W. 1035 ; Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132; Buford v. Gruber, 223 Mo. 231, 122 S. W. 717; Kimberly's Appeal, 68 Conn. 428, 36 Atl. 847, 37 L. R. A. 261, 57 Am. St. Rep. 101 ; Riddle v. Gibson, 29 App. D. O. 237 ; Lucas r. Parsons, 24 Ga. 640, 71 Am. Dec. 147; Evans v. Arnold, 52 Ga. 169 ; Wetter v. Habersham, 60 Ga. 193 ; Prather v. McClelland, 76 Tex. 574, 13 S. W. 548. Instructions on insane delusions. McKenna's Estate, 143 Cal. 580, 77 Pac. 461. Improper instruction on insane delusions. Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101. A delusion shown to exist is presumed to continue. Buford v. Gruber, 223 Mo. 231, 122 S. W. 717. Insane delusion implies that testator knows what he is doing, but has an insane reason for doing it. Harbison v. Beets, 84 Kan. 11- 18, 113 Pac. 423. 60 Wilson's Estate, 117 Cal. 278, 49 Pac. 172. § 51) TESTAMENTARY CAPACITY 145 § 51. Insane delusion — Spiritualism and other re- ligious beliefs The belief in Spiritualism, that is, that the spirits of the dead can communicate with the living, and advise, suggest, approve, or disapprove their action in particular cases, is not per se an insane delu- sion,®^ but such a belief may easily lend itself to 61 Spencer's Estate, 96 Cal. 448, 31 Pac. 453; Kobinson v. Adams, 62 Me. 369, 16 Am. Eep. 473 ; Smith's Will, 52 Wis. 543, 8 N. W. 616, 9 N. W. 665, 38 Am. Eep. 756; Billings' Appeal, 49 Conn. 461; Mc- Clary v. StuU, 44 Neb. 175, 62 N. W. 501. A belief in spiritualism does not incapacitate from making a valid will, even when the testator acted under supposed instructions from departed spirits, unless absolute unsoundness of mind is found. Brown v. Ward, 53 Md. 376, 36 Am. Eep. 422 ; Eobinson v. Adams, 62 Me. 369, 16 Am. Eep. 473. A striking case on this subject is found in Middleditch v. Williams, 45 N. J. Eq. 726, 17 Atl. 826, 4 L. E. A. 738, where the court said : "A will may be contrary to the principles of justice and humanity, its pi'ovisions may be shockingly unnatural and extremely unjust; nevertheless, if it appears to have been made by a person of suffi- cient age to be competent to make a will, and also to be the free and unconstrained product of a sound mind, the courts are bound to uphold it. "Even if it appears that the testator was subject to an insane de- lusion when he made his will, but it is also made to appear that his delusion was not of a character likely to influence him, and did not influence him, in the disposition which he made of his property, his will should be declared valid. "The testator was a believer in spiritualism ; that is, he believed the spirits of the dead can communicate with the living, through the agency of persons called mediums and who possess qualities or gifts not possessed by mankind in general. The proofs show that the tes- tator stated to several persons prior to the execution of his will that the spirit of his dead wife had requested him, through a medium re- siding in Forty-sixth street in the city of New York, to make pro- vision for his mother-in-law in his will. To one person he said that BoBL. Wills — 10 146 WILLS AND ADMINISTRATION OF ESTATES (Ch. 4 case of actual fraud or undue influence/^ Spirit- ualism is classed with other religious beliefs. A belief common to all the members of a particular religious sect, such as the belief in purgatory, is not an insane delusion/' his wife's spirit had requested him to give all his property to her mother and to do it in such a way that none of his relatives could get it away from her. The evidence shows beyond doubt, I think, that the testator believed fully and thoroughly that the messages which were delivered to him, as communications from his wife, ac- tually came from her spirit, and that her spirit knew constantly all that he was doing." The testator did make very liberal provision for his mother-in- law, to the exclusion of all of his relatives except his niece, but the will was sustained on the ground that the only proof of any insanity was this belief in spiritualism. The court would not say as a matter of law that a belief in spiritualism was an insane delusion. 6 2 Thompson v. Hawks (C. C.) 14 Fed. 902; Lyon v. Home, L. R. 6 Eq. 655; Gass v. Gass, 3 Humph. (Tenn.) 278; Weir's Will, 9 Dana (Ky.) 34. 63 Newton v. Carbery, 5 Craneh, O. C. (D. C.) 626, Fed. Gas. No. 10,189. other peculiar religious beliefs. Bonard's Will, 16 Abb. Prac. N. S. (N. Y.) 128; Austen v. Graham, 1 Spinks (Eng. Ecc.) 357. § 52) PROBATE OF WILLS 147 CHAPTER V PROBATE OF WILLS § 52. Necessity for probate. 5:i. Common law method of probate. 54. Rights under an unprobated will. 55. Ecclesiastical courts superseded by probate courts with broader powers. 56. Equity has no jurisdiction to probate or cancel wills. 57. Place of probate. 58. Preliminary fact of death. 59. Manner of probate — Ex parte proceeding. 60. Manner of probate — On notice and hearing. 61. Probate — Procedure. 62. The issue — Devisavit vel non. 63. Lost or destroyed wills. 64. Foreign wills. 65. Recording will as a conveyance. Effect of Probate 66. Under American statutes. 67. DifEerence between proceeding in rem and In personam, 68. Decree of probate not subject to collateral attack. § 52. Necessity for probate When a person dies leaving a last will and testa- ment, or an instrument which is claimed to bear that character, the question at once arises in what manner may the validity of such instrument be es- tablished so as to make it binding upon all persons interested in the estate and effective upon the prop- erty of which it seeks to dispose. A will is in the nature of a conveyance of title to property, and in 148 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 order to have this effect, certain preliminary steps must be taken. A conveyance of title by act inter vivos, such as a deed, takes effect from the moment of delivery; but inasmuch as a will cannot be de- livered, some other mode must be taken to put it into operation. Whether there is in existence a valid will, that is, an instrument testamentary in character, and ex- ecuted in conformity with law, is a mixed ques- tion of law and fact which should be submitted to and passed upon by some tribunal of proper juris- diction. The nature of the instrument itself, the formalities which the law requires to make it valid, the fact that the maker whose will it expresses is silent in death, the fact that it alters the law of descent and establishes a new law for that particu- lar estate, the rights of heirs and the contingent interest of the state itself in the property, all coin- cide in producing an imperative public policy that the proof of the existence and validity of a will shall not be left in the breast of interested par- ties, but shall be submitted to a public tribunal with power to hear, determine and establish. The pow- er is essentially judicial, and may be conferred by statute upon any court capable of exercising it. It is usually reposed in probate courts, or courts of that general nature. The American law now gen- erally recognizes the necessity for the probate of wills, both of real and personal property, makes provision for their probate in the same tribunal. § 53) PROBATE OF WILLS 149 and refuses to recognize in other tribunals the terms or legality, of an unprobated will. Even attempts by provisions in the will, commonly call- ed non-probate clauses, to dispense with the neces- sity for probate or administration are fruitless.^ § 53. Common law method of probate This is a marked departure from the common law as we have received it from England. At com- mon law no probate of a will of real estate was known. There was no tribunal empowered to pass finally upon the validity or invalidity of such a will. It was regarded as a conveyance, and in case of litigation was proved like any other conveyance. A will of personal estate was, however, proved in the ecclesiastical court. This probate had the salu- tary efifect of establishing the existence of the will by public record, but it was not originally designed for that purpose. It arose from the circumstance that by the early rules of the common law the bishop claimed title to all the personal effects of an intestate. When a person left a will the title to the personalty vested in the executor and not in the bishop. The executor therefore proved or pro- 1 Sharp V. Hall, S6 Ala. 110, 5 South. 497, 11 Am. St. Eep. 28 ; Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129 ; Sevier v. Wood- son, 205 Mo. 202, 104 S. W. 1, 120 Am. St. Rep. 728. Attempts to pass the estate direct to trustees without the inter- vention of executors or administrators are void. Hunter v. Bryson, 5 Gill & J. (Md.) 483-488, 25 Am. Dec. 313 ; Wall v. Bissell, 125 U. S. 382-388, 8 Sup. Ct. 979, 31 L. Ed. 772. 150 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 bated the will in the ecclesiastical court not for the purpose of submitting the estate to the control of that court, but for the very purpose of ousting the bishop of the claim of control that he otherwise would have had. The best resume of the common law on this subject is found in a California case. In England, the probate of wills of personal estate belongs to the ecclesiastical courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will, if there be one, or if there be no will,' to the heirs at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and an- other denies the validity of the will and claims to be the own- er as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective par- ties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstances affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res judi- cata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties ; but the decision has no ef- fect upon other parties, and does not settle what may be called the "status" or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial de- termination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a dis- position of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the § 53) PROBATE OF WILLS 151 personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will.^ By the common law therefore a will of personal property must be probated in the ecclesiastical courts/ but no provision was made for a probate of wills of realty and no particular effect attached to such probate if it occurred. A will of lands, to op- erate as a conveyance, was proved in the suit by proof of signature like any other conveyance.* In the absence of a statute there is no necessity for the probate of a will of lands. ° The statutes of most of the American states have made an express requirement that wills of land as well as personalty shall be probated.^ A proper tribunal is established « state V. McGlynn, 20 Cal. 233-265, 81 Am. Dec. 118 ; Ward v. Co. Com'rs, 12 Okl. 267-274, 70 Pac. 378. The object of probate is to establish the existence and genuineness of the will. March v. Huyter, 50 Tex. 243. If a party has a legal right to have a will probated, the motives which actuate Mm are Immaterial. St. Mary's O. A. v. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587. 3 Armstrong v. Lear, 12 Wheat. 169, 6 L. Ed. 589. 4 Campbell v. Porter, 162 U. S. 485, 16 Sup. Ct. 871, 40 L. Ed. 1044 ; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049 ; Campbell v. Garven, 5 Ark. 485; Janes v. Williams, 31 Ark. 175- 181; Arrington v. McLemore, 33 Ark. 759-761; Young v. Norris Pe- ters Co., 27 App. D. C. 140. 5 Adam^ v. Norris, "23 How. 353, 16 L. Ed. 539 ; Smyth v. N. O. C. & B. Co., 93 Fed. 899, 35 C. C. A. 646. e Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Hall v. Hall, 47 Ala. 290 ; Brock v. Frank, 51 Ala. 85 ; Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 h. R. A. 41 ; Sperber v. Balster, 66 Ga. 317 ; Rog- ers v. Rogers, 78 Ga. 688, 3 S. E. 451 ; Wilkinson v. Leland, 2 Pet. 627, 7 L. Ed. 542; Gains v. Chew, 2 How. 619, 11 L. Ed. 402; Case 152 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 or designated for that purpose, and the jurisdiction which is conferred upon it to pass upon applica- tions for probate in the first instance is usually exclusive. § 54. Rights under an unprobated will This is a very necessary provision and has re- ceived, as it should, the most liberal aid from the courts, in carrying out its policy. Neither the pow- ers of the executor ^ nor the title of the devisees or legatees ' are recognized in any action unless the will has been probated. But when probated the of Broderlck's Will, 21 Wall. 503, 22 L. Ed. 599 ; Campbell v. Porter, 162 U. S. 478, 16 Sup. Ct. 871, 40 L. Ed. 1044. 7 Brock V. Frank, 51 Ala. 85 ; Sloan v. FrotMngham, 65 Ala. 593 ; Johnes v. Jackson, 67 Conn. 81, 34 Atl. 709. 8 Shepherd v. Nabors, 6 Ala. 631 ; Moore v. Lewis, 21 Ala. 580 ; Kinnebrew v. Kinnebrew, 35 Ala. 628; Hawkin's Adm'r v. Dumas, 41 Ala. 391 ; Daniel v. Hill, 52 Ala. 430 ; Jordan v. Jordan, 65 Ala. 301 ; Desrites v. Wilnier, 69 Ala. 25, 44 Am. Rep. 501 ; Knox v. PauU, 95 Ala. 505, 11 South. 156; Travick v. Davis, 85 Ala. 342, 5 South. 83 ; Crow v. Powers, 19 Ark. 424 ; Carpentier v. Gardiner, 29 Cal. 160; Castro v. Eichardson, 18 Cal. 478; Turner v. McDonald, 76 Cal. 177, 18 Pae. 262, 9 Am. St. Eep. 189 ; Meegan v. Boyle, 19 How. 130, 15 L. Ed. 577 ; McClaskey v. Barr (C. C.) 54 Fed. 781 ; Thomas- son V. Driskell, 13 Ga. 253 ; Baldwin v. Wylie, 2 Hayw. & H. (D. C.) 126, Fed. Cas. No. 18,228 ; Fitzgerald v. Wynne, 1 App. D. C. 107 ; Bryan v. Walton, 14 Ga. 185; New v. Nichols, 73 Ga. 143; Alabama G. S. Ry. V. Redding, 112 Ga. 62, 37 S. E. 91; Albany F. Co. v. James, 112 Ga. 450, 37 S. E. 707; Harrell v.'Harrell, 123 Ga. 267, 51 S. E. 283 ; Equitable L. & S. Co. v. Lewman, 124 Ga. 190, 52 S. E. 599, 3 L. R. A. (N. S.) 879; Murray v. McGuire, 129 Ga. 269, 58 S. E. 841 ; Hartwell v. Parks, 240 Mo. 537-550, 144 S. W. 793 ; Farris V. Burchard, 242 Mo. 1, 145 S. W. 825; Lake v. Hood, 35 Tex. Civ. App. 32, 79 S. W. 323 ; Murphy v. Welder, 58 Tex. 235 ; Ochoa v. Miller, 69 Tex. 460 ; Moursund v. Priess, 84 Tex. 554, 19 S. W. 775 ; § 54) PROBATE OF WILLS 153 powers and the titles relate back to the death of the testator. Hence the will may be probated even after the bringing of a suit in which it is to be used as evidence of title." It seems that voluntary par- titions and divisions may be had between devisees or legatees before probate.^" But this is a highly inconvenient and dangerous form of procedure, as it leaves out of view the rights of others who might want to defeat the will, as well as the claims of creditors whose only opportunity to prove their debts is in the administration following probate. Those who claim under an unprobated will do so at their own peril." In the absence of proof of a will the presumption is that the deceased died in- Horton v. Garrison, 1 Tex. Civ. App. 31, 20 S. W. 773; Pettit v. Black, 13 Neb. 142, 12 N. W. 841. A will is not admissible in evidence as sucli until shown to have been duly probated. Presumption of probate of an ancient will will not obtain until it be shown that the records of the proper court for its probate are lost or destroyed. Lagow v. Glover, 77 Tex. 448, 14 S. W. 141. 9 White V. Keller, 68 Fed. 796, 15 C. C. A. 683 ; Poole v. Fleeger, 11 Pet. 185, 9 L. Ed. 680; Barnard v. Bateman, 76 Mo. 414; Watson V. AWerson, 146 Mo. 333, 48 S. W. 478, 69 Am. St. Eep. 615, Northrop v. Columbian Lbr. Co., 186 Fed. 770, 108 C. C. A. 640; Northrop v. Troup, 195 Fed. 262, 115 C. O. A. 218. Title to land passes to the devisee upon the death of the testator ; the probate of the will is but a legal formality required to give evi- dence and effect to that right. Haney v. Gartin, 51 Tex. Civ. App. 577, 113 S. W. 166 ; Ryan v. T. P. Ry., 64 Tex. 239. 10 Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13. 11 Wilson v. Wilson, 54 Mo. 215; Watson v. Alderson, 146 Mo. 333, 48 S. W. 478, 69 Am. St. Rep. 615. But an unprobated will may be color of title to found adverse dos- 154 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 testate/^ Until a will is produced that breaks the course of descent of realty the presumption is that the realty goes where the law casts it/* § 55. Ecclesiastical courts superseded by pro- bate courts with broader powers The establishment or rejection of a will is a ju- dicial question involving the decision of facts and the application of the law thereto." In this coun- try we began without ecclesiastical courts, and it became necessary to erect statutory courts and to confer upon them the powers in these matters for- merly exercised by the spiritual courts. Our pro- bate courts, therefore, while they are classed as courts of record, are courts of limited jurisdiction; wholly of statutory origin and having no powers but those given to them by the statute of their cre- ation,^' and yet in matters of practice they regard in great measure the precedents of the old English session. Pettit v. Black, 13 Neb. 142-152, 12 N. W. 841 ; lUg v. Gar- cia, 92 Tex. 251, 47 S. W. 717 ; Scoby v. Sweatt, 28 Tex. 713-728. A sale by a devisee of an interest held under a will and before its probate passes title. A subsequent probate by citation would give vitality to such a conveyance, except as against an innocent purchas- er from an heir. March v. Huyter, 50 Tex. 243. A purchaser in good faith of land from a legatee, under a will duly admitted to probate, is not affected by proceedings subsequent- ly instituted and resulting in annulling the will as a forgery. Steele v. Kenn, 50 Tex. 467, 32 Am. Rep. 605. 12 Adams v. Phillips, 132 Ga. 455, 64 S. E. 467. 13 Miller v. Speight, 61 Ga. 460. 1* Snuffer v. Howerton, 124 Mo. 687, 28 S. W. 166. 16 Elliott V. Wilson, 27 Mo. App. 218. § 55) PROBATE OF WILLS 155 ecclesiastical courts. Their chief functions are to supervise the administration of the estates of de- ceased persons, and this includes the power to take proof of last wills. Their powers cannot be en- larged by the terms of the will/' any more than they can be restricted. They are usually given ex- clusive original jurisdiction in the probate of wills." Theirs is a judicial power, to be exercised in a ju- dicial manner and not by a mere ministerial officer. Although sometimes the statutes permit the judge or clerk in vacation temporarily or provisionally to admit the will to probate such action must be con- firmed by the court in term time. Under the laws of most of the states of the Union the probate courts have been given jurisdiction of both real and personal property of a decedent, and the decisions are uniformly to the effect that where such jurisdiction is given to probate courts, their decrees establishing a will of realty are as conclusive as the decrees of the ecclesiastical courts 18 Pres. Churcli v. McElMnney, 61 Mo. 540. 17 Banks v. Banks, 65 Mo. 432; Stowe v. Stowe, 140 Mo. 594, 41 S. W. 951 ; Johnes v. Jackson, 67 Conn. 81-90, 34 Atl. 709 ; Loose- more V. Smitli, 12 Neb. 343, 11 N. W. 493 (1882) ; In re Jackman, 26 Wis. 104 ; Byron Reed Co. y. Klabunde, 76 Neb. 801, 108 N. W. 133 ; Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276; Williams v. Miles, 63 Neb. 859, 89 N. W. 451; Larson v. How, 71 Minn. 250, 73 N. W. 966 ; In re Hause, 32 Minn. 155-157, 19 N. W. 978 ; Campbell r. Logan, 2 Brad. Sur. (N. Y.) 90; Bowen v. Jobnson, 5 R. I. 112, 73 Am. Dec. 49 ; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147 ; Hotch- kiss V. Ladd's Est, 62 Vt. 209, 19 Atl. 638 ; Morgan v. Dodge, 44 N. H. 255, 82 Am. Dec. 213 ; Brown v. Webster, 87 Neb. 788, 128 N. W. 635; Franks v. Chapman, 60 Tex. 46. 156 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 of England in regard to personal property." Al- though there are many minor -differences of form and procedure in the probate courts of the various states, the general plan and the underlying prin- ciples of their action are strikingly similar. § 56. Equity has no jurisdiction to probate or can- cel wills Courts of equity have never had any jurisdiction to admit w^ills to probate, or to establish a will which had been rejected by the ecclesiastical court. ^" Frequent appeals have been made, however, to eq- uity to set aside, annul or cancel wills on the ground of fraud. Such appeals have almost al- ways been in vain. The rule has been as well settled as any rule can be in this branch of the law that "Equity has jurisdiction of all cases of fraud except fraud in procuring a will." The California case referred to,"" after describ- ing the difference between proving wills of real and wills of personal property in England, continues: 18 Ward V. County Oom'rs, 12 Okl. 267-274, 70 Pac. 378. loMcDaniel v. Pattison, 98 Cal. 86, 27 Pac. 651, 32 Pac. 805; Br- win V. Hammer, 27 Ala. 296 ; Robson v. Robson's Adm'r, 3 Del. Ch. 51; Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805; Stead V. Curtis, 205 Fed. 439, 123 C. C. A. 507 (Cal.). Such power over probate as is conferred on Chancery courts is by statute. Clough v. Clough, 10 Colo. App. 433, 51 Pac. 513. In one case it was determined that equity would aid where the will was fraudulently destroyed. Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242. 20 State V. McGlynn, 20 Cal. 233, 265, 81 Am. Dec. 118. § 56) PROBATE OF WILLS 157 In this condition of the law as to the mode of proving wills in England, a vast number of cases have arisen, in which ap- plications have been made to the court of chancery to set aside wills upon the ground that they were obtained by fraud. These applications have been made upon the maxim that fraud is a peculiar object of chancery jurisdiction, and the detection and defeating of it one of the special objects for which courts of chancery were estabhshed. But in these cases the relief sought has been uniformly denied, for the reason that the court of chancery has no power to determine the va- lidity of a will. However comprehensive the jurisdiction may be to set aside other fraudulent instruments, all control over wills has been disavowed by the court of chancery. The rea- son assigned as respects wills of personal property is that the subject belongs exclusively to the ecclesiastical courts, which courts are alone competent to decide upon their validity, as well where that depends upon a question of fraud as upon any other ground. Archer v. Masse, 2 Vernon, 8; Allen v. Dundas, 3 D. & East, 131 ; Gingell v. Home, 9 Simon, 539. As respects wills of real estate, the reason assigned in some cases is that there is a remedy at law ; in others it is said, generally, that the court of chancery has no jurisdiction to determine the validity of a will. Kerrick v. Bransby, 7 Brown's Cas. in Pat. 437 ; Jones v. Jones, 7 Price Ex. R. 663 ; Jones V. Frost, Jacobs, 466; Pemberton v. Pemberton, 13 Ves. 290. As the reason that the ecclesiastical courts have exclusive jurisdiction does not apply to wills of real estate, and as the reason that there is a remedy at law applies equally to other instruments over which courts of chancery exercise jurisdic- tion to set them aside for fraud, it has been said that the rea- sons assigned by the courts of chancery for declining to take jurisdiction in cases of wills of real estate alleged to be ob- tained by fraud are not satisfactory. But notwithstanding this objection to the sufficiency of the reasons assigned, the fact that the jurisdiction does not exist has been constantly as- serted through a long line of decisions, and is as firmly estab- lished as any other principle in regard to chancery jurisdiction. Courts of chancery, in their efforts to defeat fraudulent 158 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 practices, have in some cases deprived parties of the benefit of the fraudulent will by decreeing that such parties shall hold the property under the will in trust for the parties who would have been entitled to it if such will had not been probated. In such cases, however, they have disclaimed any power to set aside the will or the probate, and the resort to this cir- cuitous mode of defeating a fraud but the more clearly evinces how firmly the principle is fixed, that they have no power to act directly upon the subject. In one case, (Barnesly v. Pow- ell, 1 Ves. Sen. 284) the court decreed the party claiming un- der a probated will to go into the probate court and consent to the probate being set aside. It claimed to do this upon the ground that the probate was obtained by virtue of a deed of proxy fraudulently procured ; and as the court of chancery had the power to set that deed aside, it would leave the pro- bate without any foundation. At the same time that this novel proceeding was adopted, the court say it will be done "without interfering with any jurisdiction." This is the only case, so far as we are aware, since the decision in the case of Kerrick v. Bransby, in the year 1727, in which a probate has been avoided even indirectly by the aid of a court of chancery ; and this was effected, not by the decree of probate, but co- ercing the party to consent that the probate court should set aside its own decree. In the case of Gingell v. Home, (9 Simon, 539) the vice chancellor says : "The impression which has been fixed in my mind for several years is, that it is settled law that there is no method of escaping from the effect of probate when granted, unless in a case like that of Barnesly v. Powell, in which Lord Hardwick set aside the ground on which the probate was obtained." It is said in some cases that a court of chancery in cases of wills of real estate can send out an issue to a court of law, and have the question of the validity of the will tried by a jury. But that occurs only in cases where no objection is taken to the jurisdiction, and does not mean that an action can of right be instituted in a court of chancery for the purpose of having the validity of a will de- termined by an issue to be sent out of that court. In the case of Jones V. Jones (3 Merivale, 171) the Master oi the Rolls § 56) PROBATE OF WILLS 159 says : "It is impossible that at this time of day it can be made a serious question whether it be in this court (of chancery) that the vaUdity of a will, either of real or personal estate, is to be determined. * * * Now, although there may have been instances of issues directed on the bill of an heir at law, where no opposition has been made to that mode of proceed- ing, yet I apprehend that he cannot insist on any such direc- tion. He may bring his ejectment, and if there be any im- pediments to the proper trial of the merits, he may come here to have them removed; but he has no right to have an issue substituted in the place of an ejectment." If there be no statutory method provided for pro- bating or contesting a will of real estate and es- pecially if the title devised be wholly equitable, there seems to be no logical reason why equity should not entertain a bill to declare the alleged will void. In one American case this actually was done.'^ But the ample jurisdiction of the Ameri- 21 Equity has jurisdiction to entertain a bill by an heir at law who seeks to have a will of real estate made prior to the act of Con- gress, conferring jurisdiction upon the probate courts to admit to probate wills of real estate, declared void as having been procured by fraud and undue influence where the title of the testator which is devised by the will Is equitable. In such case the court may either remove the impediment to the right of the heir to maintain eject- ment or may frame an issue on the validity of the will to be sent to a jury for trial. If the latter the appellate court will not interfere or review unless there is an abuse of discretion. Beyer v. Le Fevre, 17 App. D. C. 238. A will by a testator domiciled in Louisiana undertook to dispose of an estate consisting of $3,000 personal property and some real es- tate in District of Columbia. The will was invalid as to personalty by the laws of Louisiana, the testator's domicile. The will contain- ed two general bequests aggregating $6,000, and a residuary devise. The executrix brought a bill in equity in District of Columbia to 160 WILLS AND ADMINISTRATION OP ESTATES (Ch. 5 can courts of probate over wills of real estate as well as wills of personalty, and the statutory pro- visions for contest have removed, almost universal- ly, any pretext for appeal to equity. Equity will not set aside the probate of a will on the ground of fraud, mistake or forgery," nor cancel an alleged will on any grounds nor enjoin its probate." The only cases mentioned in which equity will take jurisdiction are those where the fraud was prac- ticed, not upon the testator in procuring the will, but upon the court in procuring the probate.^* But even in this case equity will decline to act if the establish the will and perpetuate testimony and for directions as to the payment of the legacies. In District of Columbia there is no binding probate as to a will of real property and the probate court had no jurisdiction of a foreign will of personalty. Held that the bill in equity would lie; in efCect that there was no other remedy. Eeadman v. Ferguson, 13 App. D. C. 60. 22 State V. McGlynn, 20 Cal. 233, 81 Am. Dec. 118 ; Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814; Mitchell v. Hughes, 3 Colo. App. 43, 32 Pac. 185 ; Siddall v. Harrison, 73 Cal. 560, 15 Pac. 130 ; Del Campo v. CamarillO, 154 Cal. 647, 98 Pac. 1049; Lyne v. Mar- cus, 1 Mo. 410, 13 Am. Dec. 509; Trotters v. Winchester, 1 Mo. 414; Swain v. Gilbert, 3 Mo. 347; Garland v. Smith, 127 Mo. 583, 28 S. W. 196, 29 S. W. 836 ; Hans v. Holler, 165 Mo. 47, 65 S. W. 808 ; Pitts V. Weakley, 155 Mo. 109, 55 S. W. 1055; Loosemore v. Smith, 12 Neb. 343, 11 N. W. 493 (1882). 23 Arnold v. Arnold, 62 Ga. 629 ; Israel v. Wolf, 100 Ga. 339, 28 S. B. 109; Adams v. Johnson, 129 Ga. 611, 59 S. B. 269; Brown v. Webster, 87 Neb. 788, 128 N. W. 635. A will may be revoked even though made in pursuance of con- tract. The remedy is not by enjoining the probate of a subsequent will, but by enforcing the contract. Allen v. Bromberg, 147 Ala. 317, 41 South. 771. 2* Gray v. Parks, 94 Ark. 39, 125 S. W. 1023. § 57) PROBA.TE OF WILLS 161 aggrieved party might have proceeded to revoke the probate by direct proceedings." § 57. Place of probate The place in which a will should be offered for probate is, in the first instance, the county of the domicile of the testator.^* This is the usual re- quirement of the statute." A person's domicile is where he resides, intending to remain indefinitely. It embraces the fact of residence and the intention to remain. In the case of a man it may be fixed often by the exercise of political rights : with a woman it may be harder to determine, but depends upon the circumstances of the particular case.^' 25 The doctrine that where the probate of a will is obtained by fraud equity may declare the executor or other person deriving ti- tle under it a trustee for the party defrauded does not apply where the party might have proceeded to revoke the probate by direct pro- ceedings. Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117 ; Miller v. Estate of Miller, 69 Neb. 441, 95 N. W. 1010 ; Locust v. Handle, 46 Tex. Civ. App. 544, 102 S. W. 946. 26 McDonnell v. Farrow, 132 Ala. 227, 31 South. 475 ; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913; McBain v. Wimbish, 27 Ga. 259; Godwin v. Godwin, 129 Ga. 67, 58 S. E. 652. 2 7 Article 4, § 1, of federal Constitution held not a limitation on the jurisdiction of a state to require the will of a resident to be orig- inally proved In the county of his residence. Clark's Estate, 148 Cal. 108, 82 Pac. 760, 1 L. E. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. The will of- a domiciled resident of this state may be proved by an exemplified copy if the original has been admitted to probate in an- other state as a basis for the grant of annulling administration. Hopkin's Appeal, 77 Conn. 644, 60 Atl. 657. 28 Merrill v. Morrissett, 76 Ala. 433. BoEL. Wills — 11 162 WILLS AND ADMINISTRATION OP ESTATES (Ch. 5 The dom-icile of a wife follows that of her hus- band/° The domicile of a minor is that of his par- ents ; and even after their death neither he nor his guardian can change it/" The testator's declara- tions are evidence of his domicile," but recitals in the will are not conclusive/^ If the testator had no domicile in the state, but left real estate situated there, then the will may be probated in any county in which any of the real estate lies. If he left no real estate, but only personal estate, within the state, then in any county/^ § 58. Preliminary fact of death The death of the testator is a preliminary fact to be established. Usually this is shown by the affidavit of the person offering the will for pro- bate." The fact of death is essential to the juris- 2 9 Wlckes' Estate, 128 Cal. 270, 60 Pac. 867, 49 L. R. A. 138. 30 Daniel v. Hill, 52 Ala. 430. 31 Ennis v. Smith, 14 How. 400, 14 L. Ed. 472. Evidence of domicile. In re Estate of Ayers, 84 Neb. 16, 120 N. W. 491. 32 Merrill v. Morrissett, 76 Ala. 433; Daniel v. Hill, 52 Ala. 430; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913. 33 Stewart v. Pettus, 10 Mo. 755 ; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, 93 Am. St. Rep. 299 ; Jaques v. Horton, 76 Ala. 238. 34 Reputation is sufficient to establish death and heirship. Secrist V. Green, 3 Wall. 744, 18 L. Ed. 155. The probate of a will and the issuing of letters testamentary are prima facie evidence of the death of the testator. Hendrix v. Boggs, 15 Neb. 469, 20 N. W. 28. The common law does not indulge in any presumption of survivor- ship or death by reason of age or sex when too or more persons are lost in a common disaster. It leaves the ascertainment of the time § 58) PROBATE OF WILLS 163 diction of probate tribunals, and if this fact does not exist the jurisdiction does not attach. '"^ The will of a living person is not the subject of probate, and any assumed power to probate the will of a living person or to administer upon his estate is in violation of the fourteenth amendment to the consti- tution of the United States, as depriving the owner of his property without due process of law/" And of death to be gathered like any other fact, from pertinent evidence inti-oduced for this purpose. Paden v. Briscoe, 81 Tex. 563, 17 S. W. 42. 3= The fact of death is essential to the jurisdiction of probate tri- bunals. Allen V. Dundas, 3 T. R. 125 ; Griffith v. Frazier, 8 Oranch, 9-23, 3 L. Ed. 471; Mut. Benefit Ins. Co. v. Tisdale, 91 U. S. 238, 23 L. Ed. 314 ; McPberson v. Cuniff, 11 Serg. & R. (Pa.) 422, 14 Am. Dec. 642; Peeble's Appeal, 15 Serg. & R. (Pa.) 39; Devlin v. Com- monwealth, 101 Pa. 273, 47 Am. Rep. 710; Jockumsen v. SufColk Savings Bank, 3 Allen (Mass.) 87; Waters v. Stickney, 12 Allen (Mass.) 1,90 Am. Dec. 122; Day v. Floyd, 130 Mass. 488; Burns v. Van Loan, 29 La. Ann. 560 ; French v. Frazier, 7 J. J. Marsh. (Ky.) 425; State v. White, 30 N. C. 116; Duncan v. Stewart, 25 Ala. 408, 60 Am. Dec. 527 ; Andrews v. Avory, 14 Gratt. (Va.) 229, 73 Am. Dec. 355 ; Moore v. Smith, 11 Rich. (S. C.) 569, 73 Am. Dec. 122 ; Morgan V. Dodge, 44 N. H. 255, 82 Am. Dec. 213; Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643 ; Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276; Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746; Steven- son V. Superior Ct, 62 Cal. 60 ; Darusemont v. Jones, 4 Lea (Tenn.) 251, 40 Am. Rep. 12 ; Stevenson v. Superior Ct., 62 Cal. 60 ; Perry V. St. J. & W. Ry., 29 Kan. 420 ; Thomas v. People, 107 111. 517, 47 Am. Rep. 458. 30 A court of probate has no jurisdiction to appoint an administra- tor of the estate of a living person; and its orders, made after public notice, appointing an administrator of the estate of a person who is, in fact, alive, although he has been absent and not heard from for seven years, and licensing tbe administrator to sell his land for payment of his debts are void, and the purchaser at the sale takes no title as against htm. The judgment of the highest court of the 164 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 this, notwithstanding the statutes of the states which raise a presumption of death from seven years' unexplained absence. § 59. Manner of probate — Ex parte proceedings The method of probating a will in the first in- stance is defined by statutes in the several states, sometimes in general terms, sometimes with par- ticularity. These statutes fall into two general groups: First, those which conteniplate an ex parte proceeding;" second, those which contem- plate notice to the heirs or others interested and opportunity to oppose the probate. In the ex parte proceeding the method is very simple. It consists in producing the will itself to the court, or if the statute permits, to the clerk in vacation, accom- panied by a formal affidavit of death and heirship made by the person propounding the will.'" The state confirming the purchaser's title violates the fourteenth amend- ment to the federal constitution as depriving the owner of his prop- erty without due process of law. Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896. 37 Kansas: Statute now permits examination of witnesses in op- position to will in probate court, but this does not authorize a con- test. "Wright V. Young, 75 Kan. 287, 89 Pac. 694; McConnell v. Keir, 76 Kan. 527, 92 Pac. 540. A will may be proved in the court of ordinary in common form ex parte, and on application of the heirs the court will issue a citation to the executor to prove it in solemn form. Walker v. Ferryman, 23 Ga. 309 ; Hooks v. Brown, 125 Ga. 122, 53 S. E. 583. This method is criticized by the court and an appeal made to the legislature to make one contest final. 38 The production of a wUl for the purpose of probate is not juris- dictional. Higgins V. Eaton (C. 0.) 188 Fed. 938. There is no law for probating a copy of a will, except when the § 59) PROBATE OF WILLS 165 court designated is usually the probate court or the tribunal clothed by statute with that jurisdic- tion. The court or clerk proceeds to examine the witnesses to the will or such other proof as is of- fered, and grants a certificate either admitting the will to probate or rejecting' it. The law requires that "All the testimony adduced in support of any will shall be reduced to writing, signed by the wit- nesses, and certified by the clerk." ^° When the will is admitted to probate by the clerk, such act must be confirmed by the court at the next ensuing term, or it ceases to be of any validity. It is the judicial act of the court which is essential to a valid pro- bate.^" This proceeding is wholly ex parte, that is, there is no requirement that the heirs or other per- sons interested in the estate shall be notified, or shall be heard at. this stage of the proceedings. This sort of proceeding is deemed sufficient to jus- tify the establishment of the will as a muniment of title, the appointment of an executor and the ad- will has been lost or destroyed after the death of the testator or without his consent. Godwin v. Godwin, 129 Ga. 67, 58 S. E. 652. 3» Hospital Co. V. Hale, 69 Kan. 616, 77 Pac. 537 ; Poole v. Jack- son, 66 Tex. 380, 1 S. W. 75. Statute requiring recording of testimony of witnesses is directory merely. Reese v. Nolan, 99 Ala. 203, 13 South. 677. io Creasy v. Alverson, 43 Mo.' 19 ; Smith v. Estes, 72 Mo. 310 ; Barnard v. Bateman, 76 Mo. 414 ; Snuffer v. Howerton, 124 Mo. 637, 28 S. W. 166; Rothwell v. Jamison, 147 Mo. 601, 49 S. W. 503. Will may be probated by clerk in vacation under statute. Fuentes V. McDonald, 85 Tex. 132, 20 S. W. 43 ; Salmon v. Huff, 9 Tex. Civ. App. 164, 23 S. W. 1044. 166 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 ministration of the estate leading to final distribu- tion. If any one wants to contest a will which has been admitted to probate, or to establish a will which has been rejected by the probate court, a method is provided by a separate suit, brought in a court of general jurisdiction'. This separate pro- ceeding is usually called a contest and will be treat- ed more at length in the chapter under that head. § 60. Manner of probate — On notice and hearing In the second group of states the statutes con- template that the probate of the will in the probate court may be opposed.*^ Notice is required to be given to the heirs or next of kin,*^ provision being 41 Clougli V. Clough, 10 Colo. App. 4.33, 51 Pac. 513, affirmed 27 Colo. 97, 59 Pac. 736 ; Greathouse v. Jameson, 3 Colo. 397 ; Fortune V. Buck, 23 Conn. 1 ; Safe Deposit Co. v. Sweeney, 8 App. D. C. 401 ; Olmstead v. Webb, 5 App. D. C. 38; In re Dahlgren, 30 App. D. C. 588 ; Cummins v. Cummins, 1 Marv. (Del.) 423 ; Hall v. Dougherty. 5 Houst. (Del.) 435 ; Barksdale v. Hopkins, 23 Ga. 332. Arkansas Statute of Probate was copied from Kentucky Code. Mitchell V. Rogers, 40 Ark. 91; Newton v. Cocke, 10 Ark. 169. Colorado Statute of Probate is taken from Illinois. Clough v. Oough, 10 Colo. App. 433, 51 Pac. 513. *2 Shields v. Alston, 4 Ala. 248 ; Herring v. Ricketts, 101 Ala. 342, 13 South. 502; Gayle v. Johnston, SO Ala. 395; Reese v. Nolan, 99 Ala. 203, 13 South. 677 ; Acklen v. Goodman, 77 Ala. 521 ; Hamil- ton's Estate, 120 Cal. 430, 52 Pac. 708; Cobb's Estate, 49 Cal. 599; Barters Estate, Myr. Prob. (Cal.) 130 ; Abila v. Padilla, 14 Cal. 103 ; Stewart v. Hall, 100 Cal. 246, 34 Pac. 706 ; Lewis v. Luckett, 32 App. D. C. 188 ; Pettit v. Black, 13 Neb. 142, 12 N. W. 841 ; Rice v. Tilton, 14 Wyo. 101, 82 Pac. 577 ; Stead v. Curtis, 205 Fed. 439, 123 C. C. A. 507 (Cal.). § 60) PROBATE OF WILLS 167 made for notice by publication.*^ The proceeding being in rem, failure to give the statutory notice to widow or next of kin does not defeat jurisdiction; *' the effect of defective notice being that the proceed- ings may be set aside and the probate begun de novo." One who has been appointed administrator has a right to be heard on a proceeding to probate a will subsequently produced.*" The status of the estate at this stage is that there is no one formally in charge of it. The authority of the executor does not begin until probate and letters issued to him." The court strictly has no power to appropriate funds of the estate to aid either party until the will *3 Miller's Estate, 39 Cal. 550; Poorman v. Mills, 39 Cal. 350, 2 Am. Eep. 451 ; Curtis v. Underwood, 101 Cal. 661, 86 Pac. 110 ; Da- vis' Estate, 136 Cal. 590, 69 Pac. 412 ; Melone's Estate, 141 Cal. 332, 74 Pac. 991; Warfield's Will, 22 Cal. 51, 83 Am. Dec. 49; McCrea V. Haraszthy, 51 Cal. 146; Whitney v. Hanington, 36 Colo. 407, 85 Pac. 84. Sufficient notice of probate to sustain judgment against collateral attack. Alexander v. Alexander, 26 Neb. 68, 41 N. W. 1065; In re Estate of Sieker, 89 Neb. 216, 131 N. W. 204, 35 L. R. A. (N. S.) 1058 ; Woodruff V. Taylor, 20 Vt. 65. 4* Dickey v. Vann, 81 Ala. 425, 8 South. 195 ; Ward v. Gates, 43 Ala. 515; Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct. 727, 50 L. Ed. 101. 4 6 Cameto's Estate, Myr. Prob. (Cal.) 75. *6 In re Will of Cornelius, 14 Ark. 675 ; Billings v. Billings, 4 Ark. 90. 47 Walker v. Perryman, 23 Ga. 309; Thomas v. Morrissett, 76 Ga. 384; Good Samaritan Hospital v. Trust Co., 137 Mo. App. 179, 117 S. W. 637. 168 WILLS AND ADMINISTEATION OF ESTATES (Ch. 5 has been admitted to or denied probate." After probate or rejection the court assumes some dis- cretion within narrow limits in awarding costs out of the estate to those who have had a duty to per- form and who have pursued the matter in good faith. Thus, as it is made the executor's duty to petition for probate, costs may be allowed him out of the estate.*" Appointing an attorney for absent heirs and allowing him a fee to be paid by the es- tate are matters entirely within the discretion of the probate court.^" § 61. Probate — Procedure Even when a hearing and opposition is contem- plated the procedure is as simple and informal as possible." Any one may petition for probate, whether interested in the estate or not." The «8 Henry v. Superior Court, 93 Oal. 569, 29 Pac. 230. *9 Olmstead's Estate, 120 Cal. 447, 52 Pac. 804. Where the probate of a will is contested before the executors have been appointed they have no power to deal with the assets or make any contracts with attorneys as executors; and whether the cost shall be paid by the parties or out of the assets of the estate is dis- cretionary with the court as provided by the statute. McKinney's Estate, 112 Cal. 447, 44 Pac. 743. Attorney's fees are not properly costs. Olmstead's Estate, 120 Cal. 447, 52 Pac. 804. 6 Rety's Estate, 75 Oal. 256, 17 Pac. 65. 61 Howard's Estate, 22 Cal. 395 ; Learned's Estate, TO Cal. 140, 11 Pac. 587 ; Latour's Estate, 140 Cal. 414, 73 Pac. 1070, 74 Pac. 441 ; Edelman's Estate, 148 Cal. 233, 82 Pac, 962, 113 Am. St. Rep. 231 ; In re Doyle, 73 Cal. 564, 15 Pac. 125 ; Estate of MoUenkopf, 164 Cal. 576, 129 Pac. 997. 62 The procedure Is of the most informal and perfunctory charac- § 61) PROBATE OF WILLS 169 production of the will is ordinarily enough to initi- ate proceedings/^ Written application or petition is not always re- quired, although it may be the better practice." Provision is made b)^ statute to compel the produc- tion of the will if unlawfully withheld." The stat- ute does not specify precisely what the proof in support of the will shall be, but it must be suffi- cient to assure the court that all the requirements of law have been observed in the execution of the will; in other words, that the paper produced is the ter, both in the probate court and in the district court on appeal, and when a prima facie case is made as to testator's testamentary capacity and freedom from illegal restraint the order of admission should te made, leaving for the more formal proceedings provided by statute the contest of the nicer and more difficult questions: a contest in VFhich issues . are duly formed, evidence properly intro- duced and the method provided for obtaining a jury if one be or- dered. Hospital Co. v. Hale, 69 Kan. 616, 7T Pac. 537; Wright v. Young, 75 Kan. 287, 89 Pac. 694; McConnell v. Keir, 76 Kan. 527- 530, 92 Pac. 540 ; Estate of Edwards, 154 Cal. 91, 97 Pac. 23 ; Phelps V. Ashton, 30 Tex. 344. 53 Estate of Hovcard, 22 Cal. 395. Parol evidence is admissible to identify the paper propounded as a will. Burge v. Hamilton, 72 Ga. 568. A paper referred to and incorporated in the will need not be pre- sented with the will for probate. Willey's Estate, 128 Cal. 1, 60 Pac. 471. Will and codicil may be probated together. McMahan v. Hubbard, • 217 Mo. 624, 118 S. W. 481. 5 4Boyett V. Kerr, 7 Ala. 9; Deslonde v. Darrington, 29 Ala. 92; Small V. McCalley, 51 Ala. 527. Sufficiency and form of a petition for probate of a will. Boyett V. Kerr, 7 Ala. 9 ; Small v. McCalley, 51 Ala. 527. 6 5 Coulter V. People, 53 Colo. 40, 123 Pac; 647; Walch v. Orrell, 53 Colo. 361, 127 Pac. 141. 170 WILLS AND ADMINISTEATION OP ESTATES (Ch. 5 lawful will of the testator." This is called making a prima facie case." If the proponent fails to make a prima facie case the court should refuse probate even in the absence of any opposition."' The oral testimony of the attesting witnesses is of course the best testimony. They should be produced if possible.^' Whether all the attesting witnesses must be produced if within the reach of process has been differently decided.'" Where a will appears upon its face to be proper- ly executed, its due execution for the purpose of probate may be shown even in the absence of at- 5 6 Cartery's Estate, 56 Cal. 470; Janes v. Williams, 31 Ark. 175; Tyler's Estate, 121 Cal. 405, 53 Pac. 928 ; Hall v. Hall, 47 Ala. 290. Defects in the execution of a will of real property cannot be sup- plied by parol. In re Mclntire, 2 Hayw. & H. (D. C.) 339, Fed. Cas. No. 8,823a. It is the requirement of the law and not the Intentions of the testator that govern on question of due execution. Seaman's Estate, 146 Cal. 455, SO Pac. 700, 106 Am. St. Rep. 53, 2 Ann. Cas. 726; Al- bright V. North, 146 Cal. 455, 80 Pac. 700, 2 Ann. Cas. 726. Finding refusing probate held proper. Hayden's Estate, 149 Cal. 680, 87 Pac. 275. B7Woodroof V. Hundley, 133 Ala. 395, 32 South. 570; Wright v. Young, 75 Kan. 287, 89 Pac. 694; McConnell v. Keir, 76 Kan. 527, 92 Pac. 540. 5s Estate of Hay den, 149 Cal. 680, 87 Pac. 275; Estate of McDer- mott, 148 Cal. 43, 82 Pac. 842; Eenn v. Samos, 33 Tex. 760; See- brock V. Fedawa, 30 Neb. 424, 46 N. W. 650. BoBerst V. Moxom, 157 Mo. App. 342, 138 S. W. 74; Id., 163 Mo. App. 123, 145 S. W. 857 ; Chase v. Lincoln, 3 Mass. 236. 60 Both attesting witnesses must be examined if they can be had. Rash V. Purnel, 2 Har. (Del.) 448. It is not necessary that all the attesting witnesses, though within the reach of process, be called to prove execution. Field's Appeal, 36 Conn. 279. § 61) PEOBA.TE OF WILLS 171 testing- witnesses or in case of their death." Any other persons who were present at the time of the execution are competent witnesses for this pur- pose; and if no other persons were present but the attesting witnesses, and their attendance cannot be procured by reason of death or other causes, their signatures may be proved by any one famihar with their handwriting as in the case of attesting witnesses to other documents.'^ Even where the attesting witnesses are available their evidence is not conclusive as to the fact of execution." If from forgetfulness, the subscribing witnesses should fail to prove the formal execution of the will, other evidence is admissible to supply the de- ficiency,"* or if the subscribing witnesses all swear 81 Hall's Heirs v. Hall's Ex'rs, 38 Ala. 131. 02 Thompson v. King, 95 Ark. 549, 129 S. W. 798 ; Tevis v. Pitcher, 10 Cal. 465; Gharky's Estate, 57 Cal. 274; Tyler's Estate, 121 Oal. 405, 53 Pac. 928 ; Mays v. Mays, 114 Mo. 540, 21 S. W. 921 ; Lorts V. Wash, 175 Mo. 503, 75 S. W. 95 ; Craig v. Craig, 156 Mo. 358, 56 S. W. 1097 ; Woodrufe v. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145; Sutton v. Sutton, 5 Har. (Del.) 459; Kelly v. Moore, 22 App. D. C. 9 ; Scott v. Herrell, 31 App. D. C. 45 ; Brown v. Mc- Bride, 129 Ga. 92, 58 S. E. 702; Stephenson v. Stephenson, 6 Tex. Civ. App. 529, 25 S. W. 649 (Elwell v. Universalist G; C, 76 Tex. 521, 13 S. W. 552 distinguished) ; Pettit v. Black, 13 Neb. 142, 12 N. W. 841. 63 Estate of McDermott, 148 Cal. 43, 82 Pac. 842 ; D'Avlgnon's Will, 12 Colo. App. 489, 55 Pac. 936; Ashworth v. McNamee, 18 Colo. App. 85, 70 Pac. 156 ; Davis v. Rogers, 1 Houst. (Del.) 44. 6* Estate of Kent, 161 Cal. 142, 118 Pac. 523 ; Sutton v. Sutton, 5 Har. (Del.) 459 ; Gillls v. Gillis, 96 Ga. 1, 23 S. B. 107, 30 L. R. A. 143, 51 Am. St. Rep. 121 ; Underwood v. Thurman, 111 Ga. 325, 36 S. E. 788. 172 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 that the will was not duly executed, they may be contradicted and the will supported by other wit- nesses or by circumstances. °° When a witness who has solemnly subscribed his name to a will as an attesting witness, knowing the nature of his act and that the deceased testator would rely upon his name as a part of the execu- tion of the will, undertakes by his evidence to over- throw or cast suspicion upon it, his evidence should be closely scrutinized/" The testimony of the at- testing witnesses, is, however, highly important and desirable; as under the established rule they are permitted and it is their duty to testify not only as to the due execution of the will, but as to the mental capacity of the testator. In doing so they may give their opinion of his mental condition, even though they are not medical experts, but only com- mon illiterate men." Where the personal attendance of a subscribing witness cannot be procured at the probate of a will, his deposition may be taken and used as evidence, as in other cases under the general statute author- izing the taking of depositions or under the provi- esBarnewall v. Murrell, 108 Ala. 366, 18 South. 831; In re Shap- ter's Estate, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 5T5, 117 Am. St. Rep. 216; Rash v. Purnel, 2 Har. (Del.) 448; Talley v. Moore, 5 Har. (Del.) 57. 80 Motz's Estate, 136 Cal. 558, 69 Pac. 294 ; Southworth v. South- worth, 173 Mo. 59, 73 S. W. 129. o^Crowson v. Crowson, 172 Mo. 700, 72 S. W. 1065; Wlthlnton v. Withlnton, 7 Mo. 589 ; Duffield v. Morris Ex'r, 2 Har. (Del.) 375. § 61) PROBATE OF WILLS 173 sions of the Statute of Wills."' But at the time of giving his deposition such witness should have the will before him for the purpose of identification ; and this is a vital point/ ^ After a will has been duly admitted to probate, the law provides that it shall be recorded by the clerk of the probate court in a book kept for that purpose, and the original will filed in his office. The original will or a certified copy of the record of probate then be- comes admissible as evidence in all courts.'"' The law of the forum governs as to the proof of wills ^^ and it is the law in force at the death of the testator and not at the time of the execution of the 6 8 Moore V. Heineke, 119 Ala. 627, 24 South. 374 ; Wisdom v. Eeeves, 110 Ala. 431, 18 South. 18; Butcher v. Butcher, 21 Colo. App. 416, 122 Pac. 397; Kelly v. Moore, 22 App. D. C. 9. It is within discretion of court to send will out of state to take ■depositions as to signature. In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. coCawthorn v. Haynes, 24 Mo. 236; Harvy v. Chouteau, 14 Mo. 5S7, 55 Am. Dec. 120 ; Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738. 7 Kolterman v. Ohilvers, 82 Neb. 216, 117 N. W. 405 ; F., B. & M. V. Ry. V. Setright, 34 Neb. 253, 51 N. W. 833 ; Rex v. Netherseal, 4 T. R. 258; Armstrong v. Lear, 12 Wheat. 175,6 L. Ed. 589; Bent v. Thompson, 5 N. M. 408-423, 23 Pac. 234 ; Hickman v. Gillum, 66 Tex. 314, 1 S. W. 339 ; Pettit v. Black, 13 Neb. 142, 12 N. W. 841 ; Box v. Lawrence, 14 Tex. 545. As to what is necessary and proper to appear in this record. Charl- ton V. Brown, 49 Mo. 353 ; Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168 ; Twombley's Estate, 120 Oal. 350, 52 Pac. 815 ; Kolterman V. Chilvers, 82 Neb. 216, 117 N. W. 405; Kirk v. Bowling, 20 Neb. 260, 29 N. W. 928; Roberts v. Flanagan, 21 Neb. 503-509, 32 N. W. 563; Mattfeld v. Huntington, 17 Tex. Civ. App. 716, 43 S. W. 53; Russell V. Oliver, 78 Tex. 11, 14 S. W. 264. 71 Tevis V. Pitcher, 10 Oal. 465. 174 WILLS AND ADMINISTRATION OP ESTATES (Ch. 5 will." However, as a will destroyed by accident or public calamity does not pass out of existence, but re- mains the will of the testator, statutes may be pass- ed even after the death of the testator governing the proof of such wills." The proceeding being in rem, an executor offering a will cannot take a non-suit. The statutes require the court to proceed and determine the validity of the instrument." And, if the issue is submitted to a jury, as it may in some states even in the probate court, the issues should be so framed as to leave the court no op- tion but to admit or reject the will.'^ In some states the statute prescribes a period with- in which a will must be offered for probate. '^° Such statutes are enforced with some strictness against those who have the custody of the will, and whose right and duty it is to present it for probate, but ex- ceptions are made, in the interest of justice, in favor of those who had no such duty or opportunity, as where the will has been in adverse custody.'^ 72 Grimes v. Norris, 6 Cal. 621, 65 Am. Dec. 545. 73 Estate of Patterson, 155 Cal. .626, 102 Pac. 941, 26 L. R. A. (N. S.) 654, 132 Am. St. Rep. 116, 18 Ann. Cas. 625. 7 4 Roberts v. Trawick, 13 Ala. 68, apparently overruled: Crow v. Blakey's Ex'r, 31 Ala. 728. 7B Sanderson's Estate, 74 Cal. 208, 15 Pac. 753. 7 8 St. Mary's O. A. v. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587; Stone v. Brown, 16 Tex. 425. 7 7 Ochoa V. Miller, 59 Tex. 460; Ryan v. T. & P. Ry. Co., 64 Tex. 239; Elwell v. Universalist G. C, 76 Tex. 514, 13 S. W. 552; St Mary's O. A. v. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587. § 62) PROBATE OF WILLS 175 § 62. The issue — Devisavit vel non The only issue that can be tried is devisavit vel non/' It is proper for the probate court to go into just as thorough an investigation as it chooses in regard to this one issue — whether the writing pro- duced be the will of the testator. It cannot, how- ever, in such enquiry construe the provisions of the will or pass upon the validity of its terms/" It has been held, sometimes, that the probate court might strike out and refuse to probate a portion of a will on the ground that it was illegal/" But the better rule is that the whole of the will must be probated, leaving the construction or enforcement of its terms to distinct proceedings." 7 8 Vestry v. Bostwick, 8 App. D. 0. 452; Taylor v. Hilton, 23 Okl. 354, 100 Pac. 537, 18 Ann. Cas. 385 ; Nesbit v. Gragg, 36 Okl. 703, 129 Pac. 705. 7 9Drane v. Beall, 21 Ga. 21, 45; Nesbit v. Gragg, 36 Okl. 703, 129 Pac. 705; Elwell v. Universalist G. 0., 76 Tex. 514-520, 13 S. W. 552; Ainswortli v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753; Higgins V. Vandeveer, 85 Neb. 89-95, 122 N. W. 843; Emmons v. Garnett, 18 D. O. 52; Wetter v. Habersbam, 60 Ga. 193; Estate of Kilborn, 5 Cal. App. 161, 89 Pac. 985. 80 Kenrick v. Cole, 61 Mo. 572 ; Robinson v. King, 6 Ga. 539. Power of court to determine, on probate, that part of will is valid and part invalid. See authorities cited. Palmer v. Bradley (0. O.) 142 Fed. 198. 81 Cox V. Cox, 101 Mo. 168, 13 S. W. 1055 ; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Eep. 887 ; Worrill v. Gill, 46 Ga. 482 ; Garrett v. Wheeless, 69 Ga. 466 ; Thomas v. Morrisett, 76 Ga. 384; Taylor v. Hilton, 23 Okl. 354, 100 Pac. 537, 18 Ann. Cas. 385; Hargraves v. Lott, 67 Ga. 133; Bent's Appeal, 35 Conn. 524; Mc- Clary v. StuU, 44 Neb. 175, 62 N. W. 501 ; Hopf v. State, 72 Tex. 281, 10 S. W. 589 ; Clements v. Maury, 50 Tex. Civ. App. 158, 110 S. W. 185; In re Shillaber, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433; 176 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 § 63, Lost or destroyed wills If the will cannot be produced because it is lost, or has been destroyed by accident, fraud or mistake, this does not destroy the legal effect of the will, or defeat the expectations of the devisees or legatees. Whether a will is destroyed before or after the death of the testator, if destroyed without his knowledge or consent, it does not cease to be his will, and its contents may be estab- lished by competent proof.*'' At common law the only way to establish a lost will was to go into equity, as in the case of any other lost instrument, prove the due execution of the will, its loss and its contents, and then proceed to probate it or set it up in a court of law as a muni- , ment of title as in other cases. This must still be done in the absence of statutes conferring juris- diction on probate courts to establish lost wills." Statutes, however, exist in many states giving to the probate court jurisdiction to establish lost wills Toland v. Toland, 123 Cal. 140, 55 Pac. 681; Estate of Pforr, 144 Cal. 121, 77 Pac. 825 ; Hall v. Hall, 38 Ala. 131 ; Conoway v. Ful- mer, 172 Ala. 283, 54 South. 624, 34 L. R. A. (N. S.) 963 ; C, B. & Q. Ey. V. Wasserman (C. 0.) 22 Fed. 872; Ware v. Wisner (O. C.) 50 Fed. 310; Fallon v. Chidester, 46 Iowa, 588, 26 Am. Rep. 164; Cobb's Estate, 49 Cal. 600 ; Murphy's Estate, 104 Cal. 554, 38 Pac. 543. 82 Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130 ; Schaff v. Peters, 111 Mo. App. 460, 90 S. W. 1037 ; Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738; McBeth v. McBeth, 11 Ala. 596; Gaines v. Hennen, 24 How. 553, 16 L. Ed. 770. 83 Waggener v. Lyles, 29 Ark. 47; Myars v. Mitchell, 72 Ark. 381, 80 S. W. 750; Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316 ; Bryan v. Walton, 14 Ga. 185; Ponce v. Underwood, 55 Ga. 601; Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242. § 63) PROBATE OF WILLS 177 and these statutes have the effect of obviating an appeal t6 chancery/* The statutes providing for probate of lost wills apply to a mutilated will, part of which is destroyed." On application to probate an alleged copy of a will it is incumbent upon the proponent to show what became of the original will, in whose custody it was placed, account for its non-production and produce some competent proof of its contents, in or- der to authorize the court to probate a copy/* One witness is enough to establish the due execution of a lost will if he prove that it was attested by the proper number of witnesses," unless the statute requires more/* In such cases it is incumbent on the party seeking to establish the will, not only to prove its due execution, but also to rebut the pre- sumption of cancellation which arises from the fact 8 4 Equity has no power to establish a will lost or destroyed by fraud if this is within the jurisdiction of the probate courts. Jack- son V. Jackson, 4 Mo. 210. 8 5 Camp's Estate, 134 Cal. 233, 66 Pac. 22T. 86 Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620 ; In re Estate of Francis, 94 Neb. 742, 144 N. W. 789. 8 7 Graham v. O'Fallon, 3 Mo. 507, Id., 4 Mo. 601; Vamon v. Var- non, 67 Mo. App. 534 ; Apperson v. Cottrell, 3 Port (Ala.) 51, 29 Am. Dec. 239; Jaques v. Horton, 76 Ala. 238; Skeggs v. Horton, 82 Ala. 352, 2 South. 110; In re Johnson's Will, 40 Conn. 587; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619. 88 Estate of Kidder, 57 Cal. 282, Id., 66 Cal. 487, 6 Pac. 326 ; Camp's Estate, 134 Cal. 233, 66 Pac. 227 ; Johnson's Estate, 134 Cal. 662, 66 Pac. 847 ; Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 4-53 : Scott V. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. Rep. 263 ; Es- tate of Guinasso, 13 Cal. App. 518, 110 Pac. 335. BOKL. Wills — 12 178 WILLS AND ADMINISTRATION OP ESTATES (Ch. 5 that it cannot be found at the testator's death/' The evidence is similar to that given to establish any other lost instrument; it may be a copy, or if there be no copy, the contents of the w^ill may be proved by the subscribing witnesses or others, who have read it."" That an unrevoked will, which has been lost or destroyed previous to the death of the testator, may be probated and established by parol testimony is beyond dispute, although not in direct terms au- thorized by the statute. But the contents of a writing cannot be proved by one who simply heard the writing read. Proof of the provisions of a de- stroyed will is quite a different matter from proof of its due execution before two attesting witnesses.'^ It seems that evidence of the declarations of the testator may be given to prove the existence of the lost will, but such declarations alone are not suffi- 8 » Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619. 90 Dawson v. Smith's Will, 3 Houst. (Del.) 335 ; Fitzgerald v. Wynne, 1 App. D. 0. 107 ; Kearns v. Reams' Bx'r, 4 Har. (Del.) 83 ; Mosely v. Carr, 70 Ga. 333; Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453. Evidence insufficient to establish lost will. Moseley v. Evans, 72 Ga. 203; Williams v. Miles, 87 Neb. 455, 127 N. W. 904. Judgment of court of ordinary admitting lost will may be directly attacked in same court by heir by showing fraudulent misrepresen- tation of facts on which jurisdiction was based. Davis v. Albritton, 127 Ga. 517, 56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. Rep. 352. 91 Estate of Guinasso, 13 Cal. App. 518, 110 Pac. 335; Propst v. Mathis, 115 N. C. 526, 20 S. E. 710 ; Nichols v. Kingdom Iron Ore Co., 56 N. Y. 618 ; Mut. Life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294. § 63) PROBATE OF WILLS 179 cient to prove the contents/^ although they may be used to corroborate more direct evidence/' It may happen that the whole of a lost or destroyed will cannot be proved. In some states it is required by statute that the entire will be proved/* in others the courts have decided that the whole will must be before the court for construction/^ In general, how- ever, it is not absolutely necessary that the whole will be capable of proof to admit it to probate/" Any sub- stantial provision of a lost will which is complete in itself and independent of the others may, when prov- ed, be admitted to probate, though the other provisions cannot be proved, if the validity and operation of the part which is proved is not affected by those parts which cannot be proved." 2 WUUams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 L. K. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306. 93 Clark V. Turner, 50 Neb. 290, 69 N. W. 843, 38 L,. R. A. 433 ; Sugden v. Lord St. Leonards, L. R. 1 P. D. 154 ; Woodward v. Goul- stone, 11 App. Cas. (Eng.) 469 ; In re Page, 118 111. 576, 8 N. E. 852, 59 Am. Rep. 395; Soutb worth v. Adams, 11 Biss. 256, Fed. Cas. No. 13,194 ; In re Hope, 48 Mich. 518, 12 N. W. 682 ; In re Lambie, 97 Mich. 49, 56 N. W. 223 ; Clark v. Morton, 5 Rawle (Pa.) 235, 28 Am. Dec. 667; Chisholm's Heirs v. Ben, 7 B. Mon. (Ky.) 408; Mercer's Adm'r v. Mackln, 14 Bush (Ky.) 434; Mann v. Balfour, 187 Mo. 305, 86 S. W. 103. Contra: In re Johnson's Will, 40 Conn. 587. 94 Todd V. Rennick, 13 Colo. 546, 22 Pac. 898. 95 Butler V. Butler, 5 Har. (Del.) 178. 96 Jackson v. Jackson, 4 Mo. 210 ; Skeggs v. Horton, 82 Ala. 352, 2 South. 110; Estate of Camp, 134 Cal. 233, 66 Pac. 227; Hook v. Pratt, 8 Hun (N. Y.) 102. 97 Estate of Patterson, 155 Cal. 626, 102 Pac. 941, 26 L. R. A. (N. C.) 654, 132 Am. St. Rep. 116, 18 Ann. Cas. 625. 180 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 § 64. Foreign wills A foreign will is the will of one domiciled in an- other state or country, and is usually executed and first probated in such other state or country. The states of the Union, in this particular, as in many oth- ers, are foreign to each other in legal theory. The will of a resident must be proved primarily as a do- mestic will and not as a foreign will, notwithstanding it was first proved in another state."* The distinction between foreign wills and domestic wills is not espe- cially important in regard to personal property. Wills of such property may be executed and probated, and the property distributed according to the laws of the testator's domicile. "" The distinction becomes impor- tant in regard to wills of real property. Here two somewhat conflicting principles operate. The first is that, as wills of real property are now required to 9 8 Estate of Clark, 148 Cal. 108, 82 Pae. 760, 1 L. R. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. Foreign will of personal property admitted to probate in New York notwithstanding it was refused probate in state of domicile for want of testamentary capacity. Higgins v. Eaton, 202 Fed. 75, 122 C. 0. A. 1 (N. Y.). Patterson v. Dickinson, 193 Fed. 328, 113 O. C. A. 252; Willett's Appeal, 50 Conn. 330. A will executed and probated in Louisiana, disposing of personal property in Texas is competent evidence in Texas without its pro- bate in Texas. Hurst v. Mellinger, 73 Tex. 189, 11 S. W. 184; Hol- man v. Hopkins, 27 Tex. 38. But a foreign nuncupative will must be probated in the county where the personal property is situated before it can be enforced in this State. Probate has no extraterritorial efCect. St James' Church V. Walker, 1 Del. Ch. 284. § 64) PROBATE OF WILLS 181 be probated the same as wills of personal property, the proper place for this primary probate is in the state or country of the testator's domicile. The second is that the title to land should be regulated exclusively by the laws of the state where the land lies. In har- monizing these two principles the states have sought by statute to give some convenient and proper effect to the primary probate of a foreign will in another state while jealously guarding their right to require the execution and probate of a will to conform to their local law.^ The probate of a will in one state does not establish its validity as devising real estate in another state, unless the laws of the latter state permit. The validity of the will for that purpose must be determin- ed by the laws of the state in which the land is sit- uated.' Probate of a will has no extraterritorial force ex- cept by statute.^ Where there has been no compliance 1 Though in matters of probate states by comity permit ancillary jurisdiction of foreign wills, they are jealous of any invasion of, or attempt to invade, their original jurisdiction in such matters. Es- tate of Clark, 148 Cal. 108, 82 Pac. 760, 1 L. K. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Oas. 306; Readman v. Ferguson, 13 App. D. C. 60. 2 McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300 ; Darby v. Mayer, 10 Wheat. 465, 6 L. Ed. 367; Davis v. Mason, 1 Pet. 503, 7 L. Ed. 239 ; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ot. 407, 27 L. Ed. 1049; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 734 ; Keith v. Keith, 97 Mo. 223, 10 S. W. 597 ; Turner v. McDonald, 76 Cal. 181, 18 Pac. 262, 9 Am. St. Rep. 189 ; In re Ber- gin, 100 Cal. 376, 34 Pac. 867; Fennel's Lessee v. Weyant, 2 Har. (Del.) 501; Pritchard v. Henderson, 2 Pennewill (Del.) 553, 47 Atl. 376. 3 Kerr v. Moon, 9 Wheat. 565, 6 L. Ed. 161 ; Gemmell v. Wilson, 182 WILLS AND ADMINISTRATION OF ESTATKS (Ch. 5 with the laws of the state where the land lies, either by probating the will there, or by furnishing the evidence the statute requires as to its foreign probate, the foreign will is not available as a muniment of 40 Kan. 764, 20 Pac. 458; Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372 ; Markley v. Kramer, 66 Kan. 664, 72 Pac. 221 ; Gaven v. Allen, 100 Mo. 293, 13 S. W. 501 ; Van Syckel v. Beam, 110 Mo. 589, 19 S. W. 946 ; Curtis v. Smith, 6 Blatchf. 550, Fed. Cas. No. 3,505 ; Thrash- er V. Ballard, 33 W. Va. 285, 10 S. B. 411, 25 Am. St. Rep. 894 ; Lind- ley V. O'Reilly, 50 N. J. Law, 636, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802; Sayre v. Sage, 47 Colo. 559-564, 108 Pac. 160; Clark V. Hufe, 49 Colo. 197, 202, 112 Pac. 542. The probate of a will in one state does not establish its validity as devising real estate in another state, unless the laws of the latter state permit it. Records and judicial proceedings of each state af- fecting property within it have in every other state the force and effect which they possess in the state of their origin, but have no such force as to similar property situated in another state. Robert- son V. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; Pritch- ard V. Henderson, 2 Pennewill (Del.) 553, 47 Atl. 376 ; Hines v. Hines, 243 Mo. 480, 147 S. W. 774. A will which has been duly proved and admitted to probate by the court of a sister state having jurisdiction may be probated in this State by the county court of any county in which the testator left property on which such will may operate. In proceeding to probate a foreign will, a copy of the same and the probate thereof, duly au- thenticated, must be produced to the county court and if allowed in this State, must be filed and recorded in said court. F. E. & M. V. Ry. V. Setright, 34 Neb. 253, 51 N. W. 833 ; Tillson v. Holloway, 90 Neb. 481, 134 N. W. 232, Ann. Cas. 1913B, 78 ; Martin v. Martin, 70 Neb. 207, 97 N. W. 289. Statute copied from Michigan. Wilt v. Cut- ler, 38 Mich. 189. Since act of March 23, 1887 (Acts 20th Leg. c. 56), title to land In Texas under a foreign will passes without probate, when the will with its foreign probate is duly registered in the deed record of the proper county. De Zbranikov v. Burnett, 10 Tex. Civ. App. 442, 31 S. W. 71. The filing and recording in this State of a copy of a foreign will under the statute has no effect except to constitute the will a muni- § 64) PROBATE OF WILLS 183 title.* The court of the state where the land lies has power to grant original probate of the will of a non- resident, without waiting for any evidence of a for- eign probate/ Where a foreign will is first admitted ment of title for the devisee therein, and does not empower the ex- ecutor of said win to act as such In this State. In order to acquire such power the will must be probated under the statute which pro- vides for probate of foreign wills. Mason v. Rodriguez, 53 Tex. Civ. App. 445, 115 S. W. 868 ; Slayton v. Singleton, 72 Tex. 209-212, 9 S. W. 876; Brundige v. Rutherford, 57 Tex. 22. SuflBcient record of foreign probate. Welder v. McComb, 10 Tex. Civ. App. 85, 30 S. W. 822. Insufficient. Green v. Benton, 3 Tex. Civ. App. 92, 22 S. W. 256. Prior to the act of 1887 foreign will must be probated in Texas. Paschal v. Ackiin, 27 Tex. 173 ; Houze v. Houze, 16 Tex. 598. Foreign will must be probated in Wyoming. Provisions for pro- bate. Rice V. Tilton, 13 Wyo. 420, 80 Pac. 828, Id., 14 Wyo. 101, 82 Pac. 577. Under present statute of Georgia the title to lands in Georgia can only pass by devise where the will has been probated in this State. Provision is made for the probate of foreign wills. An ex- emplified copy of a foreign probate is no longer sufficient. Doe v. Roe, 31 Ga. 593, is expressly overruled. Ohidsey v. Brookes, 130 Ga. 218, 60 S. B. 529, 14 Ann. Cas. 975 ; Youmans v. Ferguson, 122 Ga. 331, 50 S. E. 141 ; Conrad v. Kennedy, 123 Ga. 242, 51 S. E. 299 ; Thomas v. Morrisett, 76 Ga. 384. 4 Henderson v. Belden, 78 Kan. 121, 95 Pac. 1055. The recording of a foreign will without proper proof of its probate is not constructive notice. Lewis v. Barnhart, 145 U. S. 56, 12 Sup. Ct. 772, 36 L. Ed. 621. No title is acquired under a quitclaim deed from the devisee in a foreign will which has never been probated in California. Turner V. McDonald, 76 Cal. 177, 18 Pac. 262, 9 Am. St. Rep. 189. An action cannot be maintained by a devisee to recover lands in Pennsylvania under a foreign will, which was not proved as requir- ed by the laws of the state. De Rous v. Girard's Ex'r, 112 Fed. 89, 50 C. C. A. 136. : Estate of Edelman, 148 Cal. 233, 82 Pac. 962, 113 Am. St. Rep. 184 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 to probate in the state of the testator's residence, it may afterward be admitted to probate in the state where the land hes/ If the foreign probate is not in such manner as to make it effectual to pass real estate in the state where the land lies it may be reprobated there, or the deficiencies supplied by proof/ If the foreign probate is to be accorded any effect the proof of such foreign probate and the proceedings as shown by the record thereof must conform in all respects to the statutes of the state where the land lies/ Wheth- er a will probated in a foreign state has been properly 231; Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502, 33 L. R. A. (N. S.) 658. 6 Sullivan v. Rabb, 86 Ala. 437, 5 South. 746. 7 Doe v.. Pickett, 51 Ala. 584 ; Culbertson v. Witbeck, 127 U. S. 326, 8 Sup. Ct. 1136, 32 L. Ed. 134; James v. Cherokee Lodge, 110 Ga. 627, 36 S. E. 69. 8 Wickersham v. Johnston, 104 Cal. 407, 38 Pac. 89, 43 Am. St. Rep. 118; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913; Apperson v. Bolton, 29 Ark. 418; Janes v. Williams, 31 Ark. 175; Leatherwood V. Sullivan, 81 Ala. 458, 1 South. 718; Currell v. Villars (C. C.) 72 Fed. 330; Secrist v. Green, 3 Wall. 744, 18 L. Ed. 153; Long v. Pat- ton, 154 U. S. 573, append., 14 Sup. Ct. 1167, 19 L. Ed. 881. In all cases where it is proper to introduce in evidence the for- eign probate of a will a certified copy of the record of probate is sufficient. The probate of a will in another State is a judicial pro- ceeding to the record of which full faith and credit is to be given when certified according to the act of congress. Bright v. White, 8 Mo. 421; Haile v. Hill, 13 Mo. 618; Applegate v. Smith, 31 Mo. 166; Lewis V. St. Louis, 69 Mo. 595 ; Bradstreet v. Kinsella, 76 Mo. 66 ; Keith V. Keith, 80 Mo. 125; Gaines v. Fender, 82 Mo. 497; Drake V. Curtis, 88 Mo. 646; Fenderson v. Mo. T. & T.' Co., 104 Mo. App. 290, 78 S. W. 819 ; Stevens v. Oliver, 200 Mo. 512, 98 S. W. 492 ; Co- hen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772; Scott v. Herrell, 27 App. D. C. 395; Dusenberry v. Abbott, 1 Neb. (Dnof.) 101, 95 N. W. 466. § 65) PROBATE OF WILLS 185 probated so as to entitle it to probate or record in some other state is a question of fact and the finding of the probate court of the state where the land lies is con- clusive against collateral attack." Therefore in such court the sufficiency of the proof of foreign probate and the question of the residence of the testator are usually open to contest.^" The requirements of notice to heirs, etc., which are made in regard to domestic wills do not extend, usually, to foreign wills. ^^ The property within the state is the res conferring ju- risdiction, and only that property is affected." § 65. Recording will as a conveyance If the will affects the title to real property, a copy of the will showing its due probate must be recorded in the office provided for the record of land titles in each county in which any of the land lies.^^ This re- cording is not necessary to the validity of the will, nor 9 Goldtree v. McAlister, 86 Cal. 93, 23 Pac. 207, 24 Pac. 801. 10 Estate of Clark, 148 Cal. 108, 82 Pac. 760, 1 L. R. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. 11 Brock V. Frank, 51 Ala. 85; Ward v. Gates, 43 Ala. 515; Dickey V. Vann, 81 Ala. 425, 8 South. 195. 12 Estate of Clark, 148 Cal. 108, 82 Pac. 760, 1 L. R. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. A tax deed holder is not within protection of statute that title of purchaser in good faith without knowledge of will derived from heirs of any person who is not a resident shall not be defeated by production of will unless same shall be offered for record within two years of final probate. Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681. 13 Wolf V. Brown, 142 Mo. 612, 44 S. W. 733. In Kansas, in the probate court of each county in which any of the land lies. Section 8687, Gen. St. Kan. 1905. 186 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 to pass the title to the property to the devisees, but is simply for the purpose of charging purchasers and others with constructive notice of the conveyance as in the case of other conveyances.^* The same rea- son also compels the recording of foreign wills, for it is held: One dealing with land situated in this state is not charged with constructive notice of a will probated in another state. The will must be recorded in this state, before the purchaser is charged with constructive notice of it.^° It is held in Kansas that knowledge of a foreign will sufficient to charge a party with notice may be acquired by other means than a proper record.^' Effect of Probate § 66, Under American statutes At common law the ecclesiastical courts had juris- diction to probate testaments of personalty only, the proceeding was in rem, and the decree could not be collaterally assailed. In other countries it operated merely as evidence. Devises of real estate did not need a formal probate to entitle them to be received as evi- dence. The ecclesiastical courts had no jurisdiction of them, and their existence and validity could be 14 Rodney v. Landan, 104 Mo. 260, 15 S. W. 962 ; Wolf v. Brown, 142 Mo. 612, 44 S. W. 733; McLavy v. Jones, 31 Tex. Civ. App. 354, 72 S. W. 407. 15 Keith V. Keith, 97 Mo. 223, 10 S. W. 597; Van Syckel v. Beam, 110 Mo. 589, 19 S. W. 946 ; Meyers v. Smith, 50 Kan. 1, 31 Pac. 670. 16 Markley v. Kramer, 66 Kan. 664, 72 Pac. 221. ^ 66) PROBATE OP WILLS 187 contested only by ordinary actions, wherein the judg- ment was binding only on parties and privies." As the American statutes have extended the requirement of probate to wills of real estate and placed them on the same footing in this respect as wills of personalty it is held by many courts that the probate proceedings are in rem,^* and equally binding in the case of wills 17 Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13 ; Janes v. Wil- liams, 31 Ark. 175-187. 18 In the case of Tompkins v. Tompkins, 1 Story, 547, Fed. Cas. No. 14,091, Judge Story, in speaking of the law of England, says: "The validity of wills of real estate is solely cognizable by courts of com- mon law in the ordinary forms of suits, and the verdict of the jury in such suits, and the judgment thereon, are, by the very theory of the law, conclusive only as between the parties to the suit and their privies. But it is far otherwise in cases of personal estate. The sentence and decree of the proper ecclesiastical court, as to the per- sonal estate, is not only evidence, but is conclusive as to the validity or invalidity of the will ; so that the same cannot be re-examined or litigated in any other tribunal. The reason is that, it being the sentence or decree of a court of competent jurisdiction directly upon the very subject matter in controversy, to which all persons who have any interest are or may make themselves parties, for the pur- pose of contesting the validity of the will, it necessarily follows that it is conclusive between those parties. For otherwise, there might he conflicting sentences or adjudications upon the same subject mat- ter between the same parties ; and thus the subject matter be deliv- ered over to interminable doubts, and the general laws as to the ef- fect of res judicata be completely overthrown. In short, such sen- tences are treated as of the like nature as sentences or proceedings in rem, necessarily conclusive upon the matter in controversy for the common safety and repose of mankind." Then, after stating that hy the laws of Rhode Island the probate courts have complete ju- risdiction as to the probate of wills, whether the wills respect real estate or personal estate, or both, and making some remarks upon the effect of these local laws, he says: "In short, there can be no difference in point of principle, where the court of probate has an 188 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 of real property as in case of wills of personal prop- erty. One of the best statements of the law on that absolute and positive jurisdiction, whether the will respects real es- tate or personal estate. In such case, the will must be equally open to controversy in all other courts and suits, or it is closed in all. Yet no one pretends that the probate is not conclusive as to the per- sonal estate of the testator, and the title of the executor thereto. * * * Upon the whole in the absence of all controlling authorities under the local law, looking at the matter upon principle, I am of opinion that the probate of the present will by the Supreme Court of the state, being a court of competent jurisdiction, is final and con- clusive upon the question of the validity of the will to pass the real estate in controversy." In the case of Adams v. De Cook, 1 McAll, 253, Fed. Cas. No. 51, the court say: "In this State [California], where the general pow- er of proving all wills is vested in a special jurisdiction known as the probate court, the jurisdiction of the tribunal is as conclusive in re- gard to the probate of wills of real and personal estate as is that of the ecclesiastical courts in England in relation to wills of person- alty. If, therefore, there had been a probate of this document as a will by the appropriate tribunal in this State, such action, if final, would have been conclusive." In the case of Deslonde and James V. Darrington's Heirs, 29 Ala. 95, the court say: "The probate of a will, under any circumstances, is a proceeding in rem. It operates upon the thing itself. It defines, and in a great degree, creates its status. The status thus defined adheres to it as a fixture; and the judgment or decree in the premises, unless avoided in some mode prescribed by law, binds and concludes the whole world." In the case of Bogardus v. Clark, 4 Paige (N. Y.) 625, the court say : "It [a probate of a will of personalty] is in the nature of a proceeding in rem, to which any person having an interest may make himself a party, by applying to the proper tri- bunal before which such proceeding is had, and who will therefore be bound by the sentence or decree of such tribunal, although he is not in fact a party." In Woodruff v. Taylor, 20 Vt. 65, the court say: "The probate of a will I conceive to be a familiar instance of a proceeding in rem in this state. The proceeding is in form and sub- stance upon the will itself. No process is issued against any one, but all persons interested in determining the state or condition of § 66) PROBATE OF WILLS 189 subject is the following quotation from a California case:" In the United States, the probating of wills is regulated in most states, and probably in all, by statutes in which the pow- the Instrument are constructively notified by a newspaper publica- tion to appear and contest the probate ; and the judgment is, not that this or that person shall pay a sum of money or do any par- ticular act, but that the instrument is or is not the will of the tes- tator. It determines the status of the subject matter of the proceed- ing. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this State is concerned) just what the judgment declares it to be." In the case of Ballow v. Hudson, 13 Grat. (Va.) 682, the court say: "Considerations of public policy require that all questions of succession to property should be author- itatively settled. Courts of probate are therefore organized to pass on such questions, when arising under wills ; and a judgment by such court is conclusive whilst it remains in force, and the succession Is governed accordingly. A judgment of this nature is classed amongst those which in legal nomenclature are called judgments In rem. Un- til reversed, it binds not only the immediate parties to the proceed- ing in which it is had, but all other persons and all courts." The cases above cited have been selected from a great body of cases of like import, because, while showing the conformity of our laws with those of England, as to the conclusiveness of probate de- crees, they also show the reason why they are conclusive, not only upon the parties who may be before the court, but upon all other persons and upon all courts; and that is, that it is not a proceeding to decide a contest between parties, but a proceeding in rem, to de- termine the character' and validity of an instrument affecting the title to property, and which it is necessary for the repose of society should be definitely settled by one judgment, and not left to be buf- feted about by difCerent, and possibly conflicting, judgments of va- rious courts. A judgment admitting a paper to probate in solemn form as a will is not binding upon heirs at law who had no notice of the ap- is State V. McGlynn, 20 Cal. 233-265, 81 Am. Dec. 118. 190 WILLS A'ND ADMINISTRATION OP ESTATES (Ch. 5 er to probate wills is conferred upon a special court, a probate or surrogate court, corresponding in this respect to the eccle- siastical courts of England. In some of the states, following the English system, the power to probate is only given in cases of wills of personal estate, leaving wills of real estate to be proved on the trial of any particular action depending upon it. In others, the power to probate is extended to both kinds of wills, but making it conclusive only in cases of wills of per- sonal property, and only prima facie evidence, and liable to be disproved on trials of cases . depending upon wills of real estate. In others, the power to probate applies to wills of both kinds, atid the same conclusive effect is given to the pro- bate in both cases. Upon examining the decisions of the supreme court of the United States, and the courts of the several states, it will be found that they have uniformly held that the principles estab- lished in England apply and govern the cases arising under plication for such probate, and may attack the will when set up as a source of title without having previously set aside the judgment of probate. Medlock v. Merritt, 102 Ga. 212, 29 S. E. 185 ; Hightower V. Williams, 104 Ga. 608, 30 S. E. 862. This was decided under the Georgia code, making judgment in common form conclusive after seven years, on all except minor heirs, but probate in solemn form conclusive only upon heirs notified and legatees represented by the executor. See, also, Sutton v. Hancock, 118 Ga. 436, 45 S. B. 504. By the act of Congress probate of a will of real estate is prima facie evidence only of the validity of the will ; therefore it may be contested in an action of ejectment. Barbour v. Moore, 4 App. D. C. 535-545; Perry v. Sweeny, 11 App. D. C. 404. See Knox v. PauU, 95 Ala. 505, 11 South. 156 ; Kumpe v. Coons, 63 Ala. 448 ; Nelson v. Boynton, 54 Ala. 368 ; Martin v. King, 72 Ala. 354; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; McCann v. Ellis, 172 Ala. 60, 55 South. 303 ; Allen v. Prater, 35 Ala. 169 ; Des- londe V. Darrlngton's Heirs, 29 Ala. 92 ; Reese v. Nolan, 99 Ala. 208, 18 South. 677 ; Estate of Davis, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 ; Tracy v. Muir, 151 Cal. 863, 90 Pac. 832, 121 Am. St. Rep. 117 ; Dilworth v. Rice, 48 Mo. 124; Stowe v. Stowe, 140 Mo. 594, 41 S. W. 951 ; Smith v. Holden, 58 Kan. 535, 50 Pac. 447. § 67) PROBATE OP WILLS 191 the probate laws of this country, and that in the United States, wherever the power to probate a will is given to a probate or surrogate's court, the decree of such court is final and con- clusive, and not subject, except on ati appeal to a higher court, to be questioned in any other court, or be set aside or vacated by the court of chancery on any ground. § 67. Difference between proceeding in rem and in personam The difference in legal effect between a proceeding in rem and one in personam or inter partes may be thus stated: In a proceeding in rem the jurisdiction o-f the court is founded upon its possession or control of the res, or thing which is the subject of the litigation. The action is to determine the legal status of that res. The court having control thereof can determine that status, and its judgment is binding upon the res and all parties interested therein. It is binding upon the world and conclusive upon all tribunals except those having an appellate jurisdiction or power of review over that particular proceeding.^" A suit in personam or inter partes, on the other hand, is founded upon jurisdiction acquired over the parties. The judgment therein is binding only upon the parties and those in privity with them. " 20 Jourden v. Meier, 31 Mo. 40 ; Torrey v. Bruner, 60 Fla. 365, 53 South. 337 ; Steele v. Renn, 50 Tex. 467-481, 32 Am. Kep. 605 ; Scott V. Caloit, 3 How. (Miss.) 158. 21 Proceediags to probate or to set aside the probate of wills are proceedings in rem and not In personam. Such proceedings are ex- clusively to determine the status of the res and not the rights of the 192 WILLS AND ADMINISTEATION OF ESTATES (Ch. 5 § 68. Decree of probate not subject to collateral attack For the protection of those whose rights may have been adversely affected by the summary process of probate, an ample power of review usually is provided, either by appeal from the judgment of probate or some other form of direct proceeding. This provision for review is called a "contest" and will be the subject of the next chapter. Except by this direct proceed- ing the judgment of probate is unassailable. It is not subject in any other court or in any other proceeding in the same court to collateral attack." The converse parties. Judgments in proceedings in rem are conclusive as to the wliole world which in personam are conclusive only as to parties and privies to the suit. Hence the probate of a will cannot be set aside as to some heirs and not as to others. McOann v. Ellis, 172 Ala. 60, 55 South. 303. Making judgment of probate conclusive does not violate fourteenth amendment of United States Constitution. Sutton v. Hancock, 118 Ga. 436-442, 45 S. E. 504. 22 Knox V. PauU, 95 Ala. 505, 11 South. 156 ; BothweU v. HamU- ton, 8 Ala. 461 ; Janes v. Williams, 31 Ark. 175 ; Ludlow v. Plournoy, 34 Ark. 451 ; Petty v. Ducker, 51 Ark. 281, 11 S. W. 2 ; Carraway v. Moore, 75 Ark. 146, 86 S. W. 993 ; St. Joseph's Convent v. Garner, 66 Ark. 623, 58 S. W. 298 ; Copley v. Ball, 176 Fed. 682, 100 C. C. A. 234; Selden v. 111. Trust & Sav. Bank, 184 Fed. 872, 107 C. C. A. 196; Warfield's WiU, 22 Cal. 51, 83 Am. Dec. 49; Ward v. Co. Com'rs, 12 Okl. 267, 70 Pac. 378 ; Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772 ; Langston v. Marks, 68 Ga. 435 ; Veiiable V. Veal, 112 Ga. 677, 37 S. E. 887 ; Hooks v. Brown, 125 Ga. 122, 53 S. E. 583 ; Smith v. Stone, 127 Ga. 483, 56 S. E. 640 ; Churchill v. Jackson, 132 Ga. 666, 64 S. E. 691, 49 L. R. A. (N. S.) 875, Ann. Gas. 1913E, 1203; Maund v. Maund, 94 Ga. 479, 20 S. E. 360; Weathers v. JIcFarland, 97 Ga. 266, 22 S. E. 988 ; Peters v. West, 70 Ga. 343 ; Rash V. Purnel, 2 Har. (Del.) 448-451 ; Pennel's Lessee v. Weyant, 2 Har. (Del.) 501; Loosemore v. Smith, 12 Neb. 343, 11 N. W. 493; § 68) PROBATE OF WILLS 193 of this proposition is equally true, that a judgment refusing probate, which is a finding that the deceased died intestate, is equally binding until set aside in proper manner."' The probate court is the judge of the weight and credibility of the testimony in support of the will/* Neither the insufficiency of the proof up- on which probate was granted^ ° nor any irregularities of procedure after jurisdiction has attached are avail- able in a collateral proceeding/^ Even facts showing Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276 ; Byron Reed Co. V. Klabunde, 76 Neb. 801, 108 N. W. 133; Roberts v. Flanagan, 21 Neb. 503, 32 N. W. 563; Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683 ; Paschal v. Acklin, 27 Tex. 173 ; Lewis v. Ames, 44 Tex. 319 ; March v. Huyter, 50 Tex. 243 ; Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388; Locust v. Randle, 46 Tex. Civ. App. 544, 102 S. W. 946; Deutsch v. Rohlflng, 22 Colo. App. 543-556, 126 Pac. 1123; Bent V. Thompson, 5 N. M. 408-423, 23 Pac. 284; In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. What is collateral attack. Davis' Estate, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 ; Stead v. Curtis, 205 Fed. 439, 123 C. C. A. 507 (Cal.). Suit to enforce specific performance of oral contract to devise is not a collateral attack on will. Best v. Gralapp, 69 Neb. 815, 96 N. W. 641, 99 N. W. 837, 5 Ann. Gas. 491. 23 Castro V. Richardson, 18 Cal. 478. No reprobate after a final decree against the validity of the will. Bradley v. Andress, 27 Ala. 596. 21 Wickes' Estate, 139 Cal. 195, 72 Pac. 902 ; Kirbell v. Pitkin, 75 Conn. 301, 53 Atl. 587 ; Kolterman v. Chilvers, 82 Neb. 216, 117 Pac. 405 ; Fischer v. Giddings, 43 Tex. Civ. App. 393, 95 S. W. 33. 25 Jourden v. Meier, 31 Mo. 40 ; Fortune v. Buck, 23 Conn. 1 ; Whitman v. Haywood, 77 Tex. 557, 14 S. W. 166. 20 Knox V. Paull, 95 Ala. 505, 11 South. 156 ; In re Collins, 151 Cal. 340, 90 Pac. 827, 91 Pac. 397, 129 Am. St. Rep. 122 ; Dunsmuir V. Coffey, 148 Cal. 137, 82 Pac. 682; Dunsmuir v. Hopper, 149 Cal. 67, 84 Pac. 657; Acklen v. Goodman, 77 Ala. 521; Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054 ; Warfield's Will, 22 BoBL. Wills — 13 194 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 revocation of the will cannot be thus pleaded." Such defects may be remedied by direct proceedings." Every intendment is made in favor of the regularity of the action of the probate court. ^° The will duly admitted to probate, by a court having jurisdiction, becomes a conveyance and is evidence in all courts of the title of those who claim under it.^° The court Cal. 51, 83 Am. Dec. 49; Goodman v. Winter, 64 Ala. 410, 38 Am. Kep. 13 ; Kumpe v. Coons, 63 Ala. 448 ; Wood v. Matthews, 53 Ala. 1 ; Brock V. Frank, 51 Ala. 85; Hall v. Hall, 47 Ala. 290; Mathews v. McDade, 72 Ala. 377 ; Glover v. Colt, 36 Tex. Civ. App. 104, 81 S. W. 136. 27 Sutton V. Hancock, 118 Ga. 436, 45 S. E. 504 ; Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772. 28 Hilliard v. Binford, 10 Ala. 977 ; Lees v. Brownings, 15 Ala. 495; Roy v. Segrist, 19 Ala. 810; Stapleton v. Stapleton, 21 Ala. 587; Lovett v. Chisolm, 30 Ala. 88 ; Satcher v. Satcher, 41 Ala. 26, 91 Am. Dec. 498 ; Hall v. Hall, 47 Ala. 290 ; Brock v. Frank, 51 Ala. 85 ; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13. But where will of feme covert before the enabling statute was ad- mitted to probate the only remedy of the heirs was by appeal. Jud- Bon V. Lake, 3 Day (Conn.) 326. Conviction of perjury in securing probate of a fictitious will. Peo- ple V. Eodley, 131 Cal. 240, 63 Pac. 351. 2" McCrea v. Haraszthy, 51 Cal. 146; Davis' Estate, 151 Cal. 318 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 ; Moore v. Earl, 91 Cal. 632, 27 Pac. 1087; Rice's Estate, Myr. Prob. (Cal.) 183; Martin V. Smith, 23 Tex. Civ. App. 665, 57 S. W. 299; Tarbrough v. De Mar- tin, 28 Tex. Civ. App. 276, 67 S. W. 177 ; Stead v. Curtis, 205 Fed. 439, 123 C. C. A. 507 (Cal.). A will more than fifty years old, proved and recorded in the prop- er olfice, is admissible as an ancient paper or -document, notwith- standing the probate is defective ; provided possession has been held of the property under and by virtue of the will. Jordan v. Cameron, 12 Ga. 267. Insufficient record of probate under South Carolina statute. Pine- land Club V. Robert, 171 Fed. 341, 96 C. C. A. 233. 30 Newman v. Virginia T. & C. Co., 80 Fed. 228, 25 C. 0. A. 382: § 68) PROBATB OF WILLS 195 of testator's domicile having complete jurisdiction of all questions relating to the capacity of the testator, the execution and validity of the will and the distribu- tion of the personal estate, the decision of that court is binding in other states, even on the question of domicile.^'^ The conclusiveness of the probate decree is confined, however, to the issues presented. Thus a will disposing of both real and personal property is properly presented for probate, but it may be enti - tied to probate as a will of personal property only and not as to the realty/^ So, it has been held by some Chilcott V. Hart, 23 Colo. 40-45, 45 Pac. 391, 35 L,. R. A. 41 ; Thurs- by V. Myers, 57 Ga. 155; Churchill v. Corker, 25 Ga. 479. A probate In Louisiana of a will of a person who died domiciled in New York Is valid until set aside in the Louisiana court, though the order of the surrogate in New York has been reversed in the Su- preme Court of that state, on which the Louisiana probate was founded. A purchaser from the devisee of such will of real estate in Louisiana, while the order of the Louisiana court establishing the will remains in force, is an innocent purchaser, and is not affected by a subsequent order setting aside the will to which he is not a par- ty. Foulke V. Zimmerman, 14 Wall. 113, 20 L. Ed. 785. 31 Higgins V. Eaton, 183 Fed. 388, 105 C. C. A. 608, Id., (C. C.) 188 Fed. 938; Palmer v. Bradley (C. C.) 142 Fed. 193; Dunsmuir v. CofCey, 148 Cal. 137, 82 Pac. 682 ; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13 ; Brock v. Frank, 51 Ala. 85 ; Estate of Dole, 147 Cal. 188-194, 81 Pac. 534 ; Irwin v. Scriber, 18 Cal. 499 ; In re Griffith, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381 ; In re ElchhofC, 101 Cal. 605, 36 Pac. 11 ; Estate of Latour, 140 Cal. 421, 73 Pac. 1070, 74 Pac. 441 ; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913; Torrey v. Bruner, 60 Fla. 365, 53 South. 337. A decree granting ancillary probate of will held conclusive only as to property in the ancillary jurisdiction. Clark's Estate, 148 Cal. 108, 82 Pac. 760, 1 L. K. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. 32 Courts of probate stand in the same ground with common law 196 WILLS AND ADMINISTRATION OF ESTATES (Ch. 5 courts that if the record of probate shows on its face that the will was not properly executed the probate is not binding, but may be collaterally assailed.'' courts as to the conclusiveness of their judgments In matters withia their jurisdiction, but all judgments are coextensive only with the issue and conclude nothing not necessarily involved in the issue. Where a court of probate admitted generally the will of a minor which was good as to personalty but void as to realty, this does not preclude the heirs from an action of ejectment as to the realty even though the probate court has attempted to make an order of distrib- ution as to the realty, and the heirs are not precluded from showing the minority of the testatrix. Dickinson v. Hayes, 31 Conn. 417; Starr v. Starr, 2 Boot (Conn.) 303-314. 33 Carlton v. Taylor, 89 Ga. 490, 15 S. B. 643; Gay v. Sanders, 101 Ga. 601, 28 S. E. 1019; Fortner v. Wiggins, 121 Ga. 26, 48 S. B. 694; Janes v. Dougherty, 123 Ga. 43, 50 S. E. 954 ; BuUard v. Wynn, 134 Ga. 636, 68 S. E. 439. § 69) CONTEST OF WILLS 197 CHAPTER VI CONTEST OF WILLS § 69. Distinction between common and solemn form of probate. 70. Nature of contest proceeding. 71. Jurisdiction of federal courts in will contests. 72. Contest — Time for brluging. 73. Contest — Form of action. 74. Contest — Parties. 75. Contest — Estoppel — Agreements and settlements between beirs and legatees. 76. Contest — Procedure. 77. Contest is statutory and therefore an action at law, 78. Contest — Burden of proof. 79. Contest — The issue. 80. Contest— Trial by jury. 81. Evidence — ^Attesting witnesses. 82. Evidence of sanity — Opinion evidence of lay witnesses. 83. Evidence of sanity — Medical witnesses. 84. Evidence of sanity — Declarations of testator. 85. Evidence of sanity — Range of testimony. 86. Privilege of physicians and attorneys. 87. Admissibility of various matters. 88. Contest — ^Directing a verdict 89. Contest — Judgment — Costs. 90. Contest — Appellate courts. 91. Contest — ^Administrator pendente lite. § 69. Distinction between common and solemn form of probate Under the English practice there were two modes of proving a will of personal property — the common form in which the will was propounded by the execu- 198 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 tor, and proved ex parte; and the solemn form in which the next of kin of the testator were cited to witness the proceedings and in which the proof vi^as taken per testes, or in form of law as it was called.' It has been said that the statutory provisions for con- testing a will stand in the place of, and are the sub- stitutes for, the proof in solemn form as practiced in the ecclesiastical courts when the will was of personal property, and of the action of ejectment at common law when the will was of real property/ 1 Hubbard v. Hubbard, 7 Or. 42 ; Luper v. Werts, 19 Or. 122-126, 23 Pac. 850 ; Knox v. Paull, 95 Ala. 505, 11 South. 156 ; Benoist v. Murrin, 48 Mo. 48 ; Watson v. Alderson, 146 Mo. 344, 48 S. W. 478, 69 Am. St. Rep. 615 ; Brown v. Anderson, 13 Ga. 171; Sutton v. Han- - cock, 118 Ga. 436-439, 45 S. E. 504. "Under the English common law two forms of probating a will were recognized, namely, the common and solemn forms. The com- mon form required no notice to the heirs or interested parties, while the solemn form required such parties to be cited to appear; and, where a will had been probated in common form, any interested par- ty could appear, and have the will re-probated In solemn form at any time within thirty years." Bent v. Thompson, 5 N. M. 408-417, 23 Pac. 234. "In this state probate in common form is the only one which ap- pears to have been adopted by any positive exactment of the legisla- ture." Hubbard v. Hubbard, 7 Or. 42 ; Luper v. Werts, 19 Or. 122- 126, 23 Pac. 850. Only solemn form of probate is permitted of a nuncupative will. Kirby v. Kirby's Adm'r, 40 Ala. 492. 2 Lyons v. Campbell, 88 Ala. 462, 7 South. 250 ; Kumpe v. Coons, 63 Ala. 448; Johnson v. Glasscock, 2 Ala. 218; Knox v. Paull, 95 Ala. 505, 11 South. 156. § 70) CONTEST OF WILLS 199 § 70. Nature of contest proceeding Much confusion has occurred in the decisions as to whether the character of a proceeding in rem, which attaches to the probate of a will in the informal, sum- mary, and sometimes ex parte proceedings in the pro- bate court, follows it into the contest, or whether the latter becomes a suit inter partes/ The effect of treat- ing the proceeding as one in rem is to vest the court with jurisdiction on constructive notice,* and make its judgment binding on all the world." It would not serve any useful purpose to detail the statutory pro- visions of the several states giving this right of con- test or review of probate. The general purpose of the statutes is the same : to provide a review of the sum- mary action of the probate court, when demanded; to give all parties in interest their day in court; and to fix a short and convenient limit of time within which the direct proceeding for review must be brought or the judgment of probate become final. 3 Contest is a proceeding in rem. Kumpe v. Ooons, 63 Ala. 448; Estate of Davis, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 ; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117 ; Martin v. King, 72 Ala. 354 ; Maurer y. Miller, 77 Kan. 92-95, 93 Pac. 596, 127 Am. St. Rep. 408, 15 Ann. Cas. 663; Coleman v. Martin, 6 Blatchf. 119, Fed. Cas. No. 2,985; Bradford v. Blossom, 207 Mo. 177-228, 105 S. W. 289; Crult v. Owen, 21 App. D. C. 378; In re Estate of Sweeney, 94 Neb. 834, 144 N. W. 902. « Martin v. King, 72 Ala. 354; Estate of Davis, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 ; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117. 5 The probate of a will is a proceeding in rem, and binding on all the world, and hence the parties claiming to be heirs cannot submit a contest of the will to arbitration. Carpenter v. Bailey, 127 Cal. 582, 60 Pac. 162. 200 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 71. Jurisdiction of federal courts in will contests The question of the jurisdiction of the federal courts in the various branches of probate procedure is a matter of some difficulty.. The exercise of such jurisdiction may be sought: First : In cases of probate or contest. Second : In cases of construction. Third: In cases of debts and the protection of creditors. Fourth : In cases of accounting and distribution. It will aid greatly in understanding the subject to keep these branches separate, and therefore each will be treated under its appropriate head. We are con- cerned here only with the jurisdiction relating to pro- bate and contest. It is but natural that loose expres- sions should occur in the opinions which will tend to confuse the subject, unless care is used in examining the cases to find what the exact issue in each case was.* The jurisdiction of the federal courts is a lim- ited jurisdiction depending either upon the existence of a federal question or upon the diverse citizenship of the parties ; and where these elements are wanting, it cannot proceed even with the consent of the parties.'' 8 "The legal custody of an estate by a probate or county court or by its oflBcer, is no obstacle to the exercise by a federal court of this jurisdiction, because the law imposes upon the state court the duty to give full faith, credit and effect to the adjudications of the federal court when certified to it" McClellan v. Garland, 187 Fed. 915, 110 C. C. A. 49. This was really a suit for distribution, and not for administration. Will contest and suit for construction confused. Palmer v. Brad- ley (111.) 154 Fed. 311, 83 C. 0. A. 231. 7 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867. § 71) CONTEST OF WILLS 201 Such courts, therefore, have no power over the pro- bate of wills in either common form or solemn form or as a proceeding in rem,' unless the case comes up in some form from the District of Columbia or the territories.* Such jurisdiction is not derived from the constitution, nor conferred by acts of congress^ nor was it inherent in the high court of chancery. The courts of the United States are possessed of all the inherent powers exercised by the high court of chan- cery, but this did not embrace the probate of wills which was exclusively in the jurisdiction of the ec- clesiastical courts. Equity claimed no authority either to establish or disestablish a will, or to review the action of the ecclesiastical court," except where the probate itself was obtained by fraud.^^ 8 Ball V. Tompkins (C. C. Mich.) 41 Fed. 486 ; Toms v. Owen (C. C. Mich.) 52 Fed. 417; McDonnell v. Jordan, 178 U. S. 229-236, 20 Sup. Ct 886, 44 L. Ed. 1048; Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ot. 727, 50 L. Ed. 101; Higgins v. Eaton (C. C. N. Y.) 178 Fed. 153; Underground Electric Ry. v. Owsley (G. 0. N. Y.) 169 Fed. 671 ; Id., 176 Fed. 26, 99 C. C. A. 500 ; Higgins v. Eaton (O. C. N. Y.) 188 Fed. 938 ; Hargroves v. Eedd, 43 Ga. 142. Probate jurisdiction of federal courts — authorities collected. Bed- ford Quarries Co. v. Thomlinson, 95 Fed. 208, 36 C. C. A. 276, note. Campbell v. Porter, 162 U. S. 478, 16 Sup. Ct. 871, 40 L. Ed. 1044 ; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L Ed. 1049. 10 Tarver v. Tarver, 9 Pet. 174, 9 L. Ed. 91; Broderick's Will, 21 Wall. 503, 22 L. Ed. 599; Gains v. Chew, 2 How. 619, 11 L. Ed. 402 ; Fouvergne v. New Orleans, 18 How. 470, 15 L. Ed. 399 ; Ellis v. Da- vis, 109 U. S. 485, 3 Sup. Ct. 327, 27 D. Ed. 1006; Cilley v. Patten (C. C.) 62 Fed. 498 ; Oakley v. Taylor (C. 0. Mo.) 64 Fed. 245 ; Good- rich V. Ferris (C. C.) 145 Fed. 844 ; Underground Electric Ry. Co. v. Owsley (C. C. N. Y.) 169 Fed. 671; Id., 176 Fed. 26, 99 0. C. A. 500. 11 Patterson v. Dickinson (Cal.) 193 Fed. 328-334, 113 C. C. A. 252. 202 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 The federal courts, however, possess a twofold ju- risdiction — one dependent upon a federal question arising under the constitution, laws and treaties of the United States; the other dependent upon the diverse citizenship of the parties. Under the former it seems clear that they have no probate jurisdiction. Under the latter their jurisdiction is, in a sense, derivative. It is exercised in substitution for the jurisdiction which would be exercised by the state court if the diverse citizenship did not exist. Therefore the state law determines the form and character of the action. Where the jurisdiction of the federal court is appealed to on the ground of the diverse citizenship of the par- ties in a will contest, the question whether such juris- diction can be invoked either in an original suit or on removal from the state court depends upon whether there be a controversy between opposing parties. If a judicial controversy exists between real opposing parties there is no reason why it may not be brought in, or removed to the federal court. In the leading federal case on this subject the law is thus stated : There are, it is true, in several decisions of this court ex- pressions of opinion that the federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the case under the existing legislation of Congress. The reason lies in the nature of the proceeding to probate a will as one in rem, which does not nec- essarily involve any controversy between parties; indeed in the majority of instances no such controversy exists. In its initiation all persons are cited to appear whether of the state where the will is offered or of other states. From its nature S 71) CONTEST OF WILLS 203 and from the want of parties or the fact that all the world are parties, the proceeding is not within the designation of cases at law or in equity between parties of different states of which the federal courts have concurrent jurisdiction with the state courts under the Judiciary Act ; but whenever a con- troversy, in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a de- cree admitting it to probate, there is no more reason why the federal courts should not take jurisdiction of the case, than there is that they should not take jurisdiction of any other •controversy between the parties. ^^ It is by no means certain that the courts have ad- hered strictly to this simple rule. There seems to be much conflict of opinion between the different cir- cuits. But generally speaking, the rule may be stated thus : The federal courts have no jurisdiction either by original action or removal over a purely probate proceeding which might have been conducted in the ecclesiastical courts of England and which has been transplanted from thence to the probate tribunals of the states ; but where the state statutes provide for a contest or other form of proceeding for testing the validity of a will in a court of general jurisdiction, this controversy may, in case the requisite amotmt and citizenship exists, be taken to the federal court." 12 Gaines v. Fuentes, 92 U. S. 22, 23 L. Ed. 524. 13 Federal court will take jurisdiction. Richardson v. Green (Or.) •9 C. O. A. 565, 61 Fed. 423 ; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006 ; Sawyer v. White, (Mo.) 122 Fed. 223, 58 C. C. A. 587; Everhart v. Everhart (O. C. Miss.) 34 Fed. 82; Brodhead V. Shoemaker (C. C. Ga.) 44 Fed. 518, 11 L. R. A. 567 ; Id., 85 Ga. 728, 11 S. B. 845; McDermott v. Hannon (D. C. N. Y.) 203 Fed. 1015. Federal court will not take jurisdiction. In re Oilley (C. 0. N. H.) 204 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 72. Contest — Time for bringing At common law probate in solemn form was con- clusive from its date but probate in common form was not. Probate in common form could be contest- ed, but the right to call for proof in solemn form did not exist forever. After the lapse of time under the English law probate in common form became conclu- sive. This time seems not to have been definitely fix- ed. In Swinburne's Testaments 816, it is stated that after a lapse of ten years "necessary solemnities are presumed to have been observed." American statutes fix a time, usually short, within which a direct pro- ceeding to attack the probate of a will must be brought.^* If the proceeding is not begun within the 58 Fed. 977 ; Ball v. Tompkins (C. C. Mich.) 41 Fed. 486 ; McArthur V. Allen (O. C. Ohio) 3 Fed. 313 ; Grignon v. Astorj 2 How. 819, 11 L. Ed. 283 ; O'Callaghan v. O'Brien, 199 U. S. 89, 25 Sup. Ct 727, 50 L. Ed. 101; Carrau v. O'Callaghan, 125 Fed. 657, 60 C. O. A. .347; reversing O'Callaghan v. O'Brien (C. C.) 116 Fed. 934; Miller v. Weston (Colo.) 199 Fed. 104, 119 C. C. A. 358 ; Stead v. Curtis (Cal.) 191 Fed. 529, 112 C. C. A. 463; Higgins v. Eaton (N. Y.) 188 Fed. 938-955 ; Copeland v. Brunlng (C. C. Ind.) 72 Fed. 5. 1* Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52; Brinkley v. Sanford, 99 Ga. 130, 25 S. E. 32 ; Hooks v. Brown, 125 Ga. 122, 53 S. E. 583 ; Vance v. Crawford, 4 Ga. 445 ; Speer v. Speer, 74 Ga. 179 ; Miller v, Livingstone, 31 Utah, 415, 88 Pac. 338 ; Ransome v. Bearden, 50 Tex. 119; Stead v. Curtis (Cal.) 205 Fed. 439, 123 C. C. A. 507; McDer- mott V. Hannon (D. C. N. Y.) 203 Fed. 1015 ; Chappie v. Gidney, 38 Okl. 596, 134 Pac. 859. While the statutes regulating the probate of wills provide no time within which probate shall be applied for, yet they contemplate that this shall be speedily done. McGowan v. Elroy, 28 App. D. C. 188. If a contest is begun within two years after probate, others may intervene after the two-year period. Maurer v. Miller, 77 Kan. 92, 93 Pac. 596, 127 Am. St. Rep. 408, 15 Ann. CJas. 663; Bradford v. An- drews, 20 Ohio St. 208, 5 Am. Rep. 645. § T2) CONTEST OF WILLS 205 time set by the statute the probate becomes absolute and not open to further attack, direct or collateral." Even the attempt to probate another will or codicil of later date than the probated will is regarded as a con- test and is barred by the statute." It is assumed, in this statement, that proper jurisdiction existed in the tribunal admitting the will to probate." These limitations do not bar persons who have been under legal disabilities, such as infants, insane persons, con- victs and, formerly married women. These are allow- ed the statutory period after they have attained legal capacity to sue for their rights, a very inconvenient and sometimes dangerous matter where the title to land is derived from a will, but one which cannot be avoided with justice to these innocent claimants. It 15 Bent V. Thompson, 138 U. S. 114, 11 Sup. Ot. 238, 34 L. Ed. 902 ; Cunningham's Estate, Myr. Prob. (Cal.) 214; Dunsmuir's Estate, 149 Cal. 67, 84 Pac. 657; Focha v. Estate of Focha, 8 Oal. App. 576, 97 Pac. 321; Estate of Ricks, 160 Cal. 467, 117 Pac. 539; Sbarboro's Estate, 63 Cal. 5; San Francisco P. O. Asylum v. Superior Court, 116 Cal. 448, 48 Pac. 379. Contest in probate court of probated will ; appeal to district court from order annulling probate; will probated in 1867; petition for reprobate or review filed 1887 ; action dismissed as not warranted by statute and not governed by common law. Bent v. Thompson, 5 N. M. 408, 23 ;Pac. 234 ; 138 U. S. 114, 11 Sup. Ot. 238, 34 L. Ed. 902. The limitation of one year for the contest of a will limits the right to attack a particular devise for fraud. Maxwell's Estate, 74 Cal. 384, 16 Pac. 206. 16 Hardy v. Hardy's Heirs, 26 Ala. 524; Watson v. Turner, 89 Ala. 220, 8 South. 20 ; Adsit's Estate, Myr. Prob. (Cal.) 266. 1-7 But application to set aside probate for want of notice may be barred by laches. Whitaker v. McKinney, 134 Ala. 326, 32 South. 695, 92 Am. St. Eep. 37. 206 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 results from this that the formal probate of a will in the probate court is not final and conclusive until the statutory period has run. It is liable to be attacked successfully within that time, and any dealing with the property, such as a sale by the devisee under the will, does not pass title if the will is set aside." The other aspect of this matter is also productive of great inconvenience. A person is supposed to have died intestate and administration has been granted upon his estate, and the title to his real estate has descended to his heirs ; in this case, if a will be after- wards found, the administrator must be discharged and the will admitted to probate. If the heirs have sold and conveyed the land and the will which is dis- covered makes a different disposition of it the title of the purchasers fails and they cannot hold the prop- erty against the devisees and those claiming under them. At common law, no lapse of time was sufficient to destroy the validity of a will. It might be probated at any length of time after the testator's death. In a case in Massachusetts a will was 'admitted to probate sixty-three years after the testator's death, and the court held that in the absence of a statute of limita- 18 Hughes V. Burriss, 85 Mo. 660; Tapley v. McPike, 50 Mo. 589; Robertson v. Brown, 187 Mo. 457, 86 S. W. 187, 106 Am. St. Rep. 485. Contest of a will may be brought before the probate court in term time has confirmed the probate of the will. Sunderland v. Hood, 13 Mo. App. 240 ; Potter v. Adams, 24 Mo. 159. The time limited for bringing contest is not extended by the civil code giving one year after suit is dismissed to begin new action. Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. § 73) CONTEST OF WILLS 207 tion the will might be probated at any length of time.'* With the exceptions above noted we seem to have in these states no statutes of limitation which apply di- rectly to probate of wills. The will must be probated at any time it is offered; but if the property dis- posed of by the will is in the adverse possession of another, which would almost certainly be the case, the devisees or legatees might not be able to bring any action to recover it if our ordinary statutes of limita- tion had run against them. § 73. Contest — Form of action The form of action varies greatly in the several states. In some there is an appeal from the action of the probate, court in admitting or rejecting the will.^" This is especially true in those states that pro- 19 Haddock v. B. & M. Ry., 146 Mass. 155, 15 N. E. 495, 4 Am. St. Kep. 295. Evidence sufficient to require probate of a will, although offered for probate twenty-one years after death of the testator. St. Mary's O. A. V. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587. 20 Eastis V. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227 ; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235 ; Greatbouse v. Jameson, 3 Colo. 397; Clough v. Clough, 10 Colo. App. 433, 51 Pac. 513, affirmed 27 Colo. 97, 59 Pac. 736 ; Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499; Gallon v. Haas, 67 Kan. 225, 72 Pac. 770; Bethany Hospital v. Hale, 69 Kan. 618, 77 Pac. 537; Ho- gane v. Hogane, 57 Ark. 508, 22 S. W. 167; In re Calkins, 112 Cal. 296, 44 Pac. 577 ; Leavenworth v. Marshall, 19 Conn. 408 ; Ouachita Bap- tist College V. Scott, 64 Ark. 349, 350, 42 S. W. 536; Parker v. Par- ker, 10 Tex. 83 ; Mackey v. Atoka, 34 Okl. 572, 126 Pac. 767 ; Davis v. Rogers, 1 Houst. (Del.) 183 ; Kartell v. Hamilton, 6 Ga. 37 ; Evans V. Arnold, 52 Ga. 169; Hooks v. Brown, 125 Ga. 122-132, 53 S. E. 583 ; Barksdale v. Hopkins, 23 Ga. 332 ; Coleman v. Floyd, 105 Ark. 208 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 vide for notice and hearing in the probate court. Sometimes when a will is admitted to probate with- out notice to those entitled to it the probate will be set aside on their application/^ The right of appeal is necessarily limited to those who appeared in the probate court/^ and sometimes parties who had such right are precluded from any other form of contest/^ Usually there is another form of action provided by statute for contesting or revoking the probate of a will, or for establishing a will that has been rejected. This is by a separate action begun, either in the pro- bate court," or in a court of general jurisdiction." Sometimes this is the exclusive remedy — there being no appeal from probate ;^' but usually it is a concur- 301, 150 S. W. 703 ; Phelps v. Ashton, 30 Tex. 344 ; In re Estate of Sweeney, 94 Neb. 834, 144 N. W. 902; Anderson v. Anderson, 69 Neb. 565, 96 N. W. 276. ^ 21 Herring v. Ricketts, 101 Ala. 340, 13 South. 502 ; Roy v. Segrist, 19 Ala. 810 ; Dickey v. Vann, 81 Ala. 425, 8 South. 195 ; Stapleton v. Stapleton, 21 Ala. 587; Walker v. Jones, 23 Ala. 448; Lees v. Brown- ing, 15 Ala, 495 ; Lovett v. Chisolm, 30 Ala. 88 ; Kirby v. Kirby, 4U Ala. 495. Power of court of probate to set aside probate of will asserted and doubted. Hill v. Hill, 6 Ala. 166; Kirby v. Kirby, 40 Ala. 492; Roy V. Segrist, 19 Ala. 810 ; Sowell v. SoweU's Adm'r, 40 Ala. 243 ; Lov- ti.t V. Chisolm, 30 Ala. 88. 2 2 Knox V. PauU, 95 Ala. 505, 11 South. 156; Clemens v. Patter- son, 38 Ala. 721; Swift v. Thomas, 101 Ga. 89, 28 S. E. 618. 23 Estate of Cunningham, 54 Oal. 556 ; Breeding v. Grantland, 135 Ala. 497, 33 South. 544. 24 Franks v. Chapman, 61 Tex. 576 ; Willms v. Plambeck, 76 Neb. 195, 107 N. W. 248; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543 ; In re Dye v. Meeee, 16 N. M. 297, 120 Pac. 306. 2 5 Dean v. Swayne, 67 Kan. 241, 72 Pac. 780; Chappie v. Gidney, 38 Okl. 596, 134 Pac. 859. 26 In re Duty, 27 Mo. 43. § 74) CONTEST OF WILLS 209 rent remedy, or designed for those who were not heard on probate." In some states the jurisdiction is con- ferred upon courts of chancery, but it is purely stat- utory, as chancery claims no independent jurisdiction of will contests/* When once probated a will can only be contested as provided by statute/" In some states a foreign will may be contested in the same manner as a domestic one, in other states a foreign will cannot be contested at a\V § 74. Contest — Parties As a general rule the statutes and principles gov- erning contest of wills require that there be a full hearing, and that all persons interested in the will or who would be interested in the estate in the absence of a will, be made parties to the proceeding." 3 T Knox V. faull, 95 Ala. 505, 11 South. 156; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117 ; Bacigalupo v. Superior Court, 108 Cal. 92, 40 Pac. 1055; Selden v. III. Trust & Svg. Bank, 184 Fed. 872, 107 C. C. A. 196 ; Estate of Roarke, 8 Ariz. 16, 68 Pac. 527; Mitchell v. Rogers, 40 Ark. 91 ; Dowell v. Tucker, 46 Ark. 438 ; Sbarboro's Estate, 63 Cal. 5; San Francisco P. O. Asylum v. Su- perior Court, 116 Cal. 448, 48 Pac. 379 ; Durant v. Durant, 89 Kan. 347, 131 Pac. 613. 28 Hunt V. Acre, 28 Ala. 580 ; Janes v. Williams, 31 Ark. 175-186 ; Knox V. Paull, 95 Ala. 505, 11 South. 156. Action to contest a will erroneously called an equitable one. Wil- liams V. Miles, 63 Neb. 859, 89 N. W. 451. 2 Knox V. Paull, 95 Ala. 505, 11 South. 156. 30 Acklin v. Paschal, 48 Tex. 147; Mason v. Rodriguez, 53 Tex. av. App. 445, 115 S. W. 868; Poole r. Jackson, 66 Tex. 380, 1 S. W. 75. 31 Eddie v. Parke, 31 Mo. 513 ; Watson v Alderson, 146 Mo. 349, 48 S. W. 478, 69 Am. St Rep. 615 ; Wells V. Wells, 144 Mo. 198, 45 BoBL. Wills — 14 210 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 The executor is a necessary party and in the case of a probated will has a right to support and defend the will/'' In most jurisdictions a person who undertakes to contest a will, either by appeal from probate or by sep- arate action, must show some interest. The interest of contestant must be plead and proved or the contest will he dismissed,'^ but objection to parties must be made before judgment/* An heir at law may contest with- out any other showing of interest than heirship,^ ^ so S. W. 1095; Layton v. Jacobs, 5 Pennewill (Del.) 71, 62 Atl. 691; Coleman v. Floyd, 105 Ark. 301, 150 S. W. 703. Contingent remaindermen are not necessary parties to a will con- test. Naylor v. McRuer, 248 Mo. 423, 154 S. W. 772 ; Miller v. Fos- ter, 76 Tex. 479, 13 S. W. 529. 32 Whetton's Estate, 98 Cal. 203, 32 Pac. 970 ; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015 ; Miller v. Texas & Pac. Ry., 132 U. S. 662, 10 Sup. Ct. 206, 33 L. Ed. 487; Evans v. Arnold, 52 Ga. 169; Finch v. Finch, 14 Ga. 362. 33 Estate of Edelman, 148 Cal. 233, 82 Pac. 962, 113 Am. St. Rep. 231; Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242; Lockard v. Stephenson, 120 Ala. .641, 24 South. 996, 74 Am. St. Rep. 63; Fos- ter's Case, 91 Ala. 613, 8 South. 349 ; State ex rel. v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B, 526 ; Teckenbrook v. Mc- I^aughlin, 246 Mo. 711-719, 152 S. W. 38 ; Vestry v. Bostwick, 8 App. D. C. 452; Murry v. Hennessey, 48 Neb. 608, 67 N. W. 470. Under the decisions of the Supreme Court of Oregon, after a wUl has been probated, then any one interested in the estate can attack the will in what is called "a direct proceeding." Jones v. Dove, 6 Or. 188; Hubbard v. Hubbard, 7 Or. 42; Brown v. Brown, 7 Or. 299; Clark's Heirs v. Ellis, 9 Or. 133 ; Chrisnian v. Chrisman, 16 Or. 128, 18 Pac. 6; Luper'v. Werts, 19 Or. 122, 23 Pac. 850; Potter v. Jones, 20 Or. 240, 25 Pac. 769, 12 L. R. A. 161; Rothrock v. Rothrock, 22 Or. 551, 30 Pac. 453. 8* Blake v. Harlan, 80 Ala. 37. 3B Estate of Benton, 131 Cal. 472, 63 Pac. 775 ; Hays v. Bowdoin, 159 Ala. 600, 49 South. 122 ; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, § 74) CONTEST OF WILLS 211 may the widow," legatees, devisees," beneficiaries un- der a trust,'* assignees of legatees,^' claimants under prior *" or subsequent wills.*^ Persons having no interest cannot contest.*^ Cred- itors of the testator have no such interest as will au- thorize them to contest," nor has the public admin- 121 Am. St. Rep. 117 ; Wetter v. Habersham, 60 Ga. 193 ; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441. ssRainey v. Ridgway, 148 Ala. 524, 41 South. 632; Benton's Es- tate, 131 Gal. 472, 63 Pac. 775. 37 Estate of Wickes, 139 Cal. 195, 72 Pac. 902 ; Finch v. Finch, 14 Ga. 362 ; State v. McQuiUin, 246 Mo. 674, 152 S. W. 341, Ann. Gas. 1914B, 526. S8 Estate of Fay, 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17. 3 9 Engle's Estate, 124 Gal. 292, 56 Pac. 1022. *0Ruth V. Krone, 10 Gal. App. 770, 103 Pac. 960; Langley's Es- tate, 140 Gal. 130, 73 Pac. 824 ; Buckingham's Appeal, 57 Gonn. 545, 18 Atl. 256. 41 McCutchen v. Loggins, 109 Ala. 457, 19 South. 810 ; Roulett v. Mulherin, 100 Ga. 591, 28 S. B. 291; Armstrong v. Johnson, 2 H. & H. (D. G.) 13, Fed. Gas. No. 18,226. Contest between claimants under different wills. That a former will has been admitted to probate is no bar to the probate of a sub- sequent one, and an incident of the latter will be the setting aside of the probate of the former. Vance v. Upson, 64 Tex. 266 ; Waters V. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; Gaines v. Hennen, 24 How. 567, 16 L. Ed. 770 ; Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49; Schultz v. Schultz, 10 Grat. (Va.) 358, 60 Am. Dec. 335; Clark V. Wright, 3 Pick. (Mass.) 68; Ainsworth v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753; Green v. Hewett, 54 Tex. Civ. App. 534, 118 S. W. 170. *2 McCutchen v. Loggins, 109 Ala. 457, 19 South. 810. Donee of an heir is not a "person interested in the estate" under the statute entitled to bring suit to set aside will. Ransome v. Bear- den, 50 Tex. 119. 4 3 Montgomery v. Foster, 91 Ala. 613, 8 South. 349; Hooks v. Brown, 125 Ga. 122, 53 S. E. 583. 212 WILLS AND ADMINISTRATION OF ESTATES (Ch, 6 istrator/* nor does the possibility of escheat give the state such right.*" Proceedings may be brought by an infant, or per- son of unsound mind, through next friend or guardian ad litem." § 75. Contest — Estoppel — Agreements and set- tlements between heirs and legatees Equitable defenses by way of estoppel are available in the probate court,*' and the court may take cog- nizance of transfers, releases, agreements or extin- guishment of heirship relied on as a defense by way of estoppel to a contest of a will. It is a general rule that when one has accepted benefits under an instrument with full knowledge of the facts on which his right is based he is thereby es- topped from asserting the invalidity of the instrument. The rule of law is that a party taking the benefit of a provision in his favor under a will is estopped from attacking the validity of the instrument especially if there has been a lapse of time, witnesses have died and he and other parties interested have so changed their positions that they cannot be restored to statu quo: <4 Hickman's Estate, 101 Cal. 609, 36 Pac. 118. *5 State V. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; State v. Su- perior Court, 148 Cal. 55, 82 Pac. 672, 2 L. R. A. (N. S.) 643. *8 In re Dye v. Meece, 16 N. M. 297, 120 Pac. 306 ; In re Estate of Van Alstine, 26 Utah, 193, 72 Pac. 942; Holland v. Couts, 42 Tex. Civ. App. 515, 98 S. W. 233. *7 Estate of Eaelman, 148 Cal. 233, 82 Pac. 962, 113 Am. St Eep. 231; Fislier v. Clopton, 110 Mo. App. 663, 85 S. W. 623. § 76) CONTEST OP WILLS 213 and this is so even though the complaining party be the heir at law and tlie attack is made on the ground of fraud, undue influence and want of testamentary capacity of the testator." But estoppel does not ap- ply unless other parties are misled to their detri- ment." When a legatee has received a legacy under the will he should either restore or offer to restore it be- fore instituting proceedings to set aside the probate. °° A settlement or agreement between heirs or legatees is always possible." An agreement by a legatee under *8 Utermehle v. Norment, 197 U. S. 40, 25 Sup. Ct. 291, 49 L. Ed. 655, 3 Ann. Cas. 520 ; s. c. Id., 22 Apii. D. C. 31 ; Stone v. Cook, 179 Mo. 534, 78 S. W. 801, 64 L. E. A. 287 ; Lanning v. Gay, 70 Kan. 358, 78 Pac. 810, 85 Pac. 407; Medlock v. Merritt, 102 Ga. 212, 29 S. E. 185; Branson v. Watkins, 96 Ga. 54, 23 S. B. 204; Deveney v. Bur- ton, 110 Ga. 56-59, 35 S. E. 268 ; Thompson v. Oliapeau, 132 Ga. 847, 65 S. E. 127; Holland v. Gouts, 42 Tex. Civ. App. 515, 98 S. W. 233. 4 9 Walker v. Walker, 9 Wall. 743, 19 L. Ed. 814; Weatherhead v. Baskervllle, 11 How. 329, 13 L. Ed. 717; Scoby v. Sweatt, 28 Tex. 713. Widow's election to take under will, if procured by fraud, will not estop ber heirs from contesting wUl. Wickersham's Estate, 138 Gal. 355, 70 Pac. 1076, 71 Pac. 437. No estoppel by deed. Johnson r. Porter, 115 Ga. 401, 41 S. E. 644. No estoppel by election against contesting will. Holland v. Gouts, 100 Tex. 232, 98 S. W. 236. 5 Woodcock V. McDonald, 30 Ala. 411; Vance v. Crawford, 4 Ga. 445 ; Bowen v. Howenstein, 39 App. D. C. 585, Ann. Cas. 1913E, 1179. 61 McDonnell v. Jordan, 142 Ala. 279, 38 South. 122; Carroll v. Kelly, 111 Ala. 661, 20 South. 456 ; Fortner v. Wiggins, 121 Ga. 26, 48 S. E. 694; Chisolm v. SpuUock, 87 Ga. 665, 13 S. E. 571; Ruth V. Krone, 10 Cal. App. 770, 103 Pac. 960. A contract by the legatee, not to offer the will for probate, but to divide the estate of the deceased ancestor according to the Statute of Distributions, is not a bar in the court of ordinary to the pro- 214 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 a will to pay money to an heir at law of the testator for forbearance of his right to contest the will rests upon a valuable consideration and is valid and it is immaterial whether or not there were valid grounds for the contest/^ Such an agreement binds no one but the parties to it/^ and it seems that a collusive agreement between the executors and certain heirs, or between heirs, to have a will set aside in fraud of other legatees under it is opposed to public policy and void." An agreement made in the lifetime of the testator with the expectant heir to compound or relinquish all interest in the estate that might in the future vest in him will operate as an estoppel to a contest of a will.'^ pounding of the will. The court of ordinary will not decide upon the validity of any contract which the parties may have entered into but upon the factum of the will only, leaving the rights of the par- ties to be determined by the appropriate tribunals thereafter. Finch V. Finch, 14 Ga. 362. Contra: An agreement not to probate will be enforced as estoppel in probate proceedings. Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871. 52 Sheppey v. Stevens (C. C.) 185 Fed. 147; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521 ; Seaman v. Seaman, 12 Wend. (N. Y.) 382 ; Palmer v. North, 35 Barb. (N. Y.) 282 ; Clark v. Lyons, 38 Misc. Rep. 516, 77 N. Y. Supp. 967 ; Rector v. Teed, 120 N. Y. 583, 24 N. E. 1014. Notes given in settlement of a threatened contest are valid. Snow- ball V. Snowball, 164 Gal. 476, 129 Pac. 784; Parriss v. Jewell, 57 Tex. Civ. App. 199, 122 S. W. 399; Ruth v. Krone, 10 Cal. App. 770, 103 Pac. 960 ; Lipps v. Panko, 93 Neb. 469, 140 N. W. 76L 6 3 Gay V. Sanders, 101 Ga. 601, 28 S. E. 1019; Dominici's Estate, 7. Cal. Unrep. 289, 87 Pac. 389. 5* Gugolz V. Gehrklns, 164 Cal. 596, 130 Pac. 8, 43 L. R. A. (N. S.) 575 ; Ridenbaugh v. Young, 145 Mo. 274, 46 S. W. 959. 6 5 Garcelon's Estate, 104 Cal. 570, 38 Pac. 414, 32 L. R. A. 595, 43 § 76) CONTEST OF WILLS 215 Such agreements may be made with the ancestor or with co-heirs."' § 76. Contest — Procedure When the contest takes the form of a separate action in a court of general jurisdiction it is usual- ly provided that the trial be de novo." This may be the case also on appeal from probate."^ This is for the purpose of allowing those parties who were not represented in the probate court to have an equal opportunity with those who were, which would not be the case if any binding force was attached to the action of the probate court. In some jurisdictions, however, a prima facie validity attaches to a pro- bated will, which must be overcome by the con- testants."" This occasions much variation in the Am. St. Rep. 134 ; Estate of Edelman, 148 Cal. 233, 82 Pac. 962, 113 Am. St Rep. 231. 58 Field V. Camp (C. C.) 193 Fed. 160 ; Estate of Wickersham, 153 Cal. 603, 96 Pac. 311. 57 Lamb v. Helm, 56 Mo. 420; Elliott v. Welby, 13 Mo. App. 19; Bridwell v. Swank, 84 Mo. 471 ; Norton v. Paxton, 110 Mo. 456, 19 S. W. 807; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506; Moore V. McNulty, 164 Mo. Ill, 64 S. W. 159 ; Herring v. Ricketts, 101 Ala. 340, 13 South. 502. 5 8 Kelly V. Settegast, 68 Tex. 13, 2,S. W. 870; Heist v. Dniver- salist G. 0., 76 Tex. 514, 13 S. W. 552; In re Estate of Normand, 88 Neb. 767, 130 N. W. 571 ; In re Estate of Sweeney, 94 Neb. 834, 144 N. W. 902. 5 9 Estate of McKenna, 143 Cal. 580, 77 Pac. 461; Renn v. Samos, 33 Tex. 760 ; Franklin v. Boone, 39 Tex. Civ. App. 597, 88 S. W. 262 ; Scott V. Thrall, 77 Kan. 688, 95 Pac. 563, 17 L. R. A. (N. S.) 184, 127 Am. St Rep. 449; Rich v. Bowker, 25 Kan. 7; Willms v. Plambeck, 76 Neb. 195, 107 N. W. 248; In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. 216 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 procedure of different states in these contest cases. In fact it will not be possible in a general work of this character to do more than point out the main features of procedure. The petition must allege sufficient grounds of contest."" The allegations should be of fact and not conclusions of law." Any number of objections may be alleged, and proof of one is sufficient."^ A codicil may be con- tested as a will,°^ or a will and codicil in the same action."* In some jurisdictions it is held that the contest may be as to part only of the will." 60 sheppard's Estate, 149 Cal. 219, 85 Pac. 312; Clarke's Estate, Myr. Prob. (Cal.) 259 ; State v. Superior Court, 148 Cal. 55, 82 Pac. (72, 2 L. R. A. (N. S.) 643 ; Gharky's Estate, 57 Cal. 274 ; Burrell's Estate, 77 Cal. 481, 19 Pac. 880 ; Crozier's Estate, 65 Cal. 332, 4 Pac. 412 ; Myer's Estate, Myr. Prob. (Cal.) 205 ; Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711 ; Kile's Estate, 72 Cal. 133, 13 Pac. 320 ; Es- tate of Kilborn, 158 Cal. 593, 112 Pac. 52; Barksdale v. Davis, 114 Ala. 623, 22 South. 17; Fowler v. Young, 19 Kan. 150; Hixon v. West, 83 Ga. 786, 10 S. E. 450. 61 Ellis V. Crawson, 147 Ala. 294, 41 South. 942; Hays v. Bowdoin, 159 Ala. 600, 49 South. 122. 6 2 Moore v. Heineke, 119 Ala. 627, 24 South. 374. 6 3 Watson V. Turner, 89 Ala. 220, 8 South. 20. 64 Estate of Kicks, 160 Cal. 450, 117 Pac. 532. A paper offered for probate was alleged to be the last will of the testator. A counter application filed alleged that this paper wa§ not the last will of the deceased, but that it, with another, which contest- ant offered for probate as a codicil, constituted the last will. The pa- per offered as a codicil was attacked as a forgery. Held: 1. The bur- den of proving that the first paper offered for probate was the last 65 Lyons v. Campbell, 88 Ala. 462, 7 South. 250 ; Palmer v. Brad- ley, 154 Fed. 311, 83 C. C. A. 231 ; Holmes v. Campbell College, 87 Kan. 597-600, 125 Pac. 25, 4 L. R. A. (N. S.) 1126, Ann. Cas. 1914A, 475. § 77) CONTEST OF WILLS 217 The grounds of contest usually are: 1. Want of proper execution." 2. Forgery." 3. Incapacity of testator. 4. Mistake. 5. Fraud. 6. Undue influence. § 77. Contest is statutory and therefore an action at law The proceeding is usually classed as an action at law/* although sometimes committed by stat- ute to chancery tribunals, and courts frequently apply equitable principles in incidental aid of the procedure; "' for instance, the doctrine of estoppel already discussed. Such a suit carries with it a will, still rested on those seeking its probate. 2. Having shown that it was executed in such a manner as to authorize its admission to pro- bate, they might rest ; those offering the..codicil would then have the burden of proving that it was so executed as to make it a part of the will. If evidence was introduced sulficient, if unimpeached, to establish the codicil, it would devolve on those offering the will to overcome such evidence. 3. The burden of proof on the whole case rested upon those offering the first paper for probate, and they were entitled to open and conclude the argument. Kennedy v. Upshaw, 64 Tex. 411. 68 Thompson v. Eainer, 117 Ala. 318, 23 South. T82. 6 7 Estate of Thomas, 155 Cal. 488, 101 Pac. 798. 6 8 Young V. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314; Gordon v. Burris, 153 Mo. 223, 54 S. W. 546 ; Moore v. McNulty, 164 Mo. Ill, 64 S. W. 159; Beyer v. Hermann, 173 Mo. 303, 73 S. W. 164; Roberts v. Bartlett, 190 Mo. 695, 89 S. W. 858; Sayre v. Trustees, 192 Mo. 120, 90 S. W. 787 ; Miller v. Livingstone, 31 Utah, 415, 88 Pac. 338. 6 8 Garland v. Smith, 127 Mo. 583, 28 S. W. 196, 29 S. W. 836. 218 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 lis pendens, so that a conveyance made by either heir or devisee pending such a proceeding will be subject to any judgment rendered therein." The contestants are not permitted to dismiss their action. The court having acquired jurisdic- tion must proceed to final judgment either for or against the will. A decree of dismissal is errone- ous." But on this point there is the usual conflict of decisions." There is a conflict also on the ques- tion whether a will contest may be submitted to arbitration.''" 70 Mcllwrath v. Hollander, 73 Mo. 105, 39 Am. Rep. 484. 71 Benoist v. Murrin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Jack- son V. Hardin, 83 Mo. 175; Hughes v. Burriss, 85 Mo. 665; McMahon V. McMahon, 100 Mo. 97, 13 S. W. 208; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. Rep. 576 ; Hogan v. Hinchey, 195 Mo. 527, 94 S. W. 522; Bradford v. Blossom, 207 Mo. 177-228, 105 S. W. 289; State ex rel. v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B, 526. 72 Osborne v. Davies, 60 Kan. 695, 57 Pac. 941 ; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476. Will contest may be dismissed for non-payment of costs. Carpen ter V. Jones, 121 Oal. 362, 53 Pac. 842. Executor may withdraw petition for probate. Woodall v. McLen- don, 137 Ala. 486, 34 South. 406. 73 That it may be. In re Arbitration of Johnson, 87 Neb. 375, 127 N. W. 133. Contra: Carpenter v. Bailey, 127 Oal. 582, 60 Pac. 162. § 78) CONTEST OF WILLS 219 § 78. Burden of proof The general rule is that the burden of proof to establish the existence of a valid will is upon the proponents of the will, even though they may be defendants in the contest suit. They must first introduce their proof and must establish by a pre- ponderance of the evidence the existence of the will under which they claim, and they are entitled to the opening and closing address to the jury, just as though they were plaintiffs all the way through/* They must show to the satisfaction of the court 7* Cravens v. Faulconer, 28 Mo. 19. This position was doubted in McClintock v. Curd, 32 Mo. 411 ; Farrell v. Brennan, 32 Mo. 333, 82 Am. Dec. 137. But these eases have been overruled : Tingley v. Cow- gill, 48 Mo. 291; Harvey v. Sullens, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307 ; Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504 ; Hardy V. Hardy, 26 Ala. 524 ; Watson v. Turner, 89 Ala. 220, 8 South. 20 ; McCutchen v. Loggins, 109 Ala. 462, 19 South. 810; Bamewall v. MurreU, 108 Ala. 366, 18 South. S31 ; Scliieffeliu v. SchiefEelin, 127 Ala. 33, 28 South. 687; Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548; Comstock v. Hadlyme, 8 Conn. 254, 20 Am. Dec. 100 ; Livingston's Appeal, 63 Conn. 68, 26 Atl. 470 ; Evans v. Arnold, 52 Ga. 169; Standi v. Kenan, 35 Ga. 102; Oxford v. Oxford, 136 Ga. 589, 71 S. E. 883; Jamison v. Jamison's Will, 3 Houst. (Del.) 108; Potts V. House, 6 Ga. 324, 50 Am. Dec. 329; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74 ; Id., 163 Mo. App. 123, 145 S. W. 857 ; Mowry v. Norman, 223 Mo. 463, 122 S. W. 724 ; In re Estate of Van Alstine, 26 Utah, 193, 72 Pac. 942. Onus probandi is upon those who seek to divert the property from the legal course of descent Mealing v. Pace, 14 Ga. 596 ; Evans v. Arnold, 52 Ga. 169. Those who seek to set up a later will or codicil are contestants merely and not proponents of the later will. Matthews v. Forniss, 91 Ala. 157, 8 South. 661 ; Lyons v. Campbell, 88 Ala. 462, 7 South. 250 ; Knox V. PauU, 95 Ala. 505, 11 South. 156; Watson v. Turner, 89 Ala. 220, 8 South. 20; Bibb v. Gaston, 146 Ala. 434, 40 South. 937. 220 WILLS AND ADMINISTEATION OF ESTATES (Ch. 6 or jury that the execution of the will was attended by every circumstance that the law requires, and which we have been considering as necessary to constitute a valid will. This done, a prima facie case is made in favor of the will/' In states where the probated will carries prima facie validity the contestants who are seeking to revoke or annul probate are treated as plaintiffs/" Even in such states the proponents are required to make a prima 7 6 Barker's Appeal, 63 Conn. 402, 27 Atl. 973, 22 L. R. A. 90; Knox's Appeal, 26 Conn. 22 ; Norton v. Paxton, 110 Mo. 462, 19 S. W. 807 ; Maddox v. JIaddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734 ; Carl V. Gabel, 120 Mo. 283, 25 S. W. 214; McFadin v. Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771; Fulbright v. Perry Co., 145 Mo. 432, 46 S. W. 935; Sehr v. Lindemann, 153 Mo. 276, 54 S. W. 537 ; Riggin v. Westminster College, 160 Mo. 570, 61 S. W. 803 ; Souttiworth v. Southworth, 173 Mo. 59, 73 S. W. 129 ; Lorts v. Wash, 175 Mo. 503, 75 S. W. 95 ; Peale v. Ware, 131 Ga. 826, 63 S. B. 581; Sutton v. Sntton, 5 Har. (Del.) 459; Davis v. Rogers, 1 Houst. (Del.) 44; Safe Dep. Co. v. Heiberger, 19 App. D. C. 506; Freeman v. Hamilton, 74 Ga. 317 ; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153 ; Bensberg v. Wash. University, 251 Mo. 641-656, 158 S. W. 330. '6 Dalrymple's Estate, 67 Cal. 444, 7 Pac. 906 ; Collin's Estate, Myr. Prob. (Cal.) 73; Learned's Estate, 70 Cal. 141, 11 Pac. 587; Olmsted's Estate, 122 Cal. 224, 54 Pac. 745 ; In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449 ; Willms v. Plambeck, 76 Neb. 195, 107 N. W. 248 ; Scott v. Thrall, 77 Kan. 688, 95 Pac. 562, 17 L. R. A. (N. S.) 184, 127 Am. St. Rep. 449 ; Rich v. Bowker, 25 Kan. 7 ; Franklin v. Boone, 39 Tex. Civ. App. 597, 88 S. W. 262 ; Renn v. Samos, 33 Tex. 760. A distinction is made between an appeal from probate and a suit to annul a probated will. In the former the burden of proof remains with proponents. Seebroek v. Fedawa, 30 Neb. 424, 46 N. W. 650; Renn v. Samos, 33 Tex. 760 ; Green v. Hewett, 54 Tex. Civ. App. 534, 118 S. W. 170. § 78) CONTEST OF WILLS 221 facie case by proving the formal execution of the will after which the burden of the contest is on the contestants," to prove such issues as they have chosen to raise/' Under either rule the proponents are not required to anticipate any such defenses as mistake, fraud or undue influence. These are what might be termed "affirmative grounds of contest," and proof of them lies upon the party who sets them up/* Their very allegation implies a will otherwise valid and formally executed. The pro- TTLatour's Estate, 140 Cal. 414, 73 Pae. lOTO, 74 Pac. 441; Mc- Dermott's Estate, 148 Cal. 43, 82 Pac. 842; Cordrey v. Cordrey, 1 Houst. (Del.) 269 ; Davis v. Rogers, 1 Houst (Del.) 44 ; Oredille v. Credille, 123 Ga. 673, 51 S. B. 628, 107 Am. St. Rep. 157 ; Slaughter V. Heath, 127 Ga. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 1; Chandler V. Ferris, 1 Har. (Del.) 454 ; Emmons v. Garnett, 18 D. C. 52 ; Car- rico V. Kirby, 3 Cranch (C. C.) 594, Fed. Gas. No. 2,442; Beagley v. Denson, 40 Tex. 416 ; Murry v. Hennessey, 48 Neb. 608, 67 N. W. 470. If prima facie case is not made by proponent court must refuse probate, though there be no contest. Hayden's Estate, 149 Cal. 680, 87 Pac. 275. Where will is attacked as forgery, the burden of proving genuine- ness is upon proponents. Griffin v. Working Women's Ass'n, 151 Ala. 597, 44 South. 605 ; Venable v. Venable, 165 Ala. 621, 51 South. 833. 78 Clements v. McGinn, 4 Cal. Unrep. 163, 33 Pac. 920 ; Estate of Latour, 140 Cal. 414, 73 Pac. 1040, 74 Pac. 414; Estate of McKenna, 143 Cal. 580, 77 Pac. 461; Robinson v. Stuart, 73 Tex. 267-272, 11 S. W. 275. 7 9 Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Kep. 734 ; Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129 ; Doherty V. Gilmore, 136 Mo. 414, 37 S. W. 1127 ; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604 ; Gordon v. Burris, 141 Mo. 614, 43 S. W. 642; Thompson v. Davltte, 59 Ga. 472; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153; Estate of Kilborn, 162 Cal. 4, 120 Pac. 762 ; Estate of Morcel, 162 Cal. 188, 121 Pac. 733. Forgery. Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385. 222 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 ponents are also assisted by a general presumption of sanity which comes to the support of the will even when no proof on the subject is offered. Tlje law presumes every man to be sane until the con- trary is shown.*" 8 Copeland's Ex'rs v. Copeland's Heirs, 32 Ala. 512; Eastis v. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; Knox V. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235 ; McDaniel V. Crosby, 19 Ark. 533; Blnls v. Collier, 69 Ark. 245, 62 S. W. 593; Taylor v. McClintock, 87 Ark. 245, 112 S. W. 405 ; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264 ; Estate of Nelson, 132 Cal. 182, 64 Pac. 294 ; Estate of Dolbeers, 149 Cal. 227, 86 Pac. 695, 9 Ann. Cas. 795 ; Estate of Johnson, 152 Cal. 778, 93 Pac. 1015 ; . Barber's Appeal, 63 Conn. 393, 402, 27 Atl. 973, 22 L. R. A. 90; Jackson v. Hardin, 83 SIo. 175; Norton v. Paxton, 110 Mo. 462, 19 S. W. 807; Riggin v. Westminster College, 160 Mo. 570, 61 S. W. 803. But see Jones v. Roberts, 37 Mo. App. 163 ; McCuUoch y. Campbell, 49 Ark. 367, 5 S. W. 590 ; Wilson's Estate, 117 Cal. 270, 49 Pac. 172, 711 ; Dole's Es- tate, 147 Cal. 188, 81 Pac. 534; Motz Estate, 136 Cal. 558, 69 Pac. 294; Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695, 9 Ann. Cas. 795; Hannigan's Estate, Myr. Prob. (Cal.) 135; Councill v. Mayhew, 172 Ala. 295, 55 South. 314 ; Barnewell v. Blurrell, 108 Ala. 366, 18 South. 831 ; Johnson v. Armstrong, 97 Ala. 731, 12 South. 72 ; O'DonneU v. Rodlger, 76 Ala. 322, 52 Am. Rep. 322 ; Daniel v. Hill, 52 Ala. 430 : Cotton V. Ulmer, 45 Ala. 378, 6 Am. Rep. 703 ; Stubbs v. Houston, .S3 Ala. 555, overruling Dunlap v. Robinson, 28 Ala. 100; Scott's Es- tate, 128 Cal. 57, 60 Pac. 527 ; Sturdevant's Appeal, 71 Conn. 393, 42 Atl. 70; Lindsey v. Stephens, 229 Mo. ^00, 129 S. W. 641; Duffield V. Morris' Ex'r, 2 Har. (Del.) 375; Smith v. Day, 2 Pennewill (Del.) 245, 45 Atl. 396; Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; McConnell v. Keir, 76 Kan. 527-531, 92 Pac. 540; In re Weber, 15 Cal. App. 224, 114 Pac. 597. Contra: "The jury were instructed that 'every man is presumed by the law to possess a sound mind till the contrary be shown by evi- dence.' This is error. In matters of probate under our law no such presumption is indulged. On the contrary, in order to establish any will. It must affirmatively appear that the deceased was of sound mind when he signed the will." Beazley v. Denson, 40 Tex. 416-424. Burden is upon the proponents of a will to show that the testator § 79) CONTEST OF WILLS 223 § 79. Contest— The issue There is one principle that is as near well settled and uniform among all the courts as any principle can be said to be in the whole tangled and conflict- ing subject of wills. It is the principle that the pro- bate of a will and all forms of statutory contest of that probate are confined to the single, clear-cut issue, devisavit vel non. The sole question to be determined is whether the writing produced be the will of the testator or not. The legality or enforce- ability of its terms must be left to other and distinct proceedings. The probate of a will, that is, its ex- istence, and the construction and enforcement of its provisions, are not allowed to overlap at any point. In a proceeding to contest a will the court is without power to strike out certain items of the will on the ground that they are illegal " or to con- strue the meaning of the will *^ or to pass upon the question of title."*^ was of sound mind and such proof is a requisite of their prima facie case, under Missouri statute. Bensberg v. Wash. University, 251 Mo. 641, 158 S. W. 330. 81 Woodruff V. Hundley, 127 Ala. 640, 20 South. 98, 85 Am. St. Rep. 145; Estate of Lennon, 152 Cal. 327, 92 Pac. 870, 125 Am. St. Rep. 58, 14 Ann. Cas. 1024 ; Cox v. Cox, 101 Mo. 168, 13 S. W. 1055 ; Lilly V. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Rep. 887; Owens V. Sinklear, 110 Mo. 54, 19 S. W. 813; Kultz v. Jaeger, 29 App. D. C. 300; Newsome v. Tucker, 36 Ga. 71 ; Newton v. Carbery, 5 Cranch (C. C.) 626, Fed. Cas. No. 10,189. 82 Russell V. Russell's Ex'rs, 3 Houst. (Del.) 103 ; Robinson v. Du- vaU, 27 App. D. O. 535. 83 Adams v. Johnson, 129 Ga. 611-613, 59 S. E. 269. 224 WILLS AND ADMINISTHATION OF ESTATES (Ch. 6 § 80. Contest— Trial by jury The statutes usually provide for a trial by jury. In some states it is required that the issue be sub- mitted to a jury.** In others the right to demand a jury is given to the parties '° or the power to frame an issue for the jury reposed in the court.'" Whether the paper tendered is testamentary in its character to take effect on the death of the maker, and whether as such it should be submitted for probate is peculiarly a question for the court. But the questions as to testamentary capacity and free volition of the testator, and whether it was signed and attested as required by law, are questions of fact for the jury." The court should instruct the jury correctly on the issues presented.'* That the validity of the will as a testamentary in- strument is submitted to a jury does not imply that 8 4 Tobin V. Jenkins, 29 Ark. 151. 85 Mathew v. Forniss, 91 Ala. 157, 8 South. 661 ; In re Robinson, 106 Cal. 493, 39 Pac. 862 ; Linney v. Peloguin, 35 Tex. 29 ; Davis v. Davis, 34 Tex. 15; Cockrill v. Cox, 65 Tex. 669. If jury Is not demanded issue is tried by court. Shelby v. St. James O. A., 66 Neb. 40, 92 N. W. 155; Miller v. Livingstone, 31 Utah, 415, 88 Pac. 338. 80 Gallon V. Haas, 67 Kan. 225, 72 Pac. 770 ; Lewis v. Snyder, 72 Kan. 671, 83 Pac. 621; Rich v. Bowker, 25 Kan. 7; Franks v. Jones, 39 Kan. 236, 17 Pac. 663 ; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Osborne v. Davies, 60 Kan. 695, 57 Pac. 941; Rash v. Purnel, 2 Har. (Del.) 448 ; Oartwrlght v. Holcomb, 21 Okl. 548. 97 Pac. 385 ; In re Estate of Van Alstine, 26 Utah, 193, 72 Pac. 942. Verdict is advisory only as in courts of equity and may be set aside as against weight of evidence. In re Jackman, 26 Wis. 104. 87 Watford v. Forester, 66 Ga. 738. 88 Instruction on testamentary capacity. In re Kohler, 79 Oal. § 80) CONTEST OF WILLS 225 the jury have the right to pass upon the question as to whether the will is in their opinion a proper, just or reasonable disposition of the testator's property. The jury has no such right. This inference is so natural on the part of juries that courts should guard against it by defining the issue with clear- ness and precision. If the testator be of sound and disposing mind, and has executed his will iii con- formity with law, free from fraud or undue in- fluence, he is the sole judge of the reasonableness and proprieties of the gifts which he chooses to make or the expectations which he elects to dis- appoint. The right to dispose of one's property by will is most sol- emnly assured by law as an incident to ownership and does not depend upon its judicious use; and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion or because it does not con- form to their ideas of what was just and proper.*'' 313, 21 Pac. 758; Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 956; Vance v. Upson, 66 Tex. 476, 1 S. W. 179. Instruction on what constitutes a delusion. Kimberly's Appeal, 68 Conn. 428, 36 Atl. 847, 37 L. R. A. 261, 57 Am. St. Rep. 101. Counsel cannot read to the jury the facts of other cases from the reported decisions. Baldwin's Appeal, 44 Conn. 40. 8 9 In re McDevitt, 95 Cal. 33, 30 Pac. 106; Langford's Estate, 108 Cal. 608, 41 Pac. 701 ; Spencer's Estate, 96 Cal. 448, 31- Pac. 453 ; Wilson's Estate, 117 Cal. 270, 49 Pac. 172, 711 ; Kaufman's Estate, 117 Cal. 296, 49 Pac. 192, 59 Am.. St. Rep. 179; Estate of Morey, 147 Cal. 495, 82 Pac. 57; Black's Estate, 132 Cal. 392, 64 Pac. 695 ; Tobin V. Jenkins, 29 Ark. 151 ; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Benoist v. Murrin, 58 Mo. 307; Coats v. Lynch, 152 Mo. 168, 53 S. W. 895 ; Estate' of Higgins, 156 Cal. 257, 104 Pac. 6 ; Coleman V. Robertson's Ex'rs, 17 Ala. 84; Hughes v. Hughes, 31 Ala. 519; BoBL. Wills — 15 226 wills and administration of estates (ch. 6 Evidence § 81. Attesting witnesses The grounds of a contest are usually either de- fective execution of the will, want of testamentary capacity, or the existence of fraud or undue in- fluence. As we have seen, the last is affirmative matte'r of which the burden of proof is on the party alleging it. It will be treated more at large in the next chapter. It being the duty of the proponents of the will to make formal proof of its legal exist- ence, they usually do so by the attesting witness- es. °° In case the attesting witnesses are dead or beyond the jurisdiction of the court the statute pro- vides that the affidavits of probate made by them in the probate court may be used." It was orig- inally decided that the testimony of both subscrib- ing witnesses was necessary,"^ but this is not the general rule. If the subscribing witnesses fail to Mosser v. Mosser's Ex'rs, 32 Ala. 551; Smith v. Day, 2 Pennewill (Del.) 245, 45 Atl. 398 ; Barbour r. Moore, 4 App. D. C. 535 ; Martin y. Mitchell, 28 Ga. 382 ; Gardner t. Lamback, 47 Ga. 133 ; Franklin V. Belt, 130 Ga. 37, 60 S. E. 146 ; Wynne v. Harrell, 133 Ga. 616, 66 S. E. 921; Perry v. Rogers, 52 Tex. Civ. App. 594, 114 S. W. 897; Estate of Packer, 164 Cal. 525, 129 Pac. 778. ooBarnewall V. Murrell, 108 Ala. 380, 8 South. 831. 91 Elliott V. Welby, 13 Mo. App. 19 ; McConnell v. Keir, 76 Kan. 527-535, 92 Pac. 540 ; Prather v. McClelland, 76 Tex. 574, 13 S. W. S43; Beeks v. Odom, 70 Tex. 183, 7 S. W. 702. And may be used for the purpose of impeachment. Spoonemore V. Cables, 66 Mo. 579. 02 Withinton v. Withinton, 7 Mo. 589 ; Bowen v. Neal, 136 Ga. 859. 72 S. E. 340; Evans v. Arnold, 52 Ga. 169. § 82) CONTEST OF WILLS 227 prove due execution, other evidence may be re- sorted to,"* or the subscribing witness may be con- tradicted by other witnesses or by circumstances." § 82. Evidence of sanity — Opinion evidence of lay witnesses Where the question is as to the sanity or mental capacity of testator, the opinions of witnesses who have had an opportunity to judge of his powers are sometimes the best evidence. For this purpose wit- nesses may be divided into three classes: Attesting witnesses, ordinary lay witnesses, and expert medi- cal witnesses. Each of the three classes are en- titled to give opinion evidence in a proper case, but the rule differs as to each. Attesting witnesses are favored by the law in nearly all jurisdictions. In many states the rule is that: A subscribing witness to a paper alleged to be a will may, though not an expert, testify to his opinion concerning the »3Mays V. Mays, 114 Mo. 536, 21 S. W. 921; Morton v. Heidorn, 135 Mo. 614, 37 S. W. 504; Craig v. Craig, 156 Mo. 358, 56 S. W. 1097 ; Odenwaelder v. Schorr, 8 Mo. App. 458 ; Snider v. Burks, 84 Ala. 56, 4 South. 225; Guice v. Thornton, '76 Ala. 466; Rogers v. Diamond, 13 Ark. 474; Deupree v. Deupree, 45 Ga. 415; Heist v. UniversaUst G. C, 76 Tex. 514, 13 S. W. 552 ; Hopf v. State, 72 Tex. 281, 10 S. W. 589. 84 Barnewall v. Murrell, 108 Ala. 380, 8 South. 831; Hall v. Hall, 38 Ala. 131; Hughes' Case, 31 Ala. 519; Motz Estate, 136 Cal. 558, 69 Pac. 294 ; Estate of Tyler, 121 Cal. 413, 53 Pac. 928 ; Hall v. Hall, 18 Ga. 40; Griffin v. Griffin, R. M. Charlt. (Ga.) 217; In re Weter, 15 Cal. App. 224, 114 Pac. 597. 228 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 sanity of the alleged testator without stating the facts upon which such opinion is founded.®" The opinions of such witnesses, though not con- trolling, are entitled to great weight, as the law has placed them around the testator to judge, among other things, as to his capacity. "' In some states attesting witnesses are upon no different footing than other lay witnesses." Ordinary witnesses, who are neither attesting witnesses nor medical ex- perts may also give their opinions as to the condi- tion of the testator's mind, but such opinion must be preceded by and based upon facts detailed by the witness to the jury, showing: First, the opportu- nity of the witness to form a judgment; and, sec- ond, the symptoms, habits, acts and other manifes- tations on the part of the testator on which such judgment is based.'* 9 5 Scott V. McKee, 105 Ga. 256, 31 S. Ijl. 183 ; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Robinson v. Duvall, 27 App. T>. C. 535-547; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153; Jamison v. Jamison's Will, 3 Houst (Del.) 108. 90 Hall V. Dougherty, 5 Houst. (Del.) 435 ; Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; Garrison v. Blanton, 48 Tex. 299; Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. 9 7 Testimony of attesting witnesses has no paramount value as to mental capacity. They stand on same footing as other witnesses who may have observed testator at the time will was executed. Crandall's Appeal, 63 Conn. 367, 28 Atl. 531, 38 Am. St. Rep. 375; Hughes V. Hughes, 31 Ala. 519. 9 8 Fish V. Poorman, 85 Kan. 237, 116 Pac. 898; Howard v. Car- ter, 71 Kan. 85-91, 80 Pac. 61; Walker v. Walker, 14 Ga. 242; Slaugh- ter V. Heath, 127 Ga. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 1 ; Turnel V. Am. Sec. & T. Co., 29 App, D. C. 460 ; Dennis v. Weekes, 51 Ga. § 82) CONTEST OF WILLS 229 Witnesses who bear close family, social or busi- ness relations with testator possess the most fa- vorable opportunities for knowing his mental condi- tion, and usually their testimony as to his mental capacity is entitled to great weight.'" They should not, however, be asked if they think his mind is 24 ; Macafee v. Higgins, 31 App. D. C. 355 ; Brown v. McBride, 129 Ga. 92, 58 S. E. 702 ; Mosley v. Fears, 135 Ga. 71, 68 S. E. 804 ; In re Estate of Wilson, 78 Neb. 758, 111 N. W. 788; Isaac v. Haider- man, 76 Neb. 823, 107 N. W. 1016 ; Garrison v. Blanton, 48 Tex. 299 ; Cockrill V. Cox, 65 Tex. 669 ; Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606 ; Id., 87 Tex. 140, 26 S. W. 1059 ; Lamb v. Lynch, 56 Neb. 135, 76 N. W. 428; Miller v. Livingston, 36 Utah, 228, 102 Pac. 996; Farrell v. Brennan, 32 Mo. 328, 82 Am. Dec. 137 ; Appleby v. Brock, 76 Mo. 314; Baughman v. Baughman, 32 Kan. 53S, 4 Pac. 1003; Turner v. Am. Security & Tr. Co., 213 U. S. 257, 29 Sup. Ct. 420, 53 L. Ed. 788, affirming 29 App. D. C. 460; Stubbs v. Houston, 33 Ala. 555 ; Bulger V. Ross, 98 Ala. 267, 12 South. 803 ; Abraham v. Wilkins, 17 Ark. 292; McDaniel v. Crosby, 19 Ark. 533; Roberts v. Trawick, 13 Ala. 68; Florey's Ex'r v. Florey, 24 Ala. 241; Fountain v. Brown, 38 Ala. 72; Moore v. Spier, 80 Ala. 129; Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33 ; Brook's Estate, 54 Cal. 471 ; Carpenter's Estate, 79 Cal. 382, 21 Pac. 835 ; Taylor's Es- tate, 92 Cal. 564, 28 Pac. 603; Wax's Estate, 106 Cal. 343, 39 Pac. 624 ; Huyck v. Rennie, 151 Cal. 411, 90 Pac. 929 ; Shanley's Appeal, 62 Conn. 330, 25 Atl.245 ; Turner's Appeal, 72 Conn. 305, 44 Atl. 310. Trained nurse may glye her opiDion of testator's sanity, based on personal observations. Estate of Budan, 156 Cal. 230, 104 Pac. 442 ; Estate of Huston, 163 Cal. 166, 124 Pac. 852. 9 9 Holton V. Cochran, 208 Mo. 314, 106 S. W. 1035. Divorced wife as witness to mental capacity. In re Estate of Van Alstine, 26 Utah, 193, 72 Pac. 942. The surviving wife, contesting the probate of her husband's will on the ground that it was made under the influence of an insane delusion concerning her, could not introduce in evidence confidential letters to her by the deceased husband as evidence of his state of mind toward her ; these being confidential communications between husband and wife. Lanham v. Lanham, 105 Tex. 91, 145 S. W. 336. 230 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 sound enough to make a^vill as that is the question for the jury to determine.^ Mere opinions of wit- nesses unaccompanied by evidence of facts upon which such opinion is based, are not sufficient to show incapacity/ much less can testamentary in- capacity be shown by neighborhood rumors.' The opinion is only valuable so far as it is supported by the facts detailed.* 1 Turner's Appeal, 72 Conn. 305, 44 Atl. 310; Hamon v. Hamon, 180 Mo. 698, 79 S. W. 422 ; Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64; Franklin v. Boone, 39 Tex. Civ. App. 597, 88 5 W. 262. 2 Appleby v. Brock, 76 Mo. 314 ; Sehr v. Lindemann, 153 Mo. 288, 54 S. W. 537; Wood v. Carpenter, 166 Mo. 487, 66 S. W. 172 ; Wil- son V. Jackson, 167 Mo. 155, 66 S. W. 972 ; Crowson v. Crowson, 172 Mo. 700-702, 72 S. W. 1065 ; Southworth v. Southwortli, 173 Mo. 73, 73 S. W. 129 ; Zirkle v. Leonard, 61 Kan. 636, 60 Pac. 318 ; Bowling V. Bowling, 8 Ala. 538; Eaub v. Carpenter, 187 U. S. 159, 23 Sup. Ct 72, 47 L. Ed. 119 ; Pritchard v. Henderson, 3 Pennewlll (Del.) 128, 50 Atl. 217; Kaub v. Carpenter, 17 App. D. C. 505; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Jamison v. Jamison's Will, 3 Houst. (Del.) 108. 3 Brinkman v. Rueggesick, 71 Mo. 553 ; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506 ; Hughes v. Hughes, 31 Ala. 519. Treatment of deceased by her family and others as evidence of her lack of mental capacity. Estate of De Laveagas, 165 Cal. 607, 133 Pac. 307. 4 Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153 ; Newton v. Car- bery, 5 Cranch (C. C.) 626, Fed. Cas. No. 10,189 ; Turner v. Am. Sec. & Tr. Co., 29 App. D. C. 460. Who is an "intimate acquaintance" under California Code. Car- penter's Estate, 127 Cal. 582, 60 Pac. 162 ; In re Crozier, 74 Cal. 180, 15 Pac. 618; Estate of McKenna, 143 Cal. 580, 77 Pac. 461 ; Huyck V. Rennie, 151 Cal. 411, 90 Pac. 929; Estate of Huston, 163 Cal. 166, 124 Pac. 852. § 84) CONTEST OF WILLS 231 § 83. Evidence of sanity — Medical witnesses Medical witnesses may testify to the effect of disease on the mind and give their opinion of men- tal capacity." Generally they may do this upon hypothetical questions based upon the evidence of others/ but in some states expert opinion evidence, based upon hypothetical questions, and not upon personal observation, is considered of no value.' § 84. Evidence of sanity — Declarations of testator Evidence of declarations made by the testator, as to the execution or nonexecution of the will is not admissible ^ as evidence of the truth of the 6 Taylor v. McClintock, 87 Ark. 245, 112 S. W. 405; Councill v. Mayhew, 172 Ala. 295, 55 South. 314 ; In re Flint, 100 Cal. 391, 34 Pac. 853; Jamison v. Jamison's Will, 3 Houst. (Del.) 108; Steele V. Helm, 2 Marv. (Del.) 237, 43 Atl. 143. Certificates of physicians for the commitment of the testator to an insane asylum in a foreign country are not admissible as their depositions could be taken giving opportunity for cross-examination. Kelly V. Moore, 22 App. D. C. 9. 6 Potts V. House, 6 Ga. 324, 50 Am. Dec. 329 ; Prather v. McClel- land, 76 Tex. 574, 13 S. W. 543; Vance v. Upson, 66 Tex. 476, 1 S. W. 179. 7 Estate of Higglns, 156 Cal. 257, 104 Pac. 6 ; Barber's Appeal, 63 Conn. 393, 27 Atl. 973, 22 L. R. A. 90 ; Tingley v. Cowgill, 48 Mo. 291; Lorts v. Wash, 175 Mo. 497, 75 S. W. 95; Estate of Purcell, 164 Cal. 300, 128 Pac. 932. Winn V. Grier, 217 Mo. 420, 117 S. W. 48; King v. Gilson, 206 Mo. 264, 104 S. W. 52. 8 Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 236; McFadin v. Catron, 120 Mo. 274, 25 S. W. 506 ; Walton v. Kendrick, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701 ; Jones v. Roberts, 37 Mo. App. 181 ; Wehe v. Mood, 68 ICan. 373, 75 Pac. 476 ; Throckmorton V. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663 ; Estate of Gil- more, 81 Cal. 240, 22 Pac. 655; Estate of McDevitt, 95 Cal. 17, 30 232 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 facts stated, whether made before- the date of the will " or after/" unless part of the res gestae." But such declarations may be admitted for the purpose of showing the condition of the testator's mind," Pac. 101; Kaufman's Estate, 117 Cal. 288, 49 Pac. 192, 59 Am. St. Eep. 179 ; Gregory's Estate, 133 Cal. 131, 65 Pac. 315 ; Holt's Estate, 146 Cal. 77, 79 Pac. 585; Utermelile v. Norment, 22 App. D. 0. 31; Jolinson V. Brown, 51 Tex. 65; Kennedy v. Upshaw, 64 Tex. 411- 418; Provis v. Reed, 5 Bing. 435; Meeker v. Boy Ian, 28 N. J. Law, 285. Declarations of testator are Inadmissible on issue of forgery. Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33 ; Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242. Contra: Riddle v. Gibson, 29 App. D. O. 237; Throckmorton v. Holt, 12 App. D. C. 552. But evidence is admissible that testator knew of facts at variance with the statements contained in the alleged will. Estate of Thom- as, 155 Cal. 488, 101 Pac. 798 ; Kennedy v. Upshaw, 64 Tex. 411. Declarations of a testator as to how he acquired his property are not relevant on issue of probate. Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805. » Tingley v. Cowgill, 48 Mo. 298. 10 Spoonemore v. Cables, 66 Mo. 587; Wells v. Wells, 144 Mo. 198, 45 S. W. 1095 ; Rich v. Bowker, 25 Kan. 7 ; Lipphard v. Humphrey, 28 App. D. C. 355. 11 Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738; Nelson v. McClana- han, 55 Cal. 308. Or in case of a lost will. Mann v. Balfour, 187 Mo. 305, 86 S. W. 103. 12 Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Estate of Chevallier, 159 Cal. 161, 113 Pac. 130 ; Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962 ; Mallery v. Young, 94 Ga. 804, 22 S. B. 142 ; Cred- ille y. Credille, 123 Ga. 673, 51 S. E. 628, 107 Am. St. Rep. 157 ; Davis V. Rogers, 1 Houst. (Del.) 44 ; Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64; Williamson v. Nabers, 14 Ga. 286; Miller v. Livingston, 36 Utah, 228, 102 Pac. 996. Parol evidence of a testator's previous declarations is admissible not to explain, alter or contradict the will but simply to show, as presumptive evidence of testamentary capacity, long-continued ex- § 84) CONTEST OF WILLS 233 or the state of his affections." A former will is admissible for a like purpose," and the will in con- test may be used as evidence of the testator's men- tal capacity/" pressions of a purpose to dispose of his property in a particular way. For the same reason it is admissible to rebut the presumption of undue influence. Williamson v. Nabers, 14 Ga. 286. 13 Declarations of testator, whether made before or after the ex- ecution of the will, if not too remote, are admissible to shed light up- on his mental condition, his memory, intentions, idiosyncrasies, prej- udices, affections and the objects of his bounty. Coghill v. Kennedy, 119 Ala. 663, 24 South. 459 ; Bunyard v. McElroy, 21 Ala. 311 ; Seale V. Chambliss, 35 Ala. 19; Hughes v. Hughes, 31 Ala. 519; Scbief- felin V. Schieffelin, 127 Ala. 14, 28 South. 687 ; Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268 ; Roberts v. Trawick, 17 Ala. 55, 52 Am. Dec. 164; Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170, 12 S. W. 510, 17 Am. St. Rep. 552 ; McFadin v. Catron, 120 Mo. 266, 25 S. W. 506 ; Crowson v. Crowson, 172 Mo. 703, 72 S. W. 1065 ; Bush V. Bush, 87 Mo. 480 ; Mooney v. Olsen, 22 Kan. 69 ; Denison's Appeal, 29 Conn. 402; Johnson v. Brown, 51 Tex. 65; Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233. Diaries kept by testator or letters written by him after date of will are evidence of his mental state. Bulger v. Ross, 98 Ala. 267, 12 South. 803 ; Barber's Appeal, 63 Conn. 410, 27 Atl. 973, 22 L. R. A. 90 ; Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275 ; Vance v. Up- son, 66 Tex. 476, 1 S. W. 179. Declarations of testator on his own sanity have little weight. Lang's Estate, 65 Cal. 19, 2 Pac. 491; Clements v. McGinn, 4 Oal. Unrep. 163, 33 Pac. 920. "Thompson v. Ish, 99 Mo. 170, 12 S. W. 510, 17 Am. St. Rep. 552; Couch v. Gentry, 113 Mo. 252, 20 S. W. 890; McFadin v. Catron, 120 Mo. 266, 25 S. W. 506 ; Farmer v. Farmer, 129 Mo. 539, 31 S. W. 926 ; Von de Veld v. Judy, 143 Mo. 354, 44 S. W. 1117 ; To- bin V. Jenkins, 29 Ark. 151; Hughes v. Hughes, Bx'r, 31 Ala. 519; Seale v. Chamblis, 35 Ala. 19 ; Current v. Current, 244 Mo. 429, 148 S. W. 860 ; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641 ; Brown V. Mitchell, 87 Tex. 140, 26 S. W. 1059. 15 Wood V. Carpenter, 166 Mo. 465, 66 S. W. 172; Crowson v. Crowson, 172 Mo. 691, 72 S. W. 1065; Roberts v. Bartlett, 190 Mo. 234 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 85. Evidence of sanity — Range of testimony Though the question is the mental capacity of the testator at the time of the execution of the will, necessarily, a wide range of evidence is admissi- ble.^" The mental condition of the testator be- fore and after the date of the will may be enquired into," for the purpose of showing a continuance of a prior state of insanity,^* or of showing a change 699, 89 S. W. 85S ; Couch v. Couch, 7 Ala. 519, 42 Am. Dec. 602 ; Es- tate of Higgiiis, 156 Cal. 257, 104 Pac. 6 ; Denison's Appeal, 29 Conn. 405; Crandali's Appeal, 63 Conn. 367, 28 Atl. 581, 38 Am. St. Rep. 375; Roberts v. Trawick, 13 Ala. 68; Stubbs v. Houston, 33 Ala. 555 ; Coleman v. Robertson's Ex'x, 17 Ala. 84 ; Lucas v. Parsons, 24 Ga. 640, 71 Am. Dec. 147 ; (Jriffin v. Griffin, R. M. Charlt. (Ga.) 217 ; Vance v. Upson, 66 Tex. 476, 1 S. W. 179. In determining which of two wills executed by the same testator on the same day was executed last, extrinsic evidence should not be considered when intrinsic evidence exists. St. Mary's O. A. v. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587. An unequal division of testator's property raises no presumption of fraud or mental incapacity. Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235 ; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Chandler v. Jost, 96 Ala. 596, 11 South. 636; Coleman v. Robertson, 17 Ala. 87. But is an element to corroborate other evidence. Prather v. McClelland, 76 Tex. 574, 13 S. W. 543; Morgan v. Morgan, 30 App. D. C. 436, 13 Ann. Cas. 1037; Pergason V. Etcherson, 91 Ga. 785, 18 S. E. 29; In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. 18 Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153 ; Naylor y. McRuer, 248 Mo. 423, 154 S. W. 772. 17 Moore v. Spier, 80 Ala. 129; Terry v. Buffington, 11 Ga. 337, 56 Am. Dec. 423 ; Holton v. Cochran, 208 Mo. 314, 106 S. W. 1035. 18 Dole's Estate, 147 Cal. 188, 81 Pac. 534; Estate of Toomes, 54 Cal. E09, 35 Am. Rep. 83; Dalrymple's Estate, 67 Cal. 444, 7 Pac. 906 ; Wilson's Estate, 117 Cal. 276, 49 Pac. 172, 711 ; Pritchard v. Henderson, 3 PennewIU (Del.) 128, 50 Atl. 217; Ball v. Kane, 1 Pennewill (Del.) 90, 39 Atl. 778. § 85) CONTEST OF WILLS 235 from soundness to unsoundness." The law per- mits the evidence to cover a long space of time in either direction. It vv^eakens as the time length- ens and at last ceases to be of any force. It is for the jury to determine its weight under proper instructions of the court.^" Evidence of the insanity of relatives is generally admissible on the recognized principle of the hered- itary character of insanity, but only in corrobora- tion of proof that the particular person is or was i» Carpenter's Estate, 79 Oal. 382, 21 Pac. 835; Shanley's Appeal, 62 Conn. 330, 25 Atl. 245. An agreement entered into by three sons In regard to the care of their mother's property and reciting her great age and incapacity to manage her property Is admissible on issue of testamentary capacity. Dale's Appeal, 57 Conn. 127, 17 Atl. 757. Petition for guardianship of the estate and person of the testator filed by proponent is admissible on issue of testamentary capacity. Vance v. Upson, 66 Tex. 476, 1 S. W. 179. An adjudication of incompetency and appointment of guardian for testator eleven days after making the will, while not conclusive, is proper evidence on testamentary capacity. Estate of Loveland, 162 Cal. 595, 123 Pac. 801. Where the mental derangement or its cause is continuing or per- manent in character previous insanity may be shown, and the objec- tion of remoteness does not apply. Fish v. Poorman, 85 Kan. 237, 116 Pac. 898. 2 Dale's Appeal, 57 Conn. 127-143, 17 Atl. 757; Cullum v. Colwell, 85 Conn. 459, 83 Atl. 695. Capacity of a testator to make the will is to be decided by the state of his mind at the time it was executed ; and to shed light on that question, evidence showing the condition of the testator's mind long prior, closely approaching and shortly subsequent to the execution of the will is competent. Court may set the limit of time after the making of the will within which evidence of unsoundness of mind will be received. In re Estate of Winch, 84 Neb. 251, 121 N. W. 116, 8 Ann. Cas. 903. 236 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 insane. But proof of a taint of insanity in a per- son's family, without actual evidence of insanity in the person himself, will never be allowed to over- come the presumption of his sanity/^ § 86. Privilege of physicians and attorneys At common law and under the statutes of most states a physician whose information was acquired ' in attendance upon a patient in a professional ca- pacity cannot testify as to the facts thus learned, unless the privilege is waived by the patient. The question is by whom this privilege may be waived after the death of the testator — the patient. Some courts hold that the privilege does not exist in a will contest,^^ others, that the attending physician may testify at the instance of either party to the contest,''^ others, that the privilege cannot be waived 21 Fish V. Poorman, 85 Kan. 237, 116 Pac. 898; Snow v. Benton, 28 111. 306 ; Bradley v. State, 31 Ind. 492 ; People v. Smith, 31 Gal. 466. Evidence that testator's father never shovyed trace of insanity" admissible. Dolbeer's Estate, 149 Gal. 227, 86 Pac. 695, 9 Ann. Gas. 795. Insanity evidence. Chambers v. Elliott, 161 Mo. App. 479, 143 S. W. 521. 2 2 Shapter's Estate, 35 Golo. 578, 85 Pac. 688, 6 L. R. A. (N. S.> 575, 117 Am. St. Rep. 216. 2 3 Thompson v. Ish, 99 Mo. 160-173, 12 S. W. 510, 17 Am. St. Rep. 552; Hamilton v. Growe, 175 Mo. 634, 75 S. W. 389; Estate of Gray, 88 Neb. 835, 130 N. W. 746, 33 L. R. A. (N. S.) 319, Ann. Gas.. 1912B, 1037 ; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69 ; Win- ters v. Winters, 102 Iowa, 53, 71 N. W. 184, 63 Am. St. Rep. 428; In re Walker's Will, 150 Iowa, 284, 128 N. W. 386, 129 N. W. 952; In re Estate of Shapter, 35 Golo. 578, 85 Pac. 688, 6 L. R. A. (N. S.). § 86) CONTEST OF WILLS 237 even by the heirs of the patient/* The same priv- ilege extends to attorneys/^ but out of the neces- sities of the case in a will contest the same excep- tions have arisen as in the case of a physician. The privilege is impliedly waived where the testator has made the attorney an attesting witness/" and in many states the privilege is held not to extend to the attorney who drafted the will." 575, 117 Am. St. Rep. 216 ; Olson v. Court of Honor, 100 Minn. 117, 110 N. W. 374, 8 L. R. A. (N. S.) 521, 117 Am. St. Rep. 676, 10 Ann. Cas. 622. 2 4 In re Flint, 100 Cal. 391, 34 Pac. 863; Estate of Nelson, 132 Cal. 182, 64 Pac. 294 ; Estate of Budan, 156 Cal. 230, 104 Pac. 442 ; Estate of Huston, 163 Cal. 166, 124 Pac. 852; In re Will of Hunt, 122 Wis. 460, 100 N. W. 874 ; In re Estate of Van Alstine, 26 Utah, 193, 72 Pac. 942; Auld v. Cathro, 20 N. D. 461, 128 N. W. 1025, 32 L. R. A. (N. S.) 71, Ann. Cas. 1913A,- 90. 25 Estate of Higgins, 156 Cal. 257, 104 Pac. 6 ; Turner's Appeal, 72 Conn. 305, 44 Atl. 310 ; Mcintosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611. That a Catholic priest testifies as to mental condition of testator does not violate secrets of confessional. Estate of Toomes, 54 Cal. 509, 35 Am. Rep. 83. 2 6 Brown v. Brown, 77 Neb. 125, 108 N. W. 180; Elliott v. Elliott, 3 Neb. (Unof.) 832, 92 N. W. 1006. In re MuUin, 110 Cal. 252, 42 Pac. 645 ; O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202. 27 Heist V. Universalist G. 0., 76 Tex. 514, 13 S. W. 552 ; Emerson V. Scott, 39 Tex. Civ. App. 65, 87 S. W. 369; In re Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. B. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Cas. 596; Scott v. Harris, 113 111. 447; Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726, 17 L. R. A. 188, 34 Am. St. Rep. 258 ; Glover v. Patten, 165 U. B. 394, 17 Sup. Ct. 411, 41 L. Ed. 760 ; O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202; Coates v. Semper, 82 Minn. 460, 85 N. W. 217; McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St. Rep. 828; In re Layman's Will, 40 Minn. 371, 42 N. W. 286. An attorney is not bound by his. obligation to preserve silence as to 238 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 87. Admissibility of various matters . The devisees under the will being necessary par- ties to the contest, their admissions were at one time considered admissible against the validity of the will, as the admissions of other parties are ad- missible against their interests.^' But as the inter- ests of the devisees are usually distinct the courts have seen to what absurdities it would lead if the admissions of one were made binding on the oth- ers, and such admissions are not now received," unless where the proponent is the sole legatee and executor under the will.'" a privilege communication, wlien the client or his representative charges him directly or indirectly with fraud or other improper or unprofessional conduct in the preparation of a will. Olmstead v. Webb, 5 App. D. C. 38. 28 Armstrong v. Farrar, 8 Mo. 627; Williamson v. Nabers, 14 Ga. 286-308 ; Harvey v. Anderson, 12 Ga. 69. 23 Roberts v. Trawick, 13 Ala. 68; Id., 17 Ala. 55, 52 Am. Dec. 164 Walker v. Jones, 23 Ala. 448; Taylor v. Kelly, 31 Ala. 59, 68 Am Dec. 150; Blakey v. Blakey, 33 Ala. 611; Leslie v. Sims, 39 Ala, 161 ; Estate of Dolbeer, 153 Cal. 652, 96 Pac. 266, 15 Ann. Gas. 207 Schierbaum v. Schemme, 157 Mo. 17, 57 S. W. 526, 80 Am. St. Rep, 604 ; Wood v. Carpenter, 166 Mo. 485, 66 S. W. 172 ; King v. Gil son, 191 Mo. 307, 90 S. W. 367 ; Teckenbrock v. McLaughUn, 209 Mo 533, 108 S. W. 46; Estate of Purcell, 164 Cal. 300, 128 Pac. 932 Estate of De Laveaga,, 165 Cal. ,607, 133 Pac. 307. Admissions or declarations of strangers in interest are not admis- sible. McKenna's Estate, 143 Cal. 580, 77 Pac. 461. Declarations or admissions of a beneficiary under a will are admis- sible only for the purpose of impeaching or discrediting his testimony. Robinson v. Duvall, 27 App. D. C. 535. 3 Seale v. Chambliss, 35 Ala. 19; Beyer v. Schlenker, 150 Mo. App. 671, 131 S. W. 465 ; Dennis v. Weekes, 46 Ga. 514. Admissions of legatee may estop him from claiming any interest under will. Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150. § 87) CONTEST OF WILLS 239 Evidence of the financial condition of the parties is admissible within reasonable bounds/^ and of the quantity and character of the testator's estate/^ and the manner in which the testator acquired it.'* In cases where the defects of the testator or his surroundings give rise to special opportunities for imposition, as where the testator is blind, ignorant, or unfamiliar with the language, or where the draftsman of the will is the principal beneficiary it is sometimes required that there be affirmative evi- dence that the testator knew the contents of the will." 3iMcFadin v. Catron, 120 Mo. 252, 25 S. W. 506; Mowry v. Nor- man, 223 Mo. 463, 122 S. W. 724. 32 Young V. Ridenbaugli, 67 Mo. 574; Hodge v. Kambo, 155 Ala. 175, 45 South. 678. 3 3Bufflno's Estate, 116 Oal. 317, 48 Pac. 127; Wilson's Estate, 117 Cal. 280, 49 Pac. 172, 711. The proponent of a will, as a party to the proceeding, has a consti- tutional right to be present at the trial, and consequently is not sub- ject to the order excluding the witnesses. Barker v. Bell, 49 Ala. 284. 3 4 Davis V. Rogers, 1 Houst. (Del.) 44-96; Harvey v. Anderson, 12 Ga. 69 ; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500. Statute of Kansas requires that where will is written or prepared by sole or principal beneficiary it must be affirmatively shown that testator knew contents and had independent advice. "Principal beneficiary" defined. Kelty v. Burgess, 84 Kan. 678, 115 Pac. 583 ; Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Gas. 214. Forgery. Mobley v. Lyon, 134 Ga. 125, 67 S. E. 668, 137 Am. St Rep. 213, 19 Ann. Gas. 1004. No evidence of forgery. Storey v. Storey, 30 App. D. 0. 41 240 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 88. Contest — Directing a verdict Although the issue is tried to a jury, the court has the same power of directing a verdict where there is no substantial conflict in the evidence as it has in other civil cases. ^° Upon this principle the courts will give a peremptory instruction to the jury to find in favor of the will where a prima facie case is made by the proponents and there is no sub- stantial evidence to sustain the contest/' The court should withdraw from the jury issues that are not contested, or upon which there is no substantial evidence," and should set aside the finding of the 35 Estate of Chevallier, 1C9 Cal. 161, 113 Pac. 130; Carpenter's Estate, 127 Cal. 582, 60 Pac. 162; Nelson's Estate, 132 Cal. 182, 64 Pac. 294 ; Estate of Dole, 147 Cal. 188, 81 Pac. 534 ; Leach v. Burr, 188 U. S. 510, 23 Sup. Ct. 393, 47 L. Ed. 567 ; Butcher v. Butcher, 21 Colo. App. 416, 122 Pac 397; Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548; Beyer v. Schlenker, 150 Mo. App. 671, 131 S. W. 465 ; In re Estate of Kuhman, 94 Neb. 783, 144 N. W. 778. 30 Jackson v. Hardin, 83 Mo. 175 ; Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734 ; McFadin v. Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771 ; Riley v. Sherwood, 144 Mo. 369, 45 S. W. ■'1077; Sehr v. Lindemann, 153 Mo. 290, 54 S. W. 537; Martin v. Bowdern, 158 Mo. 393, 59 S. W. 227; Wood v. Carpenter, 166 Mo. 487, 66 S. W. 172; Catholic University v. O'Brien, 181 Mo. 93, 79 .S. W. 901 ; Doherty v. Gilmore, 136 Mo. 416, 37 S. W. 1127 ; Gordon V. Burris, 141 Mo. 614, 43 S. W. 642; Estate of Morey, 147 Cal. 495, 82 Pac. 57; Leach v. Burr, 17 App. D. C. 128; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46 ; Winn v. Grier, 217 Mo. 420, 117 S. W. 48; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314; Estate of Purcell, 164 Cal. 300, 128 Pac. 932. The court is more cautious in directing a verdict against the will. Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548. 37 Dairy mple's Estate, 67 Cal. 444, 7 Pac. 906; Learned's Estate, 70 Cal. 141, 11 Pac. 587 ; Estate of Higgins, 156 Cal. 257, 104 Pac. § 88) CONTEST OF WILLS 241 jury when not supported by the evidence." In determining whether to direct a nonsuit, every in- tendment must be made in contestant's favor/" If there is any substantial evidence tending to prove the facts necessary to sustain the contest, the con- testants are entitled to have the case go to the jury for a verdict on the merits.*" 6; Burrell's Estate, 77 Oal. 479, 19 Pac. 880; Spencer's Estate, 96 Cal. 448, 31 Pac. 453; Estate of Kilborn, 162 Cal. 4, 120 Pac. 762: Estate of Morcel, 162 Cal. 188, 121 Pac. 733 ; Birdseye's Appeal, 77 Conn. 623, 60 Atl. Ill; S.tancell v. Kenan, 33 Ga. 56; Weber v. Strobel, 236 Mo. 649, 139 S. W. 188. 38 McElroy v. McElroy, 5 Ala. 81 ; Ex parte Edward Henry, 24 Ala. 638 ; In re Carriger, 104 Cal. 81, 37 Pac. 785 ; Motz's Estate, 136 Cal. 558, 69 Pac. 294; Estate of Everts, 163 Cal. 449, 125 Pac. 1058. While court cannot set aside a judgment in a will contest on the motion of a stranger it may do so on its own motion, although on facts suggested by a stranger. Ewart v. Peniston, 233 Mo. 695, 136 S. W. 422. 39 Estate of Arnold, 147 Cal. 583, 82 Pac. 252; Estate of Ricks, 160 Cal. 450, 117 Pac. 532; Morgan v. Adams, 29 App. D. C. 198; Riddle V. Gibson, 29 App. D. C. 237 ; Kultz v. Jaeger, 29 App. D. C. 300 ; Olmstead v. Webb, 5 App. D. C. 38 ; Bensberg v. Wash. Uni- versity, 251 Mo. 641, 158 S. W. 330. *o Loob V. Fenaughty, 60 Kan. 570, 55 Pac. 841; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Mowry v. Norman, 204 Mo. 173, 103 S. W, 15 ; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641 ; Id., 223 Mo. 463, 122 S. W. 724 ; Buford v. Gruber, 223 Mo. 231, 122 S. W. 717 ; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155; Crum v. Crum, 231 Mo. 626, 132 S. W. 1070 ; Naylor v. McRuer, 248 Mo. 423, 154 S. W. 772; In re Daly, 15 Cal. App. 329, 114 Pac. 787. BoEL. Wills — 16 242 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 89. Contest — ^Judgment — Costs The only judgment to be rendered on a contest is one against the validity of the will or one sustain- ing the validity of the will." It has been held that a judgment annulling the probate only as to the in- terest of the contestant is void, if the issue be lack of mental capacity or proper execution of will." A will contest is intended to be final and is res ad- judicata." If the will disposes of real property the effect of its establishment is to make it a muniment of title, and therefore an appeal from a contest on such a will goes to the supreme court, as affecting the title to real property.** It seems that the matter of allowing costs to be taxed against the estate is largely within the dis- cretion of the court, and that no one is entitled to have such costs taxed as a matter of right.*° The 41 Woodruff V. Hundley, 127 Ala. 655, 29 South. 98, 85 Am. St. Rep. 145. 42 Freud's Estate, 73 Gal. 555, 15 Pac. 135. But a decree annulling a will on the ground of mental incapacity of testator, upon the application of a minor heir within one year after his disabilities are removed, operates upon the interest of the applicant only. It does not act in favor of those heirs who have lost their right to contest the will by lapse of time. Samson v. Sam- son, 64 Cal. 327, 30 Pac. 979 ; Hlnes v. Hines, 243 Mo. 480, 147 S. W. 774. One contestant, however, has right to appeal. Metzger v. Steed, 132 Ga. 822, 65 S. E. 117. 43 Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S. W. 38; Moss V. Helsley, 60 Tex. 426 ; Davis v. Rogers, 1 Houst (Bel.) 183. 44 Blngaman v. Hannah, 171 Mo. App. 186, 156 S. W. 496. 4 Estate of Dillon, 149 Cal. 683, 87 Pac. 379; Venable v. Venable, § 89) CONTEST OF WILLS 243 reasonable costs and expenses incurred by an ex- ecutor in propounding for probate a paper purport- ing to be the last will of the deceased are a proper charge against the estate if the executor acted in good faith. *° And the administrator of a supposed intestate estate who resists unsuccessfully the pro- bate of a will may be entitled to the same considera- tion/^ But, broadly speaking, parties to a will contest must bear their own costs.** The cases are rare that would justify the court in ordering the costs of an unsuccessful contestant paid out of the estate." 165 Ala. 621, 51 South. 833; Coulton v. Pope, 77 Neb. 882, 110 N. W. 630 ; In re Clapham's Estate, 73 Neb. 492, 103 N. W. 61. *6 Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590 ; Corn- stock V. Hadlyme, 8 Conn. 254, 20 Am. Dec. 100; Mclntire v. Mc- Intire, 14 App. D. C. 337; Baker v. Bancroft, 79 Ga. 672, 5 S. E. 46; Browne v. Rogers, 1 Houst. (Del.) 458; Kengla v. Randall, 22 ■\pp. D. C. 463; Tuckerman v. Currier, 54 Colo. 25, 129 Pac. 210; Smiillin V. Wharton, 83 Neb. 328, 119 N. W. 773, 121 N. W. 441. Executor may be allowed attorney fees. Gairdner v. Tate, 110 Ga. 456, 35 S. E. 697; Kengla v. Randall, 22 App. D. C. 463. " Bradley v. Andreas, 30 Ala. &0. 48 Leavenworth v. Marshall, 19 Conn. 408 ; Estate of Soulard, 141 Mo. 642, 43 S. W. 617 ; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Atn. St. Rep. 576. 48 Estate of Bump, 152 Oal. 271, 92 Pac. 642 ; Francis v. Holbrook, 68 Ga. 829 ; Williams v. Tolbert, 66 Ga. 127. Costs denied. Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W, 798. Attorneys fees denied. McOlary v. StuU, 44 Neb. 175, 62 N. W. 501; Clark v. Turner, 50 Neb. 290, 69 N. W. 843, 38 L. R. A. 433; Atkinson v. May's Estate, 57 Neb. 137, 77 N. W. 343. The courts are not Invested with the discretion to award costs or attorney's fees to an unsuccessful contestant of a will simply and solely because of the fact that he undertook the contest in good 244 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 § 90. Contest — Appellate courts The action being one at law, and some statutes specially requiring the submission of the issues to a jury, the appellate court disclaims any power to weigh conflicting testimony or to disturb the find- ing of the jury where there is evidence to sustain the contest/" But it will examine the record to de- termine whether there is any evidence to support the verdict, and may order a will to be established which has been rejected by a jury, or may set aside a will which has been established, or grant a new trial." faith and at the time there existed probable cause therefor. Wal- lace V. Sheldon, 56 Neb. 55, 76 N. W. 418, overruling Mathis v. Pit- man, 32 Neb. 191, 49 N. W. 182 ; Seebrock v. Fedawa, 33 Neb. 418, 50 N. W. 270, 29 Am. St. Rep. 488. soMcKenna's Estate, 143 Cal. 580, 77 Pac. 461; Tibbett's Estate, 137 Cal. 123, 69 Pac. 978; Estate of Nelson, 132 Cal. 182, 64 Pac. 294 ; Estate of DooUttle, 153 Cal. 29, 94 Pac. 240 ; Estate of Snow- ball, 157 Cal. 301, 107 Pac. 598; Merrill v. Morrisett, 76 Ala. 433; Jaques v. Horton, 76 Ala. 238 ; Venable v. Venable, 165 Ala. 621, 51 South. 833; HiU v. Boyd, 199 Mo. 438, 97 S. W. 918; Hamburger v. Rinkel, 164 Mo. 398, 64 S. W. 104 ; Morgan v. Adams, 29 App. D. C. 198 ; Long v. Boyer, 88 Kan. 664, 129 Pac. 943 ; Fuller v. Brakefield, 84 Ga. 459, 10 S. E. 1086; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74 ; Id., 163 Mo. App. 123, 145 S. W. 857 ; Harbison v. Beets, 84 Kan. 11, 113 Pac. 423; Miller v. Livingston, 31 Utah, 415, 88 Pac. 338 ; Llnney v. Peloquin, 35 Tex. 29 ; Eisse v. Gasch, 43 Neb. 287, 61 N. W. 616 ; Cockrill v. Cox, 65 Tex. 669 ; Wendling v. Bowen, 252 Mo. 647, 161 S. W. 774 ; Abel v. Hitt, 30 Nev. 93, 93 Pac. 227. Action of trial court in granting a new trial will not be reviewed where evidence was conflicting. Smith's Estate, 98 Cal. 636, 33 Pac. 744; In re Weber, 15 Cal. App. 224, 114 Pac. 597; Murry v. Hennes- sey, 48 Neb. 608, 67 N. W. 470. "Roberts v. Bartlett, 190 Mo. 695, 89 S. W. 858; Sayre v. Trus- tees, 192 Mo. 120, 90 S. W. 787 ; Archambault v. Blanchard, 198 Mo. § 91) CONTEST OF WILLS 245 § 91. Contest — Administrator pendente lite During the contest upon the will, the executor is not permitted to manage the estate. It is commit- ted to an administrator pendente lite whose power lasts until the contest is finally determined in the appellate court." This power to appoint a tempo- rary administrator existed in the ecclesiastical court, but has been much broadened by American statutes, as our provisions regarding will contests have been broadened. Notwithstanding this power of the ecclesiastical court, chancery possessed the power, which on rare occasions it exercised, to ap- point a receiver at the instance of creditors, to pre- serve the estate when there had been unreasonable delay in applying for probate or there was a pro- tracted contest in the ecclesiastical court. ^' But chancery would not interfere when the' ecclesiastic- al court had acted." The federal courts, by vir- 426, 95 S. W. 834 ; Story v. Story, 188 Mo. 127, 86 S. W. 225 ; Hughes V. Eader, 183 Mo. 707, 82 S. W. 32; In re Mullin, 110 Cal. 252, 42 Pac. 645; Estate of Carithers, 156 Cal. 422, 105 Pac. 127; Estate of Benton, 131 Cal. 472, 63 Pac. 775 ; In re Kaufman, 117 Cal. 288, 49 Pac. 192, 59 Am. St. Rep. 179. 52 Rogers v. Dively, 51 Mo. 193 ; Lamb v. Helm, 56 Mo. 420 ; In re- Estate of Soulard, 141 Mo. 642, 43 S. W. 617 ; State ex rel. v. Guin- otte, 156 Mo. 513, 57 S. W. 281, 50 L. R. A. 787 ; Carroll v. Reid, 158 Mo. 319, 59 S. W. 69; Jordan v. Thompson, 67 Ala. 469; Steen v. Springfield, 91 Ark. 73, 120 S. W. 408 ; State ex rel. v. Imel, 243 Mo. 174, 147 S. W. 992. Pending contest of will by an heir the executors were allowed to- sell timber off the land. Burris v. Jackson, 8 Del. Ch. 345. 53 Atkinson v. Henshaw, 2 Ves. & Bea. 96. " Veret v. Duprey, L. R. 6 Eq. 329. 246 WILLS AND ADMINISTRATION OF ESTATES (Ch. 6 tue of their broad equity powers, claim the same jurisdiction. '"' 55 While proceedings for the probate of a will or the establishment ■of intestacy of decedent's estate are in abeyance or in dispute the federal circuit court has jurisdiction, at the instance of a noncltizen creditor, to appoint receivers to preserve the estate. Underground Electric Rys. v. Owsley (C. C. N. T.) 169 Fed. 671; Id. (N. X.) 176 Fed. 26, 99 0. C. A. 500. § 92) MISTAKE, FEAUD AND UNDUE INFLUENCB 247 CHAPTER VII MISTAKE, FRAUD AND UNDUE INFLUENCE § 92. Mistake. 93. Fraud. 94. Undue Influence — General theory. 95. Undue influence — Distinguished from the influence of affection. 96. Inequalities between heirs, or injustice. 97. Undue influence — In connection with physical or mental weak- ness. 98. Undue influence — Confldential relations. 99. Undue influence — Wife or husband. 100. Undue influence — Evidence. 101. Undue influence — Inadmissible evidence. 102. Undue influence — Declarations of testator and devisees. § 92. Mistake The affirmative grounds of contest of a will are similar to the affirmative defenses to a contract, name- ly, mistake, fraud and undue influence. They are based upon a like reason, that, assuming an instru- ment valid upon its face, there may be facts showing that the mind of the testator did not accompany the act. Mistake, in its effect upon wills, must be confined within very narrow limits. It may be divided into Mistake of Intention and Mistake of Expression. The former may vitiate a will otherwise formal, by show- ing that it was not executed animo testandi ; as where the wrong instrument is executed by mistake. Or, the mistake may affect only a portion of the will, and 248 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 probate granted with that portion omitted ; as where, by mistake of the draftsman, a general revoking clause was inserted in an instrument intended to be a codicil. The only mistakes that can properly be considered in probate proceedings are those which show that the instrument, or some portion of it is not the will of the testator; i. e., was not executed by him as such. All other mistakes must be mistakes of expression and more properly arise under the head of Construction of Wills. It seems that the English ecclesiastical courts formerly exercised rather broad powers in cor- recting alleged mistakes in a will at the time of pro- bate; as by supplying omissions, changing names, striking out inconsistent matter, etc. As the statute requires wills to be in writing and executed with cer- tain formalities, the dangerous tendency of a rule which permits the probate tribunal to alter the writing to suit the supposed intentions of the testator, and then probate it as altered, — in other words, to probate his supposed intentions instead of his written instrument — was well pointed out by Lord Penzance.^ In this country the loose rules of the old ecclesiastical courts do not prevail. It is said that a will cannot be op- posed for probate by evidence of a mistake in the lan- guage of the will.^ But it has recently been decided 1 Guardhouse v. Blackburn, L. R. 1 P. c& D. 109-113. 2 Estate of Callaghan, 119 Cal. 571-575, 51 Pac. 860, 39 L. R. A. 689. The fact that a testator was grossly mistaken as to the extent of his estate does not establish a want of testamentary capacity, the trte test in this regard being whether he is capable of compre- § 92) MISTAKE, FRAUD AND UNDUE INFLUENCE 249 in a will contest that evidence — even declarations of the testator — may be received to show that the will as written did not correspond with the instructions given to the scrivener. This was not, of course, for the purpose of reforming the will, but to set it aside entirely ; and the case was further complicated by the fact that the testator was a feeble, illiterate old man and there were charges of undue influence.^ The general rule, however, is that a mistake of the scriven- er cannot be shown for the purpose of making the will different from the language written.* No bill in eq- uity lies to reform a will.^ The mistake which will avail to set aside a will is a mistake as to what it contains, or as to the paper itself, not a mistake either of law or fact in the mind of the testator as to the effect of what he actually and intentionally did." hendiiig the quantity of his property and its value. Holmes v. Camp- bell College, 87 Kan. 597, 125 Pac. 25, 41 L. E. A. (N. S.) 1126, Ann. Cas. 1914A, 475. Under Georgia code will may be declared inoper.ative as to heir on ground that It was executed under a mistake of fact as to his ex- istence or conduct. Mallery v. Young, 98 Ga. 728, 25 S. E. 918; Jones V. Habersham, 63 Ga. 146-155; Hixon v. West, 83 Ga. 786, 10 S. E. 450; Pergason v. Etcherson, 91 Ga. 785-789, 18 S. E. 29; Young V. Mallory, 110 Ga. 10, 35 S. E. 278; Griffin v. Henderson, 117 Ga. 382, 43 S. E. 712 ; Franklin v. Belt, 130 Ga. 37, 60 S. E. 146 ; Sims V. Sims, 131 Ga. 262, 62 S. E. 192. 3 Cowan V. Shaver, 197 Mo. 211, 95 S. W. 200 ; Bradford v. Blos- som, 207 Mo. 177, 105 S. W. 289. * Chappel V. Avery, 6 Conn. 34 ; Avery v. Chappel, 6 Conn. 270- 275, 16 Am. Dec. 53; Dunham v. Averill, 45 Conn. 61-80, 29 Am. Rep. 642 ; Comstock v. Hadlyme, 8 Conn. 254-266, 20 Am. Dec. 100 ; Hearn v. Ross, 4 Har. (Del.) 46. 5 Patch V. White, 117 V. S. 219, 6 Sup. Ct. 617, 710, 29 L. Ed. 860. 8 Couch V. Easffham, 27 W. Va. 796, 55 Am. Rep. 346 ; Bradford V. Blossom, 207 Mo. 177-226, 105 S. W. 289. 250 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 § 93. Fraud Fraud in procuring a will, like fraud in procuring a contract, is an affirmative defense the burden of proving which is on the party alleging it/ It is now well settled that equity will not entertain a bill to set aside a will for fraud, this being a defense which can and should be made at the probate of the will/ It is not possible to define all the forms that fraud may assume, and the courts will be liberal in allowing proof of any particular form of fraud that is alleged. In some cases the fraud is claimed to consist in the as- sumption of a false character by one for the purpose of inducing a bequest in his favor by another; as where one is given a legacy as "husband," "wife," "child," "nephew," etc., of the testator, when in fact the tes- tator has been imposed upon and the legatee does not bear the character by which he is described.' The mere fact of the legatee having assumed a false char- acter is not conclusive against the legacy, as the gift may have been induced as much by the personal affec- ' Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Kep. 604 ; Dunlap v. Robinson, 28 Ala. 100. 8 Melnish v. Milton, 3 Ch. D. 27 ; Lyne v. Guardian, 1 Mo. 410, 13 Am. Dec. 509 ; Trotters v. Winchester, 1 Mo. 413 ; Swain v. Gilbert, 3 Mo. 347 ; Hans v. Holler, 165 Mo. 47, 65 S. W. 308. In the case of Gains v. Chew, 2 How. 645, 11 L. Ed. 402, the court says: "In cases of fraud, equity has a concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to as- sign any satisfactory reason for this exception. That exclusive ju- risdiction over the probate of wills is vested in another tribunal is the only one that can be given." 8 Smith V. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Eep. 260. § 93) MISTAKE, FRAUD AND UNDUE INFLUENCE 251 tion which the testator bore him as by the character which he was supposed to bear." Another form of fraud is said to consist of false statements or other impositions on the testator by which he is made to be- lieve that a certain person, who might otherwise ex- pect some legacy from him, has wronged him, or is unworthy of his bounty." But false representations honestly made and with good motive are not fraudu- lent." The fraud may apply to particular legacies only or to the whole will." Allegations of fraud 10 Moore v. Heineke, 119 Ala. 627, 24 South. 374. 11 Schierbaum v. Schemme, 157 Mo. 22, 57 S. W. 526, 80 Am. St. Rep. 604; Boyse v. Rossborough, 6 Hof. Land Cas. 2; Meier v. Buchtev, 197 Mo. 68, 94 S. W. 883, 6 L. R. A. (N. S.) 202, 7 Ann. Cas. 887 ; In re RufBno, 116 Cal. 317, 48 Pac. 127. Unreasonable prejudice or erroneous convictions toward one wbio is natural object of testator's bounty is no evidence of fraud or coercion. A will must be procured wholly by lying or false represen- tations made by a beneficiary with the intention of procuring the ex- ecution of the will, in order to invalidate it for such fraud. Simon V. Middleton, 51 Tex. Oiv. App. 531, 112 S. W. 441. In Missouri, where a woman was induced to make her will in a certain way by the promise of her husband that he would provide for her daughter, when the husband was, at the time, insolvent, and knew that his promise was a false one, the will was set aside on the ground of fraud. Gordon v. Burris, 153 Mo. 223, 54 S. W. 546 ; Id., 141 Mo. 602, 43 S. W. 643. The fact that the circumstances relied on to avoid a will for fraud would be equally available to create a trust in favor of the con- testants under the will does not deprive them of the right to elect which of these remedies they may prefer. Morrison v. Thoman, 99 Tex. 248, 89 S. W. 409. 12 Estate of Benton, 131 Cal. 472, 63 Pac. 775; Hannah v. Ander- son, 125 Ga. 407, 54 S. E. 131. 13 Florey's Ex'rs v. Florey, 24 Ala. 241. 252 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 should be specific/* and the petition should allege that the testator was influenced by the alleged fraudulent representations/* § 94. Undue influence — General theory Far the greater number of contests of wills are upon the ground of undue influence ; either alone or in con- junction with fraud, confidential relations, or mental weakness. Undue influence is a doctrine of equity and may be proven for the purpose of setting aside a contract or a deed, but it is in the law of wills that it finds its fullest scope and development. It is a re- fined and subtle species of fraud, savoring sometimes of deceit, sometimes of coercion, hut not necessarily including either, ii'herehy the mind and will of the testator are supplanted by that of another for some sinister purpose connected tvith the disposition of his property. In such a case the instrument speaks, not the will of the testator, but that of the person exert- ing the undue influence. An attack upon a will on the ground that it was procured by undue influence al- most necessarily assumes the existence of a will other- wise valid and regularly executed. Upon this issue, 1* Moore v. Heineke, 119 Ala. 627, 24 South. 374; Coghill v. Ken- nedy, 119 Ala. 641, 24 South. 459. 16 Moore v. Heineke, 119 Ala. 627, 24 South. 374; Simpler v. Lord, 28 Ga. 52. Not fraud. Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609 ; Benton's Estate, 131 Cal. 472, 63 Pac. 775; Estate of Purcell, 164 Cal. 300, 128 Pac. 932 ; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441. § 94) MISTAKE, FRAUD AND UNDUE INFLUENCE 253 therefore, the burden of proof is on the contestants," and if the charges of undue influence are not sus- tained it is the duty of the court to direct a verdict or enter a judgment establishing the will. The most generally accepted definition of undue in- fluence is that given by Judge Philips : The influence denounced by our law must be such as amounts to overpersuasion, coercion or force, destroying the free agency and will power of the testator. It must not be merely the in- fluence of affection or attachment, or the desire of gratifying the wishes of one beloved, respected and trusted by the tes- tator.i^ 16 Patten v. Cilley (C. C.) 46 Fed. 892; Rockwell's Appeal, 54 Conn. 119, 6 Atl. 198 ; Motz's Estate, 136 Cal. 558, 69 Pac. 294 ; Miller V. Carr, 94 Ark. 176, 126 S. W. 1068; Estate of McDevitt, 95 Cal. 177, 30 Pac. 101; Livingston's Appeal, 63 Conn. 68, 26 Atl. 470; Taylor v. Wilburn, 20 Mo. 309, 64 Am. Dec. 186 ; Jones v. Roberts, 37 Mo. App. 174 ; Carl v. Gabel, 120 Mo. 283, 25 S. W. 214 ; Morton V. Heidorn, 135 Mo. 608, 37 S. W. .504 ; Doherty v. Gllmore, 136 Mo. 414, 37 S. W. 1127; Gordon v. Burris, 141 Mo. 613, 43 S. W. 642; Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701 ; Crowson v. Crow- son, 172 Mo. 702, 72 S. W. 1065; Boyse v. Eossborough, 6 Hof. Land Cas. 2; Eicli v. Bowker, 25 Kan. 7; CuUum v. Colwell, 85 Conn. 459, 83 Atl. 695; Weber v. Strobel, 236 Mo. 649, 139 S. W. 188; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314; Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 ; Patterson V. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39; Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650. 17 Jackson v. Hardin, 83 Mo. 175; Lorts v. Wash, 175 Mo. 502, 75 S. W. 95 ; Biley v. Sberwood, 144 Mo. 366, 45 S. W. 1077 ; Norton V. Paxton, 110 Mo. 456, 19 S. W. 807 ; McFadiu v. Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771; Id., 120 Mo. 275, 25 S. W. 506; Sehr V. Lindemann, 153 Mo. 289, 54 S. W. 537 ; Tibbe v. Kamp, 154 Mo. 579, 54 S. W. 879, 55 S. W. 440; Martin v. Bowdern, 158 Mo. ."92, 59 S. W. 227; Gordon v. Burris, 153 Mo. 237, 54 S. W. 546; Jones V. Roberts, 37 Mo. App. 180; Judge Burgess on Crowson v. 254 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 Undue influence and fraud are not identical. The one has reference to the subjugation of the will of the testator and controlling it. The other to a decep- tion practiced upon the testator. While in a sense un- due influence is a species of fraud, it may be exercised without any actual fraud, or false representation being made to the testator.^* Crowson, 172 Mo. 702, 72 S. W. 1065; Elliott v. Welby, 13 Mo. App. 19 ; Field v. Camp (C. C.) 193 Fed. 160 ; Sheppey v. Stevens (C. C.) 1S5 Fed. 147 ; Bowdoin College v. Merritt (C. C.) 75 Fed. 480 ; Orms- by V. Webb, 134 V. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805; Harding V. Handy, 11 Wheat. 103, 6 L. Ed. 429; Parker v. Hill, 85 Arlt. 363, 108 S. W. 208; Smith v. Boswell, 93 Ark. 66, 124 S. W. 261; Leverett V. Carlisle, 19 Ala. 80; Pool v. Pool, 35 Ala. 17; Dunlap v. Kobin- son, 28 Ala. 100; Kramer v. Weinert, 81 Ala. 414, 1 South. 26; Bulger V. Ross, 98 Ala. 267, 12 South. 803; Higginbotham v. Hig- ginbotham, 106 Ala. 314, 17 South. 516; Goodwin v. Goodwin, 59 Cal. 561 ; In re Kaufman, 117 Cal. 288, 49 Pac. 192, 59 Am. St. Kep. 179 ; Estate of Motz, 186 Cal. 558, 69 Pac. 294 ; Latour's Estate, 140 Cal. 414, 73 Pac. 1070; Estate of Higgins, 156 Cal. 257, 104 Pac. 6; Estate of Kicks, 160 Cal. 450-467, 117 Pac. 532; Estate of Kilborn, 162 Cal. 4, 120 Pac. 762; Estate of Morcel, 162 Cal. 188, 121 Pac. 733 ; Blackman v. Edsall, 17 Colo. App. 429, 68 Pac. 790 ; Bohler v. Hicks, 120 Ga. 800, 48 S. E. 306; Winn v. Grier, 217 Mo. 420, 117 S. W. 48 ; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314 ; Turner v. Anderson, 236 Mo. 523, 139 S. W. 180; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155 ; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74; Id., 163 Mo. App. 123, 145 S. W. 857; Luebbert v. Brock- meyer, 158 Mo. App. 196, 138 S. W. 92 ; In re Weber, 15 Cal. App. 224, 114 Pac. 597; Estate of Packer, 164 Cal. 525, 129 Pac. 778; Boggs V. Boggs, 62 Neb. 274, 87 N. W. 39 ; In re Jackman, 26 Wis. 104; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441; 18 Estate of Eicks, 160 Cal. 467, 117 Pac. 539 ; Estate of Morcel, 162 Cal. 188, 121 Pac. 733; Moore v. Heineke, 119 Ala. 638, 24 South. 374 ; Terry v. Buffington, 11 Ga. 337, 56 Am. Dec. 423 ; Stew- art V. Elliott, 13 D. C. 307; Franklin v. Belt, 130 Ga. 37, 60 S. E. 146 ; Estate of Olson, 19 Cal. App. 379, 126 Pac. 171. § 94) MISTAKE, FRAUD AND UNDUE INFLUENCE 255 Undue influence may be the influence of fear, or the desire for peace/" it may be the influence of flattery or overpersuasion ; ^^ it may be the pressure of a vigor- ous mind upon a weaker one, especially one habituated to obey the leadership of the other ; it may be a moral coercion from the circumstances or relation of the par- ties, which the testator finds it impossible to resist ; or it may be the nagging importunities of those surround- ing 9, feeble and helpless testator upon whose minis- tration^ the peace and comfort of his dying hours de- Latham V. Schaal, 25 Neb. 535, 41 N. W. 354 ; Mcintosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611 ; Wetz v. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394 ; Millican v. Millican, 24 Tex. 427 ; Patterson V. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98; Miller v. Livingston, 36 Utah, 228, 102 Pac. 996 ; Id., 31 Utah, 415, 88 Pac. 338 ; Stull v. Stull, 1 Neb. (Unof.) 389, 96 N. W. 196 ; Alford v. Johnson, 103 Ark. 236, 146 S. W. 516 ; Estate of Olson, 19 Cal. App. 379, 126 Pac. 171. Undue influence defined. Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112 ; Peery v. Peery, 94 Tenn. 328, 29 S. W. 1 ; Westcott V. Sheppard, 51 N. J. Eq. 315, 30 Atl. 428; Schmidt v. Schmidt, 47 Minn. 451-457, 50 N. W. 598 ; Earl of Sef ton v. Hopwood, 1 Fost. & Fin. 578; Hall v. Hall, 1 Prob. & Div. 481; Parfitt v. Lawless, 2 Prob. & Div. 462 ; Wingrove v. Wingrove, 11 Prob. & Div. 81; Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 ; BaU v. Kane, 1 Pennewill (Del.) 90, 39 Atl. 778 ; Pritchard v. Henderson, 3 Pennewill (Del.) 120, 50 Atl. 217; Chandler v. Ferris, 1 Har. (Del.) 454 ; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 155 ; Cordrey v. Cordrey, 1 Houst. (Del.) 269; Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813 ; Barbour v. Moore, 4 App. D. O. 535 ; Towson v. Moore, 11 App. D. C. 377; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329 ; Walker v. Hunter, 17 Ga. 364 ; Thompson v. Davitte, 59 Ga. 472. "Gay V. Gillilan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Rep. 712; Ketehum v. Stearns, 8 Mo. App. 70; Black's Estate, Myr. Prob. (Cal.) 24 ; McDaniel v. Crosby, 19 Ark. 533 ; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39. 20 Denslow v. Moore, 2 Day (Conn.) 12. 256 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 pend. In all these cases where the influence is acquir- ed and deliberately exerted to rob the testator of his freedom of choice, the law condemns it as undue, and will not permit those who have sought to benefit by- such conduct to secure the fruits of their wrong. It is certain, however, that the influence must not only exist, but it must have been actually exerted and must have had its effect on the will." The existence of in- 2iCrowson v. Crowson, 172 Mo. 703, 72 S. W. 1065; Sunderland V. Hood, 13 Mo. App. 232, affirmed 84 Mo. 293; Brinkman v. Rueg- gesick, 71 Mo. 553; Miller v. Carr, 94 Ark. 176, 126 S. W. 1068; Knox V. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235 ; Es- tate of McDevitt, 95 Cal. 17, 30 Pac. 101; Kaufman's Estate, 117 Cal. 295, 49 Pac. 192, 59 Am. St. Rep. 179 ; Black's Estate, 132 Cal. 392, 64 Pac. 695; Keegan's Estate, 139 Cal. 123, 72 Pac. 828; In re Shell, 28 Colo. 167, 63 Pac. 413, 53 I>. R. A. 387, 89 Am. St. Rep. 181; Gibony v. Foster, 230 Mo. 106, 130 S. W. 314; Estate of Glea- son, 164 Cal. 756, 130 Pac. 872 ; Estate of Purcell, 164 Cal. 300, 128 Pac. 932. Need not be exercised by beneficiary of will. Cahill's Estate, 74 Cal. 54, 15 Pac. 364. It must be brought to bear directly upon the testamentary act, and particular parties must be benefited or disfavored as the result of the purpose and pressure of the dominating mind. Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 ; Farr v. Thompson, Cheves (S. C.) 37-49; Perkins v. Perkins, 116 Iowa, 253- 262, 90 N. W. 55. Undue influence must exist at time will was made. Estate of Gleason, 164 Cal. 756, 130 Pac. 872. A contract between two prospective heirs, the direct tendency of which is to encourage the exercise of undue influence over the tes- tator is void as against public policy. Sheppey v. Stevens (C. C.) 185 Fed. 147. Subsequent ratiflcation after undue influence is removed may val- idate will. Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150. If a will be invalid when executed by reason of undue Influence, 8 subsequent parol assent to its provisions would not validate it. Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233. § 95) MISTAKE, FRAUD AND UNDUE INFLUENCE 257 terest or opportunity to exert undue influence raises no presumption that it was exerted.^'' § 95. Undue influence — Distinguished from the influence of affection Not every influence, however strong, can be branded as undue and be sufficient to set aside a will deliberate- ly and regularly executed. ^^ As has been well said we are all surrounded by influences of some sort all the time, and every testator is controlled by some in- fluence in the disposition of his property, especially where he discriminates between persons who are equal- ly within the range of his bounty, 2 2 Dale's Appeal, 57 Conn. 143, 17 Atl. 757; Langford's Estate, 108 Gal. 60S, 41 Pae. 701; Nelson's Estate, 132 Oal. 182, 64 Pac. 294; Black's Estate, 132 Cal. 392, 64 Pac. 695; Estate of Dolbeer, 153 Cal. 652, 96 Pac. 26G, 15 Ann. Gas. 207 ; Luebbert v. Brockmeyer, 158 Mo. App. 196, 138 S. W. 92 ; Cudney v. Gudney, 68 N. Y. 148 ; Gin- ter V. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. E. A. (N. S.) 1024 ; Dean v. Negley, 41 Pa. 312-316, 80 Am. Dec. 620. It Is not necessary that the overt acts of undue influence should have been exercised at the exact time of the execution of the will, but it is sufficient to show that such influence over the mind of the testator had been acquired previously and did operate at the time the will was made. Mowry v. Norman, 204 Mo. 173, 103 S. W. 15. 23 Newton V. Garbery, 5 Granch, O. C. (D. G.) 626, Eed. Gas. No. 10,189. Where a will is contested on the ground of undue influence, and it appears that the will was made by a man in the prime of life, and in the full possession of his mental power, who gave instruc- tions for his will to a lawyer, and executed it in accordance with the forms of law without the presence of any relative, the evidence is insufficient to justify a verdict against the will. In re Oarriger, 104 Cal. 81, 37 Pac. 785 ; Burge v. Hamilton, 72 Ga. 568. But undue influence may exist without mental or physical weak- ness. Estate of Olson, 19 Cal. App. 379, 126 Pac. 171. BoRL. Wills — 17 \ 258 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 Affection or a desire to gratify another's wishes is not that sort of coercion that amounts to undue influ- ence."* Nor is mere advice, argument or persuasion which does not deprive the testator of his free agency/ ° The rule that any degree of influence over another acquired by kindness and attention can never consti- tute undue influence within the meaning of the law concerning wills applies alike to wills whose execution is procured by the influence of a friend, as well as those whose execution is procured by the influence of a wife, child, or other kinsman.'"'* 2 4 Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Leeper v. Taylor, 47 Ala. 221 ; Moore v. Spier, 80 Ala. 129 ; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904; Bulger v. Ross, 98 Ala. 267, 12 Soutli. 803; Goodwin v. Goodwin, 59 Cal. 561; Frantz v. Porter, 132 Cal. 49, 64 Pac. 92; Towson v.' Moore, 11 App. D. C. 377; Means V. Means, 5 Strob. (S. O.) 167-192; Ginter v. Ginter, 79 Kan. 721- 726, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 ; Carmen v. Kight, 85 Kan. 18, 116 Pac. 231; Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962; Weber v. Strobel, 236 Mo. 649, 139 S. W. 188; Rogers v. Diamond, 13 Ark. 474; McCuUoch v. Campbell, 49 Ark. 367, 5 S. W. 590; Hoggs V. Hoggs, 62 Neb. 274, 87 N. W. 39 ; In re Jackman, 26 Wis. 104 ; Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. It is not proper in all cases to charge that influence acquired by kindness and affection is not undue. Miller v. Livingstone, 36 Utah, 228, 102 Pac. 996. Bringing about a quarrel between testator and another relative is not undue influence. Estate of Morcel, 162 Cal. 188, 121 Pac. 733. 2 5 Chandler v. Ferris, 1 Har. (Del.) 454; Duflield v. Morris Bs'r, 2 Har. (Del.) 375; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153; Lodge V. Lodge's Will, 2 Houst. (Del.) 421; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74; Id., 163 Mo. App. 123, 145 S. W. 837; Franklin v. Boone, 39 Tex. Civ. App. 597, 88 S. W. 262; Robinson V. Stuart, 73 Tex. 267, 11 S. W. 275. 2 Campbell v. Carlisle, 162 Mo. 635, 63 S. W. 701; Brinkman v. § 96) MISTAKE, FRAUD AND UNDUE INFLUENCE 259 § 96. Inequalities between heirs, or injustice Inequalities between heirs are no ground for setting aside the will of a competent person." An unjust or an unnatural will may be corroborative evidence of un- due influence/^ but it is not sufificient evidence of it- self/° and does not cast upon the beneficiaries the burden of proving that no undue influence existed or was used.^° It is not the duty of the court to make Rueggesick, 71 Mo. 556 ; Carl v. Gabel, 120 Mo. 297, 25 S. W. 214 ; Norton v. Paxton, 110 Mo. 466, 19 S. W. 807. 2 7 Thomas v. Stump, 62 Mo. 275; Farmer v. Farmer, 129 Mo. 530-539, 31 S. W. 926 ; Berberet v. Berberet, 131 Mo. 410, 33 S. W. 61, 52 Am. St. Rep. 634 ; Dolierty v. Gilmore, 136 Mo. 420, 37 S. W. 1127; McFadIn v. Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771; Id., 120 Mo. 272, 25 S. W. 506 ; Wood v. Carpenter, 166 Mo. 485, 66 S. W. 172 ; Catholic University v. O'Brien, 181 Mo. 93, 79 S. W. 901 ; McDevitt's Estate, 95 Cal. 17, 30 Pac. 101 ; Snider v. Burks, 84 Ala. 53, 4 South. 225 ; Wilson's Estate, 117 Cal. 277, 49 Pac. 172 ; Means V. Means, 5 Strob. (S. C.) 167-191; Glnter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. E. A. (N. S.) 1024 ; Singer v. Taylor, 90 Kan. 285, 133 Pac. 841 ; Winn v. Grier, 217 Mo. 420, 117 S. W. 48 ; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155 ; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441. Where the only evidence of duress or undue influence was that the testator v^as eighty-five years old and made an unequal distribution among his children the court did right in directing a verdict sustain- ing the will. Manogue v. Herrell, 13 App.. D. C. 455. 2 8 Thomas v. Stump, 62 Mo. 275; Young v. Ridenbaugh, 67 Mo. 586; Muller v. St. Louis Hospital Ass'n, 73 Mo. 242; Id., 5 Mo. App. 397 ; Gay v. Gillllan, 92 Mo. 264, 5 S. W. 7, 1 Am. St. Rep. 712 ; Meier v. Buchter, 197 Mo. 68, 94 S. W. 883, 6 L. R. A. (N. S.) 202, 7 Ann. Cas. 887; Tobin v. Jenkins, 29 Ark. 151; Langford's Estate, 108 Cal. 608, 41 Pac. 701. 2 9 Aylward v. Briggs, 145 Mo. .612, 47 S. W. 510; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604. 3 Maddox v. Maddox, 114 Mo. 47, 21 S. W. 499, 35 Am. St Rep. 734 ; Hughes v. Rader, 183 Mo. 710, 82 S. W. 32. 260 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 men's wills for them as in the light of all their cir- cumstances it thinks they should be made. A testator, having sufficient mental capacity, has the right to make an unreasonable, unjust, injudicious will, and his neighbors have no right, sitting on a jury, to alter the disposi- tion of his property, simply because they may think the testa- tor did not do justice to his family connection.^^ Fraud or undue influence in procuring one legacy in a will does not invalidate other legacies not so procured/^ SI Berberet v. Berberet, 131 Mo. 411, 33 S. W. 61, 52 Am. St. Rep. 634; Tibbe v. Kamp, 154 Mo. 584, 54. S. W. 879, 55 S. W. 440; Bladdox v. Maddox, 114 Mo. 47, 21 S. W. 499, 35 Am. St. Rep. 734; Jackson v. Hardin, 83 Mo. 185 ; Hoepner v. Bell, 35 App. D. C. 534. 32 Frinlestown v. Dalton, 1 Dow. & Clark, 85; Florey's Ex'rs v. Florey, 24 Ala. 241 ; Councill v. Mayhew, 172 Ala. 295, 55 South. 314; White v. Howard, 38 Conn. 356; Harrison's Appeal, 48 Conn. 203; Livingston's Appeal, 63 Conn. 78, 26 Atl. 470; Lyons v. Campbell, 88 Ala. 462, 7 South. 250 ; Eastis v. Montgomery, 93 Ala. 293, 9 South. 311 ; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; In re Welsh, 1 Redf. Sur. 238; In re Hess's Will, 31 Am. St. Rep. 691; Holmes v. Campbell College, 87 Kan. 597-599, 125 Pac. 25, 41 L. R. A. (N. S.) 1126, Ann. Cas. 1914A, 475; Morris V. Stokes, 21 Ga. 552-569. The rule in Missouri seems to be contrary to the general rule. A will shown to be the product of undue influence of one devisee or legatee out of several is as much void as if it was the product of the undue influence of all of them. Teckenbrock v. McLaughlin, 209 Mo. 533-542, 108 S. W. 46. Allegation of undue influence Insufficient. Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606. § 97) MISTAKE, FRAUD AND UNDUE INFLUENCE 261 § 97. Undue influence — In connection with phys- ical or mental weakness We have seen that mere age, however great, is not sufficient to destroy testamentary capacity, nor is mere physical weakness or helplessness if the mind remains clear. But physical or mental weakness, which in it- self would not be sufficient to defeat a will, may tempt the covetous to acquire and exert an undue influence. For this reason the courts scrutinize very carefully a charge of undue influence under such circumstances. As said by Judge Black : It needs no argument to show that it takes less persuasion or coercion to overcome a weak mind than it does a strong one. In determining whether the will was the result of overinflu- ence, it is entirely proper to consider the mental condition of the person upon whom the influence is alleged to have been exercised. And, as the physical condition has much to do' with the mental, the physical condition of the testator may also be considered. So the will itself may be read to the jury, for they must determine the question of undue influence in the light of all the circumstances. The result may be con- sidered in endeavoring to find the cause.^^ 33 Myers t. Hanger, 98 Mo. 438, 11 S. W. 974 ; Maddox v. Maddox, 114 Mo. 46, 21 S. W. 499, 35 Am. St. Rep. 784 ; Young v. Ridenbaugh, 67 Mo. 584; Mooney v. Olsen, 22 Kan. 69; Delaney v. Salina, 34 Kan. 532, 9 Pac. 271 ; Tobin v. Jenkins, 29 Ark. 151 ; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; Coghill v. Ken- nedy, 119 Ala. 641, 24 South. 459; Schieffelin v. SchiefiEelin, 127 Ala. 34, 28 South. 694 ; Estate of Arnold, 147 Cal. 583, 82 Pac. 252 ; Estate of Snowball, 157 Cal. 301, 107 Pac. 598; Estate of Everts, 163 Cal. 449, 125 Pac. 1058 ; Lehman v. Llndenmeyer, 48 Colo. 305, 109 Pac. 956 ; Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609 ; Borchers V. Barckers, 143 Mo. App. 72, 122 S. W. 357; Sutton v. Sutton, 5 Har. (Del.) 459; Olmstead v. Webb, 5 App. D. C. 38; Smith v. 262 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 § 98. Undue influence — Confidential relations It is a general doctrine of equity that where a con- fidential relation exists which would naturally give rise to a degree of trust and confidence on the part of one, and a power of leadership or influence "on the part of the other, that the one having such influence or authority cannot obtain any pecuniary advantage in a transaction with the other without the burden of showing that the transaction was fair and not the re- sult of the influence so presumed to exist. The con- fidential relations from which such a presumption usu- ally arises are those of guardian and ward, attorney and client, principal and business agent, nurse and patient and priest and parishioner. This doctrine has been applied with special force to wills. The rule in most states is that if the beneficiary who is charged with undue influence occupied a confidential relation to the testator and was active in procuring the will to be executed the exertion of undue influence is presumed. The presumption of the existence of in- fluence arises from the confidential relation. We have Smith, 75 Ga. 477 ; Dennis v. Weekes, 46 Ga. 514 ; Jackson v. Jack- son, 32 Ga. 325 ; Mowry v. Norman, 204 Mo. 173, 103 S. W. 15 ; In re Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Oas. 596. Want of capacity and undue influence sufficient to set aside will. Abel V. Hitt, 30 Nev. 93, 93 Pac. 227; Estate of De Laveaga, 165 Cal. 607, 133 Pac. 307. Age and failing memory with undue influence — evidence not suf- ficient to set aside will. Estate of Purcell, 164 Cal. 300, 128 Pac. 932; James v. Sutton, 36 Neb. 393, 54 N. W. 670; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372. § 98) MISTAKE, FKATJD AND UNDUE INFLUENCE 263 seen, however, that the existence of influence standing alone is not sufficient to shift the burden of proof. There must be evidence of its exertion in procuring the will. This is supplied by the evidence of the ac- tive participation by the beneficiary in the making. of the will. The two together therefore raise a presump- tion of both the existence and exertion of undue in- fluence and cast the burden of proof upon the pro- ponent to rebut such presumption.'* That the will was written, prepared or drawn by the beneficiary is such active participation.'^ It is held in some states that the mere existence of a confidential relation casts the burden upon the pro- ponents of the will to show that the influence thus presumed was not exerted in the particular will.'* But 3* Jenkins v. Tobin, 31 Ark. 306; Hill v. Barge, 12 Ala. 687; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904; Chandler v. Jost, 96 Ala. 596, 11 South. 636 ; Coghlll v. ICennedy, 119 Ala. 641, 24 South. 459 ; McQueen v. Wilson, 131 Ala. 606, 31 South. 94; Richmond's Appeal, 59- Conn. 247, 22 Atl. 82, 21 Am. St. Rep. 85; Turner's Appeal, 72 Conn. 306, 44 Atl. 310; Glnter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 ; In re Will of Martin, 98 N. Y. 193. asMcDaniel v. Crosby, 19 Ark. 533; Daniel v. Hill, 52 Ala. 430; McQueen v. Wilson, 131 Ala. 606, 31 South. 94; Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St. Rep. 89 ; Byrne's Estate, Myr. Prob. (Cal.) 1 ; Estate of Morey, 147 Cal. 495, 82 Pac. 57 ; Snodgrass V. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548; St. Leger's Appeal, 34 Conn. 434, 91 Am. Dec. 735 ; Livingston's Appeal, 63 Conn. 78, 26 Atl. 470; Miller v. Livingstone, 31 Utah, 415, 88 Pac. 338; Benn v. Samos, 33 Tex. 760. 3 6 It is a universally recognized rule of equity, v^hich is applied also in analogous cases at law, that where a confidential relation is shown to exist between the testator and the recipient of his bounty, an exerted Influence will be presumed to have induced the 264 WILLS AND ADMINISTKATION OF ESTATES (Ch. 7 the general rule does not go to that extent. The mere existence of a confidential relation is not sufficient to cast the burden upon the beneficiary," but is an ele- ment and a very important one in making a case of actual undue influence.'' The fact that the person who drew the will or caused it to be prepared was a beneficiary under it was, by the Roman law, sufficient to invalidate it. But under the common law, this is only a circumstance, although a very suspicious .one, to be taken in connection with other proof of undue influence.'" bequest, and the onus Is cast upon the beneficiaries to make explana- tion of the transaction and establish its reasonableness. Maddox v. Maddox, 114 Mo. 46, 21 S. W. 490, 35 Am. St. Rep. 734; Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Mowry v. Norman, 204 Mo. 173, 103 S. W. 15; Id., 223 Mo. 463, 122 S. W. 724; Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289; Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609 ; Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774. Strong dicta that inequality among heirs must be explained by such beneficiary. Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774. 3 7 No presumption of undue influence from mere existence of con- fidential relation. Parfitt v. Lawless, 2 Prob. Div. 462; Tyson v. Tyson's Ex'r, 37 Md. 567; Coffin v. Coflln, 23 N. Y. 9, 80 Am. Dec. 235; Post V. Mason, 91 N. Y. 539, 43 Am. Rep. 689; In re Will of Smith, 95 N. Y. 516-523; Sparks' Case, 63 N. J. Eq. 242-247, 51 Atl. 118 ; Jlichael v. Marshall, 201 111. 70, 66 N. E. 273 ; Wheeler v. Whipple, 44 N. J. Eq. 141, 14 Atl. 275; Furlong v. Carraher, 108 Iowa, 492, 79 N. W. 277; Estate of Purcell, 164 Cal. 300, 128 Pac. 31 ; Estate of Packer, 164 Cal. 525, 129 Pac. 778 ; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904 (overruling Moore v. Spier, 80 Ala. 129) ; Coghill v. Kennedy, 119 Ala. 641, 24 South. 459 : Hutcheson v. Bibb, 142 Ala. 586, 38 South. 754; Estate of Ricks, 160 Cal. 467, 117 Pac. 539; Estate of Lavinburg, 161 Cal. 536, 119 Pac. 915. 3 8 Estate of Olson, 19 Cal. App. 379, 126 Pac. 171. 39 Harvey v. SuUens, 46 Mo. 147-151, 2 Am. Rep. 491; Barr v. Buttin, 1 Cart. Ecc. 637-651 ; Beall v. Mann, 5 Ga. 456. § 98) MISTAKE, FRAUD AND UNDUE INFLUENCE 265 It has been held that a confidential relation exists between an aged lady and her business agent," attor- ney and client," physician or nurse and patient,*^ guardian and ward,*^ spiritual adviser or " religious institution under whose care the testator was " and the testator. io Harvey v. Sullens, 56 Mo. 374 ; Id., 46 Mo. 147, 2 Am. Rep. 491 ; Dausman v. Kankin, 189 Mo. 677, 88 S. W. 696, 107 Am. St. Rep. 391 ; Roberts v. Bartlett, 190 Mo. 699, 89 S. W. 858 ; Bradford v. Blossom, 190 Mo. 119, 88 S. W. 721; Hagerty v. Olmstead, 39 App. D. C. 170 ; Goodloe v. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533. No presumption of undue influence where daughter acted as busi- ness agent of mother. The presumption is not so strong in case of natural relations as of artificial fiduciary relations, such as attorney and client, guardian and ward, etc. Lockwood v. Lockwood, 80 Conn. 513, 69 Atl. 8. Intimate friendship is not a fiduciary relation. In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. *i St. Leger's Appeal, 34 Conn. 434, 91 Am. Dec. 735. Evidence admissible that white lawyer who drew the will was beneficiary in the wills of four other full blood Indians. Welch V. Bamett, 34 Okl. 166, 125 Pac. 472. ^2 Jones v. Roberts, 37 Mo. App. 163 ; Duigman v. Romine, 141 Mo. 466, 42 S. W. 1087. Legacies to nurse and physician upheld. Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962 ; Riddle v. Gibson, 29 App. D. C. 237. 4 3 Garvin v. Williams, 41 Mo. 465, 100 Am. Dec. 314; Id., 50 Mo. 206 ; Bridwell v. Swank, 81 Mo. 455. 44 Elliott V. Welby, 13 Mo. App. 19 ; Tibbe v. Kamp, 154 Mo. 580, 54 S. W. 879, 55 S. W. 440; Hegney v. Head, 126 Mo. 619, 29 S. W. 587; Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 956; Russell V. Russell's Ex'r, 3 Houst. (Del.) 103. 46 MuUer v. St. Louis Hospital Ass'n, 5 Mo. App. 398; Id., 73 Mo. 242. Belief in spiritualism may not be proof of Insanity but may be relevant on issue of undue influence. Pish v. Poorman, 85 Kan. 237- 242, 116 Pac. 898. No confidential relation. Weber v. Strobel, 236 Mo. 649, 139 S. W. 188 ; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46. 266 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 The relation of business partner is not necessarily- such a fiduciary relation as will raise a presumption against the will.*' Undoubtedly, there must be a di- rect connection between the confidential relation a:nd the pecuniary benefit in order to raise such presump- tion.*' It is not presumed where no pecuniary bene- fit results to the person charged with its exercise — as in the case of a lawyer who draws a will/* or a friend who suggests it/° or one who is appointed executor or trustee without any beneficial interest/" or from the mere fact that distant relatives or reli- gious or charitable institutions are made devisees to the partial exclusion of lawful heirs." The presumption of undue influence, where it arises is one of fact and not of law. It may be rebutted by showing that the testator acted freely and of his own volition, notwithstanding the relation. It is sometimes said that the beneficiary must show that the testator * 6 Brooks' Estate, Myr. Prob. (Cal.) 141; Id., 54 Cal. 471; Car- penter V. Bailey, 94 Cal. 406, 29 Pac. 1101; Snodgrass v. Siuith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548. " Birdseye's Appeal, 77 Conn. 623, 60 Atl. 111. Confidential relation of husband of chief beneficiary raises pre- sumption. Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22. 48 Barkley v. Cemetery Ass'n, 153 Mo. 300, 54 S. W. 482. 49 Moore v. McNulty, 164 Mo. 121, 64 S. W. 159. 5 Estate of Kilborn, 162 Cal. 4, 120 Pac. 762; Livingston's Ap- peal, 63 Conn. 78, 26 Atl. 470; Carter v. Dixon, 69 Ga. 82; Wood- son V. Holmes, 117 Ga. 19, 43 S. E. 467; Sellards v. Klrby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214. 51 Hegney v. Head, 126 Mo. 619, ?9 S. W. 587. § 99) MISTAKE, FRAUD AND UNDUE INFLUENCE 267 acted upon independent and disinterested advice." This is a very proper way to rebut the presumption, but a showing of independent advice is not necessary in all cases." § 99. Undue influence — Wife or husband The law permits full play to all the natural affec- tions of the testator in disposing of his property. It assumes that he will be influenced to a great ex- tent by the wishes and inclinations of his wife and children, and such influence exerted in a fair and reasonable manner is not considered undue," espe- 62 McQueen v. Wilson, 131 Ala. 606, 31 South. 94. 5 3 Estate of Wickes, 139 Cal. 195, 72 Pac. 902; Morey's Estate. 147 Cal. 495, 82 Pac. 57; Estate of Lavlnburg, 161 Cal. 536, 119 Pac. 915 ; Hine's Appeal, 68 Conn. 551, 37 AU. 384 ; St. Lager's Ap- peal, 34 Conn. 434, 91 Am. Dec. 735. Failure of testator to revoke or amend his will for seven years after its execution raises some presumption in its favor on issue of undue influence. Barbour v. Moore, 10 App. D. C. 30. 54 Rankin v. Eankiu, 61 Mo. 295 ; Jones v. Roberts, 37 Mo. App. 182 ; Myers v. Hanger, 98 Mo. 439, 11 S. W. 974 ; Thompson v. Ish, 99 Mo. 182, 12 S. W. 510, 17 Am. St. Rep. 552; Mays v. Mays, 114 Mo. 536, 21 S. W. 921 ; Cash v. Lust, 142 Mo. 642, 44 S. W. 724, 64 Am. St. Rep. 576; West v. West, 144 Mo. 131, 46 S. W. 139; Defoe V. Defoe, 144 Mo. 458, 46 S. W. 433 ; Aylward v. Briggs, 145 Mo. 613, 47 S. W. 510 ; Kischman v. Scott, 166 Mo. 214, 65 S. W. 1031 ; Wood V. Carpenter, 166 Mo. 477, 66 S. W. 172; Crowson v. Crowson, 172 Mo. 691, 72 S. W. 1065; Boyse v. Rossborough, 6 H. L. Cases, 2; Herwick v. Langford, 108 Cal. 608, 41 Pac. 701 ; Estate of Donovan, 140 Cal. 390, 73 Pac. 1081; Kstate of Carithers, 156 Cal. 422, 105 Pac. 127; Small v. Small, 1 Greenl. (4 Me.) 220, 16 Am. Dec. 253; Fulton v. Freeland, 219 Mo. 494, 118 S. W. 12, 131 Am. St. Rep. 576 ; Turner v. Anderson, 236 Mo. 523, 139 S. W. 180. The influence which the wife exerted over the testator before marriage is too remote to be considered. Ketchum v. Steams, 76 268 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 dally where such influence is acquired by kindness and affection. The same rule applies to the natural influence of the husband/^ It is said by the Supreme Court of the United States : It would be a great reproach to the law if, in its jealous watchfulness over the freedom of testamentary disposition, it would deprive age and infirmity of the kindly ministrations of affection, or of the power of awarding those who bestow them."*" It is possible, however, that the influence exerted by a wife may be undue, and as such sufficient to invalidate a will, when it is used for some sinister purpose; as, to defeat the testator's just intentions toward his other heirs. As said by Judge Scott: But where a will is impeached for undue influence exercised over a weak intellect, and that too by one holding the close and constant relationship of a wife, it is not sufficient to show that the testator was not under restraint at the moment of the execution of the will. Such is the nature of the human mind, that when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, al- though the person in the habit of its exercise may not be pres- ent, or exert it at the time an act is done. So that the in- quiry, in such cases, is not whether an undue influence was ex- Mo. 396 ; Flint's Estate, 100 Cal. 391, 34 Pac. 863 ; Fulton v. Free- land, 219 Mo. 494, 118 S. W. 12, 131 Am. St. Rep. 576. That testator married on day hp executed will is no evidence of undue influence. In re Estate of Paisley, 91 Neb. 139, 135 N. W. 435. 5 5 Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St Rep. 904; ISastis V. Montgomery, 93 Ala. 293, 9 South. 311 ; Lyons v. Campbell, 88 Ala. 462, 7 South. 250; Johnson v. Armstrong, 97 Ala. 731, 12 South. 72 ; Kultz v. Jaeger, 29 App. D. C. 300. 66 Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 8i. § 99) MISTAKE, FRAUD AND UNDUE INFLUENCE 269 erted at the time of the execution of the will, but whether an influence had been acquired, and did operate in the disposition of his property by the testator."' Most, if not all, of the cases in which the in- fluence of the wife is claimed to be undue are what are known as stepmother cases ; that is, where the testator makes liberal provision for a young wife, to the exclusion, total or partial, of the children of the first wife/^ It must be admitted that the situa- tion thus presented causes a great strain on human nature. No doubt the charge of undue influence is often proper in such a case, but the mere fact that a second wife is made beneficiary to the exclusion of children of a former wife is not conclusive.^" As we have seen it is not the existence but the exer- tion of undue influence that avoids the will. The existence of unlawful sexual relations raises no presumption of undue influence. °° Nor is it un- 57 Taylor v. Wilburn, 20 Mo. 309, 64 Am. Dee. 186; Estate of Welch, 6 Cal. App. 44, 91 Pac. 336; Hacker v. Newborn, 82 Eng. Kep. Keprlnt, 834; Williams v. Gonde, 1 Hagg. Ecc. 577; Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609; Mitchell v. Donohue, 100 Oal. 202, 34 Pac. 614, 38 Am. St. Rep. 279; In re Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Oas. 596 ; Estate of Gleason, 164 Cal. 756, 130 Pac. 872. Influence of husband. Estate of Olson, 19 Cal. App. 379, 126 Pac. 171. The same principle applies to the influence of a child. King v. Gilson, 191 Mo. 327, 90 S. W. 367. 58 Miller V. Livingston, 36 Utah, 228, 102 Pac. 996 ; Id., 31 Utah, 415, 88 Pac. 338. 59 Donovan's Estate, 140 Cal. 390, 73 Pac. 1081 ; Tingley v. Cow- gill, 48 Mo. 296 ; Mosley v. Fears, 135 Ga. 71, 68 S. E. 804. 60 Sunderland v. Hood, 13 Mo. App. 232; Id., 84 Mo. 293; Ruf- 270 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 lawful for a man to make provision by will for il- legitimate children." § 100. Undue influence — Evidence Undue influence can rarely be shown in any other way than by circumstantial evidence/^ It arises from the circumstances and relations of the testa- tor, and for this reason a very wide range of testi- mony is admissible/^ It is competent to go into the history of the testator, his mental traits, and flno's Estate, 116 Cal. 304, 48 Pac. 127; Estate of Morcel, 162 Cal. 188, 121 Pac. 733; Stant v. Am. Sec. & Tr. Co., 23 App. D. C. 25; Smith V. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Rep. 260 ; Ful- ton V. Freeland, 219 Mo. 494, 118 S. W. 12, 131 Am. St. Rep. 576. Devise to a mistress is not alone evidence of undue influence. Weston V. Hanson, 212 Mo. 248, 111 S. W. 44. But may be taken into consideration on question of undue influence. Smith v. Henllne, 174 111. 184, 51 N. E. 227 ; McClure v. McClure, 86 Tenn. 173, 6 S. W. 44 ; Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. 81 Dunlap V. Robinson, 28 Ala. 100; Smith v. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Rep. 260. esBlackman v. Edsall, 17 Colo. App. 429, 68 Pac. 790; In re Shell, 28 Colo. 167, 63 Pac. 413, 53 L. B. A. 387, 89 Am. St. Rep. 181 ; Drake's Appeal, 45 Conn. 17 ; Saunders' Appeal, 54 Conn. 116, 6 Atl. 193; Mowry v. Norman, 204 Mo. 173, 103 S. W. 15; Naylor v. McRuer, 248 Mo. 423, 154 S. W. 772; Alford v. Johnson, 103 Ark. 236, 146 S. W. 516; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441 ; In re Jackman, 26 Wis. 104. The use of the words, "being of sound mind and free from all un- due influence" in the opening paragraph of the will is enough to cast suspicion on the will. Mowry v. Norman, 204 Mo. 173, 103 S. W. 15. The fact that testator went to attorney's oflSce and had will drawn and executed is not conclusive against undue influence. In re Jack- man, 26 Wis. 104. e 8 Tobin v. Jenkins, 29 Ark. 151 ; Sanger v. McDonald, 87 Ark. 148, 112 S. W. 365 ; Sutton v. Sutton, 5 Har. (Del.) 459 ; Olmstead § 100) MISTAKE, FRAUD AND UNDUE INFLUENCE 271 characteristics ; his habits/* views, affections, feel- ings and prejudices; his family, social and busi- ness relations;*' the amount, character and extent of his property** and whence derived; " his physi- cal condition; his previous dealings with the bene- ficiaries and others within the range of his bounty; the circumstances surrounding the making of the will,*^ and generally into every fact which will throw any light on the charge made." Even evi- V. Webb, 5 App. D. C. 38 ; Barbour v. Moore, 10 App. D. O. 30 ; Al- ford V. Johnson, 103 Ark. 236, 146 S. W. 516. Need not be confined to the time of executing the will. Bunyard V. McElroy, 21 Ala. 311. Substantial evidence of undue influence. Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774 ; Brown v. Pridgen, 56 Tex. 124 ; Trezevant V. Rains, 85 Tex. 329, 23 S. W. 890 ; Sanders v. Klrbie, 94 Tex. 564, 63 S. W. 626; Kabelmacher v. Kabelmacher, 21 Tex. Civ. App. 317, 50 S. W. 1118, 51 S. W. 353. 64 Cunningham's Estate, 52 Cal. 465. 65 Chandler v. Jost, 96 Ala. 596, 11 South. 636 ; Tibbett's Estate, 137 Cal. 123, 69 Pac. 978; Arnold's Estate, 147 Cal. 583, 82 Pac. 252. 6 6 Eastis V. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; In re Flint, 100 Cal. 391, 34 Pac. 863; Richmond's Appeal, 59 Conn. 247, 22 Atl. 82, 21 Am. St. Rep. 85. 67Ruffino's Estate, 116 Cal. 304, 48 Pac. 127; Gunn's Appeal, 63 Conn. 254, 27 Atl. 1113. Immaterial how testator acquired property (dicta). Weston v. Hanson, 212 Mo. 248-274, 111 S. W. 44. 6 8 Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268. 6 9 Unequal distribution of testator's property among his heirs is a circumstance to be considered in connection with the issue of un- due influence. Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609 ; Thompson V. Davitte, 59 Ga. 472; Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650 ; Wendling v. Bowden, 252 Mo. 647-688, 161 S. W. 774. 272 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 dence of the financial condition of the beneficiaries is admissible within reasonable bounds/" Undue influence is not solely a question of fact; it is a mixed question of law and fact.'^ It is for the court to determine the character of the evidence that will disclose undue influence ^^ and for the jury to decide upon its weight and credibility/* "Estate of Lavinburg, 161 Cal. 536, 119 Pac. 915; Mooney v. 01- sen, 22 Kan. 69; Thompson v. Ish, 99 Mo. 172, 12 S. W. 510, 17 Am. St. Rep. 552; Barbour v. Moore, 10 App. D. 0. 30; Oxford v. Oxford, 136 Ga. 589, 71 S. E. 883. A statement inserted in a contested will as to advances to children and grandchildren may be rebutted on issue of undue influence. Es- tate of Olson, 19 Cal. App. 381, 126 Pac. 171. 71 Pool's Heirs v. Pool's Ex'rs, 35 Ala. 12. '2 Evidence of undue influence suflicient to go to jury. McDaniel V. Crosby, 19 Ark. 533 ; Estes v. Bridgeforth, 114 Ala. 221, 21 South. 512; Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Silvany's Estate, 127 Cal. 226, 59 Pac. 571; Kendrick's Estate, 130 Cal. 360, 62 Pac. 605; Arnold's Estate, 147 Cal. 5S3, 82 Pac. 252; Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548; Gaither v. Gaither, 20 Ga. 709; Cato v. Hunt, 112 Ga. 139, 37 S. E. 183; Kerr V. Kerr, 80 Kan. 83, 101 Pac. 647 ; Carlson v. Laf gran, 250 Mo. 527, 157 S. W. 555. 78 Higginbotham v. Higginbotham, 106 Ala. 314, 17 South. 516. Instructions on undue influence. Malone v. Adams, 113 Ga. 791, 39 S. E. 507, 84 Am. St. Rep. 259 ; Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962. § 101) MISTAKE, FEAUD AND UNDUE INFLUENCE 273 § 101. Undue influence — Inadmissible evidence But wide as is the latitude allowed there are some necessary limitations upon the introduction of evi- dence. It must fairly tend to prove the issues made/* While the existence of undue influence may be shown by circumstantial evidence, such evi- dence must do more than merely raise a suspicion of such influence/^ or mere opportunity for its ex- ercise. When the validity of a will is contested upon the ground of undue influence in its execution, a court cannot be too care- 74 Couch V. Gentry, 113 Mo. 248, 20 S. W. 890; Maddox v. Mad- dox, 114 Mo. 41, 21 S. W. 499, 35 Am. St. Rep. 734 ; In re Calkins, 112 Cal. 296, 44 Pac. 577; In re Kaufman, 117 Oal. 288, 49 Pac. 192, 59 Am. St. Rep. 179 ; Elliott v. Elliott, 3 Neb. (Unof.) 832, 92 N. W. 1006 ; Moore v. Boothe, 39 Tex. Civ. App. 339, 87 S. W. 882. What is not evidence of undue influence. Brook's Estate, 54 Cal. 471; Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101; Nelson's Es- tate, 132 Cal. 182, 64 Pac. 294 ; Motz's Estate, 136 Cal. 558, 69 Pac. 294; Calef's Estate, 139 Cal. 673, 73 Pac. 539; Carmen v. KigM, 85 Kan. 18, 116 Pac. 231 ; Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880 ; Sin- ger V. Taylor, 90 Kan. 285, 133 Pac. 841; Teckenbrock v. Mc- Laughlin, 209 Mo. 533, 108 S. W. 46 ; Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132 ; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155 ; Mor- gan V. Morgan, 30 App. D. C. 436, 12 Ann. Cas. 1037; Wetz v. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394 ; In re Weber, 15 Cal. App. 224, 114 Pac. 597 ; Estate of Riordan, 13 Cal. App. 313, 109 Pac. 629; Estate of Packer, 164 Cal. 525, 129 Pac. 778; Isaac v. Halderman, 76 Neb. 823, 107 N. W. 1016; Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599; Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233 ; Stull v. StuU, 1 Neb. (Unof.) 389, 96 N. W. 196. A family quarrel Is not proof of undue influence. Stant v. Am. Sec. & Tr. Co., 23 App. D. C. 25. Undue influence cannot be proved by opinion of veitnesses. Jones y. Grogan, 98 Ga. 552, 25 S. E. 590 ; Dennis v. Weekes, 51 Ga. 24. 'BMcDevitt's Estate, 95 Cal. 17, 30 Pac. 101; Nelson's Estate, BoKL. Wills — 18 274 WILLS AND ADMINISTKATION OF ESTATES (Ch. 7 ful in excluding from the consideration of the jury evidence that is incompetent or irrelevant to establish the charge. The very nature of the issue, as well as the lack of experience and of mental training on the part of the jurors' in reference there- to renders them less able than the court to weigh the suffi- ciency of any evidence that may be offered upon this issue. The fact that the evidence has been permitted by the court to come before them justly authorizes them to consider that it is both relevant and competent for that purpose, and the evi- dence so received will, unconsciously it may be, produce an impression upon their minds which will not be effaced by sub- sequent instructions.'' One who is familiar with the volume of litigation which is now flooding the courts cannot fail to be attracted by the fact that actions to set aside wills are of frequent occurrence. In such actions the testator cannot be heard, and very trifling matters are often pressed upon the attention of the court or jury as evidence of want of mental capacity or of the exis- tence of undue influence. Whatever rule may obtain else- where we wish it distinctly understood to be the rule of the federal courts that the will of a person found to be possessed 132 Cal. 182, 64 Pac. 294; Keegan's Estate, 139 Cal. 123, 72 Pac. 828 ; Estate of Lavinburg, 161 Cal. 536, 119 Pac. 915 ; Estate of Kil- bom, 162 Cal. 4, 120 Pac. 762 ; Estate of Morcel, 162 Cal. 188, 121 Pac. 733. Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024; Nelson's Will, 39 Minn. 204^206, 39 N. W. 143; Leach v. Burr, 17 App. D. C. 128; Robinson v. Duvall, 27 App. D. C. 535; Kultz V. Jaeger, 29 App. D. C. 300 ; Borchers v. Barckers, 143 Mo. App. 72, 122 S. W. 357; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46 ; In re Weber, 15 Cal. App. 224, 114 Pac. 597 ; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39; Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606 ; Estate of Purcell, 164 Cal. 300, 128 Pac. 932^. Evidence of the reputation of the principal devisee for chastity is not admissible. Rogers v. Troost, 51 Mo. 470 ; Thomas v. Stump, 62 Mo. 275; In re Flint, 100 Cal. 391, 34 Pac. 863; Berwick v, Langford, 108 Cal. 608, 41 Pac. 701. 76 In re Kaufman, 117 Cal. 288, 297, 49 Pac. 192, 59 Am. St Rep. 179. § 102) MISTAKE, FKADD AND UNDUE INFLUENCE 275 of sound mind and memory is not to be set aside as evidence tending to show only a possibility or suspicion of undue in- fluence. The expressed intentions of the testator should not be thwarted without clear reason therefor.'^ While the inequitable character of the will may be considered, if linked with other evidence tending to show undue influence, the court should not per- mit a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what was just and proper." § 102. Undue influence — Declarations of testator and devisees It is also well established that evidence of the declarations of the testator after the making of the will, concerning the causes which induced him to make it, are incompetent.''* Such declarations, be- 7 7 Brewer, J., in Beyer v. Le Fey re, 186 U. S. 114, 22 Sup. Ct. 765, 46 L. Ed. 1080. 78 Estate of Kilborn, 162 Cal. 4, 120 Pac. 702; In re Kaufman, 117 Gal. 288, 49 Pac. 192, 59 Am. St. Kep. 179 ; Estate of Snowball, 157 Cal. 301, 107 Pac. 598. 7» ScMerbaum v. Schemme, 157 Mo. 22, 57 S. W. 526, 80 Am. St. Rep. 604 ; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642 ; Doherty v. Gilmore, 136 Mo. 414, 37 S. W. 1127 ; Jones v. Roberts, 37 Mo. App. 163; Bush v. Busb, 87 Mo. 480; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506 ; Eastis v. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; In re Calkins, 112 Cal. 296, 44 Pac. 577; In re Kaufman, 117 Cal. 288, 49 Pac. 192, 59 Am. St. Rep. 179 ; Gregory's Estate, 133 Cal. 131, 65 Pac. 315; Donovan's Estate, 140 Cal. 390, 73 Pac. 1081; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W- 46; Underwood v. Thurman, 111 Ga. 325, 36 S. E. 788; Davidson V. Davidson, 2 Neb. (Unof.) 90, 96 N. W. 409 ; Estate of Gleason, 164 Cal. 756, 130 Pac. 872. 376 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 ing at best merely hearsay, are no proof of the fact itself, unless part of the res gestse.'" But on the other hand, as a man's mental condition and the state of his feelings and affections can only be shown by his natural expressions of them, the declarations of a testator may be admissible for that purpose. Statements made by a testator before and after the execution of the will are competent evidence as ex- ternal manifestations of his mental condition and of the state of his natural affections ; not as evidence of the truth of the facts stated." Upon the same principle evidence of the provisions of former wills 80 The declarations of the testatrix when not part of the res gestae, are not admissible to prove, nor may they be considered by the jury for the purpose of showing, the exercise of undue influence, although they are entitled to be shown and considered for the pur- pose of illustrating the state of mind of the testatrix when that state of mind is material. Estate of Ricks, 160 Cal. 450, 117 Par. 532 ; Id., 160 Cal. 467, 117 Pac. 539 ; Estate of Brooks, 54 Cal. 471 ; Comstock V. Hadlyme, 8 Conn. 263, 20 Am. Dec. 100 ; Kultz v. Jaeger. 29 App. D. C. 300. Declarations of testator if part of the res gestae may be admissi- ble to show undue influence. Coghill v. Kennedy, 119 Ala. 641, 24 South. 459. Letter written by testatrix evidence of undue influence. SchiefCelin V. SchiefCelin, 127 Ala. 36, 28 South. 687. 81 Arnold's Estate, 147 Cal. 583, 82 Pac. 252; Estate of Snow- ball, 157 Cal. 301, 107 Pac. 598 ; Estate of Kilborn, 162 Cal. 4, 120 Pac. 762 ; Comstock v. Hadlyme, 8 Conn. 254, 20 Am. Dec. 100 ; Can- ada's Appeal, 47 Conn. 450 ; Crowson v. Crowson, 172 Mo. 691, 72 S. W. 1065 ; Thojiipson v. Ish, 99 Mo. 170, 12 S. W. 510, 17 Am. St. Rep. 552; Gordon v. Burris, 141 Mo. 618, 43 S. W. 642; Rash v. Purnel, 2 Har. (Del.) 448-457 ; Dennis v. Weekes, 51 Ga. 24 ; Spen- cer's Appeal, 77 Conn. 638, 60 Atl. 289 ; Towson v. Moore, 11 App. D. C. 377 ; Barbour v. Moore, 4 App. D. C. 535 ; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155; In re Jackman, 26 Wis. 104; Estate of § 102) MISTAKE, FRAUD AND UNDUE INFLUENCE 277 made by the testator, whether such wills were valid or not, is admissible to show what, if any, change has occurred in the feelings of the testator tending to prove or disprove the undue influence charged.'^ While evidence of declarations and admissions of devisees are generally not admissible on the ground that their interests are several, and one devisee ought not to be prejudiced by the admissions of an- other/^ yet it seems that under the issue of undue Gleason, 161 Cal. 756, 130 Pac. 872; Miller v. Livingstone, 31 Utah, 415, S8 Pac. 338. Declarations of testator are admissible on issue of undue influence, not to prove the actual fact of fraud or improper influence but to establish the influence and effect of the external acts (if any are shown) upon the mind of the testator himself. Authorities cited : Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98 ; Goodloe v. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533; Stubbs v. Marshall, 54 Tex. Civ. App. 526, 117 S. W. 1030. Declarations and acts of the testator after the execution of the vsfill are admissible for the purpose of shov^ing that he did not under- stand that he had executed it. Canada's Appeal, 47 Conn. 450. 82 Bulger V. Ross, 98 Ala. 267, 12 South. 803 ; Estate of Arnold, 147 Cal. 583, 82 Pac. 252 ; Estate of Everts, 163 Cal. 449, 125 Pac. 1058; Crandall's Appeal, 63 Conn. 365, 28 Atl. 531, 38 Am. St. Rep. 375; Thompson v. Ish, 99 Mo. 171, 12 S. W. 510, 17 Am. St. Rep. 552 ; Muller v. St. Louis Hospital Ass'n, 5 Mo. App. 400, affirmed 73 Mo. 242 ; Wood v. Carpenter, 166 Mo. 479, 66 S. W. 172 ; Norton v. Paxton, 110 Mo. 466, 19 S. W. 807; McFadin v. Catron, 120 Mo. 271, 25 S. W. 506; In re Estate of Hayes, 55 Colo. 340, 135 Pac. 449. Former v^ills admissible. A testator not only has the legal right to make a vrill, but he may make as many wills as he chooses, and the mere fact that a change is made in a later will is not of itself evidence that testator was unduly influenced in making such change. In re Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Cas. 596. 83 Ormsby v; Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 813 ; 278 WILLS AND ADMINISTRATION OF ESTATES (Ch. 7 influence, the declarations and admissions of those devisees who are charged with the undue influence are admissible.'* Dale's Appeal, 57 Conn. 127, 17 Atl. 757; Livingston's Appeal, 63 Conn. 68, 26 Atl. 470 ; Stull v. Stull, 1 Neb. (Unof .) 389, 96 N. W. 196. 84 Gordon v. Burris, 141 Mo. 612, 43 S. W. 642 ; Estate of Arnold, 147 Gal. 583, 82 Pac. 252; Estate of Snowball, 157 Cal. 301, 107 Pac. 598; Estate of Ricks, 160 Cal. 467, 117 Pae. 539; Morris v. Stokes, 21 Ga. 552; Jackson v. Jackson, 32 Ga. 325; Dennis v. Weekes, 51 Ga. 24 ; Miller v. Livingstone, 31 Utah, 415, 88 Pac. 338. Admissions by a legatee that the will was procured by fraud or undue influence will estop his representatives after his death from claiming any benefit under the will. Whether the rights of other legatees will be affected by such admissions depends upon the proof respecting their complicity or non-complicity in the alleged fraud or undue influence. Renn v. Samos, 33 Tex. 760. On issue of undue influence widow of deceased is not competent witness. Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74 ; Id., 163 Mo. App. 123, 145 S. W. 857. § 103) CONSTRUCTION OF WILLS 279 CHAPTER VIII CONSTRUCTION OF WILLS 103. By the probate court. 104. By the executor as umpire. 105. By courts Of equity — Based on the broad powers over trusts. 106. At the Instance of testamentary trustees and executors. 107. At the instance of heirs, devisees and others. 108. Proper and necessary parties. 109. Various principles governing construction by equity. 110. In an action at law. 111. By the federal courts. 112. Canons of construction — Words and phrases. 113. Extrinsic evidence — Latent and patent ambiguities. 114. Construction as affected by the general law of descents and distributions. 115. After acquired property. ilfi. Presumption against intestacy. 117. Recitals in wills. § 103. By the probate court We have seen that the question of probate pre- sents one single clear-cut issue — whether the writ- ing produced be the will of the testator. That issue must not be confused with others, it being well set- tled that the construction of the will or the enforce- ment of its provisions cannot be accomplished either in the formal probate in the probate court or in the 280 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 solemn proceeding in the circuit court.^ It may be interesting to inquire then how the question is apt to arise — that is, how a will may be brought into court for construction. In the first place, the probate court, after it has admitted the will to probate, has the first oppor- tunity to construe it, and determine what it means. While it cannot do this in the probate proceedings, yet when the executor has qualified and is carrying out the terms of the will it becomes the duty of the court to decide in the first instance what it means, and what distributions of the estate it provides for, in order to supervise the acts of the executor and pass upon the correctness of his accounts.^ This power of the probate court was questioned but was sustained.^ Courts of probate in ordering distribu- 1 Winston v. Elliott, 169 Ala. 416, 53 South. 750 ; Oox v. Oox, 101 Mo. 16S, 13 S. W. 1055 ; Lilly v. Tobbeln, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Rep. 887 ; Owens v. Sinklear, 110 Mo. 54, 19 S. W. 813. AVhen probate is granted, and not before, the authority to de- termine what passes under the will is devolved upon courts of law and equity. Emmons v. Garnett, 18 D. C. 52. In an action which calls only for the construction of the will for the benefit and direction of the executors, the court does not have power to revolje the probate of the instrument. Higgins v. Vande- veer, 85 Neb. 89-96, 122 N. W. 843. 2 Hudgins v. Leggett, 84 Tex. 207, 19 S. W. 387 ; Andersen v. An- dersen, 69 Neb. 565, 96 N. W. 276; Appeal of Schaeftner, 41 Wis. 260 ; Brook v. Chappell, 34 Wis. 419 ; Toungson v. Bond, 69 Neb. 356, 95 N. W. 700, 5 Ann. Cas. 191 ; In re Estate of Buerstetta, 83 Neb. 287, 119 N. W. 469 ; Lesiur v. Sipherd, 84 Neb. 296, 121 N. W. 104. 3 Brown v. Stark, 47 Mo. App. 370 ; Allison v. Chaney, 63 Mo. 279 ; Dyer v. Carr, 18 Mo. 246 ; Overton v. Davy, 20 Mo. 273 ; Rose V. McHose, 26 Mo. 590; Bryant v. Christian, 58 Mo. 100; Mclntire V. Mclntire, 14 App. D. C. 337. § 104) CONSTRUCTION OF WILLS 281 tion under the will must necessarily construe it and determine in the first instance what the gifts are, to whom they should be distributed and which are void and which valid.* If the will attempts to create a trust, the probate court, while having no power to administer a trust, has jurisdiction to de- termine how far the attempt was successful, what the trust was, the subject matter, who are the trus- tees and beneficiaries and distribute accordingly/ From the decisions of the probate court ordering or refusing to order a particular distribution of the estate an appeal usually lies to the court of gen- eral jurisdiction which does not feel bound by the construction placed upon the will by the probate court/ § 104. By the executor as umpire A testator may in his will designate his executor an umpire and invest him with power to construe the will and determine every doubtful question that may arise touching the testator's intentions ; and if such umpire exercises the power honestly and in good faith, his decisions will not be revised by a court, notwithstanding the court may think the * Chamberlain's Appeal, 70 Conn. 363, 39 Atl. 734, 41 L. R. A. 204 ; Mack's Appeal, 71 Conn. 122, 41 Atl. 242 ; Hlggins v. Vandeveev, 85 Neb. 89, 122 N. W. 843. 6 Crook's Estate, Myr. Prob. (Cal.) 24T. « Eliot's Appeal, 74 Conn. 586, 51 Atl. 558 ; Smithwiek v. Kelly, 79 Tex. 564, 15 S. W. 486 ; Estate of Donnellan, 164 Cal. 14, 127 Pac. 166. 282 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 same erroneous. But if the umpire refuses to act, transcends his authority, makes an incomplete award, or commits some gross mistake or error of judgment evincing partiality, corruption or prej- udice or violates some statutory requirement on which the dissatisfied party had a right to rely, a court of equity may interfere and correct the error, and in proper cases, restrain further abuse of such power/ The executor may and should decline to act on matters affecting his private interests.* By Courts op Equity § 105. Based on the broad povs^ers over trusts The construction of a will may come before a court of equity in a suit brought for that purpose. Probate courts have no chancery powers ; ° hence such suit is necessarily brought in a court having general equity jurisdiction. The jurisdiction of courts of equity to entertain suits for the construc- tion of wills is based upon the broad powers exer- cised by those courts over trusts and trustees. The executor, under the English practice, was regarded as a trustee. He retains much of that character, even though, under the American practice, he has 7 Am. Board of Com'rs of Foreign Missions v. Ferry (C. C.) 15 Fed. 696; Greene v. Huntington, 73 Conn. 106, 46 Atl. 883; Pray v. Belt, 1 Pet. 670-679, 7 L. Ed. 309; Couts v. Holland, 48 Tex. Civ. App. 476, 107 S. W. 913. 8 Wait V. Huntington, 40 Conn. 9. » Pres. Churcb v. McElhinney, 61 Mo. 540 ; Purvis v. Sherrod, 12 Tex. 140-160 ; Wade v. Am. Col. See., 7 Smedes & M. (Miss.) 663, 45 Am. Dec. 324. § 106) CONSTRUCTION OF WILLS 283 been placed under the control of the probate court as to all the ordinary duties of his office. The subject of the appeal to equity for the con- struction of a will naturally divides itself into two branches : First: The right of executors or testamentary trustees to come into equity. Second: The right of devisees, heirs or others to invoke the chancery jurisdiction. § 106. At the instance of testamentary trustees and executors As to testamentary trustees and executors the rule is very liberal. It is a principle of equity that trustees may always ask the advice and discretion of that court in construing the trust instrument, in determining the nature and extent of the powers conferred, and, so far as concerns the trustee's du- ties, the interests of the respective beneficiaries. Executors whose duties extend beyond the formal settlement of the estate are within this principle whether they are technically trustees or not." Thus if the will creates a trust, which is imposed either on the executor or other trustees, and the terms of the trust are uncertain, or its validity is uncertain, or the powers intended to be conferred 10 Rosenberg v. Frank, 58 Cal. 387; WiUlams v. Williams, 73 Cal. 99, 14 Pac. 394; Bank v. Harrison, 68 Ga. 463; Gaines v. Gaines, 116 Ga. 476, 42 S. E. 763 ; Crossley v. Leslie,, 130 Ga. 782, 61 S. B. 851, 14 Ann. Gas. 703 ; Durham v. Harris, 134 Ga. 134, 67 S. E. 668 ; Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, 5 Ann. Gas. 191. 284 WILLS AND ADMINISTRATION OP ESTATES (Ch. 8 are of doubtful import, in either of these cases the trustees named, whether they be the executors or others, have the same right as other trustees to come into a court of equity to have the trust con- strued. This they may do for their own protection before they take the responsibility of acting under it; " executors having funds in their hands claimed by different persons may ask the direction of a court of equity as to the disposition thereof; they are treated as trustees/^ But where the directions of the will are plain and distribution can be made by the probate court, an appeal to equity should not be made/" iiMersman v. Mersman, 136 Mo. 244, 37 S. W. 909; Goldtree v. Thompson, 83 Cal. 420, 23 Pac. 383 ; Crosby v. Mason, 32 Conn. 482 ; Hughes V. Fitzgerald, 78 Conn. 4, 60 Atl. 694 ; Williamson v. Grider, 97 Ark. 588, 135 S. W. 361 ; Sellers v. Sellers, 35 Ala. 235 ; Clay v. Gurley, 62 Ala. 14; Kandle v. Carter, 62 Ala. 95; Moore v. Ran- dolph, 70 Ala. 575 ; Bragg v. Beers, 71 Ala. 151 ; Carroll v. Rich- ardson, 87 Ala. 605, 6 South. 342 ; Booe v. A^inson, 104 Ark. 439, 149 S. W. 524. 12 Hayden v. Marmaduke, 19 Mo. 403; Bredell v. Collier, 40 Mo. 287; Spurlock v. Burnett, 170 Mo. 372, 70 S. W. 870; Waters v. Herboth, 178 Mo. 166, 77 S. W. 305 ; Graham v. Allison, 24 Mo. App. 516; Tompkins y. Troy, 130 Ala. 555, 30 South. 512; Carroll v. Richardson, 87 Ala. 605, 6 South. 342; Russell v. Eubanks, 84 Mo. 83; Briant v. Garrison, 150 Mo. 659, 52 S. W. 361; Records v. Fields, 155 Mo. 314, 55 S. W. 1021 ; Purvis v. Sherrod, 12 Tex. 140- 160 ; Wade v. Am. Col. Soc, 7 Smedes & M. (Miss.) 663, 45 Am. Dec. 324. 13 "It is only in cases where a trust is involved or vyhere the duty of an executor, administrator or other trustee is of an uncertain na- ture, requiring the guidance or direction of the court, that the court can be called upon merely to give its opinion as to the true con- struction of a will. Corry v. Fleming, 29 Ohio St. 149; Kennedy v. Merrick, 46 Neb. 260-263, 64 N. W. 960. § 107) CONSTRUCTION OP WILLS 285 § 107. At the instance of heirs, devisees and others The right of heirs, devisees, and others to invoke the aid of equity is not so broad. In general it is necessary for the complainant to bring himself within some of the recognized heads of equity juris- diction. He must show the existence of a trust, or ' an alleged trust, or some other equitable right or title before equity will construe the will at his in- stance. He has no such official standing before that court as the executor." In some states the right to appeal to the original chancery powers in the settlement of estates still exists where the probate court has not acted.'' But in most states the powers of the probate tribunal over the ordinary settlement and distribution of an estate are plenary, and the appeal to equity in mat- ters which could be disposed of in the probate court 14 Belfleld v. Booth, 63 Conn. 299, 27 Atl. 5S5 ; Evins v. Cawthon, 132 Ala. 184, 188, 31 South. 441 ; Lake View M. & M. Co. v. Hannon, 93 Ala. 88, 9 Sonth. 5.39 : Brant v. Brant, 40 Mo. 266 ; Bank v. Cham- bers, 96 Mo. 467, 10 S. W. 38 ; • First Baptist Church v. Robherson, 71 Mo. 327 ; Hamer v. Cook, 118 Mo. 489, 24 S. W. 180 ; Graham v. Al- lison, 24 Mo. App. 516; French v. Mastin, 19 Mo. App. 614; Lich V. Lich, 158 Mo. App. 400, 138 S. W. 558 ; St. James O. A. v. Shelby, 75 Neb. 591, 106 S. W. 604 ; Hawes v. Foote, 64 Tex. 22 ; TJ. S. v. Gillespie (C. 0.) 9 Fed. 74; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004. Equity has jurisdiction of suit by remainderman to declare life estate terminated, under California code. In re De Leon, 102 Cal. 537, 36 Pac. 864. 15 Clarke v. Perry, 5 Cal. 60, 63 Am. Dec. 82; Sanford v. Head, 5 CsLl. 298. 286 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 is discouraged or denied." Equity will not enter- tain jurisdiction of a bill brought solely to construe a will which disposes of legal estates only, and which makes no attempt to create any trust rela- tions with respect to the property devised." 16 Act of Congress gives to probate courts exclusive original juris- diction of all matters pertaining to settlement of estates. But dis- trict courts may take cognizance of equitable suits for construction of wills. But when will is construed it is left to the probate court to execute, and district court will not proceed with administration. Allen V. Barnes, 5 Utah, 100, 12 Pac. 912. 17 Frank v. Frank, 88 Ark. 1, 113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. Rep. 73 ; Head v. Phillips, 70 Ark. 432, 68 S. W. 878 ; Jordan v. O'Brien, 33 App. D. C. 189; Hasler v. Williams, 34 App. D. C. 319. Where no trust is created neither the executor, nor the heirs or devisees, who claim only a legal title in the estate, will be permit- ted to come into a court of equity for the purpose of obtaining a construction of the will. Where only purely legal titles are in- volved equity will not assume jurisdiction to declare such legal titles, but will remit the parties to their remedy at law. Andersen v. An- dersen, 69 Neb. 565, 96 N. W. 276 ; Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, 5 Ann. Oas. 191; Kennedy v. Merrick, 46 Neb. 260, 64 N. W. 960. Contra: The district court has jurisdiction of a suit brought to ob- tain a construction of a will, irrespective of the existence of a trust, and wherein there is no prayer for any other relief. Orosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929 ; Thomas v. Matthews, 51 Tex. Civ. App. 304, 112 S. W. 120. The validity of a note held by the testator cannot be determined in a suit to construe his will. Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219. § 108) CONSTRUCTION OP WILLS 287 § 108. Proper and necessary parties Where equity entertains a bill to construe a will, or to establish or enforce any rights under it the usual rule applies that all parties in interest or whose rights will be affected by the decree must be made parties/* This is to the end that complete equity may be done. The court will not determine the interest of any person not made a party." The executor or administrator should always be made a party until the estate has been settled and the property distributed.^" If the executors are also legatees they should be made parties in both their official and their individual capacities. °^ If the action relates only to the rights of particular lega- tees in a particular part of the estate legatees not interested in that particular fund or property need not be joined. In many cases the executors represent sufficiently the estate and the general and residuary legatees. ^^ 18 Rockwell V. Bradsliaw, 67 Conn. 8, 34 Atl. 758. Construction of will in equity to giv^ complete relief when jurisdiction is taken. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. E. A. (N. S.) 782. Insufficient petition for construction of will. Pitts v. Burdick, 91 Neb. 123, 135 N. W. 372. Persons having no interest cannot ask construction of will. Fos- ter V. Hardee, 135 Ga. 591, 69 S. E. 1110. 18 Barnes v. Kelly, 71 Conn. 220, 41 Atl. 772. 20 Bussell V. Hartley, 83 Conn. 654, 78 Atl. 320. 21 Cunningham v. Cunningham, 72 Conn. 254, 43 Atl. 1046. 22 Martha Washington's will. Dandridge v. Washington, 2 Pet. 370, 7 L. Ed. 454. On a bill filed by a beneficiary under one of the trusts of the will 288 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 Where the executor is joined solely in his ca- pacity as executor, whether he be complainant or defendant, he should scrupulously maintain the at- titude of impartiality between the heirs, devisees or other parties in interest. His sole duty is to represent the estate. He should not take sides be- tween the claimants,'' nor against the validity of the will,'* and he has no personal interest that will entitle him to appeal from the decision of the court.'' § 109. Various principles governing construction by equity The unsuccessful contest of the will does not estop a legatee from claiming his interest,'" nor does an agreement not to contest a will preclude a construction of its terms." In fact to ask to have a will construed is not claiming against the will, the court will not pass on the other trusts not Involved. Landram V. Jordan, 25 App. D. C. 291. 2 3 Goldtree v. Thompson, 83 Cal. 420, 23 Pac. 383. In a suit for the construction of wills counsel who appear for the executor or trustee ought not to appear and act for legatees and dev- isees under the will ; sound policy forbids such a practice. Smith v. Jordan, 77 Conn. 469, 59 Atl. 507. The executor cannot maintain a suit to determine the exact estate ' a devisee took, after the estate has been fully settled and distributed. Miles V. Strong, 60 Conn. 398, 22 Atl. 959. 2 4 Belfield V. Booth, 63 Conn. 299, 27 Atl. 585. 2 5 Earth V. Kichter, 12 Colo. App. 365, 55 Pac. 610; Virden v. Hubbard, 37 Colo. 37, 86 Pac. 113. 2 6 Guthrie v. Wheeler, 51 Conn. 207-212. 27 Robbins v. Co. Com'rs, 50 Colo. 610, 115 Pac. 526. § 109) CONSTRtrCTION OF WILLS 289 but is recognizing its validity as a probated instru- ment.^' Courts of one state will not construe a will so far as it relates to lands in another state/" nor are they bound by the construction of the courts of another state, even that of the testator's domicile, involv- ing lands in the former state/" It is a general rule that what a court cannot en- force it cannot decree. The court is not bound to answer questions which are premature or based on contingencies that may never occur," nor give advice as to property which forms no part of the trust estate,^' under the gen- 28 Beerman v. De Give, 112 Ga. 614, 37 S. E. 883 ; Emmons v. Gar- nett, 18 D. 0. 52. 2 9 Harmon v. Harmon, 80 Conn. 44, 66 Atl. 771. A suit to determine the construction of a will and the disposition of a trust fund created thereby is properly brought in the county of the testator's domicile and where the will is probated, though none of the parties reside there and the trust fund has been converted into realty in another state. Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33. 30 Clark's Appeal, 70 Conn. 195, 39 Atl. 155 ; Coveney v. Conlin, 20 App. D. C. 303-330 ; Handley v. Palmer (C. C.) 91 Fed. 948 ; Bank V. Harrison, 68 Ga. 463. It is a general rule that a will of personal property must be con- strued according to the law of the testator's domicile, and not the domicile of the legatees ; but under the Kansas statute the interpre- tation of foreign wUls, even of land, must be according to the law of the testator's domicile. In re Estate of Eiesenberg, 116 Mo. App. 313, 90 S. W. 1170 ; Keith v. Eaton, 58 Kan. 732, 51 Pac. 271. 31 Smith V. Jordan, 77 Conn. 469, 59 Atl. 507; Russell v. Hartley, 83 Conn. 654, 78 Atl. 320 ; Lich v. Lich, 158 Mo. App. 400, 138 S. W. 558. 32 Morton Tr. Co. v. Chittenden, 81 Conn. 105, 70 Atl. 648. BoBL. Wills — 19 29Q WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 eral rule that equity will not entertain a suit unless it is necessary to preserve some right/' Equity has no jurisdiction to reform a will/* The construction of a will like that of a contract in writing is always a question of law/° and the de- cision of the trial court is not binding on the ap- pellate tribunal." The limitation by statute for contesting a will does not apply to a suit for construction/'^ The construction of a will is res adjudicata as to all parties before the court/^ and the doctrine of 3 3 Clark V. Carter, 200 Mo. 515, 98 S. W. 594. Conceding tlie jurisdiction of equity to construe will on proper ac- tion by executors it is not bound to do so, .and should not except in a case where there is some special reason for seeking its interposition other than a mere desire to obtain the opinion of a court of equity as to the proper coiistructi9n of the will. Siddall v. Harrison, 73 Cal. 560, 15 Pac. 130. 3 4 Oliver v. Henderson, 121 Ga. 836-839, 49 S. E. 743, 104 Am. St Kep. 185 ; Crawley v. Kendrick, 122 Ga. 183-188, 50 S. B. 41, 2 Ann. Cas. 643. 3oBruck V. Tucker, 42 Cal. 346; Summerhill v. Hanner, 72 Tex. 224, 9 S. W. 881 ; Shepherd v. White, 11 Tex. 346-858 ; Cox v. Weems, 64 Ga. 165; Philips v. Ciews, 65 Ga. 274. 30 Estate of Blake, 157 Cal. 448, 108 Pac. 287; Preston v. Poster, 75 Conn. 709, 55 Atl. 558 ; Lich v. Lich, 158 Mo. App. 400, 138 S. W. 558 ; Estate of Donnellan, 164 Cal. 14, 127 Pac. 166. sTRobbins v. Co. Com'rs, 50 Colo. 610, 115 Pac. 526; Tincher v. Arnold, 147 Fed. 665, 77 C. C. A. 649, 7 L.. R. A. (N. S.) 471, 8 Ann. Cas. 917. 3 8 Jewell V. Pierce, 120 Cal. 79, .52 Pac. 132; Metz v. Wright, 116 Mo. App. 631, 92 S. W. 1125; Lowe v. Holder, 106 Ga. 879, 33 S. B.30. § 110) CONSTRUCTION OF WILLS 291 stare decisis applies to future constructions of the same will/" An allowance of costs and expenses against the estate in a suit for construction is within the discre- tion of the court/" § 110. In an action at law The original, and in fact, the only method under common law practice to construe a will devising legal titles to real property was an action of eject- ment. This also was the only way, at common law, of determining the validity of the will as a tes- tamentary instrument. Under the American prac- tice the enlarged powers of the probate courts to admit to probate wills of lands has superseded the use of the action of ejectment to determine the validity of such will. It is still useful, however, as a method of construing the meaning of wills dis- posing of legal titles only.*^ The action of replevin serves the same purpose as to the title to personal 39 Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70 ; Allen v. Dayies, 85 Conn. 172, 82 Atl. 189 ; Coombs v. O'Neal, 1 MacArthur (8 D. C.) 405. *o Simon's Will, 55 Conn. 239, 11 Atl. 36; Horton v. Upham, 72 Conn. 29, 43 Atl. 492 ; Albert v. Sanford, 201 Mo. 117, 99 S. W. 1068 ; Hurst V. Weaver, 75 Kan. 758-763, 90 Pac. 297 ; SmuUin v. Wharton, 83 Neb. 328, 119 N. W. 773, 121 N. W. 441. The heir who unsuccessfully attacks a charitable trust is not entitled to have his costs and attorney fees charged against the estate. Tinch- er V. Arnold, 147 Fed. 665, 77 C. C. A. 649, 7 L. R. A. (N. S.) 471, 8 Ann. Cas. 917. See, also, Simmons v. Hubbard, 50 Conn. 574 ; Hinck- ley V. Stebblns, 3 Cal. Unrep. Cas. 478, 29 Pac. 52. 41 Austin V. Chambers, 33 Okl. 40, 124 Pac. 310. 292 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 property.*'' In many states statutory actions to try title have proven so simple and effective that they have superseded the cumbrous common law ac- tions." § HI. By the federal courts We have seen that the probate of a will presents no federal question. Neither does the construction of a will, as the whole subject of the devolution of property on the death of the owner is within the re- served powers of the states. But the federal courts have, in addition to their federal powers, a juris- diction over all actions at law or in equity between citizens of different states. Under this branch of their jurisdiction they have frequent occasion to construe wills. As courts of equity they will en- tertain a bill, or a suit may be removed from the state court, if the necessary diverse citizenship ex- *2 Gaines v. Carriker, 50 Mo. 564 ; Mead v. Jennings, 46 Mo. 91 ; Small V. Field, 102 Mo. 104, 14 S. W. 815; Dugans v. Livingston,. 15 Mo. 230 ; CreceUus v. Horst, 78 Mo. 566, affirming s. c, 9 Mo. App. 51 ; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288 ; Preston v. Brant, 96 Mo. 552, 10 S. W. 78 ; Cross v. Hocli, 149 Mo. 325, 50 S. W. 786. The district court has original jurisdiction, where the plaintiff's claim involves the construction of a -will, as a suit against the execu- tor for personal property and damages for its detention. Howze v. Howze, 14 Tex. 232. 43 Simmons v. Cabanne, 177 Mo. 345, 76 S. W. 618; Mueller v. Buenger, 184 Mo. 460, 83 S. W. 458, 67 L. R. A. 648, 105 Am. St. Rep. 541 ; McMahan v. Hubbard, 217 Mo. 624, 118 S. W. 481. ■ Suit for construction of will or to try title thereunder should not proceed until will contest is determined. State ex rel. v. McQuillin, 246 Mo. 517, 152 S. W. 347. § 111) CONSTRUCTION OF WILLS 293 ists, whether the suit be by an executor or admin- istrator with the will annexed for directions in car- rying out the will," or by a beneficiary against tes- tamentary trustees/' As courts of law, the federal courts may, where the necessary diversity of cit- izenship exists take jurisdiction, either by original action or by removal from the state court of any action to try title or recover real or personal prop- erty that would lie in the state court. The courts of the United States treat their jurisdiction in these matters as substitutionary in a sense, for the state jurisdiction. They insist that the execution, validi- ty and probate of the will be established under the state law.^" If the will has been construed by the highest court of the state the federal court will follow such construction.*'^ It will follow also the ** Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396 ; Toms v. Owen (C. C.) 52 Fed. 417 ; Wood v. Paine (C. C.) 66 Fed. 807 (R. I.). *6 Parsons v. Lyman, 32 Conn. 566, Fed. Cas. No. 10,780. 48 Toms V. Owen (C. 0.) 52 Fed. 417. *7 Barker v. Eastman (C. C.) 192 Fed. 659, following Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900, 28 L. R. A. 328. Contra: Lane v. Vick, 3 How. 464, 11 L. Ed. 681. Where the circuit court of appeals has before it in the second trial of the same case a will previously construed by it, and meanwhile the highest court of the state in which the real estate affected is situated has construed the will differently, the circuit court of appeals is not bound to adhere to its previous decision as being the law of the case. It may follow, and in such case should lean toward, an agreement, with the state court. Messinger v. Anderson, 225 U. S. 436, 32 Sup. Ct 739, 56 L. Ed. 1152 (171 Fed. 785, 96 0. C. A. 445, reversed ; 146 Fed. 929, 77 C. C. A. 179, 7 L. R. A. [N. S.] 1094, reversed) ; Anderson V. United Realty Co., 79 Ohio St. 23, 86 N. E. 644 ; s. c, 222 U. S. 164, 32 Sup. Ct 50, 56 L. Ed. 144, followed. 294 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 State construction of local statutes " and the rules of real property as applied by the state tribunals in like cases.*' Canons of Construction §112. Words and phrases A will is of all instruments the most informal and the least bound by technical rules of construction. We have seen that no set form of words or phrases is necessary in a will ; nor are there any established or generally received forms, construed and settled by a long line of precedents, as is the case in deeds. The cardinal rule in the construction of wills is that the intention of the testator must control where it is not in conflict with any statute or posi- tive rule of law. This intention the courts seek out and try to enforce even though the testator may have disregarded all technical forms of expression and clothed his meaning in informal, obscure or even incorrect language. Great indulgence is shown to the testator in not allowing his intentions to be defeated by lack of skill in expressing them. As is well said in a late case : In construing wills, courts must not lose sight of the fact that unlike contracts they spring from the better part of hu- man nature, and in order to be construed in a natural manner, they must be construed in a way that best accords with what 48 Tocum V. Parker, 134 Fed. 205, 67 C. G. A. 227. 49 Warring v. Jackson, 1 Pet. 570, 7 L. Ed. 266 ; Myrick v. Heard (O. C.) 31 Fed. 241 ; De Vaughn v. Hutchinson, 165 U. S. 566, 17 Sup. Ct. 461, 41 L. Ed. 827. § 112) CONSTRUCTION OF WILLS 295 the heart of the testator would dictate, if left unfettered by technical rules."" The intention of the testator has been described as the guiding principle — the pole star — of con- struction of wills. For this reason the number of ladjudged cases in which wills have been construed is very large, and it has often been said that it is impossible to extract from them any definite set of rules that will serve as a guide in all cases. Very little aid can be procured from adjudged cases in the construction of wills, except for the establish- ment of general principles. It seldom happens that two cases can be found precisely alike." .There are some rules of construction which are fairly well settled, however, and some that have been enacted by statute." 00 Small V. Field, 102 Mo. 104, 14 S. W. 815; Hey wood's Estate, 148 Cal. 184, 82 Pae. 755 ; Wood's Estate, 36 Cal. 75 ; Welch v. Huse, 49 Cal. 507; Atkins v. Best, 27 App. D. C. 148; Griffith v. Witten, 252 Mo. 627, 161 S. W. 708 ; Estate of Goetz, 13 Oal. App. 266, 109 Pae. 105 ; Estate of Goetz, 13 Cal. App. 292, 109 Pae. 492 ; Bell Co. v. Alex- ander, 22 Tex. 350, 73 Am. Dec. 268. 51 Rosenberg v. Frank, 58 Cal. 387; Estate of Henderson, 161 Cal. 353, 119 Pae. 496 ; Russell v. Hartley, 83 Conn. 654, 78 Atl. 320 ; Hart- ford Tr. Co. V. Wolcott, 85 Conn. 134, 81 Atl. 1057 ; Cook v. Weaver, 12 Ga. 47 ; Olmstead v. Dunn, 72 Ga. 850. 52 Rules of Construction listed. Cox v. Jones, 229 Mo. 53-^2, 129 S. W. 495. Statutory rules of construction. Craig v. Ambrose, 80 Ga. 134^136, 4 S. E. 1 ; Estate of Goetz, 13 Cal. App. 266, 109 Pae. 105 ; Estate of Goetz, 13 Cal. App. 292, 109 Pae. 492 ; In re Poppleton's Estate, 34 Utah, 285, 97 Pae. 138, 131 Am. St. Rep. 842. 296 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 First: The intention of the testator must prevail, unless contrary to some positive rule of law."^ 63 Johnson v. Wash. D. & E. Co., 33 App. D. O. 242-, Frosch v. Monday, 34 App. D. 0. 338 ; Lines v. Darden, 5 Fla. 51 ; Wetter v. D. H. C. P. Co., 75 Ga. 540 ; Weed v. Knorr, 77 Ga. 636, 1 S. E. 167 ; Bur- net V. Burnet, 244 Mo. 491, 148 S. W. 872 ; Hill v. Hill, 90 Neb. 43, 132 N. W. 738, 38 L. R. A. (N. S.) 198 ; Griffin v. Morgan (D. C.) 208 Fed. 660 (Vt.) ; University of Colorado v. Wilson, 54 Colo. 510, 131 Pac. 422 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524 ; Heywood v. Heywood, 92 Neb. 72, 137 N. W. 984; Marion v. Williams, 20 D. C. 20; Philleo V. HoUiday, 24 Tex. 38 ; Brooks v. Evetts, 33 Tex. 732 ; Laval V. StafEel, 64 Tex. 370 ; McCulloch v. Valentine, 24 Neb. 215, 38 N. W. 854; Sanger v. Butler, 45 Tex. Civ. App. 527, 101 S. W. 459; Bredell v. Collier, 40 Mo. 321 ; Mead v. Jennings, 46 Mo. 91 ; Turner V. Timberlake, 53 Mo. 375 ; Gaines v. Fender, 57 Mo. 346 ; Carr v. Dings, 58 Mo. 406 ; Smith v. Hutchinson, 61 Mo. 87 ; Allison v. Chan- ey, 63 Mo. 279 ; Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178 ; Redman V. Barger, 118 Mo. 568, 24 S. W. 177 ; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786 ; Briant v. Garrison, 150 Mo. 655, 52 S. W. 361 ; Hurst v. Von de Veld, 158 Mo. 246, 58 S. W. 1056 ; Tocum v. Siler, 160 Mo. 281, 61 S. W. 208 ; Wendler v. Lambeth, 163 Mo. 428, 63 S. W. 684 ; Garth v. Garth, 139 Mo. 456, 41 S. W. 238 ; Harbison v. Swan, 58 Mo. 147 ; Russell v. Bubanks, 84 Mo. 82 ; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288 ; Brown v. Rogers, 125 Mo. 392, 28 S. W. 630 ; Briant V. Garrison, 150 Mo. 655, 52 S. W. 361 ; Lemmons v. Reynolds, 170 Mo. 227, 71 S. W. 135; Peugnet v. Berthold, 183 Mo. 61, 81 S. W. 874 ; Bilger v. Nunan, 199 Fed. 549, 118 C. C. A. 23 ; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct 1164, 32 L. Ed. 138; Smith v. Bell, 6 Pet 68, 8 L. Ed. 322 ; Inglis v. Sailor's Snug Harbor, 3 Pet. 99, 7 L. Ed. 617 ; Hardenbergh v. Ray, 151 U. S. 112, 14 Sup. Ct. 305, 38 L. Ed. 93 ; Home for Incurables y. Noble, 172 U. S. 383, 19 Sup. Ct 226, 43 L. Ed. 486 ; Adams v. Cowen, 177 U. S. 471, 20 Sup. Ct 668, 44 L. Ed. 851 ; Travers V. Relnhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865 ; Ruston V. Ruston, 2 Dall. (Pa.) 243, 1 L. Ed. 365 ; Finlay v. King, 3 Pet 346, 7 L. Ed. 701 ; Robison v. Female Orphan Asylum, 123 U. S. 702, 8 Sup. Ct 327, 31 L. Ed. 293 ; Coltman v. Moore, 1 MacArthur (D. C.) 197; Earnshaw v. Daly, 1 App. D. C. 218; De Vaughn v. De Vaughn, 3 App. D. C. 50; Holcomb v. Wright, 5 App. D. C. 76; Bradford v. Matthews, 9 App. D. C. 438; Montgomery v. Brown, 25 App. D. § 112) CONSTRUCTION OF WILLS 297 Second : Where the intention cannot have effect to its full extent it must have effect as far as possible." C. 490 ; Cruit v. Owen, 25 App. D. C. 514 ; Alford v. Alford, 56 Ala. 350 ; Wolflee v. Loeb, 98 Ala. 426, 13 South. 744 ; Campbell v. Weak- ley, 121 Ala. 64, 25 South. 694 ; Smith v. Smith, 157 Ala. 79, 47 South. 220, 25 L. R. A. (N. S.) 1045 ; Campbell v. Campbell, 13 Ark. 513 ; Cockrill V. Armstrong, 31 Ark. 580 ; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404 ; Parker v. Wilson, 98 Ark. 553, 136 S. W. 981 ; In re Stewart, 74 Cal. 101, 15 Pac. 445 ; Whitcomb's Estate, 86 Cal. 273, 24 Pac. 1028; KaufEman v. Gries, 141 Cal. 299, 74 Pac. 846; Willey's Estate, 128 Cal. 1, 56 Pac. 550 ; Estate of Barclay, 152 Cal. 753, 93 Pac. 1012; Piatt v. Brannan, 34 Colo. 125, 81 Pac. 755, 114 Am. St. Rep. 147 ; Cowell v. So. Denver R. B. Co., 16 Colo. App. 108, 63 Pac. 991 ; Williams v. Dickerson, 2 Root (Conn.) 194, 1 Am. Dec. 66 ; Everts V. Chittendon, 2 Day (Conn.) 350, 2 Am. Dec. 97 ; Couch v. Gorham, 1 Conn. 39 ; Greene v. Dennis, 6 Conn. 299, 16 Am. Dec. 58 ; Allyn v. Mather, 9 Conn. 125 ; Matthewson v. Saunders, 11 Conn. 149 ; Russell V. Hartley, 83 Conn. 654, 78 Atl. 320 ; Pease v." Cornell, 84 Conn. 391, 80 Atl. 86; Doe ex dem. Patton v. Dillon, 1 Mar. (Del.) 232, 40 Atl. 1106. However unjust it may appear. Garth v. Garth, 139 Mo. 456, 41 S. W. 238 ; Dameron v. Lanyon, 234 Mo. 627-646, 138 S. W. 1. Contrary to rules of law. Hertz v. Abrahams, 110 Ga. 707, 36 S. E. 409, 50 L. R. A. 361 ; Lester v. Stephens, 113 Ga. 495-499, 39 S. E. 109. "The intention of the testator shall govern the construction of a will in all eases, except where the rule of law overrules the inten- tion, and this is reducible to four instances : (1) Where the devise would make a perpetuity ; (2) where it would put the freehold in abeyance ; (3) where chattels are limited as inheritances ; (4) where a fee is Umited on a fee." Ruston v. Ruston, 2 Dall. (Pa.) 243, 1 L. Ed. 365. This is far from being accurate in its enumeration. The last two would be sustained as executory devises. There are many instances omitted where the devise is contrary to law. B* McOlellan v. Weaver, 4 Cal. App. 593, 88 Pac. 646 ; Rhoton v. Blevin, 99 Cal. 645, 34 Pac. 513. Chancellor has power to decree an approximation to the plans of the testator, where literal performance of the will becomes impossi- ble. Blake v. Black, 84 Ga. 392, 11 S. E. 494; Southern Marble Co. 298 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 Third: The intention must be gathered from the whole will and not from detached portions thereof." V. Stegall, 90 Ga. 236, 15 S. E. 806 ; Title Guar. Co. v. Holverson, 95 Ga. 707-711, 22 S. E. 533 ; Harvey v. Miller, 95 Ga. 766-769, 22 S. E. 668 ; Beavers v. Harvey, 102 Ga. 184, 29 S. E. 163. 6 5 Erwin v. Henry, 5 Mo. 469; Norcum v. D'Oench, 17 Mo. 98; Chiles V. Bartleson, 21 Mo. 346 ; Carr v. Dings, 58 Mo. 406 ; Allison V. Ohaney, 63 Mo. 279 ; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288 ; Munro v. Collins, 95 Mo. 37, 7 S. W. 461 ; Preston v. Brant, 96 Mo. 552, 10 S. W. 78 ; Chew v. Keller, 100 Mo. 362, 13 S. W. 395; Lewis V. Pitman, 101 Mo. 281, 14 S. W. 52 ; Nichols v. Boswell, 103 Mo. 151, 15 S. W. 343 ; Rlngquist v. Young, 112 Mo. 25, 20 S. W. 159 ; McMillan v. Farrow, 141 Mo. 62, 41 S. W. 890 ; Thomas v. Thomas, 149 Mo. 435, 51 S. W. Ill, 73 Am. St. Rep. 405; Brooks v. Brooks, 187 Mo. 476, 86 S. W. 158; Grace v. Perry, 197 Mo. 550, 95 S. W. 875, 7 Ann. Cas. 948 ; McGraw v. McGraw, 176 Fed. 312, 99 C. C. A. 650; Parker v. Wilson, 98 Ark. 553, 136 Pac. 981; Heywood's Es- tate, 148 Cal. 184, 82 Pac. 755 ; Estate of Peabody, 154 Cal. 173, 97 Pac. 184; Estate of Koch, 8 Cal. App. 90, 96 Pac. 100; White v. White, 52 Conn. 518; Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061; Plant V. Plant, 80 Conn. 673, 70 Atl. 52 ; Robinson v. Adams, 4 DaU. (Del.) App. xii, 1 L. Ed. 920 ; Lane v. Vick, 3 How. 464, 472, 11 L. Ed. 681 ; Hitch v. Patten, 8 Houst. (Del.) 334, 16 Atl. 558, 2 L. B. A. 724 ; Bacon v. Nichols, 47 Colo. 31, 105 Pac. 1082 ; Foxall v. Mc- Kenney, 3 Cranch, C. C. 206-208, Fed. Cas. No. 5,016; Robert v. West, 15 Ga. 122; Cook v. Weaver, 12 Ga. 47; Brown v. Weaver, 28 Ga. 377 ; Philips v. Crews, 65 Ga. 274 ; Rogers v. Highnote, 126 Ga. 740, 56 S. E. 93; Lines v. Darden, 5 Fla. 51; Russ v. Russ, 9 Fla. 105; St. John's Mite Ass'n v. Buckly, 16 D. C. 406 ; Montgomery v. Brown, 25 App. D. C. 490 ; Cruit v. Owen, 25 App. D. O. 514 ; Armor v. Frey, 226 Mo. 646, 126 S. W. 483 ; Dameron v. Lanyon, 234 Mo. 627, 138 S. W. 1; Threlkeld v. Threlkeld, 238 Mo. 459, 141 S. W. 1121; Cornet V. Cornet, 248 Mo. 184, 154 S. W. 121; Heaton v. Dickson, 153 Mo. App. 312, 133 S. W. 159 ; In re Estate of Buerstetta, 83 Neb. 287, 119 S. W. 469; Fauber v. Keim, 85 Neb. 217, 122 N. W. 849; Sims v. Brown, 252 Mo. 58, 158 S. W. 624 ; Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122; Chick v. Ives, 2 Neb. Unof. 879, 90 N. W. 751; Jones V. Hudson, 93 Neb. 561, 141 N. W. 141, 44 L. R. A. (N. S.) 1182 ; Mc- Murry v. Stanley, 69 Tex. 227, 6 S. W. 412 ; Yeatman v. Haney, 79 § 112) CONSTEUCTION OF WILLS 299 Though two parts of a will are seemingly inconsist- ent, if both may stand, they should be allowed to do so, rather than that any part should perish by con- struction.'' A will and its codicils are to be construed together,"' Tex. 67, 14 S. W. 1045 ; Cleveland v. Cleveland, 89 Tex. 445, 35 S. W. 145 ; Clark v. Cattron, 23 Tex. Civ. App. 51, 56 S. W. 99 ; Arling- ton State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303; In re Popple- ton's Estate, 34 Utah, 285, 97 Pae. 138, 131 Am. St. Rep. 842. But independent devises and clauses must be construed separately. Boston S. D. Co. V. Sticb, 61 Kan. 474, 59 Pac. 1082. 5 8 Varnon v. Varnon, 67 Mo. App. 534; Mersman v. Mersman, 136 Mo. 257, 37 S. W. 909 ; Estate of Kobinson, 159 Cal. 608, 115 Pac. 49 ; Rhoton V. Blevin, 99 Cal. 645, 34 Pac. 513 ; Thornton v. Britton (C. ■C.) 8 Fed. 308 ; Britton v. Thornton, 112 TJ. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816; McGraw v. MeGraw, 176 Fed. 312, 99 C. C. A. 650; Al- friend v. Fox, 124 Ga. 563-565, 52 S. E. 925; Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122; In re Estate of Creighton, 91 Neb. 654, 136 X. W. 1001, Ann. Cas. 1913D, 128 ; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412 ; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742 ; Fisher V. Fisher, 80 Neb. 145, 113 N. W. 1004; Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047 ; Martley v. Mart- ley, 77 Neb. 163, 108 N. W. 979. Construction which harmonizes with other provisions of will pre- ferred. John li Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458 (H. T.). Alternative provisions. Tyler v. Thellig, 124 Ga. 204, 52 S. E. 606. 67 Boyd V. Boyd (C. 0.) 2 Fed. 138 ; In re Zeile, 74 Cal. 125-137, 15 Pac. 455 ; De Laveaga's Estate, 119 Cal. 651, 51 Pac. 1074 ; Estate of Barclay, 152 Cal. 753, 93 Pac. 1012; Estate of Koch, 8 Cal. App. 90, «6 Pac. 100; Estate of Cross, 163 Cal. 778, 127 Pac. 70; Bringhurst V. Orth, 7 Del. Ch. 178, 44 Atl. 783 ; Wells v. Fuchs, 226 Mo. 97, 125 S. W. 1137; Marfield v. McMurdy, 25 App. D. C. 342; Atwood v. Geiger, 69 Ga. 498 ; McClelland v. Rose, 208 Fed. 503, 125 C. C. A. 505 (Tex.) ; Pardee v. Kuster, 15 Wyo. 368, 89 Pac. 572, 91 Pac. 836; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391 ; Van Cortlandt v. Kip, 1 HUl (N. Y.) 590 ; Brimmer v. Sohier, 1 Cush. (Mass.) 118 ; NefC's Appeal, 48 Pa. 501 ; Snowhill v. ^owhill, 23 N. J. Law, 447. 300 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 the codicil controlling only to the extent necessary to give effect to its provisions/* The courts will, as far as possible, avoid construing isolated words and phrases in a will; for the reason that even ordinary words are much clearer when con- sidered in the light of the context. As to unusual and technical words, the context often reveals that the tes- tator has used them incorrectly. Fourth: All else being equal, the last of two con- flicting clauses will prevail.^' This is a very artificial rule and is only applied as a last resort."" Fifth : That construction will be preferred that will accomplish the purpose of the testator. °^ Sixth : If two modes of construction are fairly open, under one of which a bequest would be illegal while 5 8Higgins V. Eaton (C. C.) 188 Fed. 938; Ladd's Estate, 94 Cal. 670, 30 Pac. 99; Scott's Estate, 141 Cal., 487, 75 Pac. 44; Security Co. V. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107; Shey's Appeal, 73 Conn. 122, 46 Atl. 832; Pardee v. Kuster, 15 Wyo. 368, 89 Pac. 572, 91 Pac. 836. 5 9 Hitchcock's Case, 7 Ala. 386; Flinn v. Davis, 18 Ala. 132; Mil- ler V. Flournoy, 26 Ala. 724; Griffin v. Pringle, 56 Ala. 486; Chap- pel V. Avery, 6 Conn. 34 ; Minor v. Ferris, 22 Conn. 378 ; West v. Handle, 79 Ga. 28, 3 S. E. 454 ; Robert v. West, 15 Ga. 122 ; Philips V. Crews, 65 Ga. 274 ; Rogers v. Highnote, 126 Ga. 740, 56 S. E. 93 Martley v. Martley, 77 Neb. 163, 108 N. W. 979. 60 Cox V. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102 Bacon v. Nichols, 47 Colo. 31, 105 Pac. 1082. siBarr v. Weaver, 132 Ala. 212, 31 South. 488; Garth v. Garth, 139 Mo. 456, 41 S. W. 238; Ro Bards v. Brown, 167 Mo. 457, 67 S. W. 245; Waters v. Hatch, 181 Mo. 288, 79 S. W. 916; Toland v. Toland, 123 Cal. 140, 55 Pac. 681 ; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86. § 112) CONSTRUCTION OF WILLS 301 under the other it would be valid and operative, the latter will be preferred."^ The courts, however, in their anxiety to avoid the failure of the testator's expressed intentions, cannot remake his will. The law at the time the will takes effect enters into its terms,^* and the testator must be presumed to know the law/* Where the language of an express provision of a will is free from doubt, a consequence restilting from it that the testator would not have favored will not be permitted to affect the construction of the will and much less to prevent the application to it of a settled rule of law.'' If the plan adopted by the testator for the disposi- tion of his property cannot be given effect because it « 2 Edwards v. Bibb, 43 Ala. 666; Terrell v. Reeves, 103 Ala. 264, 16 South. 54; Estate of Hey wood, 148 Cal. 184, 82 Pac. 753 ; Estate of Peabody, 154 Oal. 173, 97 Pac. 184 ; Estate of Spreckels, 162 Cal. 559, 123 Pac. 371 ; Rand v. Butler, 48 Conn. 293; Woodruff v. Marsh, 63 Conn. 125, 26 Ati. 846, 38 Am. St. Rep. 346 ; St. John v. Dann, 66 Conn. 401, 34 Atl. 110 ; Estate of Dunphy, 147 Cal. 95. 81 Pac. 315 ; Fitchie v. Brown, 211 U. S. 321, 29 Sup. Ct. 106, 53 L. Ed. 202; Wolfe V. Hatheway, 81 Conn. 181, 70 Atl. 645; Carpenter v. Perkins, 83 Conn. 11, 74 Atl. 1062 ; Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70 ; Nicoll V. Irby, 83 Conn. 530, 77 Atl. 957 ; McGraw v. McGraw, 176 Fed. 312, 99 C. O. A. 650; Robert v. West, 15 Ga, 122; Kelly v. Moore, 22 App. D. C. 9. 63 Kidwell V. Brummagin, 32 Cal. 442 ; Worrill v. Wright, 25 Ga. 657; Cobb v. Battle, 34 Ga. 458; Redd v. Hargroves, 40 Ga. 18; Bennett v. Williams, 46 Ga. 399 ; ' Munroe v. Baslnger, 58 Ga. 118 ; Hertz y. Abrahams, 110 Ga. 707, 36 S. B. 409, 50 L. R. A. 361. 64 Estate of Vogt, 154 Cal. 508, 98 Pac. 265 ; Norris v. Hensley, 27 Cal. 439^45; Tuckerman v. Currier, 54 Colo. 25, 129 Pac. 210. 65 Bill V. Payne, 62 Conn. 140, 25 Atl. 354. 302 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8' violates the rules of law, the court is not authorized to- substitute for the illegal provision some other vv^hich it may suppose would have been adopted by him if he had known that the directions actually given could not be carried out." Seventh : Where the provisions of a will are partly legal and partly illegal, the legal parts will be upheld if capable of separation from the illegal."^ If the elimination of the invalid portions so changes the general scheme of the testator as to make the re- maining portions amount to a new and different will, the whole must fail/* Where there are alternative provisions and one is void the other may take effect. "^ Eighth : An obvious general intent, gathered from the whole will, can rarely be defeated by an inac- 86 Estate of Spreckels, 162 Cal. 559, 123 Pac. 371 ; In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97 ; Fairs' Estate, 132 Cal. 523, 64 Pac. 1000, 84 Am. St. Rep. 70 ; Estate of Lynch, 142 Cal. 373, 75 Pac. 1086. 6 7 Lake V. Warner, 34 Conn. 483 ; Bent's Appeal, 38 Conn. 34; Rus- sell V. Hartley, 83 Conn. 654, 78 Atl. 320; Allen y. Da vies, 85 Conn. 172, 82 Atl. 189 ; Smith v. Dunwoody, 19 Ga. 237 ; Webb v. Fleming, 30 Ga. 808, 76 Am. Dec. 675; Cobb v. Battle, 34 Ga. 458; Whitley v. State, 38 Ga. 75 ; Slnnott v. Moore, 113 Ga. 908-915, 39 S. E. 415 ; Landram v. Jordan, 25 App. D. C. 291; Board of Trustees v. May, 201 Mo. 360-371, 99 S. W. 1093; Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 9S9 ; Wells v. Fuchs, 226 Mo. 97, 125 S. W. 1137. 68 White V. Allen, 76 Conn. 185, 56 Atl. 519; Lepard v. Clapp, 80 Conn. 29, 66 Atl. 780 ; Sevier v. Woodson, 205 Mo. 202, 104 S. W. 1, 120 Am. St. Rep. 728 ; Reid v. Voorhees, 216 111. 236, 74 N. E. 804, 3 Ann. Cas. 946 ; Holdren v. Holdren, 78 Ohio St. 276, 85 N. E. 537, 18 L. R. A. (N. S.) 272; Fennell v. Fennell, 80 Kan. 730, 106 Pae. 1038, 18 Ann. Cas. 471. 6 9 Colbert v. Speer, 24 App. D. C. 187. § 112) CONSTRUCTION OF WILLS 303 curacy or inconsistency in the expression of a par- ticular intent/" Where the words of the will indicate an intent to make a clear gift such gift is not cut down by any subsequent provisions which are of indefinite or doubtful meaning/^ On the other hand, general expressions of a purpose in a will do not override special directions as to a particular property, the disposal of which is minutely provided for/^ Ninth : Words, including technical words, are pre- 7 Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458; Walker v. Atmore, 50 Fed. 644, 1 C. C. A. 595, affirming (O. C.) 46 Fed. 429 ; Estate oi Mayhew, 4 Cal. App. 162, 87 Pac. 417; Goodrich v. Lambert, 10 Conn. 452 1 Farnam v. Farnam, 53 Conn. 289, 2 Atl. 325, 5 Atl. 682 ; Wheel' er V. Fellowes, 52 Conn. 241; Phelps v. Bates, 54 Conn. 15, 5 Atl. 301, 1 Am. St. Rep. 92 ; Hurd v. Shelton, 64 Conn. 496, 30 Atl. 766 ; Pinney v. Newton, 66 Conn. 141, 33 Atl. 591 ; Beardsley's Appeal, 77 Conn. 705, 60 Atl. 664; Lepard v. Clapp, 80 Conn. 29, 66 Atl. 780; Workman v. Cannon's Lessee, 5 Har. (Del.) 91 ; Peters v. Carr, 16 Mo. 54 ; Sheriff v. Brown, 16 D. C. 172 ; Robert v. West, 15 Ga. 122 ; Lake v. Copeland, 82 Tex. 464, 17 S. W. 786 ; Cooper v. Homer, 62 Tex. 356 ; Peet v. Ry., 70 Tex. 522, 8 S. W. 203. General scheme of will. Langford v. Langford, 79 Ga. 520, 4 S. B. 900; In re Estate of Offutt, 159 Mo. App. 90, 139 S. W. 487. 7iBallantine v. Ballantine (C. C.) 152 Fed. 775; Sherrod v. Sher- rod, 38 Ala. 543 ; Estate of Richards, 154 Cal. 478, 98 Pac. 528 ; Fan- ning V. Main, 77 Conn. 94, 58 Atl. 472 ; Strong v. Elliott, 84 Conn. 665, 81 Atl. 1020 ; Felton v. Hill, 41 Ga. 554 ; Sheftall v. Roberts, 30 Ga. 453; Cochran v. Hudson, 110 Ga. 762-764, 36 S. E. 71; Sevier V. Woodson, 205 Mo. 202, 104 S. W. 1, 120 Am. St. Rep. 728; Set- tle V. Shafer, 229 Mo. 561, 129 S. W. 897 ; John II Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458; In re Campbell, 27 Utah, 361, 75 Pac. 851; McGuigan v. Jaeger, 36 App. D. 0. 227; Schnitter v. Mc- Manaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047. '2Mersman v. Mersman, 136 Mo. 244, 37 S. W. 909; E. G. T. Co. 304 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 sumed to be used in their strict and primary accepta- tion, unless from the context it appears that the testa- tor used them in a different sense. '' The context may give to certain words a meaning that they do not ordinarily or properly possess/* V. Rogers, 7 Del. Ch. 398, 44 Atl. 789; Lamar v. McLaren, 107 Ga. 591, 34 S. E. 116. Statutory rule of construction. "A clear and distinct devise or be- quest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argu- ment from other, parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will." Estate of Goetz, 13 Cal. App. 266, 109 Pac. 105 ; Id., 13 Oal. App. 292, 109 Pac. 492. ts Estate of Curry, 39 Cal. 529; Wadsworth v. Wadsworth, 74 Cal. 104, 15 Pac. 447 ; In re Stewart, 74 Cal. 103, 15 Pac. 445 ; Toland v. Toland, 123 Cal. 140, 55 Pac. 681 ; Kauffman v. Gries, 141 Cal. 300, 74 Pac. 846; Estate of Roach, 159 Cal. 260, 113 Pac. 373; Piatt v. Brannan, 34 Colo. 125, 81 Pac. 755, 114 Am. St. Rep. 147; Rand v. Butler, 48 Conn. 293 ; Leake v. Watson, 60 Conn. 508, 21 Ati. 1075 ; Nicoll V. Irby, 83 Conn. 530, 77 Atl. 957 ; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86; Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103, 29 Am. Dec. 336; Drake v. Crane, 127 Mo. 85, 29 S. W. 990, 27 L. R. A. 653; White v. Crawford, 87 Mo. App. 262; Carr v. Dings, 58 Mo. 406; Suydam v. Thayer, 94 Mo. 49, 6 S. W. 502; Small v. Field, 102 Mo. 123, 14 S. W. 815 ; Redman v. Barger, 118 Mo. 573, 24 S. W. 177; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Wendler v. Lambeth, 163 Mo. 428, 63 S. W. 684 ; O'Day v. O'Day, 193 Mo. 89, 91 S. W. 921, 4 L. R. A. (N. S.) 922 ; Metz v. Wright, 116 Mo. App. 631, 92 S. W. 1125 ; De Bardelaben v. Dickson, 166 Ala. 59, 51 South. 98G ; Capal V. McMillan, 8 Port. (Ala.) 197 ; Estate of Henderson, 161 Cal. 353, 119 Pac. 496 ; Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33 ; McLeod V. Dell, 9 Fla. 427; Wiegand v. Woerner, 155 Mo. App. 227, 134 S. W. 596 ; Lich v. Llch, 158 Mo. App. 400, 138 S. W. 558 ; Choice v. Marshall, 1 Ga. 97 ; In re Poppleton's Estate, 34 Utah, 285, 97 Pac. 138, 131 Am. St. Rep. 842. 7^ Hurd V. Shelton, 64 Conn. 496, 30 Atl. 766; Wolfe v. Hatheway, 81 Conn. 181, 70 Atl. 645 ; Butler v. Butler, 13 D. C. 96. The primary legal meaning of "children" is descendents in the first § 112) CONSTRUCTION OF WILLS 305 The testator's understanding of the words used in his will, ascertained from the will itself, must be degree. Adams v. Law, 17 How. 417, 15 L. Ed. 149; McGuire v. Westmoreland, 36 Ala. 594 ; Estate of Curry, 39 Cal. 529 ; Carpenter V. Perkins, 83 Conn. 11, 74 Atl. 1062; McLeod v. Dell, 9 Fla. 427; Lich V. Llch, 158 Mo. App. 400, 138 S. W. 558; White v. Rowland, 67 Ga. 546, 44 Am. Rep. 731; Lyon v. Baker, 122 Ga. 189, 50 S. B. 44; Fulghum V. Strickland, 123 Ga. 258, 51 S. E. 294 ; Willis v. Jenkins, 30 Ga. 167 ; Walker v. Williamson, 25 Ga. 549. But "children" may mean "grandchildren." Scott v. Nelson, 3 Port. (Ala.) 452, 29 Am. Dec. 266 ; McGuire v. Westmoreland, 36 Ala. 594 ; PMnizy v. Foster, 90 Ala. 262, 7 South. 836; Edwards v. Bender, 121 Ala. 77, 25 South. 1010; In re Schedel, 73 Oal. 594, 15 Pac. 297: Rhoton V. Blevin, 99 Cal. 645, 34 Pac. 513 ; Caulk v. Caulk, 3 Penne- will (Del.) 528, 52 Atl. 340 ; Griffith v. Witten, 252 Bio. 627, 161 S. W. 708. "Children" includes legitimated qhild. Gates v. Seibert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625 ; Carroll v. Carroll, 20 Tex. 731. Does not include illegitimate children. Johnstone v. Taliaferro, 107 Ga. 6, 32 S. E. 931, 45 L. R. A. 95. Includes those by a former marriage. Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929. Whether an adopted child takes under the general term "children" has been decided both ways. Pro: Tlrrell v. Bacon (C. C.) 3 Fed. 62. Contra: Russell v. Russell, 84 Ala. 48, 3 South. 900. "Children" as ordinarily used in devises is a word of purchase and not of limitation. Words of limitation are "issue" or "heirs of the body." Forest Oil Co. v. Crawford, 77 Fed. 106, 23 C. C. A. 55; Vaughan v. Parr, 20 Ark. 600; Caulk v. Caulk, 3 Pennewill (Del.) 528, 52 Atl. 340; Kemp v. Daniel, 8 Ga. 385; Carlton v. Price, 10 Ga. 495 ; Cooper v. Mitchell Inv. Co., 133 Ga. 769, 66 S. E. 1090, 29 L. R. A. (N. S.) 291 ; McLeod v. Dell, 9 Fla. 427. The word "heirs" when used in a will primarily signifies those en- titled by law to inherit by descent the real estate of a deceased per- son ; and a resort to secondary meanings of the word will ordinarily be had only when adherence to the primary meaning of the word would make the provision under consideration ineffectual or plainly BoBL. Wills — 20 306 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 adopted without resorting to lexicographers to deter- mine what the same words may mean in the abstract ; r unreasonable. Ruggles v. Randall, 70 Conn. 44, 38 Atl. 88S ; Perry V. Buckley, 82 Conn. 158, 72 Atl. 1014; Heald v. Briggs, 83 Conn. 5, 74 Atl. 1123 ; NicoU v. Irby, 83 Conn. 530, 77 Atl. 957 ; Hartford Tr. Co. r. Purdue, 84 Conn. 256, 79 Atl. 581. The word "heirs" used in gifts of personalty refers primarily to those entitled to take under the statute of distributions. Vogt v. Vogt, 26 App. D. C. 46. "Heirs" is prima facie a word of limitation and not of purchase. Daly V. James, 8 Wheat 495, 5 L. Ed. 670 ; Smith t. Greer, 88 Ala. 414, 6 South. 911 ; Edwards v. Bender, 121 Ala. 77, 25 South. 1010 ; Gold V. Judson, 21 Conn. 616 ; Healy v. Healy, 70 Conn. 467, 39 Atl. 793; Gerard v. Ives, 78 Conn. 485, 62 Atl. 607; Chew v. Keller, 100 Mo. 362, 13 S. W. 395; Jarboe v. Hey, 122 Mo. 341, 26 S. W. 968; Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439 ; Carnes v. Baker, 100 Ga. 779, 28 S. E. 496; Tebow v. Dougherty, 205 Mo. 815-322, 103 S. W. 985 ; Brooks v. Evetts, 33 Tex. 732. But may be words of purchase. Findley v. Hill, 133 Ala. 232, 32 South. 497; State v. Lyons, 5 Har. (Del.) 196; Leake v. Watson, 60 Conn. 506, 21 Atl. 1075 ; Frosch v. Walter, 228 U. S. 109, 33 Sup. Ct. 494, 57 L. Ed. 750. In many cases "heirs" has been held to mean "children." Watson V. Williamson, 129 Ala. 362, 30 South. 281; Guesnard v. Guesnard, 173 Ala. 250, 55 South. 524 ; Campbell v. Noble, 110 Ala. 382, 19 South. 28 ; Robinson v. Bishop, 23 Ark. 378 ; Slaughter v. Slaughter, 23 Ark. 356, 79 Am. Dec. Ill; Lockwood's Appeal, 55 Conn. 157, 10 Atl. 517; Anthony v. Anthony, 55 Conn. 256, 11 Atl. 45; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86 ; Waddell v. Waddell, 99 Mo. 345, 12 S. W. 349, 17 Am. St. Rep. 575 ; Maguire v. Moore, 108 Mo. 267, 18 S. W. 897 ; Cross v. Hoch, 149 Mo. 342, 50 S. W. 786 ; De Vaughn V. De Vaughn, 3 App. D. C. 50 ; Claxton v. Weeks, 21 Ga. 265 ; Brown V. TuschofC, 235 Mo. 449, 138 S. W. 497 ; Ford v. Cook, 73 Ga. 215 ; Baxter v., Winn, 87 Ga. 239, 13 S. E. 634. "Heirs" held not to mean children. De Bardelaben v. Dickson, 166 Ala. 59, 51 South. 986; Thomas v. Owens, 131 Ga. 248-256, 62 S. B. 218. Held not to include adopted child. Reinders r. Koppelman, 94 Mo. 338, 7 S. W. 288. "Heirs" may mean legatees, but will scarcely embrace corporate § 112) CONSTRUCTION OF WILLS 307 or to adjudicated cases to discover what they have been decided to mean under different circumstances/" legatees. Graham v. De Yampert, 106 Ala. 279, 17 South. 355 ; Lal- lerstedt v. Jennings, 23 Ga. 571. No one is heir of the living. Goodrich v. Lambert, 10 Conn. 449- 452. Wife is not ordinarily included in the word "heirs." Morris v. Bolles, 65 Conn. 45, 31 Atl. 538 ; Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885. A husband is not the right heir of his wife in the strict and pri- mary sense of the term. Mason v. Baily, 6 Del. Ch. 129, 14 Atl. 209 ; Wetter v. Walker, 62 Ga. 142. But context may show that "wife" is included in the term "heir.s at law." Wolfe v. Hatheway, 81 Conn. 181, 70 Atl. 645; Burr v. Burr, 163 Mo. App. 395-412, 143 S. W. 1096; Gibbon v. Gibbon, 40 Ga. 562. The word "issue" may be either a word of purchase or of inher- itance as best answers the intention of the testator. McDonnel's Es- tate, Myr. Prob. (Cal.) 94. "Issue" means descendants of any degree. Cavarly's Estate, 119 Cal. 406, 51 Pac. 629; Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33; Perry v. Buckley, 82 Conn. 158, 72 Atl. 1014 ; Schafer v. Ballou, 35 Okl. 169, 128 Pac. 498. "Issue" may mean children. Edwards v. Bibb, 43 Ala. 666. "Issue" means prima facie legitimate issue. Flora v. Anderson (C. C.) 67 Fed. 182. "Descendants" means those who have issued from an individual, including his children, grandchildren and their children to the re- motest generation. Tichenor v. Brewer, 98 Ky. 349, 33 S. W. SO ; West V. West, 89 Ind. 529; Gordon v. Pendleton, 84 N. O. 98; Van Beuren y. Dash, 30 N. Y. 398 ; Bates v. Gillett, 132 111. 287, 24 N. E. 611 ; Lieh v. Lich, 158 Mo. App. 400, 138 S. W,. 558 ; Romjue v. Ran- dolph, 166 Mo. App. 87, 148 S. W. 185. The word "family" is not a technical word. It is of flexible mean- ing, which is to be determined from the context and the subject mat- 76 Dugans y. Livingston, 15 Mo. 230; Smith v. Sweringen, 26 Mo. 551; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288; Garth v. Garth, 139 Mo. 465, 41 S. W. 238 ; Wendler v. Lambeth, 163 Mo. 428. •63 S. W. 684 ; Van Pretres v. Cole, 73 Mo. 39. 308 WILLS AND ADMINISTRATION OP ESTATES (Ch. 8 Tenth : A will should be construed to give effect to all the words therein without rejecting- or controlling any of them, provided this can be done by a reasonable construction not inconsistent with the manifest intent of the testator/" Where plainly required by the ob- ter to which It relates and depends upon the particular circumstanc- es of the case. In common parlance it imports those who live mider the same roof with the paterfamilias. Those who branch out and be- come members of new establishments cease to be part of the father's family in the common meaning of the word. The word may import parents with their children, whether living together or not or the off- spring of a common progenitor if such intention is manifested from the context. Estate of Bennett, 134 Cal. 320, 66 Pac. 370 ; Wood v. Wood, 63 Conn. 324, 28 Atl. 520 ; St John v. Dann, 66 Conn. 401, 34 Atl. 110; Crosgrove y. Crosgrove, 69 Conn. 416, 38 Atl. 219. "Family" may mean not a household gathered around a parent, but a stock of descent. Hoadly v. Wood, 71 Conn. 452, 42 Atl. 263. "Heirs of Womersley family." "Family" does not include widow of deceased brother. Estate of Womersley, 164 Cal. 85, 127 Pae. 645. Unaided by context, "his family" should be construed "his chil- dren." Moredock v. Moredock (C. C.) 179 Fed. 163 ; Paul v. Ball, 31 Tex. 10. A widow is rarely included in the term "family." Hoadly v. Wood, 71 Conn. 452, 42 Atl. 263. But may be Included. Farnam v. Farnam, 83 Conn. 369, 77 At]- 70; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302. "Nephews and nieces" may include grandnephews and grandnieces. Shepard v. Shepard, 57 Conn. 29, 17 Atl. 173. "Brother" may include half-brother. Seery v. Fitzpatrick, 79 Conn. ToCarter v. Alexander, 71 Mo. 585; Mersman v. Mersman, 136 Mo. 244, 37 S. W. 909; John li Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458; In re Estate of Creighton, 91 Neb. 654, 136 N. W. 1001, Ann. Cas. 1913D, 128; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004; Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047. Substitution of words refused. Board of Trustees v. May, 201 Mo. 360, 99 S. W. 1093. § 112) CONSTRUCTION OF WILLS 309 vious meaning of the will, words may be supplied,V or altered," transposed,'" or omitted."* So punctua- tion may aid in construction." 562, 65 Atl. 964, 9 Ann. Cas. 139 ; Watkins v. Blount, 43 Tex. Oiv. App. 460, 94 S. W. 1116. The word "relation" prima facie includes only relatives by blood and not by affinity. Holts' Estate, 146 Cal. 77, 79 Pac. 585. The words "legal representatives" or "personal representatives" are rarely used by testators in the strict sense of executors and ad- ministrators, but usually denote persons beneficially entitled. Greene V. Huntington, 73 Conn. 106, 46 Atl. 883 ; Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122. The meaning is controlled by the context. Lepard v. Clapp, 80 Conn. 29, 66 Atl. 780. By "legal representatives" the testator may mean children or lineal 77 Cooper V. Cooper, 7 Houst. (Del.) 488, 31 Atl. 1043 ; Nichols v. Boswell, 103 Mo. 151, 15 S. W. 343 ; Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128; White v. McCracken, 87 Mo. App. 262; Sharp V. Sharp, 35 Ala. 574; Mitchell v. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279; Stratton's Estate, 112 Cal. 513, 44 Pac. 1028 ; Couch v. Gorham, 1 Conn. 39 ; Kellogg v. Mix, 37 Conn. 247 ; West v. Randle, 79 Ga. 28, 3 S. E. 454 ; Cleland v. Waters, 16 Ga. 496; McMahan v. Hubbard, 217 Mo. 624, 118 S. W. 481; Estate of Goetz, 13 Cal. App. 292, 109 Pac. 492. 78 Cruit V. Owen, 203 U. S. 368, 27 Sup. Ct. 71, 51 L. Ed. 227 ; Gues- nard v. Guesnard, 173 Ala. 250, 55 South. 524 ; Waddell v. Waddell, 99 Mo. 345, 12 S. W. 349, 17 Am. St Rep. 575 ; Briant v. Garrison, 150 Mo. 655, 52 S. W. 361 ; Cox v. Britt, 22 Ark. 567 ; Phelps v. Bates 54 Conn. 11, 5 Atl. 301, 1 Am. St Rep. 92. 7 9 Ro Bards v. Brown, l&f Mo. 447, 67 S. W. 245 ; White v. Rukes (C. C.) 37 Fed. 754 ; In re Stratton, 112 Cal. 513, 44 Pac. 1028 ; Wood- ruff V. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St Rep. 346. 8 Weatherhead v. Baskerville, 11 How. 329, 13 L. Ed. 717; Graves V. Northrop, 18 Conn. 333 ; Gaines v. Fender, 57 Mo. 346 ; Bacon v. Nichols, 47 Colo. 31, 105 Pac. 1082 ; Wood's Estate, 36 Cal. 75 ; Ma- rion V. Williams, 20 D. C. 20 ; Merritt v. Brantley, 8 Fla. 226. . 81 Lycan v. Miller, 112 Mo. 548, 20 S. W. 36, 700; Zimmerman r. Mechanics' Svg. Bank, 75 Conn. 645, 54 Atl. 1120; Healy v. Healy, 70 Conn. 467, 39 Atl. 793. 310 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 Mistakes of spelling, grammar, punctuation or con- struction may be corrected.'^ Eleventh: General words are strengthened by ex- ception and weakened by enumeration.*' Twelfth : A word or a phrase occurring more than once in a will is presumed always to be used in the same sense unless the context shows a different mean- ing/* descendants. Staples v. Lewis, 71 Conn. 288, 41 Atl. 815 ; Miller v. Metcalf, 77 Conn. 176, 58 Atl. 743. Or may mean heirs at law. Hartford Tr. Co. v. Wolcott, 85 Conn. 134, 81 Atl. 1057 ; Estate of Rlesenberg, 116 Mo. App. 308, 90 S. W. 1170. "Personal representatives" means next of kin and does not include widow. Davies v. Davies, 55 Conn. 319, 11 Atl. 500. But may include widow if she would take under the statute of distributions. Farnam v. Farnam, 88 Conn. 369, 77 Atl. 70. The word "legacy" properly is applied only to dispositions of per- sonal estate, and the word "devise" to real estate, but the context 8 2 Wood's Estate, 36 Cal. 81; Rosenberg v. Frank, 58 Oal. 387; Mitchell V. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279; Perry v. Buckley, 82 Conn. 158, 72 Atl. 1014 ; West v. Randle, 79 Ga. 28, 3 S. E. 454 ; Holt v. Wilson, 82 Kan. 268, 108 Pac. 87. 83 Smith V. Hutchinson, 61 Mo. 83 ; Given v. Hilton, 95 U. S. 591- 598, 24 L. Ed. 458 ; Jackson v. Vanderspreigles, 2 Ball. (Pa.) 142, 1 L. Ed. 323 ; Bromberg v. McArdle, 172 Ala. 270, 55 South. 805, Ann. Cas. 1913D, 855 ; Wheeler v. Brewster, 68 Conn. 177, 36 Atl. 32; West V. Randle, 79 Ga. 28, 3 S. E. 454; Welman v. Neufville, 75 6a. 124; Vaughn v. Howard, 75 Ga. 285 ; Bruton v. Wooten, 15 Ga. 570 ; Perea V. Barela, 5 N. M. 458-473, 23 Pac. 766; Weller v. Weller, 22 Tex. Civ. App. 247, 54 S. W. 652. 8 4 Estate of Vogt, 154 Cal. 508, 98 Pac. 265; Turner v. Balfour, 62 Conn. 89, 25 Atl. 448 ; Wood v. Wood, 63 Conn. 324, 28 Atl. 520 ; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86 ; Ryder v. Lyon, 85 Conn, 245, 82 Atl. 573; Estate of Goetz, 13 Cal. App. 266, 109 Pac. 105; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412. § 113) CONSTRUCTION OF WILLS 311 § 113. Extrinsic evidence — Latent and patent am- biguities Thirteenth: The intention of the testator to be sought is not that which merely exists in his mind, but that which is expressed in the language of his will.*' A will falls within the rule that parol evidence is not admissible to vary, alter or control the terms of may show tliaf they were used interchangeably. Burwell v. Cawood, 2 How. 560-578, 11 L. Ed. 378 ; Logan v. Logan, 11 Colo. 44, 17 Pac. 99 ; Estate of Henderson, 161 Cal. 353, 119 Pac. 496 ; Pfuelb's Estate, Myr. Prob. (Cal.) 38 ; In re Campbell, 27 Utah, 361, 75 Pac. 851 ; Es- tate of Goetz, 13 Cal. App. 292, 109 Pac. 492. Words which in terms describe personal property cannot be ex- tended by implication to real estate, because no disposition is made of the realty. Paton v. Robinson, 81 Conn. 547, 71 Atl. 730. "Worldly goods." Farish v. Cook, 78 Mo. 213, 47 Am. Rep. 107; Bowlin V. Furman, 34 Mo. 39. Some common words have been held to embrace both real and per- sonal assets : "Property." White v. Keller, 68 Fed. 796, 15 C. C. A. 683 ; Young V. Norris Peters Co., 27 App. D. C. 140 ; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692; Hicks v. Webb, 127 Ga. 170, 56 S. E. 307. "Estate." Pope v. Pickett, 65 Ala. 487 ; Estate of O'Gorman, 161 Cal. 654, 120 Pac. 33 ; Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178 ; 8 5 Young's Estate, 123 Cal. 337, 55 Pac. 1011; Piatt v. Brannan, 34 Colo. 125, 81 Pac. 755, 114 Am. St. Rep. 147; Bishop v. Howarth, 59 Conn. 455, 22 Atl. 432 ; Weed v. Scofield, 73 Conn. 670, 49 Atl. 22 ; Alexander v. Bates, 127 Ala. 328, 28 South. 415 ; In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97 ; Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106. The intent of the testator must be ascertained from the meaning of the words in the Instrument and from those words alone ; but ex- trinsic evidence is admissible to enable the court to discover the meaning attached by the testator to the words used in the will. Hunt V. White, 24 Tex. 643. 312 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 a written instrument/' Where the terms of a will are plain, they cannot be varied or explained by parol evidence showing an intention on the part of the tes- Von Phul V. Hay, 122 Mo. 300, 26 S. W. 965 ; Park v. Pogarty, 134 Ga. 861, 68 S. E. 699 ; Thornton v. Burcb, 20 Ga. Y91. "Money." MUler's Estate, 48 Oal. 165, 17 Am. Rep. 422 ; Hamilton V. Serra, 17 D. C. 168; Paul v. Ball, 31 Tex. 10. "Personal effects." Galloway v. Galloway, 32 App. D. C. 76 ; Perea V. Barela, 5 N. M. 458, 23 Pac. 766. "Moveable property" seems to apply to choses in possession and not to choses In action. Strong v. White, 19 Conn. 245-248. "Go to" may be equivalent to give, devise or bequeath. Speckart V. Schmidt, 190 Fed. 499, 111 C. C. A. 331. "Control" does not imply the power of disposition but only the use and enjoyment. Rosenau v. Childress, 111 Ala. 214, 20 South. 95. The words "I will that" implies a command. McRee v. Means, 34 Ala. 365. "Residue" means after payment to charges, debts and particular bequests. Phelps v. Robbins, 40 Conn. 250. "Books and papers." Jeffrey's Estate, 1 Cal. App. 524, 82 Pac. 549. ' "Lend" may mean a life estate. Britt v. Rawlings, 87 Ga. 146, 18 S. E. 336; Booth v. Terrell, 16 Ga. 20. Or may mean "give" or "devise." Holt v. Pickett, 111 Ala. 362, 20 South. 432 ; Bryan v. Duncan, 11 Ga. 67 ; Jones v. Jones, 20 Ga. 699 ; Pournell v. Harris, 29 Ga. 736. "Paid" may mean given. Singer v. Taylor, 90 Kan. 285, 133 Pac. 841. "Maturity" held to mean puberty. Robertson v. Johnston, 24 Ga. 102. "Wound up" does not necessarily mean the legal closing of the es- se Estate of Young, 123 Cal. 337, 55 Pac. 1011 ; Krechter v. Grofe, 166 Mo. 385, 66 S. W. 358; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692 ; Vickery v. Hobbs, 21 Tex. 570, 73 Am. Dec. 238. A trust not sufficiently declared on the face of the will cannot be set up by extrinsic evidence to defeat the rights of the heirs at law. Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29. § 113) CONSTEUCTION OF WILLS 313 tator at variance with that expressed in the will." Therefore, the intentions of the testator cannot be tate, but the actual distribution. Kosminsty v. Estes, 27 Tex. Civ. App. 69, 65 S. W. 1108. Construction of word "between." Lockwood's Appeal, 55 Conn. 157, 10 Atl. 517. "Prorata." Rosenberg v. Frank, 58 Cal. 387. "Credits." Brandon v. Yeakle, 66 Ark. 377, 50 S. W. 1004. "Certificates." Edmondson v. Bloomshire, 11 Wall. 382, 20 L. Ed. 44. "Notes." Waterman v. Alden, 143 U. S. 196, 12 Sup. Ct. 435, 36 L. Ed. 123. "Land." Watson v. Watson, 110 Mo. 164, 19 S. W. 543 ; Woolver- ton V. Johnson, 69 Kan. 708, 77 Pac. 559. Growing grain does not pass by a bequest of all the testator's per- sonal estate. Kinsman v. Kinsman, 1 Root (Conn.) 180, 1 Am. Dec. 37. 87 Erwin v. Smith, 95 Ga. 699, 22 S. E. 712; Gillespie v. Shuman, 62 Ga. 252 ; Carson v. Searcy, 66 Ga. 550 ; McNeil v. Hammond, 87 Ga. 618, 13 S. E. 640; Kaiser v. Brandenburg, 16 App. D. C. 310; Brown v. TuschofC, 235 Mo. 449, 138 S. W. 497; Atwood v. Geiger, 69 Ga. 498 ; Travers v. Reinhardt, 25 App. D. C. 567 ; West v. Randle, 79 Ga. 28, 3 S. B. 454 ; Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29; Bishop v. Howarth, 59 Conn. 455, 22 Atl. 432; Holt's Estate, 146 Cal. 77, 79 Pac. 585; Hurst v. Von de Veld, 158 Mo. 239, 58 S. W. 1056 ; LehnhofE v. Theine, 184 Mo. 346, 83 S. W. 469; Mersman v. Mersman, 136 Mo. 256, 37 S. W. 909; Bradley v. Bradley, 24 Mo. 311; Gregory v. Cowgill, 19 Mo. 415. But see Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128; Chapman v. Allen, 56 Conn. 167, 14 Atl. 780; Canfield v. Bostwick, 21 Conn. 553 ; Spalding v. Huntington, 1 Day (Conn.) 10 ; Waterman V. Canal Louisiana Bank, 186 Fed. 71, 108 C. C. A. 183 ; Bulkeley v. Worthington Ecc. Soc, 78 Conn. 526, 63 Atl. 351, 12 L. R. A. (N. S.) 785 ; Dickerman v. Ailing, 83 Conn. 342, 76 Atl. 362. Intention cannot be shown by parol. Foscue v. Lyon, 55 Ala. 440 ; Lee V. Shivers, 70 Ala. 288; Simmons v. Simmons, 73 Ala. 235; Mackie v. Story, 93 U. S. 589, 23 L. Ed. 986; Weatherhead v. Bas- kerville, 11 How. 329, 13 L. Ed. 717; Canfield v. Bostwick, 21 Conn. 550; Hearn v. Ross, 4 Har. (Del.) 46; Cochran v. Hudson, 110 Ga. 762, 36 S. E. 71 ; Doyal v. Smith, 28 Ga. 262 ; Paul v. Ball, 31 Tex. 10. 314 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 shown by evidence of his declarations/* nor by the testimony of the draftsman of the will as to what was intended to be expressed/" nor have the courts power to reform the will to conform to the supposed inten- tions of the testator.'" Fourteenth : A latent ambiguity may be explained by parol, but a patent ambiguity may not be. This is a familiar exception to the general rule ex- cluding parol evidence in the construction of written instruments. A patent ambiguity is one appearing upon the face of the instrument itself. Where such an ambiguity appears, it cannot be aided by a resort to parol evidence ; the will must be construed if possi- ble, just as it is written. A patent ambiguity cannot be explained by parol, as this would be to allow the witnesses to make the will by telling what the testator intended.*^ 88 Nor by declaration of testator. Updike v. Mace (C. O.) 194 Fed. 1001 ; McAleer v. Schneider, 2 App. D. C. 461 ; Carson v. Hickman, 4 Houst. (Del.) 328 ; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929. 8 8 Nor by testimony of draftsman. Kobinson v. Bishop, 23 Ark. 378 ; Elder v. Ogletree, 36 Ga. 64-71 ; Hill v. Felton, 47 Ga. 455, 15 Am. Rep. 643. 9 The court has no power to reform a will so as to conform to the intentions of the testator, shown by external evidence to be different from those expressed in the instrument. Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, 41 L. B. A. (N. S.) 1126, Ann. Cas. 1914A, 475 ; Willis v. Jenkins, 30 Ga. 167 ; Board of Trustees v. May, 201 JIo. 360, 99 S. W. 1093. 91 Ro Bards v. Brown, 167 Mo. 457; 67 S. W. 245; Webb v. Hay- den, 166 Mo. 46, 65 S. W. 760; Zirkle v. Leonard, 61 Kan. 636, 60 Pac. 318 ; Colville v. Trust Co., 10 App. D. C. 56-72. Under Georgia code, ambiguities in a will, both latent and patent. § 113) CONSTRUCTION OF WILLS 315 If no meaning can be found for the provisions then they must fail of effect/^ A latent ambiguity, on the other hand, is where the instrument is plain and apparently intelligible upon its face, but when applied to existing circumstances there is really an uncertainty as to which of two or more persons or objects are meant, or the exact nature and extent of the gift. Under these circumstances, the rule has been stated as follows : One of the undoubted rules as to the admission of extrin- sic evidence in the interpretation of wills is this : that for the purpose of determining the object of the testator's bounty, or the subject of disposition, or the quantity of interest intend- ed to be given by his will, the court may enquire into every material fact relating to the person who claims to be interested under the will, and the property which is claimed as the sub- ject of the disposition, and to the circumstances of the testa- tor, and of his family and affairs for the purpose of enabling it to identify the person or thing intended by the testator or to determine the quantity of interest he has given by his will.°^ may be explained by parol. Oliver v. Henderson, 121 Ga. 836-838, 49 S. B. 743, 104 Am. St. Rep. 185. 82 Young's Estate, 123 Cal. 337, 55 Pac. 1011 ; Heath v. Bancroft, 49 Conn. 220-222 ; Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534 ; Armi- stead V. Armistead, 32 Ga. 597 ; Colbert v. Speer, 24 App. D. C. 187. 9 3 Nichols V. Boswell, 103 Mo. 151, 15 S. W. 343; Noe v. Kern, 93 Mo. 367, 6 S. W. 239, 3 Am. St. Eep. 544 ; Suydam v. Thayer, 94 Mo. 55, 6 S. W. 502; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288 Landis v. Eppstein, 82 Mo. 99; Rothwell v. Jamison, 147 Mo. 601 49 S. W. 503 ; Clotilde v. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847 ; Webb v. Hayden, 166 Mo. 39, 65 S. W. 760 ; Watson v. Watson 110 Mo. 170, 19 S. W. 543 ; Small v. Field, 102 Mo. 104, 14 S. W. 815 Garth v. Garth, 139 Mo. 456, 41 S. W. 238 ; Hurst v. Von de Veld, 158 Mo. 239, 58 S. W. 1056 ; Roberts v. Grume, 173 Mo. 572, 73 S. W. 662 Ernst V. Foster, 58 Kan. 438, 49 Pac. 527 ; Smith v. Holden, 58 Kan. 316 WILLS AND ADMINISTRATION QF ESTATES (Ch. 8 A latent ambiguity, in a will which may be removed by ex- trinsic evidence, may arise: (1) Either when it names a per- son as the object of a gift or a thing as the subject of it, and there are two persons or things that answer such name or de- scription; or (2) when the will contains a misdescription of the object or subject, as where there is no such person or thing in existence ; or if in existence, the person is not the one in- tended, or the thing does not belong to the testator. °* 535, 50 Pac. 447 ; Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998 ; Hall V. Stephens, 65 Mo. 670, 27 Am. Rep. 302 ; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468; Riggs v. Myers, 20 Mo. 239 ; Creasy v. Alverson, 43 Mo. 13 ; Wilkins v. Allen, 18 How. 385, 15 L. Ed. 396 ; Gilmer v. Stone, 120 U. S. 586, 7 Sup. Ct. 689, 30 L. Ed. 734 ; Speer v. Colbert, 200 U. S. 180, 26 Sup. Ct. 201, 50 L. Ed. 403 ; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322 ; Atkinson v. Cummins, 9 How. 479, 13 L. Ed. 223 ; Callaghan's Estate, 119 Cal. 575, 51 Pac. 860, 39 L. R. A. 689 ; Ayres v. Weed, 16 Conn. 302 ; Bralnerd v. Cowd- rey, 16 Conn. 1 ; Spencer v. Higgins, 22 Conn. 527 ; Woodruff v. Mi- geon, 46 Conn. 237 ; Avery v. Chappel, 6 Conn. 275, 16 Am. Dec. 53 ; Greene v. Dennis, 6 Conn. 299, 16 Am. Dec. 58 ; Doyal v. Smith, 31 Ga. 198 ; Jenkins v. Merritt, 17 Fla. 304 ; Burge v. HamUton, 72 Ga. 568 ; St. James O. A. v. Shelby, 75 Neb. 591, 106 N. W. 604. 0* Patch V. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, 29 L.. Ed. 860; Bonds' Appeal, 31 Conn. 183-190 ; Estate of Donnellan, 164 Cal. 14, 127 Pac. 166. The court may look beyond the face of the will to explain an am- biguity as to the person or property to which it applies, but never for the purpose of enlarging or diminishing the estate devised. King V. Ackerman, 2 Black, 408, 17 L. Ed. 292 ; Estate of DonneUan, 164 Cal. 14, 127 Pac. 166. Parol evidence to correct ambiguity in the description of land. Stackhouse v. Stackhouse, 2 Dall. 80, 1 L. Ed. 298 ; Simmons v. Sim- mins, 73 Ala. 235 ; Vandiver v. Vandiver, 115 Ala. 328, 22 South. 158 ; Nichols V. Lewis, 15 Conn. 137 ; McAleer v. Schneider, 2 App. D. C. 461 ; Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371 ; Rogers v. Rogers, 78 Ga. 688, 3 S. E. 451; Albury v. Albury, 63 Fla. 329, 58 South. 190 ; McElrath v. Haley, 48 Ga. 641 ; Board of Trustees v. May, 201 Mo. 360, 99 S. W. 1093 ; Myher v. Myher, 224 Mo. 631, 123 S. W. 806 ; Cummins v. Riordon, 84 Kan. 791, 115 Pac. 568 ; McMahan § 113) CONSTRUCTION OF WILLS 317 Fifteenth : A will must be read in the light of the circumstances of the testator and the facts that were within his knowledge when he executed it. Some courts regard this rule as an amplification merely of the general exception permitting extrinsic evidence to explain latent ambiguities. It embraces V. Hubbard, 217 Mo. 624, 118 S. W. 481 ; Heywood v. Heywood, 92 Neb. 72, 137 N. W. 984 ; Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S. W. 9S0 ; Haney v. Gartin, 51 Tex. Civ. App. 577, 113 S. W. 166 ; Gid- ley V. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831 ; Pemberton v. Perrin, 94 Neb. 718, 144 N. W. 164. It is not admissible by extrinsic evidence to substitute a totally different description of land for that in the will. Patch v. White, 12 D. C. 468. Where a devise particularly describes a tract of land that the testator did not own, it cannot by extrinsic evidence be made to apply to a different tract of land that the testator did own. Where the will is entirely devoid of any general description which can be identified by extrinsic evidence, and the rejection of the false terms of description leaves the description not merely imperfect but hopelessly uncertain, it is wholly void. Estate of Lynch, 142 Gal. 373, 75 Pae. 1086. Or the misdescription of a legatee. Powell v. Biddle, 2 Dall. 70, 1 L. Ed. 293 ; McDonald v. Shaw, 81 Ark. 235, 98 S. W. 952 ; In re Case- ment, 78 Cal. 136, 20 Pac. 362 ; Domlnici's Estate, 7 Cal. Unrep. Cas. 289, 87 Pac. 389 ; In re Gibson, 75 Cal. 329, 17 Pac. 438 ; Pearson's Estate, 113 Cal. 577, 45 Pac. 849, 1062; Id., 125 Cal. 285, 57 Pac. 1015 ; Taylor v. McOowen, 154 Cal. 798, 99 Pac. 351 ; Estate of Domin- ici, 151 Cal. 181, 90 Pac. 448 ; Estate of Gruendike, 154 Cal. 628, 98 Pac. 1057 ; ConkUn v. Davis, 63 Conn. 377, 28 Atl. 537 ; Doughten v. Vandever, 5 Del. Ch. 51 ; Cheney v. Selman, 71 Ga. 384 ; Seebrock v. Fedawa, 33 Neb. 413, 50 N. W. 270, 29 Am. St. Rep. 488 ; Second U. P. Ch. V. First U. P. Ch., 71 Neb. 563, 99 N. W. 252 ; Pemberton v. Perrin, 94 Neb. 718, 144 N. W. 164 ; Estate of Donnellan, 164 Cal. 14, 127 Pac. 166. In resolving a latent ambiguity there is no rule of construction which prefers a name to a description. Estate of Donnellan, 164 Cal. 14, 127 Pac. 166. 318 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 more than that. Every will is a special law of descents and distributions applying to a concrete set of facts and circumstances. Those facts and circumstances were in the mind of the testator at the time he ex- ecuted the will. The court, therefore, in order to construe the will in a natural and proper manner must place itself as nearly as possible in the situation of the testator and read the will in the light of his circum- stances.°° This is a broader proposition than the so- 9 5 Hawes v. Foote, 64 Tex. 22; Lenz v. Sens, 27 Tex. Civ. App. 442, 66 S. W. 110 ; Cleveland v. Cleveland, 89 Tex. 445, 35 S. W. 145 ; Hunt V. White, 24 Tex. 643 ; Howze v. Howze, 19 Tex. 553 ; Griffith v. Wit- ten, 252 Mo. 627, 161 S. W. 708 ; Heywood v. Heywood, 92 Neb. 72, 137 N. W. 984 ; In re Poppleton's Estate, 34 Utah, 285, 97 Pac. 138, 131 Am. St. Rep. 842 ; CanHeld v. Canfield, 118 Fed. 1, 55 C. C. A. 169 ; Garrett v. Wheeless, 69 Ga. 466 ; Morgan v. Huggins (C. C.) 42 Fed. 869, 9 L. R. A. 540 ; Simons' Will, 55 Conn. 239, 11 Atl. 36 ; Mans- field V. Mix, 71 Conn. 72, 40 Atl. 915 ; Scoville v. Mason, 76 Conn. 459, 57 Atl. 114; Fritsche v. Fritsche, 75 Conn. 285, 287, 53 Atl. 585; Lang- don's Estate, 129 Cal. 451, 62 Pac. 73 ; Estate of Tompkins, 132 Cal. 173, 64 Pac. 268 ; Estate of Marti, 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071 ; KaufEman v. Gries, 141 Cal. 295-299, 74 Pac. 846 ; Estate of Paint- er, 150 Cal. 498, 89 Pac. 98, 11 Ann. Cas. 760 ; Estate of Spreckels, 162 Cal. 559, 123 Pac. 371 ; Bishop v. Howarth, 59 Conn. 455, 22 Atl. 432 ; Cruit V. Owen, 25 App. D. C. 514 ; Ferry v. Langley, 12 D. C. 140 ; Tebow V. Dougherty, 205 Mo. 315, 103 S. W. 985 ; Tisdale v. Prather, 210 Mo. 402-408, 109 S. W. 41 ; Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, 131 Am. St. Rep. 595 ; Snorgrass v. Thomas, 166 Mo. App. 603, 150 S. W. 106 ; Hurst v. Weaver, 75 Kan. 758-762, 90 Pac. 297 ; Cornet v. Cornet,. 248 Mo. 184, 154 S. W. 121 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; McCuUoch v. Valentine, 24 Neb. 215, 38 N. W. 854; Chick v. Ives, 2 Neb. Unof. 879, 90 N. W. 751 ; Lesiur v. Sipherd, 84 Neb. 296, 121 N. W. 104 ; Little v. Giles, 25 Neb. 313, 41 N. W. 186 ; Currie v. Murphy, 35 Miss. 473. Evidence of circumstances cannot vary the terms of a will, but the court may by evidence of extrinsic facts put itself as near as may § 113) CONSTRUCTION OF WILLS 319' lution of a mere latent ambiguity, which may be, and usually is, the identification of a particular devisee from among two or more that may seem to fall within the description or the identification of the property which is the subject of the gift. Under the rule which we are now discussing the entire scheme of the will and its various related parts may come under review. 50 natural and universal is it that most courts act upon it without comment. The proof follows the pleadings in the suit to construe, which begin by set- ting out the circumstances and relations of the parties and the condition of the property. The federal court has stated the rule broadly thus : Formerly, we might now say, anciently, it was the rule that the law should fix the meaning of the will and of other writ- ten documents without reference to the circumstances of the testator or makers of the document. The history of the evo- lution of the law resulting in the modern rule is well stated in 4 Wigmore on Evidence, § 2470. The rule now is unques- tioned that extrinsic evidence in aid of the interpretation of wills is admissible for the purpose of showing the object of the testator's bounty, the property devised, and the quantity of in- terest intended to be given. Evidence may be received as to every material fact relating to the person who claims under the will, and to the property devised, as to the circumstances of the testator and his family and affairs, so as to lead to a correct decision of the quantity of interest the claimant is en- titled to by the will. This is true as to every material point be in the condition of the testator In respect to his property and the situation of his family for the purpose of rightly understanding the meaning of the words of his will. Thompson v. Betts, 74 Conn. 576, 51 Atl. 564, 92 Am. St. Rep. 235 ; Peet v. Ry., 70 Tex. 522, 8 S. W. 203. 320 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 respecting which it can be shown that a knowledge of extrin- sic facts can aid in the right interpretation of the will.°* Upon the same principle the court must assume that the language in the will was used with reference to the facts within the knowledge of the testator when he executed the will/' although intended to be pro- spective in its operation and take effect at his death."" Thus a gift to one who will do a certain thing cannot apply to one who has done the thing before the exe- cution of the will."" Nor can the meaning of the tes- tator's words be changed by subsequent events.^ The future course of events may affect the operation of a will but never its construction.^ The question is what were the events within the contemplation of the 86 Northrop v. Columbian Lumber Co., 186 Fed. T70, 108 C. 0. A. 640; Atkins v. Best, 27 App. D. C. 148; Olmstead v. Dunn, 72 Ga. 850 ; McMahan v. Hubbard, 217 Mo. 624, 118 S. W. 481 ; Whitelaw V. Rodney, 212 Mo. 540, 111 S. W. 560 ; Albert v. Sanford, 201 Mo. 117-127, 99 S. W. 1068 ; Board of Trustees v. May, 201 Mo. 360-369, 99 S. W. 1093 ; Crumley v. Scales, 135 Ga. 300-306, 69 S. E. 531 ; Fraser V. Dillon, 78 Ga. 474, 3 S. E. 695 ; Georgia 0. & M. Ry. v. Archer, 87 Ga. 237, 13 S. E. 636 ; Hamilton v. Serra, 17 D. C. 168 ; Am. Sec. & Tr. Co. V. Payne, 33 App. D. O. 178 ; Billingslea v. Moore, 14 Ga. 370. 9 7 In re Pearsons, 99 Cal. 30, 33 Pac. 751; Adams v. Spalding, 12 Conn. 358; Grou v. Brinley, 35 Conn. 109; Dunham v. Averill, 45 Conn. 61, 29 Am. Rep. 642 ; White v. Holland, 92 Ga. 216, 18 S. E. 17, 44 Am. St. Rep. 87 ; Jacobs v. Button, 79 Conn. 360, 65 Atl. 150 ; Johnson v. White, 76 Kan. 159, 90 Pac. 810 ; Michon v. Ayalla, 84 Tex. 685, 19 S. W. 878 ; Pearce v. Pearce, 104 Tex. 73, 134 S. W. 210. OS Canfleld v. Bostwick, 21 Conn. 553 ; Gold v. Judson, 21 Conn. 622 ; Simmons v. Hubbard, 50 Conn. 576 ; Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29. 9 9 Shepard v. Shepard, 57 Conn. 29, 17 Atl. 173. 1 Weed V. Scofield, 73 Conn. 670, 49 Atl. 22. 2 Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33. § 113) CONSTRUCTION OF WILLS 321 testator at the time he expected it to take effect, not what he might have done if he had foreseen the real course of events.' A codicil is regarded as a republication of the will and brings the will down to its date as to the facts within the knowledge of the testator.* Sixteenth : The construction of a will which is free from ambiguity is purely a question of law for the court. Where extrinsic evidence is properly ad- missible the determination of conflicting facts is a question of fact but the construction after the facts are found is still a question of law." 3 King V. Mitchell, 8 Pet. 326-349, 8 L. Ed. 962 ; Blakeney v. Du Bose, 167 Ala. 627, 52 South. 746. Courts cannot conjecture what the testator would have done had he anticipated the contingency which had afterward arisen. Gray v. Corbit, 4 Del. Oh. 135. * Beardsley's Appeal, 77 Conn. 705, 60 Atl. 664 ; Whiting's Appeal, 67 Conn. 379, 35 Ati. 268 ; Estate of McCauley, 138 Cal. 432, 71 Pac. 512; Smith v. Day, 2 Pennewill (Del.) 245, 45 Atl. 396; Jones v. Shewmake, 35 Ga. 151; Whitloek v. Vaun, 38 Ga. 562; Hawke v. Buyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391 ; Cliett v. Cliett, 1 Posey, Unrep. Cas. (Tex.) 407; Pardee v. Kuster, 15 Wyo. 368, 89 Pac. 572, 91 Pac. 836. An unattested codicil cannot be resorted to to aid the construction of the will. Crenshaw v. McCormick, 19 App. D. C. 494. 6 Estate of Donnellan, 164 Cal. 14, 127 Pac. 166 ; Moss v. Helsley, 60 Tex. 426-437. B0BI..W11-1.S — ^21 322 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 § 114. Construction as affected by the general law of descents and distributions Seventeenth: A will being made for the express purpose of altering pro tanto only the general law of descents and dispositions, it is construed in harmony with that law on all doubtful points. ° When a reference to heirs or representatives is ambiguous the Statute of Descents and Distributions is to be taken as a guide and the rules of inheritance followed/ The heir is a natural favorite of the law, 6 Horsey v. Horsey's Bx'r, 1 Houst. (Del.) 438; Snyder v. Baker, 16 D. C. 443 ; Paul v. Ball, 31 Tex. 10 ; Estate of Goetz, 13 Cal. App. 292, 109 Pac. 492 ; In re Estate of Hansen^ 87 Neb. 56T, 127 N. W. 879; Clifft v. Wade, 51 Tex. 14. "There is no presumption of survivorsliip in the case of those who perish by a common disaster, in the absence of proof tending to show the order in which dissolution took place ; and actual survivor- ship being unascertainable, descent and distribution take the same course as if the deaths had been simultaneous." Young Women's Christian Home v. French, 187 U. S. 401, 23 Sup. Ct. 184, 47 L. Ed. 233 ; Faul v. Hulick, 18 App. D. C. 9 ; Sanders v. Simcich, 65 Cal. 51, 2 Pac. 741. A legally established will becomes the law of descent and distribu- tion governing the particular estate unless it contravenes some rule of law or of public policy. Jordan v. Thompson, 67 Ala. 469 ; 01m- stead V. Dunn, 72 Ga. 850. The law presumes that a person proved to be dead left an heir or heirs. No such presumption obtains as to the existence of a will. Slayton v. Singleton, 72 Tex. 209, 9 S. W. 876. 7 Hamilton v. Downs, 33 Conn. 213 ; Lyon v. Acker, 33 Conn. 222 ; ConkUn v. Davis, 63 Conn. 377, 28 Atl. 537 ; Angus v. Noble, 73 Conn. 56, 46 Atl. 278; Heath v. Bancroft, 49 Conn. 223; Geery v. Skelding, 62 Conn. 501-503, 27 Atl. 77; Gray v. Corbit, 4 Del. Ch. 357; Guer- ard V. Guerard, 73 Ga. 506; Holcomb v. Wright, 5 App. D. 0. 76; MacLean v. Williams, 116 Ga. 257, 42 S. E. 485, 59 L. R. A. 125: Burch V. Burch, 20 Ga. 834. § 114) CONSTRUCTION OF WILLS 323 and a construction will not be preferred that disinher- its the heir/ If property is left to the testator's heirs in the same manner and proportion in which they would take were there no will, the rule of law is that they take as heirs and not as purchasers.* 8 Whorton v. Moragne, 62 Ala. 209 ; Wolffe v. Loeb, 98 Ala. 432, 13 Soutb. T44 ; Walker v. Parker, 13 Pet. 166-173, 10 L. Ed. 109 ; Mc- Caffrey V. Manogue, 196 U. S. 563, 25 Sup. Ct. 319, 49 L. Ed. 608; Blagge V. Balcb, 162 U. S. 439^65, 16 Sup. Ct. 853, 40 L. Ed. 1032 ; Bowker v. Bowker, 148 Mass. 198-203, 19 N. E. 213; Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. K. A. 305, 25 Am. St. Rep. 643; Low v. Harmony, 72 N. Y. 408-414; Wilkins v. Allen, 18 How. 385, 15 L. Ed. 396; Smith v. Edrington, 8 Cranch, 66, 3 L. Ed. 490 ; Hughes v. Knowlton, 37 Conn. 432 ; White v. White, 52 Conn. 521 ; Glover v. Stillson, 56 Conn. 318, 15 Atl. 752 ; Peckham v. Lego, 57 Conn. 559, 19 Atl. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130 ; Bill v. Payne, 62 Conn. 141, 25 Atl. 354 ; Pendleton v. Larrabee, 62 Conn. 395, 26 Atl. 482; Bond's Appeal, 31 Conn. 190; Hitch v. Patten, 8 Houst. (Del.) 334, 16 Atl. 558, 2 L. R. A. 724 ; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451 ; Eraser v. Dillon, 78 Ga. 474, 3 S. E. 695 ; McCown v. Owens, 15 Tex. Civ. App. 346, 40 S. W. 336 ; Heilman v. Reitz, 89 Neb. 422, 131 N. W. 909 ; Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29. Howard v. Howard, 19 Conn. 318; Jost v. Jost, 12 D.C. 487; Starr v. Starr, 2 Root (Conn.) 303-308. Where the title which the devisees would take by the will is better than they would take by descent they take as devisees and purchas- ers and not as heirs. Power v. Davis, 3 McArthur (10 D. C.) 153; Landic v. Simms, 1 App. D. C. 507. The English rule that a will which leaves the property precisely as the law would leave it is no will, and that the heirs take by de- .scent and not by purchase, is repudiated. Lucas v. Parsons, 24 Ga. 640-659, 71 Am. Dec. 147. 324 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 § 115. After acquired property Eighteenth : The American rule is that a will speaks from the death of the testator both as to real and per- sonal property. This is the common law rule as to personal property but is mainly a statutory rule as to real property.^" The right to make a will of lands began with the Stat- ute of Wills, and at that time the idea was firmly fixed in the. judicial mind that a will of lands was a con- veyance to uses and could only operate upon the exact land under the exact title by which the testator was then seized. This rule is explained in an opinion of the supreme court of the United States : Under the Statute of Wills a general devise of all the testa- tor's estate would comprehend and include all the personalty to which he was entitled at the time of his death, but would not embrace after acquired land, though such might be the express- ■ed intention of the testator. The reason given for the distinc- tion was that a devise of land was regarded in the same light as a conveyance, and as a conveyance at common law would not vest for want of seizin it was therefore held to be opera- tive only on such real estate as the testator might have at the time of making the will, that is to say, that a devise was in the nature of a conveyance or appointment of real estate then owned to take eflfect at a future date, and could not therefore operate on future acquisitions.^^ 10 McCla-skey v. Barr (C. C.) 54 Fed. 781; Morgan v. Hnggins (0. C.) 42 Fed. 869, 9 L. R. A. 540 ; Carroll v. Carroll, 16 How. 275, 14 L. Ed. 936; Estate of Russell, 150 Cal. 604, 89 Pac. 345; McAleer v. Schneider, 2 App. D. C. 461. Prior to the statute after acquired lands did not pass by the wiil. Atwood V. Beck, 21 Ala. 590 ; Meador v. Sorsby, 2 Ala. 712, 36 Am. Dec. 432; Jones v. Shewmake, 35 Ga. 151. n Hardenbergh v. Ray, 151 U. S. 112-120, 14 Sup. Ct. 305, 38 L. § 115) CONSTRUCTION OF WILLS 325 Now, by the help of modern statutes the rule is that all of the real estate ovv?ned by the testator at his death, regardless of the time of its acquisition or the title by which he may hold it, will pass under any general words in the will that are sufficient to embrace such land/^ Nothing is gained by holding a will to be a conveyance at the time of its execution. No in- terest passes until the testator's death." That is the time when he must have contemplated that all his dispositions would go into effect, and the courts so assume.^* Ed. 93; Estate of Hopper, 66 Cal. 80, 4 Pac. 984; Brewster v. Me- CaU, 15 Conn. 274; Duffel v. Burton, 4 Har. (Del.) 290; Gibbon v. Gibbon, 40 Ga. 562-575. 12 Taylor v. Harwell, 65 Ala. 1 ; Kelly v. Richardson, 100 Ala. 584, 13 South. 785; Graham v. De Yanipert, 106 Ala. 279, 17 South. 355; Patty V. Goolsby, 51 Ark. 61, 9 S. W. 846; Estate of Dwyer, 159 Cal. 664, 115 Pac. 235; Estate of O'Gorman, 161 Cal. 654, 120 Pac. 33; Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St. Rep. 117 ; Dickerson's Appeal, 55 Conn. 230, 10 Atl. 194, 15 Atl. 99. See the very interesting opinion of Judge Leonard in Liggat v. Hart, 23 Mo. 127. Also Applegate v. Smith, 31 Mo. 169; Hale v. Audsley, 122 Mo. 316, 26 S. W. 963; Mueller v. Buenger, 184 Mo. 458, 83 S. W. 458, 67 L. R. A. 648, 105 Am. St. Rep. 541; Durboraw v. Durborow, 67 Kan. 139, 72 Pac. 566 ; Johnson v. White, 76 Kan. 159, 90 Pac. 810 ; Oardwell v. Rogers, 76 Tex. 37, 12 S. W. 1006 ; Haley V. Gatewood, 74 Tex. 281, 12 S. W. 25 ; Henderson v. Ryan, 27 Tex. 670 ; Hamilton v. Flinn, 21 Tex. 713. A general residuary devise of all of the testator's estate real and personal, carries after acquired land under the Act of Congress. Taylor v. liCesnitzer, 37 App. D. C. 357, overruling McAleer v. Schnei- der, 2 App. D. C. 461; Bradford v. Matthews, 9 App. D. C. 438: Crenshaw v. McCormick, 19 App. D. C. 494. 13 Cozzens v. Jamison, 12 Mo. App. 452. A will does not affect previous conveyances by deed. Heatley v. Long, 135 Ga. 153, 68 S. E. 783. 14 Webb V. Archibald, 128 Mo. 299, 34 S. W. 54; Vitt v. Clark, 6e 326 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 § 116. Presumption against intestacy Nineteenth: The presumption is that the testator intended to dispose of all the property of which he had a legal right to dispose and not die intestate as to any part of it." Mo. App. 214 ; Touart v. Rlckert, 163 Ala. 362, 50 South. 896 ; Pierce V. Fulmer, 165 Ala. 344, 51 South. 728; Simmons v. Hubbard, 50 Conn. 574. 15 Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458; Kenaday v. Sin- nott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339; Vemon v. Vernon, 53 N. Y. 351 ; Gray v. Noholoa, 214 U. S. 108, 29 Sup. Ct. 571, 53 L. Ed. 931 (affirming 18 Hawaii, 265) ; Hatch v. Ferguson (C. C.) 57 Fed. 966 ; Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169 ; McGraw V. McGraw, 176 Fed. 312, 99 C. C. A. 650 ; King v. Ackerman, 2 Black, 408, 17 L. Ed. 292; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552 ; Toland v. Toland, 123 Cal. 140, 55 Pac. 681 ; Estate of Young, 123 Cal. 337, 53 Pac. 1011 ; Granniss' Estate, 142 Cal. 1, 75 Pac. 324; McClellan v. Weaver, 4 Cal. App. 593, 88 Pac. 646 ; Estate of Lux, 149 Cal. 200, 85 Pac. 147 ; Estate of Koch, 8 Cal. App. 90, 96 Pac. 100 ; Estate of Heberle, 153 Cal. 275, 95 Pac. 41 ; festate of Gregory, 12 Cal. App. 309, 107 Pac. 566 ; Estate of Blake, 157 Cal. 448, 108 Pac. 287 ; Erwin v. Henry, 5 Mo. 469; Dugans v. Livingston, 15 Mo. 234; Gaines v. Fender, 57 Mo. 342 ; Van Pretres v. Cole, 73 Mo. 39 ; White v. McCracken, 87 Mo. App. 268 ; Watson v. Watson, 110 Mo. 171, 19 S. W. 543 ; Over- ton V. Overton, 131 Mo. 567, 33 S. W. 1 ; Hurst v. Von de Veld, 158 Mo. 239, 58 S. W. 1056; Ro Bards v. Brown, 167 Mo. 447, 67 S. W. 245 ; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Eep. 468 ; Boston S. D. Co. v. Stich, 61 Kan. 474, 59 Pac. 1082 ; State v. Smith, 52 Conn. 563 ; Peckham v. Lego, 57 Conn. 559, 19 Atl. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130 ; Warner v. Willard, 54 Conn. 472, 9 Atl. 136; Neely v. Phelps, 63 Conn. 251, 29 Atl. 128; Belfield v. Booth, 63 Conn. 305, 27 Atl. 585 ; Richardson v. Penicks, 1 App. D. C. 261 ; Marion v. Williams, 20 D. C. 20 ; Kennedy v. Alexander, 21 App. D. C. 424; Galloway v. Galloway, 32 App. D. C. 76; Burch V. Burch, 20 Ga. 834; Johnson v. White, 76 Kan. 159, 90 Pac. 810; McMahan v. Hubbard, 217 Mo. 624, 118 S. W. 481; Givens v. Ott, 222 Mo. 395, 121 S. W. 23 ; Tebow v. Dougherty, 205 Mo. 315, 103 S. § 116) CONSTRUCTION OF WILLS 327 Where a will may reasonably be interpreted in two ways, one of which results in intestacy while the other leads to an effective testamentary disposition, the in- terpretation which will prevent intestacy is to be pre- ferred.^" This rule appears in the statutes of many states." But such presumption cannot change the ac- tual intent of the testator as derived from the lan- guage of his will.^' The courts cannot strain the W. 985; McMichael v. Pye, 75 Ga. 189; Singer v. Taylor, 90 Kan. 285, 133 Pac. 841; Snyder v. Baker, 16 D. C. 443; Sanger v. Butler, 45 Tex. Civ. App. 527, 101 S. W. 459 ; Jones v. Hudson, 93 Neb. 561, 141 N. W. 141, 44 L. R. A. (N. S.) 1182 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524 ; Northern Tr. Co. v. Wheaton, 249 111. 606, 94 N. E. 980, 34 L. K. A. (N. S.) 1150 ; Griffith v. Witten, 252 Mo. 627, 161 S. W. 708; Hinzie v. Hinzie, 45 Tex. Civ. App. 297, 100 S. W. 803. The presumption against intestacy Is one of construction where the testamentary Intent is ascertained and the subject matter only is In doubt The rule does not apply to the existence of the animus tes- tandi. Estate of Anthony, 21 Cal. App. 157, 131 Pac. 96. Nor to testamentary capacity. Lehnhoff v. Theine, 184 Mo. 346, 83 S. W. 469. Surface devised to one and coal devised to another disposes of whole estate. No partial intestacy. Myher v. Myher, 224 Mo. 631, 123 S. W. 806. Unless reserved, standing crops pass witb-devise. In re Estate of Andersen, 83 Neb. 8, 118 N. W. 1108, 131 Am. St. Rep. 613, 17 Ann. Cas. 941 ; In re Estate of Pope, 83 Neb. 723, 120 N. W. 191. 18 Estate of Spreckels, 162 Cal. 559, 123 Pac. 371 ; Estate of O'Gor- man, 161 Cal. 654, 120 Pac. 33 ; Dempsey v. Taylor, 4 Tex. Civ. App. 126, 23 S. W. 220. 17 Barber v. P. Ft W. & C. R., 166 U. S. 83, 17 Sup. Ct. 488, 41 L. Ed. 925; Felton v. Hill, 41 6a. 554; Kinkead v. Maxwell, 75 Kan. 50-54, 88 Pac. 523 ; Little v. Giles, 25 Neb. 313, 41 N. W. 186. 18 Johnson v. Hollfield, 82 Ala. 123, 2 South. 753; Pairs' Estate. 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St Rep. 70; Estate of Murphy, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110; Johnson v. Stanton, 30 Conn. 297 ; Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534 ; 328 WILLS AND ADMINISTRATION OF ESTATES (Ch. 8 meaning of the testator's language in order to avoid partial intestacy, and if, after giving the will a fair interpretation, there is property left undisposed of, it goes to the heir at law, or to the next of kin as intes- tate estate/® The presence in the will of a residuary clause is evidence of an intention to avoid partial intestacy,^" but where the residuary clause partially lapses intes- tacy of that portion is an unavoidable result." Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106 ; Farish v. Cook, 78 Mo. 212, 47 Am. Rep. 107; Id., 6 Mo. App. 328; Colville v. Trust Co., 10 App. D. C. 56. 19 Wolffe V. Loeb, 98 Ala. 426, 13 South. 744; Johnson v. Hollfleld, 82 Ala. 123, 2 South. 753 ; Estate of Kunkler, 163 Cal. 797, 127 Pac. 43; Sheldon t. Rose, 41 Conn. 371; Mansfield v. Shelton, 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285; Russell v. Hartley, 83 Conn. 654, 78 Atl. 320; Watson v. Watson, 110 Mo. 170, 19 S. W. 543; Hurst V. Von de Veld, 158 Mo. 247, 58 S. W. 1056 ; Peuquet v. Berth- old, 183 Mo. 61, 81 S. W. 874; Walker v. Williamson, 25 Ga. 549; Oliver v. Powell, 114 Ga. 592, 40 S. E. 826; Howard v. Evans, 24 App. D. C. 127; Philleo v. HoUiday, 24 Tex. 38^2; Haralson v. Redd, 15 Ga. 148; Heilman v. Reitz, 89 Neb. 422, 131 N. W. 909; Rice V. Saxon, 28 Neb. 380, 44 N. W. 456. 2 Hartford Tr. Co. v. Wlolcott, 85 Conn. 134, 81 Atl. 1057; O'Con ner v. Murphy, 147 Cal. 148, 81 Pac. 406 ; Byrne v. Weller, 61 Ark. 366, 33 S. W. 421 ; Young v. Norris Peters Co., 27 App. D. C. 140 ; Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782 ; Hinzie v. Hinzie, 45 Tex. Civ. App. 297, 100 S. W. 803. 21 Estate of Kunkler, 163 Cal. 797, 127 Pac. 43. §, 117) CONSTRUCTION OF WILLS 329 §117. Recitals in Wills It frequently happens that wills contain recitals of facts connected with the testator; his property, its character, extent and the title by which it is held ; his family and personal relations and his previous deal- ings with those within the range of his bounty. These recitals are, of course, evidence of facts within the testator's knowledge at the date of the will and as such have a bearing on its construction/^ They are also evidence as admissions and are binding on the heirs, devisees and those claiming under the will/' But they have no probationary force against third persons not claiming under the will/* 22 Summerhill v. Darrow, 94 Tex. 74, 57 S. W. 942. 23 Box V. Lawrence, 14 Tex. 545 ; Shepherd v. White, 11 Tex. 346 ; White V. Holman, 25 Tex. Civ. App. 152, 60 S. W. 437. 24 Manning v. Manning, 135 6a. 597-602, 69 S. E. 1126. Recitals in will may constitute notice of the existence of wife and children to those that claim under the will, but not as to those not claiming under will. Nelson v. Bridge, 39 Tex. Civ. App. 283, 87 S. W. 885. Recitals in a will of gifts made by testator in his lifetime do not constitute a devise by implication. Estate of Wells, 7 Cal. App. 515, 94 Pac. 856. 330 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 CHAPTER IX LEGACIES AND DEVISES I 118. Extent of testamentary power. 119. Specific legacies and devises. 120. Demonstrative legacies. 121. General devises or legacies. 122. Kesiduary devises'and legacies. 123. Various forms of testamentary gifts. 124. Annuities and provisions for support. 125. Proceeds of insurance. 126. Legatees and devisees. 127. Gifts to religious persons, bodies, or purposes. 128. Gifts to a class. 129. Per capita and per stirpes. 130. Ademption. 131. Lapse. 132. Conditions affecting entire will. 133. Conditions affecting particular gifts. 134. Non-contest clauses. 135. Restraints upon marriage. 136. Restraints upon alienation — Spendthrift trusts. 137. Conditions that devisee pay certain legacies or charges. 138. Election. Pkovision fob Widow ob Widower ^ 139. Public policy limiting the testamentary power of married persons. 140. Widow's right of election. 141. Equal division and community theory. 142. Widower's share under statute. 143. Right of election — How exercised. 144. Effect of election on rights of others. 144a. Homestead and other statutory rights. § 118) LEGACIES AND DEVISES 331 § 118. Extent of testamentary power Under the modern rule the testamentary power may be exercised over any property, or any title to or right in property which the testator has ex- cept so far as his right to convey by will is legally restricted either by statute or by the nature of his title. Estates both legal and equitable ^ whether in pos- session or remainder," pass by will. But, except under the doctrine of election hereinafter noted, the testator cannot will property that he does not own.^ The devisee takes the same title the testator had, and no greater.* His title is dependent upon the will, and is limited not only by what the testa- tor had power to convey, but also by what the tes- tator actually did convey." 1 Meador v. Sorsby, 2 Ala. 712, 36 Am. Dec. 432 ; Mayer v. Am. Sec. & Tr. Co., 33 App. D. O. 301. The power in the holder of an equitable title to dispose of the property by will includes ex vi termini any and all modes of disposal competent to be made by will, except so far as the power of ap- pointment by will is qualified or restricted in the instmment creating it. Papin v. Piednoir, 205 Mo. 521, 104 S. W. 63. 2 Hemingway v. Hemingway, 22 Conn. 462 ; Puryear v. Beard, 14 Ala. 121. 3 Kern v. Stushel, 156 Mo. App. 13, 135 S. W. 1007. A full blooded Oreek Indian who died before allotment of his lands conld not dispose by will of lands subsequently alloted to his heirs. Coachman v. Sims, 36 Okl. 536, 129 Pac. 845. i Davidson v. Dockery, 179 Mo. 687, 78 S. W. 624 ; Dangerfield v. Williams, 26 App. D. C. 508 ; Darsey v. Darsey, 131 Ga. 208, 62 S. E. 20. 5 March v. Huyter, 50 Tex. 243 ; Haring v. Shelton, 103 Tex. 10, 122 S. W. 13. One whose interest in property depends upon the terms of a will 332 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 § 119. Specific legacies and devises A specific legacy is a gift by will of a specific article, or a particular part of the testator's estate, which is identified and distinguished from others of the same nature, and which is to be satisfied only by the delivery and receipt of the particular thing given.* A devise or legacy is said to be "specific" when it definitely describes the subject of the gift; as "my grey mare Nellie," or "Lot 1, Block 2, Smith's Ad- dition to Westport." In such case if the testator, at the time of his death, no longer owns the par- does not, by .deed from the executor purporting to be executed pur- suimt to the requirements of the will, acquire any greater interest than would pass under the will. Sanders v. Thompson, 123 Ga. 4, 50 S. E. 976 ; Morris v. Eddins, 18 Tex. Civ. App. 38, 44 S. W. 203. 6 Nusly V. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592^ 118 Am. St. Rep. 113, 10 Ann. Cas. 1134; In re Zeile, 74 Cal. 125, 15 Pac. 455; Christian v. Christian, 3 Port. (Ala.) 350; Hardy v. Toney, 20 Ala. 237 ; Myers' Ex'rs v. Myers, 33 Ala. 85 ; Maybury v. Grady, 67 Ala. 147; Kelly v. Richardson, 100 Ala. 584, 13 South. 785 ; Alexander v. Bates, 127 Ala. 328, 28 South. 415 ; Cooch's Bx'r V. Cooch's Adm'r, 5 Houst. (Del.) 540, 1 Am. St. Rep. 161 ; Weed v. Hoge, 85 Conn. 490, 83 Atl. 636, Ann. Cas. 1913C, 542; Lamed v. Adams, 1 Hayw. & H. (D. C.) 384, Fed. Cas. No. 8,092 ; Bralnerd v. Cowdrey, 16 Conn. 1; Wash. Asylum v. Wash., 7 D. C. 259; Kaiser V. Brandenburg, 16 App. D. C. 310 ; Young v. McKinnie, 5 Fla. 542 ; Lilly V. Griffin, 71 Ga. 535 ; In re Bouk's Estate, 80 Misc. Rep. 196, 141 N. Y. Supp. 922 ; In re Campbell, 27 Utah, 361, 75 Pac. 851 ; Es- tate of De Bernal, 165 Cal. 223, 131 Pac. 375 ; In re Estate of Bush,, 89 Neb. 334, 131 N. W. 602. Specific devise distinguished from general. Estate of Painter, 150 Cal. 498, 89 Pac. 98, 11 Ann. Cas. 760 ; Maybury v. Grady, 67 Ala. 147. The question whether a testamentary gift is specific or general is to be determined by the same tests where the subject of the gift is: § 119) LEGACIES AND DEVISES 333 ticular property described the gift must fail.' The intended legatee or devisee has no resource against the general property of the estate to make good his loss.' A specific gift is confined strictly to the property described and cannot be extended by im- plication." Courts are not inclined to favor a specific bequest. If com- patible with the language employed, they are disposed to in- terpret gifts as general or demonstrative legacies.^" real as where it is personal property. Estate of De Bernal, 165 Cal. 223, 131 Pac. 375. Specific bequest distinguislied from general. Estate of Woodworth, 31 Cal. 595 ; Abila v. Burnett, 33 Cal. 658 ; McLeod v. Dell, 9 Fla. 451 ; Jordan v. Miller, 47 Ga. 346. A legacy cannot be changed from a general to a specific legacy by parol evidence. Foscue v. Lyon, 55 Ala. 440. Legacy held to be specific and not demonstrative. Ga. Infirmary V. .Jones (C. C.) 37 Fed. TtO. f Humphreys v. Humphreys, 2 Cox, 185 ; Ga. Infirmary v. Jones (C. C.) 37 Fed. 750-752 ; Davis v. Crandall, 101 N. Y. 311, 4 N. E. 721; Sidebotham v. Watson, 11 Hare, 170; Chaworth v. Beech, 4 Ves. 555; Ford v. Fleming, 1 Eq. Gas. Abr. 302; Fryer v. Morris, 9 Ves. 360; Towle v. Swasey, 106 Mass. 100; Gilbreath v. Winter, 10 Ohio, 64 ; Moss v. Helsley, 60 Tex. 426. 8 Waters v. Hatch, 181 Mo. 262, 79 S. W. 916 ; Marshall v. Hartz- felt, 08 Mo. App. 178, 71 S. W. 1061 ; Mo. Baptist Sanitarium v. Mc- Cune, 112 Mo. App. 332, 87 S. W. 93. Webster v. Wiers, 51 Conn. 509. No devise of after acquired real estate is specific unless the land is described with particularity to enable the devisee to identify it. Kelly V. Richardson, 100 Ala. 584, 13 South. 785 ; Maybury v. Grady, 67 Ala. 147. At common law a devise of real estate was always specific but un- der California code it may be general. Estate of Woodworth, 31 Cal. 595. Specific legacy cannot embrace after acquired property or lapsed legacies. Sinnott v. Kenaday, 14 App. D. C. 1; Hawes v. Foote, 64 Tex. 22-34. loXusly V. Curtis, 36 Colo. 464-467, 85 Pac. 846, 7 L. B. A. (N. S.) 592, 118 Am. St. Kep. 113, 10 Ann. Cas. 1134. 334 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9' § 120. Demonstrative legacy A demonstrative legacy partakes of the nature of both a general and a specific legacy: it is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund or to evince an intent to re- lieve the general estate from liability in case the fund fails/^ As a specific legacy is dependent upon the con- tinued existence and ownership of the specific prop- erty and gives the legatee no recourse on the gen- eral estate in case the specific property passes out of existence or out of the ownership of the testator the presumption is against a legacy being specific and in favor of its being demonstrative/^ The distinction seems to be this : If a legacy be given with reference to a particular fund, only as pointing out a conven- ient mode of payment, it is considered demonstrative, and the legatee will not be disappointed though the fund totally fails. But when the gift is of a fund itself, in whole or in part, or is so charged upon the object rhade subject to it as to show an intent to burden that object alone with its payment, it is spe- cific. ^^ 11 Nusly V. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134 ; Angus v. Noble, 73 Conn. .56, 46 Atl. 278 ; Myers' Ex'r v. Myers, 33 Ala. 85 ; Kelly v. Richard- son, 100 Ala. 584, 13 South. 785 ; Hutchinson v. Fuller, 75 Ga. 88 y Coopland v. Lake, 9 Tex. Civ. App. 39, 28 S. W. 104. 12 Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. .339; Ga. Infirmary v. Jones (C. C.) 37 Fed. 750-753; Gillaume v. Adderley, 15 Ves. 384; O'Day v. O'Day, 193 Mo. 62, 91 S. W. 921, 4 L. R. A. (N. S.) 922 ; Spinney v. Eaton, 111 Me. 1, 87 Atl. 378, 46 h. R. A. (N. S.) 535. 13 Walls V. Stewart, 16 Pa. 281; Ives v. Canby (C. C.) 48 Fed. 718 ; Tennille v. Phelps, 49 Ga. 532. § 121) LEGACIES AND DEVISES 335 The rule that demonstrative legacies or such as are payable out of a specific fund are preferred as to that fund in case of a deficiency of assets to pay all the legacies is a rule of intention merely, and yields to the meaning of the will.^* § 121. General devises or legacies A general legacy or devise is of a given quantity of money, land or goods, not limited to any par- ticular fund or piece of property; as, a gift of "one thousand dollars," "fifty shares of bank stock" or "eighty acres of land." " Such a bequest must be discharged out of any property of the same general character owned by the testator at the time of his death, not otherwise specifically devised or be- queathed. It is even said that if the testator has given a general legacy or devise^ such as "fifty shares of bank stock" or "eighty acres of land" when he owns no property of that description, it amounts by in- ference to a direction to his executor to procure, out of the general funds of the estate, property of the character and quantity stated and give it to the legatee or devisee. 1* Rambo v. Eumer, 4 Del. Ch. 9. 16 Nusly V. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. E. A. (N. S.) 592, 118 Am. St. Eep. 113, 10 Ann. Cas. 1134 ; Gilmer v. Gilmer, 42 Ala. 9 ; Harper v. Bibb, 47 Ala. 547 ; Kelly v. Richardson, 100 Ala. 584, 13 South. 785; Myers' Es'r v. Myers, 33 Ala. 85; Graham v. De Yampsrt, 106 Ala. 279, 17 South. 355. 336 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 § 122. Residuary devises and legacies A residuary devise or bequest is a gift of all the "rest" or "remainder" of the testator's property after certain specific or general gifts are discharged. It may be the residue of property of a particular kind, or the residue of all the property generally. No particular mode of expression is necessary to constitute a residuary devise. It is sufficient if the intention of the testator be plainly expressed in the will that the surplus of the estate, after payment of debts and legacies, shall be taken by a person there designated.^" The residuary estate must bear all the losses, but it has, by way of compensation, the advantage of any increase in value of the estate, and, under the modern rule, it draws to itself all lapsed gifts and those that for any reason do not take effect, as well as all property not specifically disposed of.^' 18 Upham's Estate, 127 Cal. 90, 59 Pac. 315; Williams' Estate, 112 Oal. 521, 44 Pac. 808, 53 Am. St. Kep. 224. 17 Beadle v. Beadle (C. C.) 40 Fed. 315; Granniss' Estate, 142 Cal 1, 75 Pac. 324; O'Connor v. Murphy, 147 Cal. 148, 81 Pac. 406 Ratto's Estate, 149 Cal. 552, 86 Pac. 1107 ; Ostrom v. De Yoe, 4 Cal App. 326, 87 Pac. 811; Glddlngs v. Giddings, 65 Conn. 149, 32 Atl, 334, 48 Am. St. Kep. 192; Magee v. Alba, 9 Fla. 382; Word v, Mitchell, 32 Ga. 623; Thweatt v. Redd, 50 Ga. 181; Camp v, Vaughan, 119 Ga. 131, 46 S. ,E. 79 ; Craig v. Rowland, 10 App. D, C. 402; Dillard v. Ellington, 57 Ga. 567; Paul v. Ball, 31 Tex. 10; Shockley v. Parvis, 4 Hoiist. (Del.) 568; Mayer v. Am. Sec. & Tr. Co., 33 App. D. C. 391 ; Hinzie v. Hinzie, 45 Tex. Civ. App. 297, 100 S. W. 803. At common law a void devise of lands descended to the heir. Wil- liams V, Whittle, 50 Ga. 523; Ridgely v. Bond, 18 Md. 433. § 123) LEGACIES AND DEVISES 337 Where several residuary legatees are named an equal division among them is implied." Provision for pro rata increase or decrease of legacies on surplus or deficit of personal property is sometimes used in place of a residuary clause, but rarely answers." § 123. Various forms of testamentary gifts Legacies to the same person repeated in different parts of the same will ^" or in the will and codicil," even though the amount be identical, are presumed to be cumulative and the legatee takes both. But where a gift is repeated in the same paragraph of the will in • the same words and amount the legatee is entitled to but one legacy.'"' A gift of an aliquot part of an estate means not of 18 Morrison's Estate, 138 Cal. 401, 71 Pac. 453. 18 Cooch V. Clark, 8 Del. Oh. 299, 68 Atl. 247. 20 Blakeslee v. Pardee, 76 Conn. 263-269, 56 Atl. 503; Famam v. Famam, 53 Conn. 290, 2 Atl. 325, 5 Atl. 682 ; , Waddell v. Leonard, 53 Ga. 694. A later gift by will is presumed to be cumulative to a prior gift inter vivos. Smith, v. Marshall, 1 Root (Conn.) 161. 2iHolllster v. Shaw, 46 Conn. 256; In re Zeile, 74 Cal. 125-140, 15 Pac. 455. Substituted or additional legacy is prima facie payable out of same funds, and subject to same incidents and conditions as original leg- acy, whether result is advantageous to legatee or not. De Laveaga's Estate, 119 Cal. 653, 51 Pac. 1074. 2 2 Thompson v. Betts, 74 Conn. 576, 51 Atl. 564, 92 Am. St. Rep. 235. B0BL.W1LLS— 22 338 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 the gross estate, but after deducting debts and charges/^ The payment of a legacy may be conditioned ©n the estate amounting to a certain sum.^* If a gift be so uncertain in amount or character that the court cannot determine its extent, it is void for uncer- tainty.'' A right given to a devisee to select land must be fairly exercised/^ Water rights in an irrigation com- pany may pass to devisees as appurtenant to a devise of land.'' But any easement in the land devised may be the subject of a separate gift.'* Chattels real may .arise from a provision for the use only of real estate.'" One has no property in his dead body that he can dispose of by will.^" 2 3 Wilcox V. Beecher, 27 Conn. 138. Alternative bequest upheld. University of Colorado v. Wilson, 54 Colo. 510, 131 Pac. 422. 2* Kirkman v. Mason, 17 Ala. 134, ssTraylor's Estate, 81 Cal. 10, 22 Pac. 297, 15 Am. St. Rep. 17; Koppikus' Estate, 1 Cal. App. 84, 81 Pac. 732. 2 6 Brown v. Hardin, 21 Ark. 324. 27 Thomas' Estate, 147 Cal. 236, 81 Pac. 539. 2 8 Welch V. Huse. 49 Cal. 506. 2 9 Zeller v. Eckert, 4 How. 289, 11 L. Ed. 979; Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552 ; Borum v. Gregory, 119 Ga. 766, 47 S. E. 192; Holland v. Zeigler, 135 Ga. 512, 69 S. E. 824; Black v. Nolan. 132 Ga. 452, 64 S. E. 647; Harber v. Nash, 126 Ga. 777, 55 S. E. 928 ; McKlnney v. Wells, 64 Ga. 450 ; Beall v. Drane, 25 Ga. 430. 3 Enos V. Snyder, 131 Cal. 68, 63 Pac. 170, 53 L. R. A. 221, 82 Am. St. Rep. 330. A testator may provide by will for the erection of a monument over his grave. Mcllvain v. Hockaday, 36 Tex. Civ. App. 1, 81 S. W. 54. § 124) LEGACIES AND DEVISES 339 § 124. Annuities and provisions for support It is perfectly possible for the testator to provide an annuity for a certain person, or to provide for the support of the widows or others out of the estate or some portion of the property, or for the support, ed- ucation, etc., of minors. Ordinarily these provisions do not give the beneficiaries any title to the estate or any portion of the property even where a particular part of the property is specially charged with the per- formance of the obligation.^^ They may, in the case of minors, be only an incident to a general gift or bequest to the minor, the possession or payment of which is postponed. But usually they constitute mere equitable claims or liens in favor of the person entitled to the support or annuity and are enforceable against the executor, testamentary trustee, residuary devisee or other person in possession of the estate as a trust obligation.^^ 31 Gross V. Slieeler, 7 Houst. (Del.) 280, 31 Atl. 812; Farnam v. Farnam, 83 Conn. 369, 77 AU. 70. 32 Whitehead v. Park, 53 Ga. 575; Blair v. Blair, 82 Kan. 464, 108 Pac. 827 ; Hayne v. Dunlap, 72 Ga. 534 ; Cooper v. Carter, 145 Mo. App. 387, 129 S. W. 224; Wiegand v. Woerner, 155 Mo. App. 227, 124 S. W. 596; Simons' Will, 55 Conn. 239, 11 Atl. 36; Sharp v. Findley, 71 Ga. 654; Comstock v. Comstock, 78 Conn. 606, 63 Atl. 449; Danish v. Dlsbrow, 51 Tex. 235; Alexander v. Thompson, 38 Tex. 533 ; Wikle v. Woolley, 81 Ga. 106, 7 S. E. 210 ; Hart v. Hart, 81 Ga. 785, 8 S. E. 182 ; SmuUin v. Wharton, 83 Neh. 328, 119 N. W. 773, 121 N. W. 441 ; Id., 86 Neb. 553, 125 N. W. 1112. Provision for support of a person may be charged by will upon the property devised vyithout giving the person any interest ia the property. (Busby v. Lynn, 37 Tex. 146, limited) ; Lynn t. Busby, 46 Tex. 600. 340 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 Whether one whose support is charged on the estate is entitled to an allowance of money for that purpose depends on a construction of the will in the light of surrounding circumstances.'* § 125. Proceeds of insurance Whether and in what cases the proceeds of insur- ance policies on the life of the testator will pass under the provisions of his will are questions dependent upon the nature of the insurance and the terms and condi- tions of the policy. Ordinary life insurance, some- times called "old line" insurance is a contract by which the company agrees, in consideration of the payment of premiums, that it will, upon the happening of a certain event, to wit, the death of the insured, pay a certain sum to a certain beneficiary. Strictly speak- ing, the proceeds of the policy do not become the prop- erty of the insured at all, unless he exercises his right under the policy to take a cash surrender value in his lifetime. He has the right to designate the beneficiary, or perhaps, by complying with certain conditions, to change the beneficiary, or possibly to appoint the ben- eficiary by will but under the strict view of the con- tract he is not regarded as the owner of the fund that 3 3 McOreary v. Robinson, 94 Tex. 221, 59 S. W. 536; Colton v. Oolton, 127 tr. S. 300, 8 iSup. Ct. 1164, 32 L. Ed. 138 ; Block v. Mauck (Tenn. Ch. App.) 52 S. W. 689; Fraser v. Hayes (Tenn. Oh. App.) 46 S. W. 475; Loomis v. Loomis, 35 Barb. (N. Y.) 628; ToUey v. Greene, 2 Sandf. Ch. (N. Y.) 91 ; Crocker v. Crocker, 11 Pick. (Mass.) 252 ; Conkey v. Everett, 11 Gray (Mass.) 95 ; Willett v. Carroll, 13 Md. 459. § 125) LEGACIES AND DEVISES 341 comes into existence only at his death. It is held that money due under policies of insurance is payable di- rectly to the beneficiaries named, and does not become part of the assets of the estate so as to pass under the terms of a general or residuary devise. Even if the policy provides that the insured may dispose of the amount by will, this is regarded as a naked power of appointment which must be specifically exercised.^* This principle is even more true of mutual or frater- nal insurance, which is supposed to be limited by its very nature to certain dependent members of the in- sured's family." While the beneficiary named in the certificate of a member of a fraternal benefit society may be changed by the meAiber, in accordance with the laws of the society, the insured has no interest in the fund derived from his membership nor can such fund become part of his estate or liable for his debts.'" This principle 34 Graham v. Allison, 24 Mo. App. 516 ; Evans v. Opperman, 76 Tex. 293, 13 S. W. 312; Schaadt v. Mut. Life Ins. Co., 2 Cal. App. 715, 84 Pac. 249. Assignment of an insurance policy a few days before death is akin to a testamentary act. Borchers v. Barckers, 143 Mo. App. 72, 122 S. W. 357. Insurance is a vested interest of the beneficiary and as such will pass by wiU. Thompson v. .ffiltna L. I. Co., 161 Ala. 507, 49 South. 802. 3 5 Olmstead v. Benefit Soc, 37 Kan. 93, 14 Pac. 449. 36 Boice V. Shepard, 78 Kan. 308, 96 Pac. 485; Pilcher v. Puckett, 77 Kan. 284, 94 Pac. 132; Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166. A will disposing of a benefit certificate which formed no part of the holder's estate, and was not a subject of bequest, may consti- 342 WILLS AND ADMINISTRATION OP ESTATES (Ch. 9 may be varied by the wording of the particular pohcy or the terms of the particular kind of insurance. If the policy is payable to a named beneficiary, or even if payable to his "legal heirs," being definite individ- uals who come into existence at his death, it is held that the insured has no property in it that would pass tinder his will. But if it is payable to his "estate" " or to his "legal representatives," ^* which means his estate, it will pass under a residuary clause of the will and be liable for his debts. In all cases bequests of insurance are regarded as specific bequests, and if the insurance is not collectible or has been surrendered during the testator's lifetime the gift fails. ^° tute a valid written designation of the beneficiaries in compliance with the requirements of the association. Grand Lodge v. BoUman, 22 Tex. OlF. App. 106, 53 S. W. 829. In 1905 statute of Kansas provided that in case beneficiary in policy dies before insured and insured dies without naming another beneficiary or disposing of the Insurance by will it shall go to the estate of insured. This statute does not apply to fraternal insur- ance. Boice V. Shepard, 78 Kan. 308-311, 96 Pac. 485. ■3 7 Stoelker v. Thornton, 88 Ala. 241, 6 South. 680, 6 L. E. A. 140. 3« Walker v. Peters, 139 Mo. App. 681, 124 S. W. 35 ; Schumacher V. Schumacher, 32 Tex. Civ. App.. 497, 75 S. W. 50. so Nusly V. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134; Kramer v. Lyle (D. C.) 197 Fed. 618; Keller v. Gaylor, 40 Conn. 348. § 126) LEGACIES AND DEVISES 343 § 126. Legatees and devisees Description or designation of the persons who are the objects of the testator's bounty is governed by the same rules regarding certainty, as descriptions of the subject matter of the gift. A devise does not fail because of misnomer, if the evidence points out with clearness the person intended." If no person meets the description in the will as to legatee, the legacy is void, and if it be a residuary legacy the testator dies intestate as to such residue.*^ A corporation may be a devisee especially of a charitable gift, and does not suffer from a misnomer which may be corrected by parol. *^ But an unincor- porated society has no capacity to take.*^ The burden *o St. Louis Hospital Ass'n. v. Williams, 19 Mo. 609 ; Gordon c. Burris, 141 Mo. 602, 43 S. W. 642. "My children now living" is sufficiently definite. Watson v. Watson, 110 Mo. 164. But where Mr. Shaw gave a bequest to each of his employees who had been in his service a certain time, it was held not to extend to employees of the city of St. Louis employed in Shaw's Garden, of which Mr. Shaw was the donor and permanent superintendent. In re Estate of Shaw, 51 Mo. App. 112. 41 LehnhofE v. Theine, 184 Mo. 346, 83 S. W. 469. A bequest to "A's estate," A being alive at the date of the will, but having predeceased the testator, is void as not describing a person or entity capable of taking. Estate of Glass, 164 Cal. 765, 130 Pac. 868. *2 Williams v. Pearson, 38 Ala. 299 ; Alabama Conference v. Price, 42 Ala. 39; Mayor of Hunts ville v. Smith, 137 Ala. 382, 35 South. 120; Carter v. Balfour's Adm'r, 19 Ala. 814; Dunham v. Averill, 45 Conn. 61, 29 Am. Kep. 642 ; Beardsley v. Am. House Miss. Soc, 45 Conn. 327; First Cong. Soc. v. Atwater, 28 Conn. 34; Colbert v. Speer, 24 App. D. C. 187 ; Heist v. Universallst G. C, 76 Tex. 514, 13 S. W. 552. * 3 Greene v. Dennis, 6 Conn. 300, 16 Am. Dec. 58; Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, 44 L. R. A. (N. S.) 544, Amj.'^ Cas. 1914A, 592. 344 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 is not on the corporation to show capacity to take de- vises but on those who allege incapacity.** For any purpose within the scope of its duties a devise may be made to a city/" a school district,*" a county *'^ or the general government. The capacity of a foreign corporation to take a devise of land may, however, be affected by the statutes or rules of prop- erty of the state wherein the land lies.** The capacity of a legatee to take a legacy depends upon the law of the domicile of the legatee except where the law of the domicile of the testator forbids such bequests when they are void everywhere.*' ii White V. Howard, 38 Conn. 342; Conklin v. Davis, 63 Conn. 382, 28 Atl. 537; Hewitt v. Wheeler School, 82 Conn. 188, 72 Atl. 935; Colbert v. Speer, 24 App. D. C. 187. 4 5Delaney v. Salina, 34 Kan. 532, 9 Pac. 271; Chambers v. City of St. Louis, 29 Mo. 543 ; City of Huntsville v. Smith, 137 Ala. 382, 35 South. 120; Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 h. E. A. 407, 97 Am. St. Rep. 117 ; Handley v. Palmer (C. C.) 91 Fed. 948. . *6 Bulmer's Estate, 59 Cal. 131. *7 Fulbright v. Perry Co., 145 Mo. 432, 46 S. W. 955. *s By statute of New York a devise of lands in that state can only be made to natural persons and to such corporations as are cre- ated under the laws of the State and are authorized to take by de- vise. A devise to the government of the United States is void. Unit- ed States V. Fox, 94 U. S. 315, 24 L. Ed. 192. 49 Pottstown Hospital v. N. Y. Life I. & T. Co. (D. C. N. Y.) 208 Fed. 196. § 127) LEGACIISS AND DEVISES 345 § 127. Gifts to religious persons, bodies, or pur- poses Many state statutes and constitutions contain re- strictions, total or partial, against gifts to ecclesiasti- cal corporations or for religious purposes. These stat- utes and constitutional provisions are a relic of past generations and have been curtailed rather than ex- tended in recent years. In England gifts were declar- ed void if made for superstitious uses : i. e., those con- nected with the Catholic religion. In this country, where we have never had a state church and where we are proud of our complete religious tolerance, there is no use that may be properly condemned by the courts as superstitious." Positive restrictions in state consti- tutions or statutes must, however, be observed." Be- quests to be used for masses for the repose of testator's soul have been held valid by some courts °^ and void by others." 50 One may will his property for the promotion of any object that is not illegal, Immoral or against the public policy of the State. In re Bissell, 63 Neb. 585, 88 N. W. 683. 51 White V. Keller, 68 Fed. 796, 15 C. C. A. 688; Newton v. Car- bery, 5 Oranch, C. C. 632, Fed. Gas. No. 10,190. 52 Estate of Lennon, 152 Gal. 327, 92 Pac. 870, 125 Am. St. Eep. 58, 14 Ann. Gas. 1024. 5 3 Festorazzi v. St. Joseph's Church, 104 Ala. 327, 18 South. 394, 25 L. E. A. 360, 53 Am. St. Rep. 48. 346 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 § 128. Gifts to a class A devise or bequest may be made to several either as individuals or as a class. If as individuals they take as tenants in common ; ^* if as a class they take by a species of joint tenancy in which there is a sur- vivorship between the members of the class up to the time of final division. °° The law prefers a tenancy in common to a joint tenancy." A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future tirne, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number." 54 Ruggles V. Randall, 70 Conn. 44, 38 Atl. 885 ; Dryer v. Craw- ford, 90 Ala. 131, 7 South. 445; Davis v. Smitli, 4 Har. (Del.) 68; Dunn V. Bryan, 38 Ga. 154 ; Bowen v. Nelson, 185 Ga. 567, 69 S. E. 1115 ; Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Rep. 772; N. E. Mtg. & Sec. Co. v. Gordon, 95 Ga. 781, 22 S. E. 706; Mc- Cord V. Whitehead, 98 Ga. 381, 25 S. E. 767. 6 5 Inge V. Jones, 109 Ala. 175, 19 South. 435; Jacobs v. Bradley, 36 Conn. 369; Bolles v. Smith, 39 Conn. 220; Rockwell v. Swift, 59 Conn. 289, 20 Atl. 200 ; Glover v. Stillson, 56 Conn. 316, 15 Atl. 752 ; Pendleton v. Kinney, 65 Conn. 222, .32 Atl. 331; Rixey v. Stuckey, 129 Mo. 377, 31 S. W. 770 ; Records v. Fields, 155 Mo. 314, 55 S. W. 1021 ; Dodge v. Sherwood, 176 Mo. 33, 75 S. W. 417 ; Estate of Mur- phy, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110 ; Winter's Es- tate, 114 Cal. 186, 45 Pac. 1063; Estate of Cavarly, 119 Cal. 406, 410, 51 Pac. 629 ; O'Brien v. Dougherty, 1 App. D. C. 148 ; Thornton V. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798. When the estate Is divided between two classes there is no sur- vivorship, except between members of the same class. Booth v. Ward, 1 Del. Ch. 345. 56 Bill V. Payne, 62 Conn. 142, 25 Atl. 354. 5 7 Estate of Murphy, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110. § 128) LKGACIES AND DEVISES 347 Where the devisees are named and their particular share is stated, the gift is individual and not to a class," and there is no survivorship."' The English rule, which prevails in Massachusetts, Newr York and some other states is that a gift to children, grandchil- dren or heirs is equivalent to naming them, and is a gift to them individually and not as a class, is not the American rule generally/" A legacy to a class of persons will embrace all who answer the description when the gift takes effect. Thus a bequest to A for life with remainder to his children all the children born before the termination of the life estate, whether before or after the death of 58 Estate of Murphy, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110; HitteU's Estate, 141 Cal. 435, 75 Pac. 53; Bill v. Payne, 62 Conn. 141, 25 Atl. 354 ; Morris v. BoUes, 65 Conn. 45, 31 Atl. 538 ; Rockwell V. Bradshaw, 67 Conn. 8, 34 Atl. 758; Doe d. Ingram v. Girard, 1 Houst. (Del.) 276. The designation of the names of legatees usually makes them tenants in common, even though they are otherwise a class, but this may be controlled by the construction of the will as a whole. Where obligations are imposed upon them jointly they may take as a class, even though named individually. BoUes v. Smith, 39 Conn. 217; Talcott V. Talcott, 39 Conn. 186 ; Warner's Appeal, 39 Conn. 253. 5 9 Bill v. Payne, 62 Conn. 140, 25 Atl. 354; Estate of Kunkler, 163 Cal. 797, 127 Pac. 43 ; Hearn v. Cannon, 4 Houst. (Del.) 20. Except in Louisiana. In Louisiana a legacy to two persons "to be divided equally between them" is a conjoint one. If but one of them survives the testator, he is entitled, by accretion, to the whole of the thing bequeathed. Mackie v. Story, 93 U. S. 589, 23 L. Ed. 986. eo Raymond v. Hillhouse, 45 Conn. 467-474, 29 Am. Rep. 688; Warner's Appeal, 39 Conn. 253; HitteU's Estate, 141 Cal. 435, 75 Pac. 53 ; Estate of Henderson, 161 Cal. 353, 119 Pac. 496 ; Haas v. Atkinson, 20 D. C. 537. Not a class. Richardson v. Raughley, 1 Houst. (Del.) 561. 348 ■ WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 the testator, will take." Even though the remainder be vested it opens to let in after born members of the class/' Membership in a class is determined at the time when the estate vests. As a general rule this is at the death of the testator, whether the estate be one in pos- session or one in remainder °^ for even estates in re- mainder vest at the death of the testator. Words of survivorship prima facie apply to the death of the tes- tator,"* but the words of the will may make the sur- vivorship apply to some other period as the termina- tion of a particular estate,*' or the taking effect of an 61 Banks v. Jones, 50 Ala 4S0; Jones' Appeal, 48 Conn. 60; Crook's Estate, Myr. Prob. (Cal.) 247 ; Robertson v. Garrett, 72 Tex. 372, 10 S. W. 96. Where a devise is made for the children of two daughters, prima facie they take as classes in two groups, each group one-half. Ferry V. Langley, 12 D. C. 140. «2 Throop V. Williams, 5 Conn. 99; Webster v. Welton, 53 Conn. 183, 1 Atl. 633 ; Jones' Appeal, 48 Conn. 67 ; Webb v. Goodnough, 53 Conn. 220, 1 Atl. 797; Farnam v. Farnam, 53 Conn. 287, 2 Atl. 325, 5 Atl. 682 ; Cowles v. Cowles, 56 Conn. 247, 13 Atl. 414 ; Beckley v. Leffingwell, 57 Conn. 167, 17 Atl. 766 ; Mitchell v. Mitchell, 73 Conn. 303, 47 Atl. 325 ; Craig v. Rowland, 10 App. D. C. 402. An unborn child usually takes as member of a class. Cowles v. Cowles, 56 Conn. 247, 13 Atl. 414 ; Craig v. Rowland, 10 App. D. C. 402; Groce v. Rittenberry, 14 Ga. 233. 83 Wood V. McGuire, 15 Ga. 202 ; Davie v. Wynn, 80 Ga. 673, 6 S. E. 183; Gillespie v. Schuman, 62 Ga. 252; Lewis v. Lewis, 62 Ga. 265. 64 Vickers v. Stone, 4 Ga. 461 ; O'Brien v. Dougherty, 1 App. D. C. 148 ; Hill V. Hill, 90 Neb. 43, 132 N. W. 738, 38 L. R. A. (N. S.) 198 ; Kesterson v. Bailey, 35 Tex. Civ. App. 235, 80 S. W. 97. 8S Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605. Presumption of death from seven years' absence does not carry § 129) LEGACIES AND DEVISES 349 executory devise." Those who predecease the testator or the period when the class is determined, are not members." § 129. Per capita and per stirpes As a general rule where a gift is made to named in- dividuals "* or made to a class whose members stand in equal degree of relationship to the testator they take per capita/" but where the degree of relationship is different or the right depends upon representation '" or operation of law '" they take per stirpes.''^ presumption that person left no children, so as to make definite the member of a class at the death of life tenant. Furr v. Burns, 124 Ga. 742, 53 S. B. 201. Although the death of the life tenant be the time of determining the members of a class who shall take in remainder, yet they take from the testator and not froiB the life tenant. Burch v. Burch, 23 Ga. 536. 60 White V. Rowland, 67 Ga. 546, 44 Am. Hep. 781. 7 Fulghum V. Strickland, 123 Ga. 258, 51 S. E. 294 ; Davis v. San- ders, 123 Ga. 177, 51 S. E. 298 ; Crawley v. Kendrick, 122 Ga. 183, 50 S. E. 41, 2 Ann. Oas. 643 ; Tolbert v. Burns, 82 Ga. 213, 8 S. E. 79 ; Martin v. Trustees, 98 Ga. 320, 25 S. E. 522; Watkins v. Blount, 43 Tex. Civ. App. 460, 94 S. W. 1116. cape Laurencel v. De Boom, 67 Cal. 362, 7 Pac. 758; Post v. Jackson, 70 Conn. 283, 39 Atl. 151; Kean's Lessee v. Roe, 2 Har. (Del.) 103, 29 Am. Dec. 336 ; Almand v. Whitaker, 113 Ga. 889, 39 S. E. 395 ; Follansbee v. Follansbee, 7 App. D. C. 282. 00 Mclntire v. Mclntire, 192 U. S. 116, 24 Sup. Ct. 196, 48 L. Ed. 369 ; Id., 14 App. D. C. 337. Per capita and not per stirpes. Payne v. Rosser, 53 Ga. 662; Huggins V. Huggins, 72 Ga. 825. TO Walker v. Griffin, 11 Wheat. 375, 6 L. Ed. 498 ; Lyon v. Acker, 33 Conn. 222; Haas v. Atkinson, 20 D. C. 537; MacLean v. Williams, 116 Ga. 257, 42 S. B. 485, 59 L. R. A. 125. 71 Ruggles V. Randall, 70 Conn. 44, 38 Atl. 885. '2Billinslea v. Abercrombie, 2 Stew. & P. (Ala.) 24; Atkins v. 350 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 § 130. Ademption Ademption is invoked only where the gift is by a parent, or one standing in loco parentis, to a child. In case a parent has given a legacy to a child by will, and afterward during his lifetime, makes a gift or advancement to the same child of property of the same kind, the courts presume that he intends to adeem or revoke the legacy, in whole or pro tanto." This pre- sumption serves the same purpose as the doctrine of advancements in case of intestacy — that of securing substantial equality among the heirs. The doctrine of ademption apjDlies only to bequests of personal prop- erty and does not apply where there is a valid consid- eration for the conveyance. Whether a gift is an ademption of a legacy is a question purely of intention on the part of the testa- Guice, 21 Ark. 164; Kidwell v. Ketler, 146 Cal. 12, 79 Pac. 514; Talcott V. Talcott, 39 Conn. 189; Raymond v. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688 ; Heath v. Bancroft, 49 Conn. 220 ; Lockwood's Appeal, 55 Conn. 157, 10 Atl. 517; (Jeery v. Skelding, 62 Conn. 499. 27 Atl. 77 ; Conklin v. Davis, 63 Conn. 377, 28 Atl. 537 ; Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106. Per stirpes and not per capita. Fraser v. Dillon, 78 Ga. 474, 3 S. E. 695; Mayer v. Hover, 81 Ga. 308, 7 S. E. 562; Randolph v. Bond. 12 Ga. 362; Dunihue v. Hurd, 50 Tex. Civ. App. 360, 109 S. W. 1145. 7 3 Wilson V. Smith (C. C.) 117 Fed. 707; Fisher v. Keithley, 142 Mo. 244, 43 S. W. 650, 64 Am. St. Rep. 560 ; Waters v. Hatch, 181 Mo. 287, 79 S. W. 916; Roberts v. Weatherford, 10 Ala. 72; Duck- worth's Ex'r V. Butler, 31 Ala. 164 ; Gilmer v. Gilmer, 42 Ala. 9. Executor cited to show cause why he should not pay a legacy may plead that it has been adeemed. Medlock v. Miller, 94 Ga. 652, 19 S. E. 978. § 130) LEGACIES AND DEVISES 351 tor/* It is rarely implied where the intent to make cumulative gifts would be natural and consistent. Thus gifts prior to the will " or cumulative legacies given by a codicil ^^ are not ademptive, nor does the doctrine apply to residuary gifts." By statute the common law rule of ademption is extended to those to whom the testator does not stand in loco parentis." The term ademption has been applied, also, to what is more properly revocation pro tanto; that is, to dealings by the testator with the property devised in such a way as to make it impossible to carry out the directions of the will.^" It has been extended, by an- alogy to devises of lands. A conveyance of lands to one, to whom, by will executed prior thereto the same lands had been devised, would operate as a satisfaction of the devise, precisely as the settlement of a portion on a legatee is an ademption of the legacy ; otherwise Ti Kenaday v. Sinnott, 1T9 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339; Wilmerton v. Wilmerton, 176 Fed. 896, 100 C. C. A. 366, 28 L. R. A. (N. S.) 401; May v. May, 28 Ala. 141; Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414 ; Ives v. Oanby (O. C.) 48 Fed. 718 ; Beall V. Blake, 16 Ga. 119 ; Rogers v. French, 19 Ga. 317 ; Miller v. Payne, 28 App. D. C. 396-404. 7 6 Chapman v, Allen, 56 Conn. 152, 14 Atl. 780. 76 In re Zeile, 74 Cal. 125, 15 Pac. 455. 77 Davis V. Whitaker, 38 Ark. 435. Advance to son-in-law is not ademption of legacy to daughter. Hart V. Johnson, 81 Ga. 734, 8 S. E. 73. 78 Miller v. Payne, 28 App. D. O. 396-403. 7 9 Conn. T. & S. D. Co. v. Chase, 75 Conn. 683, 55 Atl. 171; Doiig- lass V. Douglass, 13 App. D. C. 21 ; Smith v. Smith, 23 Ga. 21 ; Whit- lock V. Vaun, 38 Ga. 562; Plant v. Donaldson, 89 App. D. C. 162; Galloway v. Galloway, 32 App. D. C. 76; Carr v. Berry, 116 Ga. 372-374, 42 S. E. 726 ; Reed v. Reed, 68 Ga. 589. 352 WILLS AND ADMINISTEATION OF ESTATES (Ch. 9 when the conveyance is not of the same lands which were de- vised.'" But such intention is not presumed from a me^e al- teration in the estate of the testator." § 131. Lapse A gift is said to lapse when the beneficiary dies in the lifetime of the testator," or before the estate vests, or when the gift is void and cannot take effect. °* For- merly the English courts allowed the residuary lega- ' tee to take all lapsed gifts of personal property,** but all lands and interests therein not expressly devised by the will, or the devise of which for any reason failed, were given to the heir-at-law. This rule has been changed by the help of statute and the presump- tion against partial intestacy, so that a residuary de- vise or bequest now carries everything the testator 80 Marshall v. Rench, 3 Del. Ch. 239; Morrill v. Gill, 46 Ga. 482. 81 Jacobs V. Button, 79 Conn. 360, 65 Atl. 150. 8 2 Miller V. Metcalf, 77 Conn. 176, 58 Atl. 743; Neirs Estate, Myr. Prob. (Cal.) 79; Hinckley's Estate, Myr. Prob. (Cal.) 189; Sutro's Estate, 139 Cal. 87, 72 Pac. 827 ; Martin v. Lackasse, 47 Mo. 591; Lemmons v. Reynolds, 170 Mo. 227, 71 S. W. 135; Galloway V. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782. 8 3 Wolfe V. Hatheway, 81 Conn. 181, 70 Atl. 645; Hartford Tr. Co. V. Wolcott, 85 Conn. 134, 81 Atl. 1057; O'Connor v. Murphy, 147 Cal. 148, 81 Pae. 406 ; Estate of Russell, 150 Cal. 604, 89 Pac. 345 ; Kinne v. Phares, 79 Kan. 366, 100 Pac. 287; Bollinger v. Knox, 3 Neb. (Unof.) 811, 92 N. W. 994 ; Moss v. Helsley, 60 Tex. 426. 8 4 A lapsed or void legacy of personal property passes to the resid- uary legatee, not to the next of kin. Roberson v. Roberson, 21 Ala. 273; Pool V. Harrison, 18 Ala. 514; Alston v. Coleman, 7 Ala. 795; Johnson v. Holifield, 82 Ala. 123, 2 South. 753 ; Pool v. Harrison, 18 Ala. 514 ; Abercrombie's Ex'r v. Abercrombie, 27 Ala. 489. § 131) LEGACIES AND DEVISES 353 has failed to dispose of," unless a contrary intention appears from the will.** Of course the will may contain express provision for substitution if devisee or legatee die before the tes- tator." Where there is no residuary devise or be- quest '^ or the person who is to take some part of the residuary estate, individually and not as member of a class, dies before the testator, there is a partial in- testacy which is unavoidable/' If a gift be made by a parent to a child or grand- child, the doctrine of lapse would often defeat the real intention of the testator, which would be to provide for such child and its descendants. The statutes of some states provide that if a gift be made to a "child, grandchild, or other relative" of the testator, who dies sBErwin v. Henry, 5 Mo. 469; Carr v. Dings, 58 Mo. 400; Brown V. Stark, 47 Mo. App. 370; McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1048 ; Three States Lumber Co. v. Rogers, 145 Mo. 445, 46 S. W. 1079 ; Mueller v. Buenger, 184 Mo. 458, 83 S. W. 458, 67 L. B. A. 648, 105 Am. St. Rep. 541; Sullivan v. Larkin, 60 Kan. 545, 57 Pac. 105; Johnson v. Holifield, 82 Ala. 123, 2 South. 753 ; Waterman v. Canal Louisiana Bank, 186 Fed. 71, 108 C. C. A. 183 ; XJpham's Estate, 127 Cal. 90, 59 Pac. 315; Bristol v. Bristol, 53 Conn. 242, 5 Atl. 687; Rockwell V. Bradshaw, 67 Conn. 8, 34 Atl. 758; Lenz v. Sens, 27 Tex. Civ. App. 442, 66 S. W. 110; Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782. 86 Moss V. Helsley, 60 Tex. 426-487. 81^ Bennett's Estate, 184 Cal. 320, 66 Pac. 370. 8 8 Cooch V. Clark, 8 Del. Ch. 299, 68 Atl. 247. 8i>Bendall v. Bendall, 24 Ala. 295, 60 Am. Dec. 469; Hamlet v. Johnson, 26 Ala. 557; Colt v. Colt, 33 Conn. 270; Hutchinson's Appeal, 34 Conn. 300; Bristol v. Bristol, 53 Conn. 242, 5 Atl. 687; Bill V. Payne, 62 Conn. 140, 25 Atl. 354 ; Walker v. Upson, 74 Conn. 128, 49 Atl. 904. BoBL. Wills— 23 354 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 before the testator, leaving descendants, it shall not lapse, but shall go to such descendants/" The statute changes the rule of the common law," and the term "other relative" cannot be extended to persons not' related to the testator by consanguinity/^ The child or other descendant taking the gift by substitution for his parent who has predeceased the testator, takes as a purchaser and not by descent and is not chargeable, therefore, with the debts of his parent/' Where the beneficiary of a life estate dies before the testator this does not defeat the bequest to the re- mainderman/* 9 These statutes follow the English Statute of 1 Victoria C. 26; Jones V. Jones' Ex'r, 37 Ala. 646; Estate of Ross, 140 Cal. 282, 73 Pac. 976; Estate of Kunkler, 163 Cal. 797, 127 Pac. 43; Seery v. Fitzpatrick, 79 Conn. 562, 65 Atl. 964, 9 Ann. Cas. 139; Cheney v. Selman, 71 Ga. 384; Smith v. Williams, 89 Ga. 9, 15 S. E. 130, 32 Am. St. Rep. 67. Statutory rule that bequests to relatives do not lapse by prior decease yields to intention expressed in will. Estate of Goetz, 13 Cal. App. 292, 109 Pac. 492. 01 Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546. 92Pfuelb's Estate, Myr. Prob. (Cal.) 38; Bramell v. Adams, 146 Mo. 70, 47 S. W. 931. 9 3 Wattenbarger v. Payne, 162 Mo. App. 434, 145 S. W. 148; Car- son V. Carson, 1 Mete. (58 Ky.) 300; Smith v. Smith, 58 N. C. 305; In re Hafner, 45 App. Div. 549, 61 N. Y. Supp. 565-568; Jones v. Jones, 37 Ala. 646 ; Succession of Morgan, 28 La. Ann. 290. Contra: Denise v. Denise, 37 N. J. Eq. 163; Baker v. Carpenter, 69 Ohio St. 15, 68 N. E. 577 ; McConkey v. McConkey, 9 Watts (Pa.) 352. 9* Estate of Gregory, 12 Cal. App. 309, 107 Pac. 566 ; BUlingsley V. Harris, 17 Ala. 214. The lapse of a devise of real estate charged with the payment of a specific legacy, by the death of the devisee before the testator § 132) LEGACIES AND DEVISES 355 § 132. Conditions — Affecting entire will The whole will may be conditional, or a particular clause may have a condition annexed to it. A will is said to be conditional when it is made for a temporary purpose, in view of an impending peril, and is only intended to operate in case death results from that danger. If this conditional character is clearly ex- pressed in the will, it will not operate unless the event occurs as anticipated. Thus a man about to go on a journey, or to engage in a battle or to have an oper- ation perfornied, may hastily make a will. This tes- tament may not be intended to be his deliberate and final act, but only to tide over a present danger and avoid intestacy in case of death. He may not have provided for all the beneficiaries that he would like; but has simply seized the opportunity to protect a few important objects. Now suppose the man does not die from the threatened peril, but lives through it, and then dies from some other cause, meanwhile allowing the instrument to remain in existence. Is the instru- ment to operate as his will ? This must be determined by a fair construction of the conditional clause of the will, as the testator has there expressed himself. It is not competent to seek the aid of extrinsic evidence on this point. If the testator has plainly said that it is only to operate as his will in case of his death under certain circumstances, that is the only effect that can be given to it. does not cause the legacy to lapse. Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664. 356 WILLS AND ADMINISTKATION OF ESTATES (Ch. 9 A good illustration of a will so drawn is found in Missouiri. The opening clause of the will was as f ol- ■ lows : "I this day start for Kentucky, I may never get back. If it should be my misfortune, I give my prop- erty to," etc. It was held that the visit to Kentucky was not named merely as the occasion of making the will, as from its supposed risks reminding him of the necessity or propriety of the act; but that his death prior to his return from Kentucky was the condition on which the will depended for its efificacy, and in case of his return it became void.°° This was held to be a clear case of a conditional will. It frequently hap- pens, however, that the testator mentions some event or occurrence in the opening clause of his will, not necessarily as a condition, but merely as the occasion for making his will. Where this is the construction which can be placed on his language the will is valid if it remain unrevoked at the time of his death, no matter when nor from what cause his death may have occurred.*' It is evident that it is well to avoid all »5Robnett v. Aslilock, 49 Mo. 171; White's Estate, Myr. Prob. (Oal.) 157 ; Vickery v. Hobbs, 21 Tex. 570, 73 Am. Dec. 238 ; Todd's Will, 2 Watts & S. (Pa.) 145; Eaton v. Brown, 20 App. D. C. 458; Phelps V. Ashton, 30 Tex. 344; Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S. W. 1113. Conditional will should be refused probate if testator did not die under condition named; but if admitted to probate will cannot be attacked collaterally by proof of failure of condition. Laufer V. Powell, 30 Tex. Civ. App. 604, 71 S. W. 549. o« "Courts do not incline to regard a will as conditional where it reasonably can be held that the testator was merely expressing his inducement to make it, although his language if strictly construed, would express a condition." Eaton v. Brown, 193 U. S. 411, 24 Sup. § 133) LEGACIES AND DEVISES 35T such expressions, unless the intention is that the will should be conditional ; and in that case to express the condition clearly. § 133. Conditions affecting particular gifts A condition may be annexed to a particular devise or bequest. Where a gift is coupled with a condition, not contrary to public policy, the beneficiary cannot take the gift unless the condition is complied with. It is said that the beneficiaries under a will must take what is given them, burdened with the conditions which the testator has imposed, whether wise or un- wise."^ Conditions are either precedent or subsequent.. A condition precedent is one which must precede or accompany the vesting of the gift and hence it must Ct. 487, 48 L. Ed. 730 ; French v. French, 14 W. Va. 458 ; Damon v. Damon, 8 Allen (Mass.) 192 ; In re Goods of Porter, L. R. 2 P. & D. 22 ; Cody v. Conly, 27 Grat. (Va.) 313 ; Skipwith v. Cabell, 19 Grat. (Va.) 758; Likefield v. Likefleld, 82 Ky. 589, 56 Am. Rep. 908; Tar- ver V. Tarver, 9 Pet. 174, 9 L. Ed. 91; Sanger v. Butler, 45 Tex. Civ. App. 527, 101 S. W. 459. »7 Stevens V. De La Vaulx, 166 Mo. 20, 65 S. W. 1003 ; Jarboe v. Hey, 122 Mo. 341, 26 S. W. 968 ; Smith v. Smith, 64 Neb. 563, 90 N. W. 560 ; Vaughan v. Vaughan's Adm'r, 30 Ala. 329 ; Rogers v. Law, 1 Black, 253, 17 L. Ed. 58 ; Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 610 ; Whiting's Appeal, 67 Conn. 379, 35 Atl. 268 ; Bishop v. Howarth. 59 Conn. 455, 22 Atl. 432 ; Barnes v. Kelly, 71 Conn. 220, 41 Atl. 772; Lord v. Lord, 22 Conn. 602; Dickey v. Dickey, 94 Fed. 231, 36 C. C. A. 211 ; Treat v. Treat, 35 Conn. 210 ; Gwynn v. Gwynn, 11 App. D. C. 564; King v. Shelton, 36 App. D. C. 1. Devisee may decline a gift upon condition. Pendleton v. Kinney, 65 Conn. 222, 32 Atl. 331. Condition that devisee change name. An example of the extremes 358 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 be performed before the beneficiary is entitled to the property.'* If such condition be void or if it be or become impossible of performance, even though there be no fault on the part of the devisee, the devise can- not take effect/* A condition subsequent, on the other hand, is one which does not prevent the vesting of the estate.^ It is well settled that if it can be collected from the whole will that the act annexed to the vesting of the estate does not necessarily precede but may accom- pany or follow it, it is a condition subsequent.^ It to wliicli tbe folly of a vain, domineering, purse-proud old man may lead. Taylor v. Mason, 9 Wheat. 325, 6 L. Ed. 101. But a condition that a wife remain separated from her husband is void as against public policy, and the legatee takes the property freed from the con- ' dition. Witherspoon v. Brokaw, 85 Mo. App. 169. 9 8 President of Yale College v. Runkle (C. C.) 8 Fed. 576; Mackay V. Moore, Dud. (Ga.) 94 ; Oetjen v. Diemmer, 115 Ga. 1005, 42 S. B. 388; Cliett v. Cliett, 1 Posey, Unrep. Gas. (Tex.) 407; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004 ; Clark v. Flelschmann, 81 Neb. 445, 116 N. W. 290 ; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Kep. 391. 8 9Halsey v. Goddard (C. C.) 86 Fed. 25; Carter's Heirs v. Car- ter's Adm'r, 39 Ala. 579; Robbins v. Co. Com'rs, 50 Colo. 610, 115 Pac. 526 ; Shockley v. Parvis, 4 Houst. (Del.) 568, 569 ; Mackay v. Moore, Dud. (Ga.) 94. Non-performance of a condition precedent is not excused by devi- see's ignorance. Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004. 1 Alexander v. Alexander, 156 Mo. 413, 57 S. W. 110; Piatt v. Piatt, 42 Conn. 347 ; Finlay v. King, 3 Pet. 346, 7 L. Ed. 701 ; Web- ster V. Cooper, 14 How. 488, 14 L. Ed. 510 ; In re De Vries, 17 Cal. App. 184, 119 Pac. 109 ; Smith v. Smith, 64 Neb. 563, 90 N. W. 560. 2 Bell Co. V. Alexander, 22 Tex. 350, 73 Am. Dec. 268 ; Jenkins v. Merritt, 17 Fla. 304 ; Winn v. Tabernacle Inf., 135 Ga. 380, 69 S. E. 557, 32 L. R. A. (N. S.) 512. § 133) LEGACIES AND DEVISES 359 may, if not performed, cause a forfeiture ' or consti- tute a limitation over to others.* The law is inclined to treat conditions as subsequent rather than precedent in favor of the vesting of es- tates." If a condition subsequent be void " or become impossible of performance without fault of the dev- isee, the estate becomes absolute.' The readiness of the devisee to perform the condition will prevent a forfeiture.* The condition may be waived by the party 3 Higgins T. Eaton (C. C.) 178 Fed. 153 ; Jacobs v. Bradley, 36 Conn. 370; Rockwell v. Swift, 59 Conn. 289, 20 Atl. 200; Wheeler V. Walker, 2 Conn. 196, 7 Am. Dec. 264; Sands v. Lyon, 18 Conn. 18-30; Tappan's Appeal, 52 Conn. 412; fluckabee v. Swoope, 20 Ala. 491 ; Smith v. Smith, 64 Neb. 563, 90 N. W. 560. 4 Doe V. Watson, 8 How. 263, 12 L. Ed. 1072 ; Frey v. Thompson, 66 Ala. 287; Drew v. Drew, 66 Ala. 455; Grimball v. Patton, 70 Ala. 626 ; Taylor v. McCowen, 154 Cal. 798, 99 Pac. 351 ; Hoselton v. Hoselton, 166 Mo. 182, 65 S. W. 1005. Distinction between limitation of estate and condition -subsequent, A suit by residuary devisees is equivalent to an assertion of forfei- ture without actual entry. Harrison v. Foote, 9 Tex. Civ. App. 576. Difference between common law conditions which will work a forfeiture of the estate and directions to trustees for the manage- ment of the property pointed out. Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502. If a devise be upon condition and the condition be complied with, the devisees take a fee. McCoun v. Lay, 5 Cranch, C. C. (D. C.) 548, Fed. Cas. No. 8,729 ; Derickson v. Garden, 5 Del. Ch. 323. 6 Green v. Gordon, 38 App. D. C. 443. 8 Carter's Heirs v. Carter's Adm'r, 39 Ala. 579 ; In re Walkerly, 108 Cal. 627-650, 41 Pac. 772, 49 Am. St. Rep. 97. 7 Shockley v. Parvis, 4 Houst. (Del.) 568 ; New Haven Co. v. Trin- ity Church Parish, 82 Conn. 378, 73 Atl. 789, 17 Ann. Cas. 432; Huckabee v. Swoope, 20 Ala. 491; Pitts v. Campbell, 173 Ala. 604, 55 South. 500; Green v. Gordon, 38 App. D. 0. 443; Harrison v. Harrison, 105 Ga. 517, 31 S. E. 455, 70 Am. St. Rep. 60. 8 Seeley v. Hincks, 65 Conn. 1, 31 Atl. 533 ; Hurd Tr. v. Shelton, 360 WILLS AND ADMINISTRATION OP ESTATES (Ch. 9 entitled to its performance.' The legal title is in the devisee and there must be a re-entry for condition bro- ken to divest that title.^" Forfeitures are not favored in the law and conditions that destroy an estate are taken strictly." Generally when a testator requires a thing to be done and provides no security for its performance the proviyon will be held to amount to a condition to prevent a failure of his purpose." But, usually, the expression of the purpose for which a legacy is given does not constitute either a condition or a trust," and if it become impossible to apply it, without fault on the part of the legatee, the gift becomes absolute.'* The conditions most frequently met with are re- straints upon marriage, restraints upon alienation, and conditions that the devisee pay money, or perform some obligation to another person. 64 Coun. 496-499, 30 Atl. 766; Lyman v. Chapin, 23 Conn. 447; King V. Gridley, 46 Oonu. 556. 9 Drennen v. Heard (D. C.) 198 Fed. 414 ; Higgins v. Eaton (C. C.) 188 Fed. 938. 10 Mercantile Trust Co. v. Adams, 95 Ark. 333, 129 S. W. 1101; Pierce v. Lee, 197 Mo. 480, 95 S. W. 426 ; Roberts v. Crume, 173 Mo. ^72, 73 S. W. 662. 11 Parks V. Wilkerson, 134 Ga. 14, 67 S. E. 401, 137 Am. St. Rep. 209; Jenkins v. Merrltt, 17 Fla. 304; Jones v. Jones, 223 Mo. 424, 123 S. W. 29, 25 L. R. A. (X. S.) 424. 12 Howze V. Davis, 76 Ala. 381. 13 Smith V. Phillips, 131 Ala. 629, 30 South. 872; Ooppedgev. Weav- er, 90 Ark. 444, 119 S. W. 678. 1* Bonner v. Young, 68 Ala. 35; Kelly y. Kelly's Adm'r, 3 Pennewill (Del.) 286, 50 Ati. 215. § 134) LEGACIES AND DEVISES 361 § 134. Non-contest clauses While in the absence of some express condition in the will a legatee is not estopped from claiming his legacy by reason of having contested the will/' yet the courts have sustained very generally what are known as non-contest clauses or conditions in wills. It is said that a condition, providing that if any beneficiary thereunder should contest the will, the de- vise or bequest to him should be revoked, not only is not repugnant to, but is favored by public policy," Such clause in the will embraces the contest of codi- cils. ^^ The condition may be enforced even though the contest is abandoned by compromise." Some courts hold that the existence of probable ground of contest will prevent forfeiture of legacy ^° and some, that it will not.^" It is held in some states 15 state ex rel. v. Adams, 71 Mo. 620; Catron's Estate, 82 Mo. App. 416; Meaill v. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307. 16 Estate of- Hite, 155 Cal. 436, 101 Pac. 443, 21 L. B. A. (N. S.) 953, 17 Ann. Gas. 993; Donegan v. Wade, 70 Ala. 501; Perry v. Rogers, 52 Tex. Civ. App. 594, 114 S. W. 897 ; Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219. " Estate of Hite, 155 Cal. 436, 101 Pac. 443, 21 L. E. A. (N. S.) 9o3, 17 Ann. Cas. 993. 18 Estate of Hite, 155 Cal. 436, 101 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993. i 19 Estate of Friend, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447. 20 Estate of Miller, 156 Cal. 119, 103 Pac. 842, 23 L. K. A. (N. S.) S68. 362 WILLS AND ADMINISTEATION OF ESTATES (Ch. 9 that a gift over is necessary " and in others that the absence of a gift over is not important." When legacies are given to persons upon conditions not to dispute the validity of, or the dispositions in wills or testa- ments, the conditions are not in general obligatory, but only in terrorem. If therefore there exists probabilis causa liti- gandi, the nonobservance of the conditions will not be forfei- tures. Powell V. Morgan, 2 Vern. 90 ; Morris v. Burroughs, 1 Atk. 404; Loyd v. Spillet, 3 P. Wms. 344. The reason seems to be this: A court of equity does not consider that the testator meant such a clause to determine his bounty, if the legatee resorted to such a tribunal to ascertain doubtful rights under the will, or how far his other interests might be affected by it, but merely to guard against vexatious litigation. But when the acquiescence of the legatee appears to be a material ingredient in the gift, which is made to determine upon his controverting the will or any of its provisions, and in either of these events the legacy is given over to another per- son, the restriction no longer continues a condition in terro- rem, but assumes the character of a conditional limitation. The bequest is only quousque the legatee shall refrain from disturbing the will ; and if he controvert it, his interest will cease and pass to the other legatee.' 23 21 Holt V. Holt, 42 N. J. Eq. 388, 7 Atl. 856, 59 Am. Rep. 43; Brad- ford V. Bradford, 19 Ohio St 546, 2 Am. Rep. 419 ; Cooke y. Turner, 14 Sims. 493. "Even wtien the forfeiture of the legacy has been declared to be the penalty of not conforming to the injunction of the will courts have considered it, if the legacy be not given over, rather as an eflfort to effect a desired object by intimidation than as concluding the rights of the parties." Pray v. Belt, 1 Pet. 670-679, 7 L. Ed. 309. 2 2 Matter of Garcelon, 104 CaJ. 570, 38 Pac. 414, 82 L. R. A. 595, 43 Am. St. Rep. 134 ; Estate of Hite, 155 Cal. 436, 101 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993 ; Estate of Miller, 156 Cal. 119-122, 103 Pac. 842, 23 L. R. A. (N. S.) 868. 28 Smithsonian Institution v. Meech, 169 U. S. 398, 18 Sup. Ct. § 135) LEGACIES AND DEVISES 363 A bequest upon condition that the legatee present no claim against the estate is forfeited by his present- ing a claim." § 135. Restraints upon marriage As a general rule, conditions in restraint of mar- riage are void, as against public pohcy, and the gift becomes absolute and unconditional. This was so held in an early case in Missouri, in which a tes- tator by his will devised to his son and daughter equal shares of a tract of land with the provision that, "if his said daughter should marry or die" the land should belong exclusively to the son. It was held that the condition was in restraint of marriage, and was void as against public policy, and that the daughter took her interest absolutely, and did not lose it by her subsequent marriage." This rule has 396, 42 L. Ed. 793 ; Id., 8 App. D. C. 490 ; 1 Roper on Legacies, 2 Am. Ed. 795. 24 Rockwell V. Swift, 59 Conn. 289, 20 Atl. 200. A testator provided that if any heir should make "any unjust claim" against his estate he should receive ?1 in lieu of the be- quest mentioned in the will. Held a claim which the executor com- promised for 50% could not be said to be an unjust claim. Ritch V. Talbot, 74 Conn. 137, 50 Atl. 42. Where there is a legacy in a will conditioned to go to another if the legatees should sue to compel an account for the testator's acts as guardian of the legatees, and the legatees accepted the legacy and enjoyed it for six years, without fraud or mistake, held that they were estopped from suing to compel the account. Shivers v. Goar, 40 Ga. 676. 2 5 Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143; Vaughn v. Lovejoy, 34 Ala. 437 ; Estate of Alexander, 149 Cal. 146, 85 Pac. 308, 9 Ann. Cas. 1141 ; Kennedy v. Alexander, 21 App. D. C. 424 ; Knost 364 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 been very generally applied where the condition was a subsequent one; but where the condition is precedent, as requiring the approval of guardians, etc., to the legatee's marriage under twenty-one, before the estate can vest, with a limitation over, the conditiori is valid. ^^ It seems, however, that a testator may devise property to his widow with a limitation that it shall go to others upon her remarriage. This is regarded as a valid limitation, and the estate of the widow terminates upon the happening of the event as it would upon the happening of any other event named." The rule of public policy does not extend to the remarriage of widows." V. Knost, 229 Mo. ITO, 129 S. W. 665, 49 L. R. A. (N. S.) 627 ; Hawke V. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Kep. 391. A limitation over in case of death of devisee before marriage is not void. Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605. 2 6 Collier, Ex'r v. Slaughter, 20 Ala. 263. Provision in will that each of testator's daughters receive certain portions of estate on becoming widows or lawfully separated from husband is not void as against public policy in Inducing unlawful separation. Born v. Horstmann, 80 Gal. 458, 22 Pac. 169, 338, 5 L. E. A. 577. 27 Vaughn v. Lovejoy, 34 Ala. 437 ; Helm v. Leggett, 66 Ark. 23, 48 S. W. 675 ; Estate of Fitzgerald, 161 Cal. 319, 119 Pac. 96, 49 L. R. A. (N. S.) 615; Phillips v. Medbury, 7 Conn. 573; Chappel v. Avery, 6 Conn. 33 ; Bennett v. Packer, 70 Conn. 357, 39 Atl. 739, 66 Am. St. Rep. 112 ; Chapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Rep. 139 ; Walsh v. Mathews, 11 Mo. 134 ; Dumey v. Schoeffler, 2 8 The origin and history of the common and canon law in respect to gifts in restraint of marriage reviewed. Chapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Rep. 139. § 136) LEGACIES AND DEVISES 365 § 136. Restraints upon alienation — Spendthrift trusts As a general proposition conditions annexed to a gift which attempt to impose restraints upon the power of alienation are void as against public pol- icy. This is for the reason that it is among the attributes of ownership that the. owner shall have power to sell and dispose of his property, and that it be Hable to the claims of his creditors. The right of alienation is an inherent and insep- arable quality of an estate in fee simple. In a devise of land in fee simple a condition against all alienation is void because repugnant to the estate devised.^® For the same reason, a limitation over 24 Mo. 170, 69 Am. Dec. 422 ; Dumey v. Sasse, 24 Mo. 177 ; Gaven v. Allen, 100 Mo. 298, 13 S. W. 501 ; Giles v. Little, 104 XJ. S. 291, 26 L. Ed. 745; Snider v. Newsom, 24 Ga. 139; Doyal v. Smith, 28 Ga. 262 ; Benton v. Benton, 78 Kan. 373, 104 Pac. 856 ; Id., 84 Kan. 691, 115 Pac. 535; In re Poppleton's Estate, 34 Utali, 285, 97 Pac. 138, 131 Am. St. Rep. 842 ; Haring v. Shelton, 103 Tex. 10, 122 S. W. 13 ; Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137. Under a devise to a wife "so long as she remains my vpidow" with devise over of "what remains" upon her remarriage the widow may convey the fee simple. Giles v. Little, 104 U. S. 291, 26 L. Ed. 745 overruled: Little v. Giles, 25 Neb. 313, 41 N. W. 186 followed; Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747. Devise to widow, limitation on remarriage she cannot exercise an express power of disposition fraudulently to defeat remainderman on her remarriage. Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137. 2 9 Potter V. Couch, 141 IT. S. 296-315, 11 Sup. Ct. 1005, 35 L. Ed. 721; McDonogh v. Murdock, 15 How. 367, 14 L. Ed. 732; Williams T. Williams, 73 Cal. 99, 14 Pac. 394; Mcllvalne v. Smith, 42 Mo. 45, 97 Am. Dec. 295 ; Peugnet v. Berthold, 183 Mo. 61, 81 S. W. 874 ; Wool v. Fleetwood, 136 N. C. 460, 48 S. E. 785, 67 L. R. A. 444; 366 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 in case the first devisee shall aHen is equally void, whether the estate be legal or equitable/" It seems, however, that an equitable estate or a life estate may be limited in any way that the tes- tator may desire, and this upon the sound theory that the unrestricted fee is vested somewhere else/' A testator may. postpone the division of his es- tate for a reasonable time, and to that extent may restrict its alienation. In some states there is a statute to the effect that no partition of land shall be made contrary to the directions of a will/^ But Gannon v. Pauk, 200 Mo. 87, 98 S. W. 471 ; Freeman v. Phillips, 113 Oa. 589, 38 S. E. 943; Grumpier v. Barfield, 114 Ga. 570, 40 S. B. 808; Pratt v. Railroad, 130 Mo. App. 175, 108 S. W. 1099; Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160. Restraints on alienation. A foolish attempt to both give and withhold property from a legatee. Evins v. Cawthon, 132 Ala. 184, 31 South. 441. A blundering decision upholding a restraint on alienation. Hatch- er v. Smith, 103 Ga. 843, 31 S. E. 447. so Howard v. Carusi, 109 U. S. 725, 3 Sup. Ct. 575, 27 L. Ed. 1089; Ware v. Cann, 10 B. & C. 433 ; Shaw v. Ford, 7 Ch. D. 669 ; In re Dugdale, 38 Ch. D. 176 ; Corbett v. Corbett, 13 P. D. 136 ; Steib v. Whitehead, 111 111. 247 ; Kelley v. Meins, 135 Mass. 231 ; Roosevelt V. Thurman, 1 Johns. Ch. 220; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61 ; Anderson v. Cary, 36 Ohio St. 506, 38 Am. Rep. 602 ; Twitty v. Camp, 62 N. C. (PhU. Bq.) 61 ; In re Rosher, 26 Ch. D. 801. 81 WoUer V. Noffsinger, 57 Neb. 455, 77 N. W. 1075 ; Loosing v. Loosing, 85 Neb. 66-75, 122 N. W. 707, 25 L. R. A. (N. S.) 920 ; Tram- mell V. Johnston, 54 Ga. 340; Dulin v. Moore, 96 Tex. 135, 70 S. W. 742. Restraint on alienation even of a life estate Is repugnant and void. Sprinkle v. Leslie, 36 Tex. Civ. App. 356, 81 S. W. 1018. This case is distinguished from those in which the restraint is necessary to the fulfillment of a trust. 82 Cubbage v. Franklin, 62 Mo. 364. § 136) LEGACIES AND DEVISES 367 in order to effectuate such an intention to postpone the possession or division of the estate it seems to be necessary to vest the legal title in trustees.'' Such an intention is usually incidental to a principal pur- pose to keep the estate intact during a life estate, or during the minority of one or more of the bene- ficiaries. If the beneficiaries are of full age, and take vested interests without any intermediate es- tate intervening, a mere arbitrary purpose to post- pone the division or possession of the property has been held illegal.'* When it is desired to tie up the property in such a manner that the income may be paid to a desig- nated person regularly for his support while the principal itself is beyond his reach and beyond the S3 Anderson v. Messinger, 146 Fed. 929, 77 C. C. A. 179, 7 L. E. A. (N. S.) 1094 ; Toland v. Toland, 123 Cal. 140, 55 Pac. 681 ; Loomer V. Loomer, 76 Conn. 522-527, 57 Atl; 167 ; Mead v. Jennings, 46 Mo. 91; McQueen v. Lilly, 131 Mo. 18, 31 S. W. 1043; Stevens v. De La Vaulx, 166 Mo. 20, 65 S. W. 1003 ; McLeod v. Dell, 9 Fla. 427-^47 ; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692. A testatrix devised and bequeathed property to a trustee to be held in trust until her son should reach the age of 30 years, the in- come in the meantime to be paid to him, and the property to be then transferred to him. Held that the trust was lavcful, and although there was no express restriction against alienation by the son of either the income or corpus of the property and no provision for contingent remainder In case he should not reach the age of 30, it was within the discretion of a court of equity to refuse to over- ride the limitation of the will by terminating the trust before the stated time. Stier v. Nashville Trust Co., 158 Fed. 601, 85 C. C. A. 423. 34 Dado v. Maguire, 71 Mo. App. 641. 368 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 reach of his creditors, it is done by means of a spendthrift trust. Property may be conveyed by will to trustees to pay over the income to a beneficiary, free from the claims of his credi- tors, and without power of alienation.^^ The law does not favor such an arrangement as this. No presumption is indulged in favor of a spendthrift trust, but if it is clearly expressed in the will it is valid.'" 3 5 Brooks V. Eaynolds, 59 Fed. 923, 8 C. C. A. 370; reversing (C. C.) 55 Fed. 783; Seymour v. McAvoy, 121 Cal. 43S, 53 Pac. 946, 41 L. K. A. 544 ; Tarrant v. Backus, 63 Conn. 277, '28 Atl. 46 ; St. John T. Dann, 66 Conn. 401, 34 Atl. 110 ; Montague v. Crane, 12 Mo. App. 582 ; Schoeneich v. Field, 73 Mo. App. 452 ; Jarboe v. Hey, 122 Mo. 341, 26 S. W. 968; Guy v. Mayes, 235 Mo. 390, 138 S. W. 510; Sin- nott V. Moore. 113 Ga. 908, 39 S. E. 415; In re Moore's Estate, 198 Pa. 611, 48 AtL 885 ; Herring v. Patten, 18 Tex. Civ. App. 147, 44 S. W. 50 ; Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388. An illustrative case on this subject is as follows: "A testator devised lands to a trustee for the use of his three sons, 'with power in my three sons to use and enjoy equally the rents, issues and profits thereof, during theit natural lives,' his object being, 'to secure to my children a certain annual income beyond the accident of fortune or bad management on their part, and with this end in view to take away from them the power of disposing of the same, or of creating any liens thereon, or of making the same liable in any way for their debts.' It was held that it was the evident purpose of the testator to restrain the anticipation or alienation by the sons of the income of the realty, and that such restriction was a valid one." Lampert v. Haydel, 96 Mo. 439, 9 S. W. 780, 2 L. K. A. 113, 9 Am. St. Rep. 358. Not sufficient to create spendthrift trust. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524 ; Cornet v. Cornet, 248 Mo. 184, 154 S. W. 121. 8 8 Partridge v. Ca vender, 96 Mo. 452, 9 S. W. 785; Pickens v. Dorris, 20 Mo. App. 1; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254 ; Spindle v. Shreve, 111 U. S. 542, 4 Sup. Ct. 522, 28 L. Ed. 512 ; Nichol V. Levy, 5 Wall. 433, 18 L. Ed. 596 ; Smith v. Moore, 3T Ala. § 136) LEGACIES AND DEVISES 369 In further aid of such a plan the testator may vest a discretion in the trustees to pay over to or withhold from the beneficiary any portion of the property, either for his support or otherwise. Such discretion in the trustees is incompatible with any vested interest of the beneficiary in any portion of the corpus within the reach of himself or his credi- tors during his lifetime," although he may have a power of appointment of the estate or the fee may descend to his heirs/^ 327; Jones v. Eeese, 65 Ala. 134; Williams v. Robinson, 16 Conn. 517; McKinster v. Smith, 27 Conn. 628; Groom v. Ocala P. & B. Co., 62 Fla. 460, 57 South. 243; Heaton v. Dickson, 153 Mo. App. 312, 183 S. W. 159; Dunephant v. Dickson, 153 Mo. App. 309, 133 S. W..165. Spendthrift trusts valid. Shankland's Appeal, 47 Pa. 113 ; Smith V. Towers, 69 Md. 77, 14 Atl. 497, 15 Atl. 92, 9 Am. St. Rep. 398; Harnett's Appeal, 46 Pa. 392, 86 Am. Dec. 502 ; Broadway Nat. Bank V. Adams, 133 Mass. 170, 43 Am. Rep. 504; Nickell v. Handly, 10 Grat. (Va.) 336 ; Leavitt v. Beirne, 21 Conn. 1 ; Pope v. Klliott, 8 B. Mon. (Ky.) 56; Campbell v. Foster, 35 N. Y. 361; Jourolmon v. Massengill, 86 Tenn. 81, 5 S. W. 719 ; Barnes v. Dow, 59 Vt. 530, 10 Atl. 258 ; Thackara v. Mintzer, 100 Pa. 151. Attempt by spendthrift to create a trust for himself by deeding his share over to a trustee to manage for him defeated on the issue of fraud and undue Influence. Cornet v. Cornet, 248 Mo. 184, 154 S. W. 121. Spendthrift trust, subject to claims of wife and children. Laws Mo. 1913, p. 96. sTBallantine v. Ballantine (C. C.) 152 Fed. 775; Brooks v. Ray- nolds, 59 Fed. 923, 8 C. O. A. 370; reversing (C. C.) 55 Fed. 783; Nichols V. Eaton, 91 U. S. 716, 23 L. Ed. 254; Cutter v. Hardy, 48 Cal. 568 ; Seymour v. McAvoy, 121 Cal. 438, 53 Pac. 946, 41 L. R. A. 544 ; Holmes v. Bushnell, 80 Conn. 233, 67 Atl. 479. 88 Bransfield v. Wigmore, 80 Conn. 11, 66 Atl. 778 ; Mason v. R. I. Hospital Tr. Co., 78 Conn. 81, 61 Atl. 57, 3 Ann. Cas. 586. BoBL. Wills — 24 370 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 § 137. Condition that devisee pay certain legacies or charges The personal estate is the primary fund for the payment of legacies, but, either by express direc- tion of the will or necessary implication therefrom, the legacies may sometimes be paid out of the real- ty. It is not intended to discuss the general sub- ject at this point as it will be treated more fully un- der the heading of Distribution. It is intended to discuss here a devise of land upon condition that the devisee pay certain legacies or discharge certain obligations in respect of that devise. The phase of the subject here presented is one form of condi- tion. A testator may annex a condition to a gift that the devisee pay certain legacies to other per- sons. This is a valid condition, and is often a very provident arrangement. If the devisee does not choose to take under the will he need not ; but if he take the gift, he must do so with all the burdens the testator has seen fit to place upon it. If the legacy is charged upon the land and its payment made a condition precedent to the right of the devisee to take the title the matter is very simple.^" But if the legacy is to be paid or the ob- ligation discharged in the future or as a condition subsequent the greatest confusion prevails by rea- son of the two different aspects in which the charge may be regarded. 3 8 Broad's Estate, Myr. Prob. (Cal.) 188. § 137) LEGACIES AND DEVISES 371 First: it may be treated as a personal liability on the devisee which he accepts by accepting the devise. Second : it may be regarded as an equitable lien upon the land itself. In some cases it has been treated as a personal liability," in others as an equitable lien," and in still others as both." The difference in legal effect between these prop- ositions is very great, with a corresponding differ- ence in the rights and remedies of the legatee. When the legacy is held to be an equitable lien *o Dunne v. Dunne, 66 Cal. 157, 4 Pac. 441, 1152 ; Williams v. Nich- ols, 47 Ark. 254, 1 S. W. 243 ; Millington v. Hill, 47 Ark. 301, 1 S. W. 547; Hunkypillar v. Harrison, 59 Ark. 453, 27 S. W. 1004; Al- exander V. Alexander, 156 Mo. 413, 57 S. W. 110; Wood v. Ogden, 121 Mo. App. 668, 97 S. W. 610. Where legacy is made a charge on devisee only legatee entitled can enforce charge. Lausman v. Drahos, 12 Neb. 102, 10 N. W. 573. Where the devisee of lands charged with the payment of legacies has a right under the terms of the will to discharge the legacies in land, he must exercise such right within a reasonable time, and his retention of the lands for twelve years is an election, to pay the lega- cies in money, with interest. Dunne v. Dunne, 66 Cal. 157, 4 Pac. 441, 1152. *i Dudgeon v. Dudgeon, 87 Mo. 218; Bakert v. Bakert, 86 Mo. App. 83; Allison v. Chaney, 63 Mo. 279; Austin v. Watts, 19 Mo. 293; Brooks V. Eskins, 24 Mo. App. 296; French v. Mastin, 19 Mo. App. 614; Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998; Dickinson v. Worthington (C. C.) 10 Fed. 860 ; Nichols v. Postlewaite, 2 Dall. 131, 1 L. Ed. 319 ; Oato v. Gentry, 28 Ga. 327 ; Palmer v. Simpson, 69 Ga. 792; Whittle v. Tarver, 75 Ga. 818; Bell v. Watkins, 104 Ga. 345, 30 S. E. 756 ; Prince v. Barrow, 120 Ga. 810, 48 S. E. 412 ; Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683. *2 Keir v. Keir, 155 Oal. 96, 99 Pac. 487. 372 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 on the land it follows the land in the possession of ,all subsequent purchasers. No matter how far in the future the legacy may be payable the legatee has always a perfect remedy to recover his legacy so far as the security of the land goes. On the other hand, if the legacy is a mere personal charge on the devisee the title to the land is free from any lien. The devisee may convey the fee; purchasers are not bound to see that the legacy is paid; and the only remedy of the legatee when payment ac- crues is to sue the devisee in assumpsit. Of course the legatee takes the hazard of continued financial responsibility of the devisee, with the result that the legatee frequently loses his legacy. The courts have assumed to extract these diverse meanings from the accidental use or arrangement of the words of the testator in his will. With whol- ly unconscious humor they call this "construing the intention of the testator as expressed in the lan- guage of his will." This is in the very face of the fact that the testator rarely understands the legal effect of his language. Here again, as always in the construction of wills, the courts are adrift in an unknown sea, in a rudderless craft, without chart or compass. Shipwreck of the hopes and fortunes of litigants is the expected result and a safe landing a happy accident. Even so great a judge as Story has said: A testator may devise lands with a view to legacies, and make them a charge on the land, or on the person of the devisee § 137) LEGACIES AND DEVISES 373 or both ; and whether a particular legacy be in either predica- ment must depend upon the language of the will. When, therefore, the testator orders legacies to be paid out of his lands, or where subject to legacies or after payment of lega- cies, he devises his lands, courts have held the land charged with the legacies upon the manifest intention of the testator. But here there is no such language. There is no direction that the devisee shall pay the legacies out of the land. The charge is personal and the case falls directly within the authority of Reeves v. Gower, 11 Mod. Rep. 208.*^ It is unfortunate that there cannot be a simple scientific rule on the subject founded upon the in- herent nature of the gift. This is a very important question when the legacy is to be paid in the future ; as, upon the marriage, death, or majority of a cer- tain person; or is of a continuing nature, such as an annuity. The simplest rule would be that when- ever a testator has imposed an obligation upon one of the beneficiaries in the same will in which he gives such beneficiary a portion of his estate, the obligation must be discharged out of the property thus given, and is an equitable lien on such prop- erty. What right has the testator to impose an ob- ligation upon any one, unless he accompanies it with a gift of property out of which the obligation may be discharged? What right has the testator to impose a mere personal charge? The charge really rests upon the property given, and the devisee assumes it only when he accepts the property. *3 'Wright V. Dena, 10 Wheat. 204r-226, 6 L. Ed. 303. 374 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 One of the useful and provident arrangements to which this form of devise can be put is to provide an annuity/* or for the support of children or aged persons. *° On account of the needless confusion in which this subject is involved the draftsman of a will cannot be too careful in expressing plainly whether the charge is to be an equitable lien on the land or a personal charge on the devisee. § 138. Election The general principle of election is frequently ap- plied by courts of equity in cases of wills, and rests upon the obligation imposed upon one to choose between two inconsistent or alternative rights or claims in case there is a clear intention of the per- son from whom he derived one that he should not enjoy both.*° Whoever accepts a benefit under <4Waterfleld v. Rice, 111 Fed. 625, 49 C. O. A. 504; Canal Bank V. Hudson, 111 U. S. 66, 4 Sup. Ct. 303, 28 L. Ed. 354; Estate of Haines, 150 Cal. 640, 89 Pac. 606 ; Peck v. Kinney, 143 Fed. 76, 74 €. C. A. 270; Ohio River R. Co. v. Fislier, 115 Fed. 929, 53 C. C. A. 411. *5 Devise subject to cliarge for support of another person. Hun- ter V. Stembridge, 12 Ga. 192; Drane v. Beall, 21 Ga. 21; Tate v. Chandler, 115 Ga. 462, 41 S. E. 647; Rogers v. Highnote, 126 Ga. 740, 56 S. B. 93 ; Jamison v. May, 13 Ark. 600 ; Scott v. Logan, 23 Ark. 351; Cockrill v. Armstrong, 31 Ark. 580; Williams v. MacDoug- all, 39 Cal. 80. *8 Graham v. Roseburgh, 47 Mo. Ill ; McKee v. Stuckey, 181 Ma 719, 81 S. W. 160 ; Smithsonian Institution v. Meech, 169 U. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793. § 138) LEGACIES AND DEVISES 375 a will must conform to all its provisions and re- nounce any right inconsistent with them; he can- not claim both under and against the will/' Though a testator has no power to dispose of the property of another person by his will, still if he un- dertakes to do so and gives the true owner some be- quest or devise under the same will, such person will be put to his election to take under the will, or re- nounce the will and stand on his legal rights/^ He cannot do both. The purpose of the testator to put the devisee to his election must appear from the will itself." A testator is presumed not to have intended to de- vise property of which he had no power to dis- *r Howze V. Davis, 76 Ala. 381; McCracken v. McBee, 96 Ark. 251, 131 S. W. 450 ; Adams v. Lansing, 17 Cal. 629 ; Hill v. Den, 54 Cal. 6; Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899; Walker v. Upson, 74 Conn. 128, 49 Atl. 904; Farmington Sav. Bank v. Curran, 72 Conn. 342, 44 AU. 473 ; Paschal v. Acklin, 27 Tex. 173 ; Little v. Birdwell, 27 Tex. 688 ; Philleo v. HoUiday, 24 Tex. 38 ; Sparks v. Dorrell, 151 Mo. App. 173, 131 S. W. 761 ; Lamar v. McLaren, 107 Ga. 591, 34 S. E. 116; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Torno v. Torno, 43 Tex. Civ. App. 117, 95 S. W. 762 ; Weller v.^ Nofesinger, 57 Neb. 455, 77 N. W. 1075. ^s Fitzhugh V. Hubbard, 41 Ark. 64; Morrison v. Bowman, 29 Cal. 337 ; Noe v. Splivalo, 54 Cal. 207 ; Hurd v. Shelton, 64 Conn. 496, 30 Atl. 766; Farmington Sav. Bank v. Curran, 72 Conn. 342, 44 Atl. 473; Pemberton v. Pemberton, 29 Mo. 408; O'Keilly v. Nicholson, 45 Mo. 164; Pryor v. Pendleton, 92 Tex. 384, 47 S. W. 706, 49 S. W. 212 ; Murphy v. Sisters, 43 Tex. Civ. App. 638, 97 S. W. 135. ■4 9 Fitzhugh v. Hubbard, 41 Ark. 64; McDonald v. Shavr, 92 Ark. 15, 121 S. W. 935, 28 L. K. A. (N. S.) 657 ; Young v. McKinnie, 5 Fla. 542; Couts v. Holland, 48 Tex. Civ. App. 476, 107 S. W. 913; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083. 376 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 pose/" but a legatee is put to his election even though the testator was in error about the ownership of the property." As a general rule the legatee is not bound to elect until the condition and value of the property bequeath- ed to him is known/^ The essence of either an elec- tion or ratification is that it was done with full knowl- edge of the party's right/^ But acts which indicate a choice of remedies must be held to be an election," and such effect may follow from lapse of time and change in position of the parties/^ The effect of the election to take under the will is to relinquish the title 5 In re Gilmore, 81 Cal. 242, 22 Pac. 655; Owen v. Tankersley, 12 Tex. 405. 51 McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A. (N. S.) 657. 63 Dunne v. Dunne, 66 Cal. 159, 4 Pac. 441, 1152. 6 3 King V. La Grange, 50 Cal. 328 ; Estate of Thayer, 142 Cal. 453, 76 Pac. 41; Chapman v. Allen, 56 Conn. 152, 14 Atl. 780; Scoby v. Sweatt, 28 Tex. 713. A court of equity has power to elect for an infant legatee. Swann V. Garrett, 71 Ga. 566. 5 4 Smith V. Furnish, 70 Cal. 424, 12 Pac. 392; Clark v. Hershy, 52 Ark. 473, 12 S. W. 1077; Etcheborne v. Auzerais, 45 Cal. 121 ; Noe V. Splivalo, 54 Cal. 207 ;' Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S. W. 980 ; Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219. To constitute an election between a devise in a will and a right inconsistent therewith there must be an intention to make an elec- tion or some decisive act that will prevent restoring the parties af- fected to the same situation as if such act had not been performed. Cobb v. Macfarland, 87 Neb. 408, 127 N. W. 877; Scoby v. Sweatt, 28 Tex. 713. 6 6 Election by taking benefits under the will becomes binding by lapse of time and change in position of parties. Utermehle v. Nor- ment, 22 App. D. 0. 31. § 139) LEGACIES AND DEVISES 377 to the property given to others." The doctrine of elec- tion does not apply to residuary legatees as such, but to specific legatees.*^ Provision ifoR Widow or Widower § 139. Public policy limiting the testamentary power of married persons A word should be said here in regard to limitations upon the power of testamentary disposition growing out of the marriage status. In all of the states the pre- vailing views of public policy are embodied in statutes which secure to the surviving spouse certain rights in the property of the other. These rights are, in effect, limitations upon the power of a married person to dis- pose of his property by will. The common law mari- tal rights have been very generally modified, and in some states totally abolished. Statutory rights have been created in their place which approximate more nearly a fair uniformity of privilege between the hus- band and wife, and do not preponderate so tremen- dously in favor of the husband as did the common law. Some states have followed the plan of modifying and adding to the common law; others have taken the more radical step of repealing the common law rules and beginning the work of legislation from a new foundation. In certain states of the southwest the 56 Paulus V. Besch, 127 Mo. App. 255, 104 S. W. 1149. 7 McGinnis v. McGinnis, 1 Ga. 496. 378 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 theory of community property as known to the Span- ish law is the basis of the marital rights of property/^ The widow's dower and the widower's estate by the curtesy existed at common law and were independent of any disposition by the will. This is still true in states like Missouri, which have preserved these rights, though somewhat modified and added to by statute/' It was also the rule at common law that gifts and devises to the widow were presumed to be in addition to dower rights unless the contrary intention was clearly expressed, or necessarily implied in the will/" As to real property this presumption of the common law in favor of cumulative gifts is reversed 58 Community property acquired by Joint industry of husband and wife. Schafer v. Ballou, 35 Okl. 169, 128 Pac. 498 ; Parker v. Par- ker, 10 Tex. 83-97; Henderson v. Kyan, 27 Tex. 670. By the Mexican law one-half interest in the community property vested in the wife upon the death of the husband and was not sub- ject to his testamentary disposition. The same rule under California statute. Scott v. Ward, 13 Cal. 458 ; Morrison v. Bowman, 29 Cal. 337; Gwin's Estate, 77 Cal. 314, 19 Pac. 527 ; Painter v. Painter, 113 Cal. 371, 45 Pac. 689. 5 9 Gaster v. Estate of Gaster, 92 Neb. 6, 137 N. W. 900; Doyle v. Doyle, 50 Ohio, 330, 34 N. E. 166 ; In re Little's Estate, 22 Utah, 204, 61 Pac. 899; Stokes v. O'Fallon, 2 Mo. 32; Schorr v. Etling, 124 Mo. 42, 27 S. W. 395. The wife cannot by will deprive her husband of his estate by the curtesy in her lands. Soltan v. Soltan, 93 Mo. 307, 6 S. W. 95 ; Casler v. Gray, 159 Mo. 588, 60 S. W. 1032 ; Mar- tin's Heirs V. Martin, 22 Ala. 86; Turner v. Cole, 24 Ala. 364. The wife may be willed what she would be entitled to under the law. Tompkins v. Troy, 130 Ala. 555, 30 South. 512. Lord V. Lord, 23 Conn. 327; Bennett v. Packer, 70 Conn. 357, 39 Atl. 739, 66 Am. St. Rep. 112 ; Ailing v. Chatfield, 42 Conn. 276 ; Evan's Appeal, 51 Conn. 435 ; Apperson v. Bolton, 29 Ark. 418 ; San- ders V. Wallace, 118 Ala. 420, 24 South. 354; Hilliard v. Binford, § 189) LEGACIES AND DEVISES 379 in England by the Act of Parliament," providing that the devise to the wife of any land, or any interest or estate therein, barred her dower unless a contrary in- tention appeared in the will. A similar statute has been adopted in some of the American states,"^ but such a statute, being in derogation of the common law, cannot be extended by construction beyond its plain import. Therefore, as the Missouri statute only bars dower in lands of which the husband died seized, it does not apply to lands which he has aliened in his lifetime. As to such lands the common-law rule still applies,*^ nor will a bequest of personal property be construed to bar dower in real estate.** The object of the statute is not to reduce the widow's rights below what she would be entitled to at law, but simply to carry out the real intention of the testa- tor by destroying the presumption in favor of cumula- tive gifts. Hence it is provided that the widow may renounce the provisions of the will at any time within 10 Ala. 977; Reed v. Campbell, 2 Hayw. & H. (D. 0.) 417^19, Fed. Gas. No. 11,640a ; Thompson v. Betts, 74 Conn. 576, 51 AU. 564, 92 Am. St. Eep. 235 ; Tooke v. Hardeman, 7 Ga. 20 ; Sparks v. Dorrell, lol Mo. App. 173, 131 S. W. 761. Gifts held to be In lieu of dower. Morris v. Morris' Ex'r, 4 Houst. (Del.) 414-419; Warren v. Morris, 4 Del. Ch. 289; Anthony v. An- thony, 55 Conn. 256, 11 Atl. 45 ; Gibbon v. Gibbon, 40 Ga. 562. ei 8 & 4 Wm. IV, c. 105, § 9, passed in 1833. esHilliard v. Binford, 10 Ala. 977; Sanders v. Wallace, 118 Ala. 420, 24 South. 354 ; Keed v. Campbell, 2 Hayw. & H. (D. C.) 417-^19, Fed. Cas. No. 11,640a. 63 Hall V. Smith, 103 Mo. 289, 15 S. W. 621. " Halbert v. Halbert, 19 Mo. 453; Pemberton r. Pemberton, 29 Mo. 408 ; Ellis v. Ellis, 119 Mo. App. 63, 96 S. W. 260. 380 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 twelve months and claim under the law, and having done so she is entitled either to dower (which is a life estate in one-third), or any interests which the law gives in lieu of dower. ^^ The general policy of the American states has been to enlarge the rights of the widow in the estate of the deceased husband, especially where such additional rights would not affect the claims of descendants, but only those of collateral heirs or devisees. § 140. Widow's right of election It seems, therefore, that the widow has by statute in some states, or by the general principle of election in others, the right to choose between the provi- sions made for her in her husband's will and the rights which the law gives her.°® As to personal 6 5 Gant V. Henly, 64 Mo. 162; Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757; Young v. Boardman, 97 Mo. 181, 10 S. W. 48: Matney v. Graham, 50 Mo. 559. 6 Helm V. Leggett, 66 Ark. 23, 48 S. W. 675; Hawaiian Tr. Co. v. Van Holt, 216 U. S. 367, 30 Sup. Ct. 303, 54 L. Ed. 519 (affirming 18 Hawaii, 340) ; Stokes v. Pillow, 64 Ark. 1, 40 S. W. 580; Underground E. Ry. Co. V. Owsley (C. C.) 169 Fed. 671 ; Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664; Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117 ; In re Little's Estate, 22 Utah, 204-211, 61 Pae. 899. "The wife has an interest in the estate of the husband of which he cannot deprive her by will or otherwise without her consent, and when he attempts to do so she has the right to elect whether she will take the provision made for her by the will or renounce it and hold such rights in his estate as the law gives her. She cannot claim a portion of the will and reject others, and claim under the statute. She must claim alone under the will or altogether Independent of its provisions." Lessley v. Lessley, 44 111. 527 ; Godman v. Converse, 43 Neb. 463, 61 N. W. 756; Stephenson v. Brown, 4 N. J. Eq. 508; § 140) LEGACIES AND DEVISES 381 property, and even as to real property in those states which have not adopted the Statute of Wm. IV, the presumption still is that gifts are cumula- tive. The wife is not required to elect unless requir- ed to do so by the terms of the will or by necessary inference from the inconsistent character of the gifts." A husband has no power to dispose by will of the real or personal property which the statute allows to the widow as her absolute property. But he may do this, and put her to her election, whether to take under the will or under the law. This must be his clear intention, for the presumptions are all in her favor, and a provision in the will for the widow will never be construed by implication to be in lieu of her absolute interests so as to put her to her election."^ Hyde v. Baldwin, 17 Pick. (Mass.) 303; Smith v. Smith, 14 Gray (Mass.) 532. Wife may dissent from will. Saxon v. Rawls, 51 Fla. 555, 41 South. 594. 6T Gwin's Estate, 77 Cal. 315, 19 Pac. 527; In re Gilmore, 81 Cal. 243, 22 Pac. 655 ; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125 ; Cor- ker V. Corker, 87 Cal. 647, 25 Pac. 922 ; Carroll v. Carroll, 20 Tex. 731; Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534; Raines v. Oorbln, 24 Ga. 185 ; Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648; St. Mary's O. A. v. Mastersou, 57 Tex. Civ. App. 646, 122 S. W. 587 ; Estate of Cowell, 164 Cal. 636, 130 Pac. 209 ; Lee v. Mc- Farland, 19 Tex. Civ. App. 292, 46 S. W. 281; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520; Godman v. Converse, 43 Neb. 463, 61 N. W. 756 (overruling Id., 38 Neb. 657, 57 N. W. 394) ; McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1043 ; Dudley v. Davenport, 85 Mo. 462 ; Perry v. Ferryman, 19 Mo. 469 : Bryant v. MeCune, 49 Mo. 546 ; Kinsey v. Woodward, 2 Del. Ch. 92 ; Sparks v. Dorrell, 151 Mo. App. 173, 131 S. W. 761; Montgomery v. Brown, 25 App. D. C. 490; Sinnott v. Kenaday, 14 App. D. C. 1; Wells V. Petree, 39 Tex. 419. 6 8 Hasenritter v. Hasenrltter, 77 Mo. 162; Ball v. Ball, 165 Mo. 312, 65 S. W. 552 ; Sehwatken v. Daudt, 53 Mo. App. 1. 382 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 Unless otherwise provided by statute failure on the part of the widow to elect amounts to an election to take under the law.°° In other words, in order to be bound by a bequest in the will in lieu of statutory rights she must elect to take under the will, or estop herself by her acts/" If the intention of the testator as expressed in the will is broad enough the widow may by accepting under the will lose not only her dower but her other rights in the estate." 6 9 Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074; Kinne v. Phares, 79 Kan. 366, 100 Pac. 287; Lish v. List, 158 Mo. App. 400, 138 S. W. 558; Forester v. Watford, 67 Ga. 508; Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117. 10 Egger V. Egger, 225 Mo. 110, 123 S. W. 928, 135 Am. St. Rep. 566. What amounts to an election to take under the will. Pirtle v. Pir- tle, 84 Kan. 782, 115 Pac. 543 ; Watts v. Baker, 78 Ga. 622, 3 S. E. 773 ; Zook v. Welty, 156 Mo. App. 703, 137 S. W. 989 ; Stoepler v. Silverberg, 220 Mo. 258, 119 S. W. 418 ; Churchill v. Bee, 66 Ga. 621 ; Johnston v. Duncan, 67 Ga. 61; Speer v. Speer, 67 Ga. i748; Falli- gant V. Barrow, 133 Ga. 87, 65 S. E. 149 ; Wells v. Petree, 39 Tex. 419 ; Godman v. Converse, 43 Neb. 463, 61 N. W. 756 (overruling Id. 38 Neb. 657, 57 N. W. 394) ; Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569; I In re Little's Estate, 22 Utah, 204, 61 Pac. 899; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520. Question of election is one of fact for the jury. Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117. TiEtchebome v. Auzerals, 45 Cal. 121; Curtis v. Underwood, 101 Cal. 661, 36 Pac. 110; Lufkin's Estate, 131 Cal. 291, 63 Pac. 469; Goodwin v. Goodwin, 33 Conn. 314; Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534 ; Walker v. Upson, 74 Conn. 128, 49 Atl. 904 ; Grant v. Stimpson, 79 Conn. 617, 66 Atl. 166 ; Harmon v. Harmon, 80 Conn. 44, 66 Atl. 771; Morrison v. Bowman, 29 Cal. 337; Stewart's Es- tate, 74 Cal. 104, 15 Pac. 445. § 141) LEGACIES AND DEVISES 383 § 141. Equal division and community theory In Kansas dower and curtesy are abolished/^ and the surviving husband or wife is entitled to one-half of the real and personal property of the deceased spouse. One spouse cannot by will deprive the other of this interest " unless consent in writing is had in accordance with the statute/* The same general rules prevail as to community property/ ° A testator must be presumed to know the law, that he has no power to dispose by will of his wife's inter- T2 Crane v. Fipps, 29 Kan. 585. '3 Estate of Spreckels, 162 Cal. 559, 123 Pac. 371; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125 ; Silvey's Estate, 42 Oal. 210 ; Hatch v. Ferguson (C. C.) 57 Fed. 966 ; Estate of Roach, 159 Cal. 260, 113 Pac. 373; Logan v.. Logan, 11 Colo. 47, 17 Pac. 99; Mitchell v. Hughes, 3 Colo. App. 43, 32 Pac. 185 ; Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 429; Wilson v. Johnson, 4 Kan. App. 747, 46 Pac. 833; Carmen V. Kight, 85 Kan. 18, 116 Pac. 231 ; Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074. •a Section 2537, G. S. Kan. 1905 ; section 8704, G. S. Kan. 1905 ; Oomstock V. Adams, 1 23 Kan. 518, 33 Am. Rep. 191; Barry v. Barry, 15 Kan. 587 ; A., T. & S. F. Ey. v. Davenport, 65 Kan. 206, 69 Pac. 195 ; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Vining v. Willis, 40 Kan. 609, 20 Pac. 232; Gallon v. Haas, 67 Kan. 225, 72 Pac. 770; Cook V. Lawson, 63 Kan. 854, 66 Pac. 1028. An antenuptial contract is a sufficient written consent. Brown v. Weld, 5 Kan. App. 341, 48 Pac. 456. Husband's consent to will cannot be revoked after wife's death. Keeler v. Lauer, 73 Kan. 396, 85 Pac. 541. Prior to 1868 a married woman could without her husband's consent devise away from him her entire estate. Bennett v. Hutchinson, 11 Kan. 398 ; Neuber v. Shoel, 8 Kan. App. 345, 55 Pac. 350 ; Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444. 7 5 Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25 ; AUardyce v. Ham- bleton, 96 Tex. 30, 70 S. W. 76; Conn v. Davis, 33 Tex. 203; Cros- son V. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; Moss v. Helsley, 60 Tex. 426. 384 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 est in the community property, and not to intend to devise any property over which he has no power of testamentary disposition. A general devise of all the property of which the testator may die possessed, with- out naming any specific property, applies only to his moiety of the community property/" It is only where there is such a clear manifestation of intent to devise the whole community property as to overcome the presumptions against such a devise that the widow can be put to her election to take under the will, or to take what she is entitled to by law." § 142. Widower's share under statute In most states the statute gives the widow or widow- er a share in the personal estate of the deceased spouse equal to a child's part," and, in case the deceased left no child then one-half of the real and personal prop- erty. ''° While this is less than the husband was enti- re Estate of Gilmore, 81 Oal. 240, 22 Pac. 655; Morrison v. Bow- man, 29 Cal. 350 ; Silvey's Estate, 42 Oal. 210 ; In re Williamson, 75 Cal. 317, 17 Pac. 221. "In re Gilmore, 81 Cal. 243, 22 Pac. 655; Stewart's Estate, 74 Cal. 101, 15 Pac. 445; Smith's Estate, 4 Cal. Unrep. Cas. 919, 38 Pac. 950 ; Estate of Gray, 159 Cal. 159, 112 Pac. 890. 7 8 Bryant v. Christian, 58 Mo. 98. •"> O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8; Spurlock v. Burnett, 170 Mo. 372, 70 S. W. 870 ; Id., 183 Mo. 524, 81 S. W. 1221 ; Waters V. Herboth, 178 Mo. 166, 77 S. W. 305. Even a deed made in antici- pation of death and in fraud of marital rights is void. Tucker v. Tucker, 29 Mo. 350; Id., 82 Mo. 464; Davis v. Davis, 5 Mo. 189; Stone V. Stone, 18 Mo. 889 ; Homsey v. Casey, 21 Mo. 545 ; Straat V. O'Neil, 84 Mo. 68; Rice v. Waddill, 168 Mo. 99, 67 S. W. 605; Dyer v. Smith, 62 Mo. App. 606; Russell v. Andrews, 120 Ala. 222, 24 South. 573 ; Moore v. Herd, 76 Kan. 826, 93 Pac. 157 ; Ferguson § 143) LEGACIES AND DEVISES 385 tied to at common law, yet the pendulum of legislative change at one time swung too far in favor of the wife, and the tendency now is to establish uniformity. These statutory interests cannot be taken away by will.'" But the property must be of such nature that the husband would have had an interest in the absence of a will." In states where the community theory prevails, the right of the widower in the community property is equal to that of the wife.'^ § 143. Right of election — How exercised When the widow is put to her election whether she will take under the will or under the law such election must be made at the time and in the manner pro- vided.*^ In the absence of such statutory provisions r. Gentry, 206 Mo. 189, 104 S. W. 104 ; Balster v. Cadick, 29 App. D. C. 405. 8 In re Estate of O'Shea, 85 Neb. 156, 122 N. W. 881. 81 Register v. Elder, 231 Mo. 321, 132 S. W. 699 ; Jamison v. Zausch, 227 Mo. 406, 126 S. W. 1023, 21 Ann. Gas. 1132. 82 Wolfe V. Mueller, 46 Colo. 335-339, 104 Pac. 487 ; Lux's Estate, 149 Cal. 200, 85 Pac. 147. S3 Sill V. Sill, 31 Kan. 248, 1 Pac. 556; James v. Dunstan, 38 Kan. 289, 16 Pac. 459, 5 Am. St. Rep. 741 ; Allen v. Hannum, 15 Kan. 625 ; Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168; Estate of Vogt, 154 Cal. 508, 98 Pac. 265 ; Wolfe v. Mueller, 46 Colo. 335, 104 Pac. 487; Hanna v. Palmer, 6 Colo. 156, 45 Am. Rep. 524; Gwln's Es- tate, 77 Cal. 313, 19 Pac. 527; Green v. Green, 7 Port. (Ala.) 19; Hilliard v. Binford, 10 Ala. 977; Martin v. Martin, 22 Ala. 86; Vaughan v. Vaughan, 30 Ala. 329; Adams v. Adams, 39 Ala. 278; McGhee v. Stephens, 83 Ala. 466, 3 South. 808; Sanders v. Wallace, 118 Ala. 418, 24 South. 354 ; Spratt v. Lawson, 176 Mo. 175, 75 S. W. 642. Right of widow to elect under the statute is personal and does not pass on her death to her heirs or personal representatives. Fergus BoRL. Wills — 25 386 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 as to the time and manner of election, or sometimes in the enforcement of such statutes the general prin- ciples of election are applied by the courts. Her elec- ■ tion, when made, applies to all the provisions of the will. She cannot accept in part and repudiate in part.'* She may lose her right to renounce the will and claim dower by acts amounting to estoppel in pais." But in the absence of estoppel affecting the rights of third persons, the widow is treated with the great- est liberality. She has been permitted to withdraw,*' or has been relieved in equity from an election improv- V. Sehloble, 91 Neb. ISO, 135 N. iW. 448; Deutsch v. Rohlfing, 22 Colo. App. 543, 126 Pac. 1123 ; Fleming's Estate, 217 Pa. 610, 66 Atl. 874, 11 L. R. A. (N. S.) 379, 118 Am. St. Rep. 900, 10 Ann. Cas. 826. Insane wife — Election how made. Schwartz v. West, 37 Tex. Civ. App. 136, 84 S. W. 282 ; Gaster v. Estate of Gaster, 90 Neb. 529, 134 N. W. 235 ; In re Estate of Manning, 85 Neb. 60, 122 N. W. 711. 84 Nelson v. Lyster, 32 Tex. Civ. App. 356, 74 S. W. 54; Gilroy V. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520 ; Moss v. Helsley, 60 Tex. 426. And is binding upon her heirs. Smith v. Butler, 85 Tex. 126, 19 S. W. 1083. 85 Burroughs v. De Couts, 70 Cal. 361, 11 Pac. 734 ; Smith's Estate, 4 Cal. Unrep. Cas. 910, 38 Pac. 950; Warren v. Morris, 4 Del. Ch. 289; Morris v. Morris' Ex'r, 4 Houst. (Del.) 414^19; Lackland v. Stevenson, 54 Mo. 108 ; Reville v. Dubach, 60 Kan. 572, 57 Pac. 522. Contract between a widow and the executor and heirs not to pros- ecute litigation against the estate construed. Owsley v. Yerkes, 187 Fed. 560, 109 C. C. A. 250. 8 6 Evans' i Appeal, 51 Conn. 435. If the bequests given the widow by her husband's will are less than would have been her statutory dower she is not estopped to renounce it by the fact that she, by writing endorsed on the will accepted the bequests in lieu of dower, or that after her husband's § 14:3) LEGACIES AND DEVISES 387 idently made," and generally no act of the widow which is not inconsistent with her status as widow, or which does not change the nature of the estate or prejudice the rights of other expectants will be treated as an election/* Nor does her election to take under the will estop her from insisting on a proper interpre- death she received part of the bequests and retained them. The only acceptance that will estop her is one that operates to the injury of others. The husband's right to make a will is qualified by the widow's right to make her election within twelve months and no number of acceptances if without consideration will prevent her renouncing it. Spratt V. Lawson, 176 Mo. 175, 75 S. W. 642. Where a will contains a devise to a widow in lieu of dower under the statute, no acceptance of the devise is required ; if nothing is done within a year after probate, the law presumes her acceptance. As the law does not provide for acceptance such acceptance or elec- tion if made would amount to nothing, and she may, within the year reject the will, notwithstanding, even though the will requires an "acceptance." Bretz v. Matney, 60 Mo. 444. 87 Eddy V. Eddy, 168 Fed. 590, 93 C. O. A. 586; Green v. Sauls- bury, 6 Del. Ch. 371, 33 Atl. 623. Written consent of wife to husband's will may be set aside if im- properly obtained. Welsner v. Weisner, 89 Kan. 352, 131 Pac. 608. An election or estoppel of the widow by acquiescence In the pro- visions of the will must be made with full knowledge. Tooke v. Hardeman, 7 Ga. 20; Johnston v. Duncan, 67 Ga. 61. 88 Silvey's Estate, 42 Cal. 210 ; Mumford's Estate, Myr. Prob. (Cal.) 133; King v. Lagrange, 50 Cal. 328; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125 ; Smith's Estate, 108 Cal. 115, 40 Pac. 1037 ; Dunphy's Estate, 147 Cal. 95, 81 Pac. 315 ; Gwin's Estate, 77 Cal. 314, 19 Pac. 527; Egger v. Egger, 225 Mo. 116, 123 S. W. 928, 135 Am. St. Eep. 566; Benedict v. Wllmarth, 46 Fla. 535, 35 South. 84, 4 Ann. Oas. 1033 ; Carroll v. Carroll, 20 Tex. 731. Antenuptial contract to accept specified provision in will of hus- band in lieu of dower does not bar wife from renouncing will ana claiming dower. Fellers v. Fellers, 54 Neb. 694, 74 N. W. 1077. 388 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 tation of its terms/" nor bar her from her share of undisposed of property."" As to real property the right of election is governed by the lex rei sitse/^ and as to personal estate usually it is confined to domestic wills. "^ § 144. Effect of election on rights of others The renunciation of the widow changes the provi- sions of the will pro tanto only."' Where a widow, elects to take under the law of descents and distribu- tions such election does not render the will inopera- tive. As between other persons the will will be en- forced as near in accordance with the intention of the testator as it can be,"* unless this would make impos- 8 9 While the election of the widow to take under the will estops her from denying the validity of the instrument as a will, it cannot estop her from insisting upon a proper interpretation of the instru- ment nor from questioning the validity of trusts attempted to be created thereby. In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97; Rucker v. Maddox, 114 Ga. 899, 41 S. E. 68. soMcDougald v. Gilchrist, 20 Fla. 573; Philleo v. HolUday, 24 Tex. 38. 01 Apperson v. Bolton, 29 Ark. 418., 92Waterfield v. Rice, 111 Fed. 625, 49 C. C. A. 504; Rannels v. Rowe, 166 Fed. 425, 92 C. C. A. 177. Surviving husband who elects to take under will in state of domi- cile will be held to such election in other states. Martin v. Battey, 87 Kan. 582, 125 Pac. 88, Ann. Gas. 1914A, 440. 93 Delaney's Estate, 49 Cal. 76. 94 Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, 27 L. R. A. (N. S.) 602 ; Allen v. Hannum, 15 Kan. 625 ; Latta v. Brown, 96 Teuu. 343, 34 S. W. 417, 31 L. R. A. 840 ; Jones' Adm'r v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 L. R. A. 293 ; Fennell v. Fennell, 81 Kan. 642, 106 Pac. 1038; In re Little's Estate, 22 Utah, 204-215, 61 Pac. 899; Gullet V. Farley, 164 111. 566, 45 N. E. 972 ; In re Estate of Davis, 36 Iowa, 24 ; Smith v. Baldwin, 2 Ind. 404. § IMa) LEGACIES AND DEVISES 389 sible the scheme of the will.''^ A devisee who loses by the widow renouncing the provisions of the will and taking dower out of the property devised to him should be entitled to claim compensation out of the property so renounced by the widow."^ Where the widow elects to take under the will, or to accept any estate which is not exempt by law from the payment of debts, she takes subject to the usual rights of credi- tors." § 144a. Homestead and other statutory rights We have seen that dower and curtesy, where they exist, and such absolute interests as are given by stat- ute to one spouse in the property of the other, cannot be defeated by will. There are two other rights, com- monly provided by statute, which are for the benefit of the family and beyond the power of the individual to affect by will. One is the homestead right: °' the 95 FenneU v. Fennell, 80 Kan. 730, 106 Pac. 1038, 18 Ann. Oae. 471. 9 6 Snead v. Shreve, 31 Mo. 416. 9 7 Gaunt V. Tucker's Ex'r, 18 Ala. 27; Hanna v. Palmer, 6 Colo. 156, 45 Am. Rep. 524; Wickersham's Estate, 138 Cal. 355, 70 Pac. 1079. 9 8 Section 3616, R. S. Mo. 1899; Blandy v. Asher, 72 Mo. 27; Bo- gart V. Bogart, 138 Mo. 427, 40 S. W. 91; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423 ; Rockhey v. Rockhey, 97 Mo. 76, 11 S. W. 225 ; Kleimann v. Gieselmann, 114 Mo. 437, 21 S. W. 796, 35 Am. St. Rep. 761 ; Kaes v. Gross, 92 Mo. 647, 3 S. W. 840, 1 Am. St. Rep. 767 ; Schneider v. Hoffmann, 9- Mo. App. 280; Ball v. Ball, 165 Mo. 312, 65 S. W. 552; Schorr v. Etling, 124 Mo. 42, 27 S. W. 395; Skouten v. Wood, 57 Mo. 380 ; Burgess v. Bowles, 99 Mo. 543, 12 S. W. 341, 13 S. W. 99; section 2522, G. S. Kan. 1905; Martindale v. Smith, 31 Kan. 270, 1 Pac. 569 ; Vining v. Willis, 40 Kan. 612, 20 Pac. 232 ; Cross V. Benson, 68 Kan. 496, 75 Pac. 558, 64 L. B. A. 560; Matheny's 390 WILLS AND ADMINISTRATION OF ESTATES (Ch. 9 Other is an allowance of household goods, money or provisions for the immediate support of the wife and family. This latter usually comprises the same prop- erty that is exempt from execution for debts. °° Estate, 121 Cal. 267, 53 Pac. 800; Akin v. Geiger, 52 Ga. 407; Palmer V. Palmer, 47 Fla. 200, 35 South. 983 ; Scull v. Beatty, 27 Fla. 426, 9 South. 4 ; Walker v. Redding, 40 Fla. 124, 28 South. 565 ; Brichacek V. Brichacek, 75 Neb. 417, 106 N. W. 473 ; McCormick v. McNeel, 53 Tex. 15. Deed construed testamentary in effect, so far as to take the place of widow's claim for homestead. Woodall v. Rudd, 41 Tex. 375. Homestead may not be partitioned even under terms of will. Hud- gins V. Sausom, 72 Tex. 229, 10 S. W. 104. »» Bryant v. McCune, 49 Mo. 546; Register v. Hensley, 70 Mo. 189; In re Klostermann, 6 Mo. App. 314; Dobson v. Butler, 17 Mo. 87; Weindel v. Weindel, 126 Mo. 640, 29 S. W. 715 ; Isham Austin's Es- tate, 73 Mo. I App. 61; King v. King, 64 Mo. App. 301; Campbell v. Whitsett, 66 Mo. App. 444; Griswold v. Mattix, 21 Mo. App. 282: Hastings v. Myers, 21 Mo. 519 ; Cummings v. Oummings, 51 Mo. 261 ; Hasenritter v. i Hasenritter, 77 Mo. 162; Whaley v. Whaley, 50 Mo. 577 ; Handlin v. Morgan Co., 57 Mo. 114 ; Cross v. Benson, 68 Kan. 495, 75 Pac. 558, 64 L. R. A. 560; Sulzberger v. Sulzberger, 50 Cal. 385; Edenfleld v. Edenfield, 131 Ga. 571, 62 S. E. 980; Reynolds V. Norwell, 129 iGa. 512, 59 S. E. 299; Woolley v. Sullivan, 92 Tex. 28, 45 S. W. 377, 46 S. W. 629 ; Baker v. Baker, 57 Wis. 382, 15 N. W. 425; Estate of Cowell, 164 Cal. 636, 130 Pac. 209. § 145) QUANTITY OF ESTATE 391 CHAPTER X QUANTITY OF ESTATE g 145. When a legacy or devise vests— Meaning of term "vested.' 146. Difficulty in determining when an estate is vested. 147. Rules for determining vesting of future estates in re- mainder. 148. Remainders to a class — When vested. 149. Postponement of jiossession or enjoyment 150. What words necessary to devise a fee. 151. Absolute estate not cut down by inference. 152. Devise of life estate. 153. Powers, general and special, of life tenant. 154. Life estate with power of disposition. 155. Rule in Shelley's case. 156. Executory devises. 157. Rule against perpetuities. 158. Powers defined. 159. Limitation of powers. 160. Manner of executing powers. 161. Personal property — Life estates and future Interests. 162. Protection of remaindermen in future estates in personal property. 163. "Dying vnthout issue" — ^History of phrase. 164. "Dying without issue" — ^Three theories prevail In the courts. 165. "What remains." 166. "What remains" — Necessity for clearness of expression. 167. Analysis of the estate given by such provisions. When a Legacy or Devise Vests § 145. Meaning of term "vested" A title is said to be "vested" when the person enti- tled has a fixed interest in a definite piece of property or fund, which, unless specially restrained, is clothed 392 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 with all the attributes of ownership, i. e., passes to his heirs in case of his death, is liable to his debts and engagements, may be conveyed, charged and devised by him, etc.^ The term "vested" is not confined to legal estates. It embraces equitable estates, but sub modo only, that is, subject to the terms of the trust.^ A vested estate may be not only in possession but in remainder or in reversion : it may be not only in severalty but in joint tenancy, coparcenary or common. It is the antithesis of a contingent interest, or one depending upon a condition, an executory devise or a mere expectancy. Where the words of the will provide for simple legacies or devises without any conditions or provi- sions for future estates or for the postponement of enjoyment or distribution there is little difficulty in as- 1 Wiess V. Goodhiie, 98 Tex. 274, S3 S. W. 178 ; Johnson v. Wash. L. & T. Co., 33 App. D. C. 242 ; Id., 224 U. S. 224, 32 Sup. Ct. 421, 56 L. Ed. 741. Vested interest may be assigned, mortgaged, conveyed or devised. Inglls V. Inglis, 2 Dall. 45, 1 L. Ed. 282 ; Acree v. Dabney, 133 Ala. 437, 32 South. 127 ; Dunn v. Schell, 122 Cal. 626, 55 Pac. 595 ; Wil- liams V. Eoblnson, 16 Conn. 523 ; Cross v. Robinson, 21 Conn. 384 ; Hauptman v. Carpenter, 16 App. D. C. 524 ; Crossley v. Leslie, 130 Ga. 782, 61 S. E. 851, 14 Ann. Gas. 703. The title of a devisee is derived from the vcill and does not vest until the testator's death. Jones v. Shomaker, 41 Fla. 232, 26 South. 191. Interests of remaindermen vest on death of testator and do not lapse on their death before the life tenant, but descend to their heirs. BufCord V. Holliman, 10 Tex. 560, 60 Am. Dec. 223 ; Tillson v. Hollo- way, 90 Neb. 481, 134 N. W. 232, Ann. Cas. 1913B, 78. 2 Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169 ; Shackley v. Hom- er, 87 Neb. 146, 127 N. W. 145. § 145) QUANTITY OF ESTATE 393 certaining when the various gifts vest in the bene- ficiaries. The personal estate vests in the first instance in the executor for the payment of debts and legacies. Until administration is had and the debts are paid, it does not appear how much or what property is available for the payment of general or residuary bequests. Such bequests do not vest in the legatee until the executor gives his consent.^ In the case of devises of land and specific legacies of personal property, the title gener- ally vests at the death of the testator, subject to he taken if necessary for the payment of debts.* This subject will be taken up more fully when we discuss Distribution. 3 Ames V. Scudder, 83 Mo. 189, affirming, 11 Mo. App. 168. Though a legatee has an inchoate title to the subject of the bequest to him, even before administration. Boeger v. Langenberg, 42 Mo. App. 13. And may force an executor to give his consent. Dado v. Maguire, 71 Mo. App. 641. 4 Hamilton v. Lewis, 13 Mo. 184 ; Thomas v. Thomas, 149 Mo. 483, 51 S. W. Ill, 73 Am. St. Rep. 405 ; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13 ; Scott v. Ware, 65 Ala. 174 ; Woodruff v. Hinson, 68 Ala. 868 ; Vail v. Vail, 49 Conn. 56 ; Newberry v. Hinman, 49 Conn. 182 ; Johnes v. Beers, 57 Conn. 803, 18 Atl. 100, 14 Am. St. Rep. 101 ; Lepard v. Skinner, 58 Conn. 330, 20 Att. 427 ; Young v. McKinnie, 5 Fla. 542 ; Gairdner v. Tate, 110 Ga. 456, 85 S. E. 697. 394 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 § 146. Difficulty in determining when an estate is vested The difficulties which arise in determining the vest- ing of titles under a will may be grouped roughly into two general classes : First : Those cases in which the testator has creat- ed some form of future estate. Second : Those in which he has postponed the pos- session or enjoyment of his gifts or the distribution of his estate. Here, as elsewhere in the construction of wills, the intention of the testator is the pole star of construc- tion. It is not possible to reconcile all the decided cases,- but courts attempt to aid themselves by certain general principles. The law favors the vesting of es- tates,^ and will incline in doubtful cases to construe a 5 Price V. Watkins, 1 Dall. 8, 1 L. Ed. 14 ; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401 ; Jolinson v. Wash. L. & T. Co., 224 U. S. 224, 32 Sup. Ct. 421, 56 L. Ed. 741 (affirming 33 App. D. C. 242) ; Partee v. Thomas (C. C.) 11 Fed. 769 ; Walker v. Atmore, 50 Fed. 644, 1 0. C. A. 595 (affirming [C. C] 46 Fed. 429) ; Savage v. Benham, 17 Ala. 119 ; High v. Worley, 32 Al^. 709 ; Foster v. Holland, 56 Ala. 474 ; Phinizy v. Foster, 90 Ala. 262, 7 South. 836 ; Bethea w. Bethea, 116 Ala. 265, 22 South. 561 ; Campbell v. Weakley, 121 Ala.' 64, 25 South. 694 ; Andrews v. Russell, 127 Ala. 195, 28 South. 703 ; Stakely v. Pres. Church, 145 Ala. 379, 39 South. 653 ; Crawford v. Engram, 153 Ala. 420, 45 South. 584 ; Newberry v. Hinman, 49 Conn. 130 ; Parnam v. Farnam, 53 Conn. 278, 2 Atl. 325, 5 Atl. 682 ; Johnes V. Beers, 57 Conn. 295, 18 Atl. 100, 14 Am. St. Rep. 101 ; Lepard v. Skinner, 58 Conn. 329, 20 Atl. 427 ; Harrison v. Moore, 64 Conn. 348, 30 Atl. 55 ; Cody v. Staples, 80 Conn. 82, 67 Atl. 1 ; Morton Tr. Co. v. Chittenden, 81 Conn. 105, 70 Atl. 648; Collier's Will, 40 Mo. 321; Chew V. Keller, 100 Mo. 362, 13 S. W. 395 ; Bunting v. Speak, 41 Kan. 424, 21 Pac. 288, 3 L. R. A. 690 ; McLaughlin v. Penney, 65 Kan. 523, § 146) QUANTITY OF ESTATE 395 devise or legacy as vested rather than contingent. This rule is greatly strengthened by the modern pre- sumption against intestacy.® Even where there is some contingency or condition attached to the gift the estate will be held to vest at the earliest possible moment.'' 70 Pac. 341 ; Dickerson v. Dickerson, 211 Mo. 483, 110 S. W. 700 ; Bailey v. Ross, 66 Ga. 354, 364; Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274 ; Ligwin v. McRee, 79 Ga. 430, 4 S. E. 863 ; Green v. Gordon, 38 App. D. C. 443 ; In re De Vries, 17 Oal. App. 184, 119 Pac. 109 ; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524. 6 Anthony v. Anthony, 55 Conn. 256, 11 Atl. 45. 7 Doe V. Considlne, 6 Wall. 458, 18 L. Ed. 869 ; Carver v. Jackson, 4 Pet 1, 7 L. Ed. 761 ; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404 ; Taber v. Packwood, 2 Day (Conn.) 52 ; Cody v. Staples, 80 Conn. 82, 67 Atl. 1 ; Carpenter v. Perkins, 83 Conn. 11, 74 Atl. 1062 ; Craig v. Rowland, 10 App. D. C. 402-415 ; Jossey v. Brown, 119 Ga. 758, 47 S. E. 350; Robinson v. Hillman, 36 App. D. C. 576; De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E. 211. The existence of a power of sale or a power of appointment in the life tenant will not affect the vesting of the remainder. In re Wood (D. C.) 98 Fed. 972 ; Thorington v. Thorington, 111 Ala. 237, 20 South. 407, 36 L. R. A. 385. Vested interest, notwithstanding discretion of testamentary trus- tee to make unequal distribution. Albert v. Sanford, 201 Mo. 117-129, 99 S. W. 1068. Legacy to be paid when executrix "thinks prudent" is absolute and must be paid in a reasonable time. Claxton v. Weeks, 21 Ga. 265. After a remainder becomes vested it cannot be affected or disposed of by any act of the life tenant. Craig v. Rowland, 10 App. D. C. 402 ; Marshall v. Augusta, 5 App. D. C. 183 ; Pryor v. Winter, 147 Cal. 554, 82 Pac. 202, 109 Am. St. Rep. 162 ; Blakeslee v. Pardee, 76 Conn. 263, 56 Atl. 503. The particular estate wfiich is void may also carry down with it vested remainders dependent thereon. In re Walkerly, 108 Oal. ■627-649, 41 Pac. 772, 49 Am. St. Rep. 97. Vested remainder, subject to be devested if devisee die before death 396 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 § 147. Rules for determining vesting of future estates in remainder Future estates in remainder are vested or contin- gent according to the fixed rules of the common law. A remainder is vested, when there is some person in esse known and ascertained, who by the instrument creating the estate is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat; but the remainder is contingent when it de- pends upon the happening of a contingent event whether the estate limited as a remainder shall ever take effect at all.^ of life tenant. McDonald v. Taylor, 107 Ga. 43, 32 S. E. 879 ; Bow- man V. Long, 23 Ga. 242. 8 Estate of Washburn, n Cal. App. 735, 106 Pac. 415; Smaw v. Young, 109 Ala. 529, 20 South. 370; Moody v. Walker, 3 Ark. 147; Vogt V. Vogt, 26 App. D. C. 46 ; In re De Vries, 17 Cal. App. 184, 119 Pac. 109 ; Haward v. Peavey, 128 111. 430, 21 N. E. 503, 15 Am. St. Rep. 120. Remainders held to be vested. Frey v. Thompson, 66 Ala. 287 ; Smith V. Chadwick, 111 Ala. 542, 20 South. 436 ; Wright v. Gooden, 6 Houst (Del.) 397 ; Austin v. Bristol, 40 Conn. 120, 16 Am. Rep. 23 ; Heberton v. McClain (C. C.) 135 Fed. 226 ; Perkins v. Gibbs, 153 Fed. 952, 83 C. C. A. 68 ; Ward v. Sage, 185 Fed. 7, 108 C. C. A. 413 ; Beer V. MofCatt (D. C.) 192 Fed. 984 ; Muenter v. Union Tr. Co., 195 Fed. 480, 115 C. C. A. 390 ; Kumpe v. Coons, 63 Ala. 448 ; Smith v. Chad- wick, 111 Ala. 542, 20 South. 436 ; Bethea v. Bethea, 116 Ala. 265, 22 South. 561 ; Andrews v. Russell, 127 Ala. 195, 28 South. 703 ; West V. Williams, 15 Ark. 682; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404: Campbell's Estate, 149 Cal. 712, 87 Pac. 573 ; Selna's Estate, Myr. Prob. (Cal.) 233 ; Phillips v. Phillips, 19 Ga. 261, 65 Am. Dec. 591 ; Clauton V. Estes, 77 Ga. 352, 1 S. E. 163 ; Lufburrow v. Koch, 75 Ga. 448 ; Nel- son V. Nelson, 73 Ga. 133 ; Toombs v. Spratlin, 127 Ga. 766, 57 S. E. 59 ; Dickinson v. Holden, 134 Ga. 813, 68 S. E. 728 ; Williams v. Lob- § 147) QUANTITY OF ESTATE 397 Where the intention of the testator as expressed in his will is uncertain, and the question involved is whether the will creates a vested or contingent re- mainder, the following rules of construction will be applied : 1. The law will not construe a remainder to be con- tingent when it can be taken as vested. 2. Estates shall be held to vest at the earliest pos- sible period unless there is a clear manifestation of the intention of the testator to the contrary. 3. Adverbs of time as "when," "then," "after," "from," etc., in a devise of a remainder are construed ban, 206 Mo. 399, 104 S. W. 58 ; Steepler v. Silverberg, 220 Mo. 258, 119 S. W. 418 ; Landram v. Jordan, 25 App. D. C. 291 ; Breneman v. Herdman, 35 App. D. C. 27 ; In re De Vries, 17 Cal. App. 184, 119 Pac. 109. Remainders held contingent, not vested. In re Gardner (D. C.) 106 Fed. 670; In re Hoadley (D. C.) 101 Fed. 233; In re Ehle (D. C.) 109 Fed. 625 ; Ward v. Ward (C. C.) 131 Fed. 946 ; Casey v. Sherwood (C. 0.) 193 Fed. 290; Terrell v. Beeves, 103 Ala. 264, 16 Soutli. 54; Ros- enau v. Childress, 111 Ala. 214, 20 South. 95 ; Dickerson v. Dickerson, 211 Mo. 483, 110 S. W. 700; Lich v. Llch, 158 Mo. App. 400, 138 S. W. 558; Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605; Mattox v. Deadwyler, 130 Ga. 461, 60 S. E. 1066; Darnell v. Barton, 75 Ga. 377 ; Watson v. Adams, 103 Ga. 733, 30 S. E. 577 ; Case V. Haggerty, 91 Neb. 746, 137 N. W. 979 ; Marsh v. Marsh, 92 Neb. 189-196, 137 N. W. 1122 ; Chace v. Gregg, S8 Tex. 552, 32 S. W. 520; Lee V. McFarland, 19 Tex. Civ. App. 292, 46 S. W. 281. "Vested contingent remainder" whatever that is ! Beckley v. Lef- fingweU, 57 Conn. 163, 17 Atl. 766. A contingent remainder in realty when the contingency is not as to the person but as to the event is devisable. Morse v. Proper, 82 Ga. 13, 8 S. E. 625 ; Collins v. Smith, 105 Ga. 525-528, 31 S. E. 449 ; Craw- ford V. Clark, 110 Ga. 729, 36 S. E. 404. 398 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 to relate merely to the time of the enjoyment of the estate, and not the time of vesting." Words of survivorship usually apply to death of testator and persons then answering description take vested remainder," unless the will shows a different intent." If the persons who are to take in remainder can- not be identified until the termination of the particu- lar estate the remainder is contingent." The rule is that a devise over on failure of the event indicates an intention to create a contingent estate." 9 Johnson v. Wash. L. & T. Co., 33 App. D. C. 242. Vested distinguished from contingent. Green v. Gordon, 38 App. D. O. 443 ; Bufford v. Holliman, 10 Tex. 560-572, 60 Am. Dec. 223 ; Moore v. Lyons, 25 Wend. (N. T.) 119. 10 Crossley v. Leslie, 130 Ga. 782, 61 S. E. 851, 14 Ann. Gas. 703 : Hulburt V. Emerson, 16 Mass. 241 ; Hansford v. Elliott, 9 Leigh (Va.) 79 ; Moore v. Lyons, 25 Wend. (N. Y.) 120 ; Slack v. Page, 23 N. J. Eq. 238 ; Olanton v. Estes, 77 Ga. 352, 1 S. E. 163 ; Hudgens v. Wil- kins, 77 Ga. 555 ; Gwinn v. Taylor, 134 Ga. 783, 68 S. E. 508 ; Phlnizy V. Wallace, 136 Ga. 520-524, 71 S. E. 896 ; Olmstead v. Dunn, 72 Ga. 850. iiDickerson v. Dickerson, 211 Mo. 483, 110 S. W. 700; Smith v. Joyner, 136 Ga. 755, 72 S. E. 40. 12 Hartford Tr. Co. v. Wolcott, 85 Conn. 134, 81 Atl. 1057; Bristol V. Atwater, 50 Conn. 402 ; Cropley v. Cooper, 7 D. C. 226 ; Phinizy v. Foster, 90 Ala. 262, 7 South. 836 ; Ballentine v. Foster, 128 Ala. 638, 30 South. 481 ; Vanzant v Morris, 25 Ala. 285. 13 Estate of Blake, 157 Cal. 448, 108 Pac. 287. In a Pennsylvania case held that a trust for a daughter for life, with remainder to the issue of her body, and if she left no issue, then to the residuary estate, created no vested interest in the children of the daughter except on the condition of their surviving her, following ■W' allace v. Denig, 152 Pa. 251, 25 Atl. 534 ; Wilson v. Denig, 166 Pa. 29, 30 Atl. 1025 ; Buchanan v. Denig (C. C.) 84 Fed. 863. § 148) QUANTITY OF ESTATE 399 § 148. Remainders to a class — When vested The rules as to remainders to a class, as "children," "issue," "heirs," etc., after the termination of a par- ticular estate has been thus stated : If there are words of present gift in remainder to a class of persons in existence, the remainder is vested, though it cannot be ascertained until the determination of the particular estate who will ultimately take ;^* but if futurity attaches to the gift, so that it is not intended to take effect until the determination of the particular estate, the remainder to a class of persons then existing is contingent.^" The devise of a Hfe estate with a limitation over to the chil- dren of a person living at the death of the testator gives all the children then living a vested remainder, which opens to let in after-born children.^* 14 Allen V. Claybrook, 58 Mo. 124; Thomas v. Thomas, 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. 405 ; Doerner v. Doerner, 161 Mo. 399, 61 S. W. SOI ; Carter v. Long, 181 Mo. 701, 81 S. W. 162 ; McGinnls v. Foster, 4 Ga. 377. 15 Estate of Washburn, 11 Cal. App. 735, 106 Pac. 415 ; Tirrell v. Bacon (C. C.) 3 Fed. 62-64. 16 TirreU v. Bacon (O. C. Mass.) 3 Fed. 62-64 ; Dingley v. Dlngley, 5 Mass. 535 ; Weston v. Foster, 7 Mete. (Mass.) 297 ; Cruit v. Owen, 25 App. D. 0. 514 ; Olmstead v. Dunn, 72 Ga. 850 ; Irvin v. Porterfield, 126 Ga. 729, 55 S. E. 946 ; Toole v. Perry, 80 Ga. 681, 7 S. E. 118 ; Wil- liamson V. Berry, 8 How. 495, 12 L. Ed. 1170. Remainder may vest in unborn child. Kesterson v. Bailey, 35 Tex. av. App. 235, 80 S. W. 97. For the Mexican and early Texas law forbidding future estates see Bufford V. HoUiman, 10 Tex. 560-571, 60 Am. Dec. 223. 400 rVs^WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 § 149. Postponement of possession or enjoyment The foregoing embrace those cases in which the testator has carved out a particular estate followed by a remainder vested or contingent. The second class of cases are those in which the tes- tator, without any intervening particular estate, has sought to postpone the possession or enjoyment of the gifts, or the distribution of the property. This grows out of the latitude permitted to testators : put- ting their intentions in the place of established rules governing the devolution of titles. Necessarily it introduces a perplexing element of vagueness. On Ihe one side is the rule, which is more than a rule — a scientific fact — that the entire fee must pass out of the testator at the moment of his death and vest immediately in some living person. This fee title may be split up into any number of particular estates, es- tates in remainder, reversion, legal or equitable, upon condition or executory devise; but taken altogether it must constitute a fee simple, as the segments con- stitute a circle. It must all vest in some living person or persons. The ultimate fee cannot remain in abey- ance nor in the lifeless clay of the testator. This has led the courts to adopt either the pure fiction of law that the fee descends to the heirs at law until such time as the testator's dead hand takes it away from them, or to lean toward the more modern and common sense view that the fee vests in the devisees at the death of the testator and that the possession and enjoyment only is postponed. In the case of pure- § 149) QUANTITY OF ESTATE 40.1 ly personal property the executors may be treated as the depositories of the empty title as the heirs at law are in the case of real estate.^' In some cases the question whether the gift be vest- ed or contingent has been solved by the accidental use of words in the will : It is a settled rule in the jurisprudence of England, adopted from the civil law, that where a legacy is given to a persOn "as," "if," "when," or "provided" he arrives at a certain age, or "at" that time, and there is no other controlling evidence of intention, the legacy is contingent.^* In other cases a solution has been attempted by con- sidering the nature and purpose of the gift, and the reason for the postponement if it can be gathered from the will. Thus it has been held that a legacy in the form of a direction to pay or to pay and divide at a future period vests immediately if the payment be postponed for the convenience of the estate or to let in some other interest." Where the postponement has relation to the personal status of the legatee, as that he must comply with some condition or reach a cer- 1 7 Postponement viewed as restraint or alienation. Estate of Young, 123 Cal. 337-346, 55 Pac. 1011 ; In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97 ; Hone v. Van Schaick, 20 Wend. (N. Y.) 568 ; Oxley v. Lane, 35 N. Y. 350. 18 Colt V. Hubbard, 33 Conn. 281; Marr's Ex'r v. McCullougli, 6 Port. (Ala.) 507 ; Ingersol v. Ingersol, 77 Conn. 408-410, 59 Atl. 413 ; Allen V. Whitaker, 34 Ga. 6 ; Paterson v. Ellis, 11 Wend. (N. Y.) 259 ; Taylor v. Meador, 66 Ga. 230; Campbell v. Robertson, 62 Ga. 709; Dameron v. Lanyon, 234 Mo. 627, 138 S. W. 1. 19 Rubencane v. McKee, 6 Del. Ch. 40, 6 Atl. 639; Paterson v. Ellis, 11 Wend. (N. Y.) 259. BoKL. Wills — ^26 402 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 tain age before he receives the gift, it has been held contingent. But even in this case the rule is that the gift of the income in the meantime or any provision for support or education of the legatee out of the property pend- ing his arrival at the required age indicate an inten- tion that he shall have the property in any event and the legacy will be vested.^" All of these rules must yield to the plain language of the will making the gift contingent." The presumption in favor of vesting however, re- solves all doubts in favor of the legatee and unless the gift is clearly contingent it will be held to be vested from the death of the testator even though the pos- session or enjoyment be postponed."^ 2 Estate of Blake, 157 Cal. 448, 108 Pac. 287 ; Lenox v. Lenox Ex'r, 1 Hayw. & H. (D. C.) 11, Fed. Cas. No. 8,24ea ; Frost v. McCaulley, 7 Del. Ch. 162, 44 Atl. 779 ; Paterson v. Ellis, 11 Wend. (N. Y.) 259 ; Pearce v. Lott, 101 Ga. 395, 29 S. E. 276; Young v. McKlnnie, 5 Fla. 542 ; Everett v. Mount, 22 Ga. 323. Application of legacy to legatees benefit before time for payment fixed by the will is within discretion of chancellor. Blackburn v. Hawkins, 6 Ark. 50. 21 Owen V. Eaton, 56 Mo. App. 568 ; Woolverton v. Johnson, 69 Kan. 708, 77 Pac. 559 ; Cropley v. Cooper, 7 D. C. 226-237 ; Andrews V. Eice, 53 Conn. 566, 5 Atl. 823 ; Estate of Blake, 157 Cal. 448, 108 Pac. 287 ; Rogers Estate, 94 Cal. 526, 29 Pac. 962 ; Hill v. HiU, 90 Neb. 48, 132 N. W. 738, 38 L. R. A. (N. S.) 198. Where legacies are contingent only those legatees living at the hap- pening of the contingency on which the division was to take place were entitled to share in the estate. Travis v. Morrison, 28 Ala. 494 ; Phinizy v. Foster, 90 Ala. 262, 7 South. 836. 22 Byrne v. France, 131 Mo. 639, 33 S. W. 178 ; Dado v. Maguire, 71 Mo. App. 641 ; Collier's Will, 40 Mo. 287 ; Overton v. Davy, 20 Mo. 278 ; § 149) QUANTITY OF ESTATE 403 Where words of contingency or condition are used which may be construed as applying either to the gift itself or to the time of payment, courts are inclined to construe them as applying to the time of payment, and to hold the gift vested rather than contingent. ^^ Goodwin V. Goodwin, 69 Mo. 617 ; Jones v. Waters, 17 Mo. 587 ; Mc- Laughlin V. Penny, 65 Kan. 523, 70 Pac. 341 ; McArtliur v. Scott, 113 U. S. 340, 5 Sup. Ot. 652, 28 L. Ed. 1015 ; Kerlin v. Bull, 1 Dall. 175, 1 L. Ed. 88 ; Gregg v. Bethea, 6 Port. (Ala.) 9 ; Oox v. MeKinney, 32 Ala. 461; Thrasher v. Ingram, 32 Ala. 645; Higgins v. Waller, 57 Ala. 396 ; Kumpe v. Coons, 63 Ala. 448 ; Gibson v. Land, 27 Ala. 117 ; Hunter v. Green, 22 Ala. 329 ; Andrews v. Russell, 127 Ala. 195, 28 South. 703 ; Moody v. Walker, 3 Ark. 147 ; Blackburn v. Hawkins, 6 Ark. 50 ; Watkins v. Quarles, 23 Ark. 179 ; Scott v. Logan, 23 Ark. 351 ; Cockrill v. Armstrong, 31 Ark. 580 ; Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250 ; Fitch v. Miller, 20 Cal. 352 ; WilUams v. Williams, 73 Cal. 99, 14 Pac. 394 ; Estate of Campbell, 149 Cal. 712, 87 Pac. 573 ; Newlove v. Merc. Tr. Co., 156 Cal. 657, 105 Pac. 971 ; Higgins v. Wal- ler, 57 Ala. 400 ; Doe v. Considlne, 6 Wall. 458, 18 L. Ed. 869 ; Cowles V. Cowles, 56 Conn. 248, 13 Atl. 414; Harrison v. Moore, 64 Conn. 348, 30 Atl. 55 ; Conwell's Admr. v. Beavilo, 5 Har. (Del.) 296 ; Rich- ardson V. Raughley, 1 Houst. (Del.) 561 ; Estate of Young, 123 Cal. 337, 53 Pac. 1011 ; Hall v. David, 67 Ga. 72 ; Daniel v Duncan, 33 Ga. Supp. 29 ; Lich v. Lich, 158 Mo. App. 400, 138 S. W. 558 ; Rich- ardson V. Penicks, 1 App. D. C. 261 ; Earnshaw v. Daly, 1 App. D. C. 218 ; Paterson v. Ellis, 11 Wend. 259 ; In re Estate of Willets, 88 Neb. 805, 130 N. W. 757, 33 L. R. A. (N. S.) 321 ; Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665. A court of competent jurisdiction may determine the existence, ex- tent and proper distribution of vested interests, even though the pos- session and enjoyment are deferred. Colt v. Colt, 111 U. S. 566, 4 Sup. Ct. 553, 28 L. Ed. 520. 23 Dale V. White, 33 Conn. 294. 404 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 § 150. What words necessary to devise a fee It is an established rule of the common law that a devise' of lands without words of limitation confers an estate for life only. But because this rule generally defeats the intention of the testator the courts have been astute in finding exceptions to it.2* The rule has been very generally changed by stat- ute and modified by decisions and overlaid by excep- tions until now it may be said to be the general rule that a devise of lands, unless specially limited to a less estate will convey a fee or whatever estate the testator had power to convey/" 2 4 King V. Ackerman, 2 Black, 408, 17 L. Ed. 292; Lambert v. Paine, 3 Cranch, 97, 2 L. Ed. 377 ; Conoway v. Piper, 3 Har. (Del.) 482 ; Harrington v. Roe, 1 Houst. (Del.) 398 ; McCaffrey v. Little, 20 App. D. 0. 116-121 ; Xoung v. Norris Peters Co., 27 App. D. C. 140 ; Atkins V. Best, 27 App. D. C. 148 ; McCaffrey v. Mauogue, 22 App. D. C. 385 ; Colliers Case, 6 Coke, 16 ; Wright v. Page, 10 Wlieat. 203- 231, 6 L. Ed. 303-310 ; Abbott v. Essex Co., 18 How. 202-215, 15 L. Ed. .352-356 ; McAleer v. Schneider, 2 App. D. C. 461. 2 5 Hungerford v. Anderson, 4 Day (Conn.) 368; Holmes v. Williams, 1 Root (Conn.) 341, 1 Am. Dec. 49 ; White v. White, 52 Conn. 520 ; JEvans Appeal, 51 Conn. 437 ; Donovan's Lessees v. Donovan, 4 Har. (Del.) 177; Whorton v. Moragne, 62 Ala. 201; Smith v. Greer, 88 Ala. 414, 6 South. 911 ; Holt v. Pickett, 111 Ala. 362, 20 South. 432 ; 'Cain V. Cain, 127 Ala. 440, 29 South. 846 ; Estate of Claiborne, 158 Cal. 646, 112 Pac. 278 ; Trimble v. Hensley, 10 Mo. 309 ; Simmons v. Cabanne, 177 Mo. 336, 76 S. W. 618 ; Jackson v. Coggiu, 29 Ga. 403 ; Edwards v. Worley, 70 Ga. 667 ; Bell Co. v. Alexander, 22 Tex. 350, 73 Am. Dec. 268 ; Holt v. Wilson, 82 Kan. 268-271, 108 Pac. 87 ; May V. S. A. & A. P. T. S. Co., 83 Tex. 502, 18 S. W. 959 ; Seay v. Cock- rell, 102 Tex. 280, 115 S. W. 1160. The words "heirs and assigns," while not necessary to convey a fee in a will, are proper to indicate such purpose. Jackson v. Littell, 213 Mo. 590, 112 S. W. 53, 127 Am. St. Rep. 620 ; Pratt v. Railroad, § 150) QUANTITY OF ESTATE 405 A devise with a general power of disposal is a fee.'* The absence of a limitation over indicates an inten- tion to devise a fee," and so does the imposition by the testator of a charge upon the estate devised.'' The devise of a fee may be implied from a gift of the "rents and profits" '" or the "avails" " of land. 130 Mo. App. 175, 108 S. W. 1099 ; Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782. Devise carries whatever interest the testator may have in the land. Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219. Will will pass real estate held adversely. Inglls v. Sailor's Snug Harbor, 3 Pet. 99, 7 L. Ed. 617. A general devise of lands prima facie Includes those mortgaged. Drane v. Gunter, 19 Ala. 731. Emblements pass with a devise of the land. Pratte v. Coffman, 27 Mo. 424. If there is more land than the testator contemplated it should be divided equally. Porter v. Gaines, 151 Mo. 560, 52 S. W. 376. 2 6Alford V. Alford, 56 Ala. 350; Bolman v. Lohman, 79 Ala. 63; Hood V. Branlett, 105 Ala. 660, 17 South. 105; Smith v. Phillips, 131 Ala. 629, 30 South. 872 ; Hull v. Culver, 34 Conn. 404 ; Green V. Sutton, 50 Mo. 186 ; Cook v. Couch, 100 Mo. 29, 13 S. W. 80 ; Tis- dale V. Prather, 210 Mo. 402, 109 S. W. 41. Express estate for life, with unlimited power of disposal, is en- larged into a fee by Alabama statute as to creditors and purchasers. Alford V. Alford, 56 Ala. 350 ; Bolman v. Lohman, 79 Ala. 63. 2THysmith v. Patton, 72 Ark. 296, 80 S. W. 151; Hamilton v. Downs, 33 Conn. 211 ; Smith v. Johnson, 21 Ga. 386. 28 Harrington v. Roe, 1 Houst. (Del.) 398 ; Judd v. Bushnell, 7 Conn. 211 ; McRee's Adm'r v. Means, 34 Ala. 349. Charge of pecuniary legacies upon remainder does not raise it from a conditional to an absolute fee. Estate of Carothers, 161 Cal. 588, 119 Pac. 926. 2 9 Green v. Biddle, 8 Wheat. 1-76, 5 L. Ed. 547; Stein v. Gordon, 92 Ala. 532, 9 South. 741; Poumell v. Harris, 29 Ga. 736; Bonner v. Hastey, 90 Ga. 208, 15 S. E. 777; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831 ; Battey v. Battey, 94 Neb. 729, 144 N. W. 786. 30 Ingersol v. Knowlton, 15 Conn. 468; Snyder v. Baker, 16 D. C. 443 ; Hill v. Clark, 48 Ga. 526. 406 WILLS AND ADMINISTRATION OF ESTATES (Ch. lO § 151. Absolute estate not cut down by inference An estate once granted absolutely in fee will not be cut down by inference or by limitations contained in subsequent parts of a will, unless the intent to limit the devise is manifested clearly and unmistakably; if the expression relied upon as a limitation be doubtful, the doubt will be resolved in favor of the absolute es- tate." But if the granting clause is indefinite and uncertain as to the estate devised, subsequent provi- sions may be referred to for the purpose of determin- ing it." siMcClellan v. Mackenzie, 126 Fed. 701, 61 C. C. A. 619; Toms V. Owen (C. C.) 52 Fed. 417; Wellford v. Snyder, 137 U. S. 521, 11 Sup. Ct. 183; 34 L. Ed. 780; Fanning v. Main, 77 Conn. 94, 58 Atl. 472 ; Browning v. Southworth, 71 Conn. 224, 41 Atl. 768 ; Bishop V. Selleck, 1 Day (Conn.) 299 ; Korn v. Cutler, 26 Conn. 6 ; Hughes V. Knowlton, 37 Conn. 431 ; Phelps v. Bates, 54 Conn. 13, 5 Atl. 301, 1 Am. St. Rep. 92; Webb v. Lines, 57 Conn. 156, 17 Atl. 90; Pitts V. Campbell, 173 Ala. 604, 55 South. 500; Ladd's Estate, 94 Cal. 670, 30 Pac. 99; Martl's Estate, 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071 ; Granniss' Estate, 142 Cal. 1, 75 Pac. 324 ; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Roth v. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455 ; Balliett v. Veal, 140 Mo. 187, 41 S. W. 736 ; Small v. Field, 102 Mo. 104, 14 S. W. 815 ; Chew v. Keller, 100 Mo. 362, 13 S. W. 395 ; Brooks v. Brooks, 187 Mo. 476, 86 S. W. 158 ; Gannon v. Pauk, 200 Mo. 94, 98 S. W. 471; Boston S. D. Co. v. Stich, 61 Kan. 474, 59 Pac. 1082; Tisdale v. Prather, 210 Mo. 402, 109 S. W. 41 ; Jackson v. Littell, 213 Mo. 589, 112 S. W. 53, 127 Am. St. Rep. 620 ; Lawless v. Kerns, 242 Mo. 392, 146 S. W. 1169 ; Cornet V. Cornet, 248 Mo. 184, 154 S. W. 121 ; Holt v. Wilson, 82 Kan. 268, 108 Pac. 87; Byrnes v. Stilwell, 103 N. Y. 453, 9 N. E. 241, 57 Am. Rep. 760; Thomas v. Owens, 131 Ga. 248, 62 S. E. 218; Wood v. Owen, 133 Ga. 751, 66 S. E. 951; Montgomery v. Brown, 25 App. D. C. 490. 8 2 John li Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458 (H. T.); Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A (N. S.) 1047. § 152) QUANTITY OF ESTATE i07 Whenever it is the clear intention of a testator that the devisee shall have an absolute property in the estate devised, a limitation over, being incon- sistent with the absolute property intended to be con- veyed, cannot be enforced/* § 152. Devise of life estate By appropriate words, the testator may show that nothing more than a life estate was intended to be given," especially if a remainder is given to others." A gift may be a life estate if so expressed, even though there is no disposition of the fee of real estate 8 3 Speairs v. Llgon, 59 Tex. 233; Giftord v. Choate, 100 Mass. 346; Ide V. Ide, 5 Mass. 500; Bamforth v. Bamforth, 123 Mass. 280; Gibbins v. Shepard, 125 Mass. 543; Jones v. Bacon, 68 Me. 36, 28 Am. Rep. 1 ; Montgomery v. Brown, 25 App. D. C. 490. 3* Chiles V. Bartleson, 21 Mo. 344; Jourden v. Meier, 31 Mo. 40; Richardson v. Richardson, 49 Mo. 29; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786 ; Talbott v. Hamill, 151 Mo. 292, 52 S. W. 203 ; Forest Oil Co. V. Crawford, 77 Fed. 106, 23 C. C. A. 55; Bernal v. Wade, 46 Cal. 663 ; Hollister v. Sliaw, 46 Conn. 256 ; Webb v. Goodnough, 53 Conn. 218, 1 Atl. 797 ; Security Co. v. Hardenburgh, 53 Conn. 171- 174, 2 Atl. 391 ; Thaw v. Ritchie, 15 D. C. 347 ; McCaffrey v. Man- ogue, 22 App. D. C. 385 ; Broach v. Kitchens, 23 Ga. 515 ; Jossey y. White, 28 Ga. 265. A gift may be for the joint lives of two or more persons. Riordon V. Holiday, 8 Ga. 79. Rights of life tenant. Wiley v. Wiley, 1 Neb. (Unof.) 350, 95 N. W. 702. Life estate not implied from a provision that trustee shall manage estate during devisee's life. Ford v. Gill, 109 Ga. 691, 35 S. E. 156. 3 5 Thaw V. Ritchie, 136 U. S. 519, 10 Sup. Ct. 1037, 34 L. Ed. 531; Henry v. Pittsburgh Clay Mfg. Co., 80 Fed. 485, 25 C. C. A. 581; Ballanttne v. Ballantine (C. C.) 152 Fed. 775; O'Connor v. Row- land, 73 Ark. 422, 84 S. W. 472; Clarke v. Terry, 34 Conn. 177; Stone V. McEckron, 57 Conn. 194, 17 Atl. 852 ; Bartlett v. Sears, 81 '408 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 or the corpus of personal estate.^" In this case the fee falls into the residuary estate or passes as in case of intestacy." It may be provided that a life estate may be en- larged into a fee upon the happening of a particular event/* but if a life estate only is expressly given, such estate will not be converted into a fee by mere words of impHcation/° Conn. 34, 70 Atl. 33; Goss v. Eberhart, 29 Ga. 545; WoodrufE v. Woodruff, 32 Ga. 358 ; Holt v. Bowman, 33 Ga. Supp. 129 ; Jones v. Crawley, 68 Ga. 175 ; Ford v. Cook, 73 Ga. 215 ; Goodrich v. Pearce, 83 Ga. 781, 10 S. E. 451; Lohmuller v. Mosher, 74 Kan. 751, 87 Pac. 1140, 11 Ann. Cas. 469; Rooney v. Hurlbut, 79 Kan. 231, 98 Pac. 765 ; Brooks v. Bvetts, 33 Tex. 732 ; John li Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458 (H. T.). 3 Evan's Appeal, 51 Conn. 435; Schorr v. Carter, 120 Mo. 409, 25 S. W. 538. 3 7 Byrne v. McGrath, 130 Cal. 316, 62 Pac. 559, 80 Am. St. Rep. 127; Estate of Reinhardt, 74 Cal. 365, 16 Pac. 13; Schimpf v. Rhodewald, 62 Neb. 105, 86 N. W. 908. Devisee of life estate may also be heir of undisposed of fee and thus effect a merger of whole title. Wilder' v. Holland, 102 Ga. 44, 29 S. B. 134 ; Smith v. Moore, 129 Ga. 644, 59 S. E. 915. 3 8 Turney v. Sparks, 88 Mo. App. 363; Shriver v. Lynn, 2 How. 43, 11 L. Ed. 172. 3» Douglass V. Sharp, 52 Ark. 113, 12 S. W. 202; Coleman v. Camp, 36 Ala. 159 ; Gregory v. Cowgill, 19 Mo. 415 ; Swearingen v. Taylor, 14 Mo. 391 ; Kimbrough v. Smith, 128 Ga. 690, 58 S. E. 23. § 153) QUANTITY OP ESTATE ■ 4:0& § 153. Powers, general and special, of life tenant A life estate may be joined with a power of sale " or a power of consumption or disposal of the prop- erty " either generally, or limited to a particular pur- pose. The power of sale given to a life tenant means the power to convey a fee." He has, by the modern rule, the power to convey his life estate without express power. At common law, if the life tenant in the ab- sence of an express power of sale, undertook to con- vey a fee he forfeited his life estate. 40 Hazel v. Hagan, 47 Mo. 277 ; Gaven v. Allen, 100 Mo. 297, 13 S. W. 501; Greffet v. Willman, 114 Mo. 106, 21 S. W. 481; McMillan V. Farrow, 141 Mo. 55, 41 S. W. 890; Grace v. Perry, 197 Mo. 550, 95 S. W. 875, 7 Ann. Cas. 948 ; Worden v. Perry, 197 Mo. 569, 95 S. W. 880; Mollencamp v. Farr, 70 Kan. 786, 79 Pac. 646; Keely v. Weir (C. C.) 38 Fed. 291 ; Cain v. Cain, 127 Ala. 440, 29 South. 846 ; Norris v. Harris, 15 Cal. 226; Wood v. Amidon, 2 MacArthur (D. C.) 224. 41 Smith V. Beardsley, 51 Fed. 122, 2 C. C. A. 118; Smith v. Mc- Intyre, 95 Fed. 585, 37 O. C. A. 177 ; Bilger v. Nunan, 199 Fed. 549, 118 C. C. A. 23 ; Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846 ; Watson V. Watson, 21 Tex. Civ. App. 348, 51 S. W. 1105 ; Davis v. Kirksey, 14 Tex. Civ. App. 380, 37 S. W. 994 ; Lesiur v. Sipherd, 84 Neb. 296, 121 N. W. 104 ; Cox v. Wills, 49 N. J. Eq. 130, 22 Atl. 794 ; Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527; In re Estate of Schuck, 87 Neb. 46, 126 N. W. 652. Power of appointment by will. Maltby's Appeal, 47 Conn. 349 ; Hollister v. Shaw, 46 Conn. 248 ; New v. Potts, 55 Ga. 420 ; Dixon v. Dixon, 85 Kan. 379, 116 Pac. 886; Wimberly v. Barley, 58 Tex. 222; Lawless V. Kerns, 242 Mo. 392, 146 S. W. 1169 ; Weir v. Smith, 62 Tex. 1. * 2 Lewis V. Palmer, 46 Conn. 459; State v. Smith, 52 Conn. 562; Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396; Glover v. Stillson, 56 Conn. 316, 15 Atl. 752 ; Griffin v. Nicholas, 224 Mo. 275, 123 S. W. 1063 ; Mayo v. Harrison, 134 Ga. 737, 68 S. E. 497. 410 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 The American rule is that a conveyance, by a ten- ant for Hfe, of an estate in fee simple, does not oper- ate as a forfeiture of the life estate, nor affect the in- terest of remaindermen, but simply passes such es- tate as the grantor had and could lawfully convey, and is void as to the residue.** The life tenant cannot affect the estate of the re- mainderman, as the latter does not take through the life tenant, but directly from the testator.** But the life tenant may release or convey to the remainder- man, thus effecting a merger which will extinguish all particular estates and powers.*" *s Rogers v. Moore, 11 Conn. 553. a Elam v. Parkhill, 60 Tex. 581 ; Creditors of Spicer v. Spicer, 21 Ga. 200 ; Dupon v. Walden, 84 Ga. 690, 11 S. E. 451 ; Taylor v. Kemp, 86 Ga. 181, 12 S. E. 296 ; Am. Mtg. Co. v. Hill, 92 Ga. 297, 18 S. E. 425 ; Lampkin v. Hayden, 99 Ga. 363, 27 S. E. 764 ; Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 731 ; Heady v. Crouse, 203 Mo. 100-119, 100 S. W. 1052, 120 Am. St. Rep. 643; Schimpf v. Rhodewald, 62 Neb. 105, 86 N. W. 908. Possession by life tenant or those that claim under him is not adverse to remaindermen. Peck v. Ayres, 79 Kan. 457, 100 Pac. 283. *5 Rakestrav? v. Rakestraw, 70 Ga. 806 ; Rosier v. Nichols, 123 Ga. 20, 50 S. E. 988. Remaindermen if sui juris may ratify illegal sale by trustee and life tenant. Hicks v. Webb, 127 Ga. 170, 56 S. E. 307. No merger here. [Toombs v. Spratlin, 127 Ga. 766, 57 S. B. 59. § 154) QUANTITY OF ESTATE 411 § 154. Life estate with power of disposition The power of disposition does not enlarge an ex- press life estate into a fee, either absolute or qual- ified." The power does not generally arise from im- plication/^ It must be expressly given and is usually 16 Denson v. Mitchell, 26 Ala. 360; Dryer v. Crawford, 90 Ala. 131, 7 South. 445 ; Morffew v. S. F. & S. R. R. Co., 107 Cal. 587, 40 Pac, 810 ; Lewis v. Palmer, 46 Conn. 454 ; Tolland Co. Ins. Co. v. Under- wood, 50 Conn. 493 ; Glover v. Stillson, 56 Conn. 816, 15 Atl. 752 Peckham v. Lego, 57 Conn. 553, 19 Atl. 392, 7 L. R. A. 419, 14 Am, St. Rep. 130; Hull v. HoUoway, 58 Conn. 210, 20 Atl. 445; Sill v White, 62 Conn. 434, 26 Atl. 396, 20 L. R. A. 321 ; Rubey v. Barnett, 12 Mo. 3, 49 Am. Dec. 112 ; Norcum v. D'Oench, 17 Mo. 98 ; Gregory v. Cowgill, 19 Mo. 415 ; Turner v. Timberlake, 53 Mo. 375 ; Bryant v. Christian, 58 Mo. 98 ; Carr v. Dings, 58 Mo. 400 ; Reinders v. Koppel- mann, 68 Mo. 482, 30 Am. Rep. 802 ; Russell v. Eubanks, 84 Mo. 82 ; Corby v. Corby, 85 Mo. 371 ; Harbison v. James, 90 Mo. 411, 2 S. W. 292 ; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52 ; Redman v. Barger, 118 Mo. 568, 24 S. W. 177; Evans v. Folks, 135 Mo. 397, 37 S. W. 126 ; Burford v. Aldridge, 165 Mo. 419, 63 S. W. 101, 65 S. W. 716 ; Underwood v. Cave, 176 Mo. 1, 75 S. W. 451; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322 ; Haralson v. Redd, 15 Ga. 148 ; Porter v. Thomas, 23 Ga. 467; HoUingshed v. Alston, 13 Ga. 277; Kennedy v. Alexander, 21 App. D. C. 424; Wetter v. Walker, 62 Ga. 142; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23 ; Collins v. Wiekwire, 162 Mass. 143, 38 N. E. 365 ; Swarthout v. Ranier, 143 N. T. 499, 38 N. B. 726 ; Ramsdell v. Ramsdell, 21 Me. 288 ; Wood v. Robertson, 113 Ind. 323 ; 15 N. E. 457 ; Armor v. Frey, 226 Mo. 646, 126 S. W. 483 ; Romjue v. Randolph, 166 Mo. App. 87, 148 S. W. 185; Loosing v. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (N. S.) 920 ; Weir v. Smith, 62 Tex. 1. iT Bramell v. Cole, 136 Mo. 201, 37 S. W. 924, 58 Am. St. Rep. 619; Bramell v. Adams, 146 Mo. 70, 47 S. W. 931 ; Foote v. Sanders, . Mo. 616 ; Glore v. Scroggins, 124 Ga. 922, 53 S. E. 690. A devise to the wife, "to have and to hold during her life, and to do with as she sees proper before her death," vests a life estate only in the wife and does not authorize her to convey the fee. Brant v. ^'irginia Coal & Iron Co., 93 V. S. 326, 23 fj. Ed. 927. 412 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 construed strictly.*' It is limited, for the protection of the remainderman, to the purpose for which it was given.*' Where the life tenant is given the power of sale,, "for his support" or for his "maintenance" he cannot exercise the power unless it was in fact necessary. ^^ The language conferring the power may be so broad as to repose some discretion in the donee of the power so that in the absence of bad faith or abuse of the power he cannot be called to account." But in no case ^8 Downie v. Downie (C. C.) 4 Fed. 55; Bilger v. Nunan (C. C.) 186 Fed. 665; State v. Smitb, 52 Conn. 557; Harp v. Wallin, 93 Ga. 811, 20 S. E. 966 ; N. E. Mtg. Sec. Co. v. Buice, 98 Ga. 795, 26 S. E. 84. Power of disposition given by the will to the wife, the life tenant,, by name without any mention of her as executrix until the closing paragraph of the will, vests in her as an individual, and not as ex- ecutrix. Smith V. Mclntyre, 95 Fed. 585, 37 C. C. A. 177. Power of sale given by the will to executors cannot be exercised by the widow, after the death of the executors. Box v. Word, 65 Tex. 159. *9Cowell V. So. Denver R. E. Co., 16 Colo. App. 108, 63 Pac. 991; McMillan v. Cox, 109 Ga. 42, 34 S. E. 341. 60 Hull V. Culver, 34 Conn. 403; Peckham v. Lego, 57 Conn. 555, 19 Atl. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130 ; In re Simon's Will, 55 Conn. 240, 11 Atl. 36 ; Cox v. Wills, 49 N. J. Eq. 130, 22 Atl. 794 ^ Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527. 51 Little V. Geer, 69 Conn. 411, 37 Atl. 1056; Lawrence v. Beards- ley, 74 Conn. 1, 49 Atl. 190 ; Reed v. Reed, 80 Conn. 401, 68 Atl. 849 ; Bartlett v. Buckland, 78 Conn. 517, 63 Atl. 350 ; Threlkeld v. Threl- keld, 238 Mo. 459, 141 S. W. 1121 ; Gibson v. Gibson, 239 Mo. 490,. 144 S. W. 770 ; In re Estate of Schuck, 87 Neb. 46, 127 N. W. 652. Where the will gives the widow power to sell the property "for her ovm comfort and support" the power to sell rests in her dis- cretion, and it is not necessary in order for her to sell, that she be supported by a decree of a court of equity that the sale is necessary § 156) QUANTITY OF ESTATE 413 is he beyond the restraining power of equity to pre- vent an abuse of the power or a fraud upon the rights of the remainderman/^ § 155. Rule in Shelley's case The rule in Shelley's case, while part of the general law of real property, has such a special bearing on devises that it may well be mentioned here/^ The rule is to the effect that if a life estate be granted or devised to a man, with a remainder to his own heirs, either in fee simple or fee tail, the life es- tate in the first taker becomes a fee which he may alien or encumber and bar his heirs." The heirs in such a case are said to take by descent and not by purchase. The distinction between purchase and de- scent is this : That an heir who takes by descent takes the estate of his ancestor with all the burdens his ancestor has placed upon it, but he who takes the land by purchase takes an independent estate of his own by virtue of the first grant or devise, and therefore takes it free from any of the acts of the intermediate for her support and comfort. Griffln v. Nicholas, 224 Mo. 275, 123 S. W. 1063. 52 reckham v. Lego, 57 Conn. 553, 19 Atl. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130; Little v. Geer, 69 Conn. 411, 37 Atl. 1056; Burnet V. Burnet, 244 Mo. 491, 148 S. W. 872. 53 Shelley's case is reported in 1 Coke, 227, decided in 1579. 5 4Goldsby v. Goldsby, 38 Ala. 404; Holt v. Pickett, 111 Ala. 362, 20 South. 4.32 ; Norris v. Hensley, 27 Cal. 439 ; Goodrich v. Lambert, 10 Conn. 453; Griffith v. Derringer, 5 Har. (Del.) 284; Terry v. Hood, 172 Ala. 40, 55 South. 423; Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665 ; Seay v. Cockreil, 102 Tex. 280, 115 S. W. 1160. 414 WILLS AND ADMINISTEATION OF ESTATES (Ch. 10 holders. It was possible at common law to grant or devise a life estate to one person, and limit the re- mainder to any other person, except the first taker's own heirs. The rule in Shelley's case did not permit this because it did iiot really create any new interest in the property but simply operated to the injury of creditors and other innocent third persons. The rule is one of law and not of construction and is not governed by the intention of the testator." It does not extend to bequests of personal property."*^ In order for the rule to apply the title which the re- maindermen take by devise must be the same as they would have taken by descent had a* fee been given to the life tenant, and without any other estates depend- ent thereon." Thus the rule does not apply where there is a contingent remainder over.°* 55 Jones V. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 U R. A. (N. S.) 734 ; Robert v. West, 15 Ga. 122 ; Brooks v. Evetts, 33 Tex. 732 ; Brown v. Bryant, 17 Tex. Civ. App. 454, 44 S. W. 399. Contra: Rule in Shelley's case will yield to manifest intention of testator. Tendick v. Evetts, 38 Tex. 275-281 ; Hancock v. Butler, 21 Tex. 804; Hawkins v. Lee, 22 Tex. 544; Albin v. Parmele, 70 Neb. 740-744, 98 N. W. 29. 6 6 Gross v. Sheeler, 7 Houst. (Del.) 280, 31 Atl. 812; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734. 5' Estate of Utz, 43 Cal. 200; Jamison v. McWhorter, 7 Houst. (Del.) 242, 31 Atl. 517 ; Craig v. Rowland, 10 App. D. C. 402-413. 6 8 Daniel v. Whartenby, 17 Wall. 639, 21 L. Ed. 661; De Vaughn V. Hutchinson, 165 -U. S. 566, 17 Sup. Ct. 461, 41 L. Ed. 827 ; De Vaughn v. De Vaughn, 3 App. D. C. 50 ; Kesterson v. BaUey, 35 Tex. Civ. App. 235, 80 S. W. 97. Land devised for life, remainder to Issue, and on failure of issue, then over, does not vest fee in first taker under rule in Shelley's Case. Trimble v. Rice (S. C.) 204 Fed. 407, 122 C. C. A. 658. § 156) QUANTITY OF ESTATE 415 In order that two estates shall coalesce under the rule in Shelley's case they must be of the same quality — that is, both must be legal or both equitable and if one be equitable and the other legal the rule will not apply/* The rule has been abolished by statute in Eng- land *" and in many of the states, and a grant or de- vise that would formerly have vested a fee in the first taker now gives the heir a life estate only, with remainder in fee to his heirs. 61 § 156. Executory devises The term "executory devise" is used to describe an estate which may be created by will, which would not be valid under the common law if made by a conveyance inter vivos. Thus, by the rules of the common law, a future estate could not be created without a particular estate to support it ; a fee could not be limited to take effect after a fee; and a fu- ture estate could not be created in personal property. Such estates may be valid if created by will and are called executory devises. ^^ The vesting 68 Vogt V. Vogt, 26 App. D. C. 46; Vogt v. Graff, 222 U. S. 404, 32 Sup. Ct. 134, 56 L. Ed. 249 (affirming 33 App. D. C. 356); Slater v. Rudderforth, 25 App. D. C. 497. 6 Stat. 1 Victoria, c. 26. 61 Tesson v. Newman, 62 Mo. 198; Cross v. Hoch, 149 Mo. 341, 50 S. W. 786; Copley v. BaU (W. Va.) 176 Fed. 682, 100 C. C. A. 234 ; King V. Beck, 15 Ohio, 561 ; Wilkerson v. Clark, 80 Ga. 367-372, 7 S. E. 319, 12 Am. St. Rep. 258. 6 2 Chew V. Keller, 100 Mo. 362, 13 S. W. 395; Nay lor v. Godman, 109 Mo. 543, 19 S. W. 56; Tocum v. Siler, 160 Mo. 281, 61 S. W. 208; Clarke v. Terry, 34 Conn. 177 ; McArthur v. Scott, 113 U. S. 340, 5 416 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 of the estate is postponed by the clear intention of the testator; and, as the fee must vest somewhere it remains in the executor or in the heir-at-law in case no other provision is made. In case of doubt whether a certain disposition is an executory devise or a contingent remainder, the courts favor the latter. An executory devise is an estate limited after a fee while a remainder is one limited after a particular estate.*^ Executory devises were similar to springing and shifting uses, but without reference to the Stat- ute of Uses. They were all methods of evading the restrictions of the feudal system, such as livery of seizin. An estate determinable upon the happening of an event that may not happen is not a life estate follow- ed by a contingent remainder, but a base fee followed by an executory devise. °* Sup. Ct. 652, 28 L. Ed. 1015; Harrington v. Roe, 1 Houst. (Del.) 398; Thresher's Appeal, 74 Conn. 40, 49 Atl. 861 ; Couch v. Gorham, 1 Conn. 36; Morgan v. Morgan, 5 Day (Conn.) 520-526; Alfred v. Marks, 49 Conn. 473; Jewell v. Pierce, 120 Cal. 79-84, 52 Pac. 132; Moody V. Walker, 3 Ark. 147 ; Robinson v. Adams, 4 Dall. App'x xii, 1 L. Ed. 920 ; Abbott v. Essex, 18 How. 202, 15 L. Ed. 352 ; Cropley V. Cooper, 19 Wall. 167, 22 L. Ed. 109; Waring v. Jackson, 1 Pet. 570, 7 L. Ed. 266 ; Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816; Holcomb v. Wright, 5 App. D. C. 76; Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286, 12 Am. St. Rep. 305 ; Knowles v. Knowles, 132 Ga. 806, 65 S. E. 128 ; Brown v. TuschofE, 235 Mo. 449, 138 S. W. 497 ; Griffin v. Morgan (D. C. Vt.) 208 Fed. 660. 6 8 Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605. Not cross executory devise. Lich v. Lich, 158 Mo. App. 400, 138 S. W. 558. 8* Matthews v. Hudson, 81 Ga. 120-126, 7 S. E. 286, 12 Am. St. Rep. 305. § 156) QUANTITY OP ESTATE 417 The fact that there is a Hmitation over, by way of executory devise, does not prevent the vesting of the estate. It merely renders it subject to be divested upon the happening of the contingency."" Every limitation over by way of an executory de- vise is inconsistent with any right on the part of the first taker to alienate or incumber the property as against those who may be entitled to succeed there- to upon the termination of his estate." When the first devisee has the absolute power to dispose of the property in his own unlimited discre- tion an estate over is void; void as a remainder, because of the preceding fee, after which a remainder cannot be limited, and void as an executory devise, because a valid executory devise cannot subsist 85 Austin V. Bristol, 40 Conn. 120-124, 16 Am. Rep. 23. 66 St. John V. Dann, 66 Conn. 401, 34 Atl. 110 ; Moody v. Walker, 3 Ark. 147 ; Satterfleld v. Tate, 132 Ga. 256, 64 S. E. 60. A will devised to a son certain real estate but with the restric- tion that up to the age of twenty-five years he should only have the right to receive and dispose of the revenue thereof without the right to mortgage, encumber or sell the property. In case the son died before reaching the age of twenty-five years, the property should pass to a daughter. The son mortgaged the property and died before arriving at the age of twenty-five years. Held that even if the re- striction on alienation be held void the result would be that the son would take an estate in fee simple, subject to be defeated and to pass to the daughter in case he died before arriving at the age of twenty-five years. This is the most, common form of an executory devise and is legal when the contingency upon which the first es- tate is to expire must necessarily happen within a life or lives in being and twenty-one years thereafter. Held that the mortgage was good only as to the defeasible fee. Laval v. Staffel, 64 Tex. 370. BoRL. Wills — 27 418 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 under an absolute power of disposition in the first taker." The interest of a devisee in an executory devise will pass by will or by descent, before the contin- gency happens/^ A void executory devise leaves the estate absolute in the prior taker/" § 157. Rule against perpetuities While the law permits the creation by will of ex- ecutory devises, contrary to the rules of the com- mon law, there is a positive limit within which all future estates must vest absolutely; or, as it is said, "a limit beyond which the hand of the dead may not fetter the property of the living." This is called the rule against perpetuities. It would be an intolerable thing if a testator, because he had once been the owner of a piece of property, should be allowed to limit its ownership for an indefinite time in the future after he was dead. A testator may create as many life estates, contfngent remainders, or executory de- vises as he chooses, but he cannot postpone the vest- ed Gannon v. Albright, 183 Mo. 238, 81 S. W. 1162, 67 L. R. A. 97, 105 Am. St. Eep. 471; Miles v. Strong, 68 Conn. 273, 36 Atl. 55. es Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103, 29 Am. Dec. 836. All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration ; and all contingent estates of inheritance as well as springing and executory uses and possibilities, coupled with an interest where the person to take is certain, are transmissible by descent and devisable and as- signable. Nimmo v. Davis, 7 Tex. 26-34. 6 9 Cody V. Staples, 80 Conn. 82, 67 Atl. 1. § 157) QUANTITY OF ESTATE 419 ing beyond one unborn generation. A gift to an un- born child of a living person is good, but one to the unborn child of an unborn child is void. The rule is expressed thus : An executory devise must take effect, if at all, within a pe- riod comprised within a life or lives in being, and twenty-one )'ears thereafter, with the addition of the period of gestation of a child en ventre sa mere.'" The rule here given is the common law, and is in force in most states. In some states the rule has been still further narrowed by statute. '^^ 7 Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145; Moody v. Walk- er, 3 Ark. 147 ; Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41 ; Ashton v. Ashton, 1 Ball. 4, 1 L. Ed. 12 ; Long v. Blackball, 7 Term R. 100; Carlton v. Price, 10 Ga. 495-498; McLeod v. Dell, 9 Fla. 427-^46 ; Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 989 ; Laval V. Staffel, 64 Tex. 370. 71 The rule against perpetuities by statute in Connecticut was: "No estate in fee simple, fee tail or any less estate, shall be given by deed or will to any persons but such as are, at the time of making such deed or will, in being, or to their immediate issue or descend- ants." Gift to the "heirs of W." is void under this rule, as the heirs might be grandchildren or other remote descendants. Alfred v. Marks, 49 Conn. 473^76. Under this statute many devises were held void : Rand v. Butler, 48 Conn. 293 ; Wheeler v. Fellowes, 52 Conn. 238 ; Andrews v. Rice, 53 Conn. 566, 5 Atl. 823; Anthony v. Anthony, 55 Conn. 239, 11 Atl. 45; Leake v. Watson, 60 Conn. 498, 21 Atl. 1075; Beers v. Narramore, 61 Conn. 13, 22 Atl. 963 ; Landers v. Dell, 61 Conn. 189, 23 Atl. 1083 ; Belfield V. Booth, 63 Conn. 299, 27 Atl. 585 ; Johnson v. Webber, 65 Conn. 501, 33 Atl. 506; Morris v. BoUes, 65 Conn. 45, 31 Atl. 538; Ketchum v. Corse, 65 Conn. 85, 31 Atl. 486; Security Co. v. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107; Tingier v. Cham- berlin, 71 Conn. 466, 42 Atl. 718 ; Blakeman v. Sears, 74 Conn. 516, 51 Atl. 523; Gerard v. Ives, 78 Conn. 485, 62 Atl. 607; Grant v. Stimpson, 79 Conn. 617, 66 Atl. 166; Buck v. Lincoln, 76 Conn. 149, 420 WILLS AND ADMINISTEATION OF ESTATES (Ch. 10 Wills Speak from the death of the testator and limitations as regards the rule against perpetuities must be reckoned from that time.'^ A perpetuity is any limitation or condition which may (not which will or must) take away or suspend the absolute power of alienation for a period beyond the continuance of lives in being. The absolute power of alienation is equivalent to the power of conveying an absolute fee. The law against the sus- pension of the power of alienation applies to every kind of conveyance and devise. It applies to all trusts, whether creat- ed by will or deed, whether providing for remainders or exec- utory devises, or, as here, merely restraining the power of alienation for a fixed period of years, and then providing for a sale with gift over. In short, it covers the entire field of estates, interests, rights and possibilities. A perpetuity will no more be tolerated when it is covered by a trust than when it displays itself undisguised in the settlement of a legal estate.^' All limitations which violate this rule are void, and in construing a devise to ascertain whether it is contrary to the rule the question is whether it 56 Atl. 522; White v. Allen, 76 Conn. 185, 56 Atl. 519; Lepard v. Clapp, 80 Conn. 29, 66 Atl. 780 ; Harmon v. Harmon, 80 Conn. 44, 66 Atl. 771 ; Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33 ; Perry v. Bnlk- ley, 82 Conn. 158, 72 Atl. 1014; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86; Hartford Tr. Co. v. Wolcott, 85 Conn. 134, 81 Atl. 1057; Allen V. Davies, 85 Conn. 172, 82 Atl. 189. But in 1895 the troublesome statute was repealed and the com- mon law rule against perpetuities now prevails. Tingier v. Wood- ruff, 84 Conn. 6S4-689, 81 Atl. 967. California statute is life or lives in being and applies to personal property as well as real. In re Walkerly, 108 Oal. 627-656, 41 Pac. 772, 49 Am. St. Kep. 97. 72 Estate of Lux, 149 Cal. 200, 85 Pac. 147. Titles become fixed as of the death of the testator and the subse- quent repeal of the statute against perpetuities cannot make valid a void devise. Cody v. Staples, 80 Conn. 82, 67 Atl. 1. 7 3 In re Walkerly, 108 Cal. 627-647, 41 Pac. 772, 49 Am. St. Eep. § 157) QUANTITY OF ESTATE 421 might have such effect. If it might, under the terms of the devise, postpone the vesting for a longer pe- riod than the rule permits, then it is void; even though, as events turn out, it did not reallv have that effect/* The rule against perpetuities does not, however, require that the particular individuals in whom the title is to vest shall be ascertainable at the testator's death; it is enough if it be certain that they will be definitely ascertainable within the prescribed period." If a devise is made upon alternative contingencies and one alternative be void, as a perpetuity, the other may take effect.'^ Where the remainder over is void as a perpetuity the fee vests in the last person who had a vested in- terest." 97 ; Wheeler v. Fellowes, 52 Conn. 238 ; Bates v. Spooner, 75 Conn. 501, 54 Atl. 305 ; Estate of Cavarly, 119 Cal. 406, 51 Pac. 629. 74 Hanley v. K. & T. Coal Co., 110 Fed. 62 ; Rand v. Butler, 48 Conn. 293 ; Jocelyn v. Nott, 44 Conn. 55. A wUl creating a fund of which the interest only is to be used for keeping the grave lot of the testator in good condition is unlawful as being within the prohibition against perpetuities. Mcllvain v. Hockaday, 36 Tex. Civ. App. 1, 81 S. W. 54. 7 5 Bates V. Spooner, 75 Conn. 501, 54 Atl. 305; Tingler v. Wood- ruff, 84 Conn. 684, 81 Atl. 967 ; Healy v. Healy, 70 Conn. 467-471, 39 Ati. 793. 70 Perkins y, Fisher, 59 Fed. 801, 8 C. C. A. 270; Threshers' Ap- peal, 74 Conn. 40, 49 Atl. 861 ; Landram v. Jordan, 203 U. S. 56, 27 Sup. Ct. 17, 51 L. Ed. 88 ; Halsey v. Goddard (C. C.) 86 Fed. 25. 7 7 Security Co. v. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107; Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70; Smith v. Dun- woody, 19 Ga. 237 ; Landram v. Jordan, 25 App. D. C. 291. 422 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 The courts draw a distinction between the post- ponement of the vesting of the title, and the post- ponement of the right of possession or enjoyment. The latter may be postponed without violating the rule/* § 158. Powers defined Powers are of frequent occurrence in wills." A power is distinct from an estate. It may be vested in a person who is the holder of a particular estate in the land or it may be vested in one who holds no estate. Power is always derivative. It is a species of agency, but one which, unlike ordinary agencies 78 Gates V. Seibert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625; Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439 ; Keeler v. Lauer, 73 Kan. 396, 85 Pae. 541. Not void, as perpetuity. McGraw v. McGraw, 176 Fed. 312, 99 C. C. A. 650 ; Terrell v. Cunningham, 70 Ala. 100 ; Terrell v. Reeves, 103 Ala. 264, 16 Soutli. 54 ; Guesnard v. Guesnard, 173 Ala. 250, 55 South. 524 ; Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50 ; Estate of Lux, 149 Cal. 200, 85 Pac. 147 ; Estate of Spreckels, 162 Cal. 559, 123 Pac. 371 ; Estate of Cross, 163 Cal. 778, 127 Pac. 70 ; Pendleton v. Kinney, 65 Conn. 222, 32 Atl. 331 ; Johnson v. Edmond, 65 Conn. 492, 83 Atl. 503 ; Johnson v. Webber, 65 Conn. 501, 33 Atl. 506 ; Robert v. West, 15 Ga. 122 ; IQingman v. Gilbert, 90 Kan. 545, 135 Pac. 682. The rule against perpetuities is aimed against undue restraints or alienation. A devise to a named bishop and his successors, without such restraint is not against the rule. Lamb v. Lynch, 56 Neb. 135, 76 N. W. 428. 7 8 Campbell v. Weakley, 121 Ala. 64, 25 South. 694; Edwards v. Bender, 121 Ala. 77, 25 South. 1010 ; Marx v. Clisby, 126 Ala. 107, 2S South. 388. Powers under will relate back to death of testator. Welder v. Mc- Comb, 10 Tex. Civ. App. 85, 30 S. W. S22. § 159) QUANTITY OF ESTATE 423 does not terminate with the death of the principal. It may be defined as the right or abiUty to convey, charge or encumber an estate, not by virtue of, or as an incident to the title held by the person exercising the power, but by authority derived from the holder of some greater title. ^° A power of sale may be given to one who is the holder of a life estate in the land. As we have seen, such a power does not enlarge the life estate into a fee although it contemplates that a sale under such power will convey a fee to the purchaser." § 159. Limitation of powers The power of sale given to a life tenant may be limited to a particular purpose, as for her support." If the testator desires to do so, a power of sale may be given to the executor, ^^ without giving him the legal title; in which case the power to sell is a mere 8 This definition is of my own invention, and I offer it simply for what it is worth. The ordinary definition of a power seems to me to be obsolete and very confusing to the modern lawyer. The conven- tional definition follows: "Powers owe their origin to the Statute of Uses, and are thus defined: Powers are methods of causing a use with its accompanying estate to spring up at the -will of a given person." Wms. Real Prop. 245. 81 Durr V. Wilson, 116 Ala. 125, 22 South. 536; Little v. Giles, 25 Neb. 313, 41 N. W. 186 ; Vamplew v. Chambers, 29 Neb. 83, 682, 45 N. W. 268, 1103. 82 Bartlett v. Buckland, 78 Conn. 517, 63 Atl. 350. 83 Campbell's Estate, 149 Cal. 712, 87 Pac. 573 ; Hatchett v. Hatch- ett, 103 Ala. 556, 16 South. 550 ; Pratt Co. v. Robertson, 140 Ala. 584, 37 South. 419 ; Duffleld v. Pike, 71 Conn. 521, 42 Atl. 641 ; Llggat v. Hart, 23 Mo. 127 ; Wisker v. Rische, 167 Mo. 522, 67 S. W. 218 ; Grif- fith V. Witten, 252 Mo. 627, 161 S. W. 708. 424 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 naked power, to be exercised only in the manner and for the purposes stated. The fee does not vest in the executor, put passes to the heirs or devisees, subject to the power/* So a devisee for Hfe may be given the power to appoint by will to whom the ultimate estate shall go either generally, or among the mem- bers of a certain class/'* A power given by will must be strictly pursued in order to cut off heirs and re- maindermen/ ° It may not transcend the limits of the provisions of the will creating it." Thus a power of sale does not authorize a mortgage unless within the intent of the testator.*' Nor does it authorize 84 Compton V. McMalian, 19 Mo. App. 494; Eneberg v. Carter, 98 Mo. 647, 12 S. W. 522, 14 Am. St. Rep. 664 ; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 734. sBCarr v. Grain, 7 Ark. 241; Lane v. Lane, 4' Pennewill (Del.) 368, 55 Atl. 1S4, 64 L. R. A. 849, 103 Am. St. Rep. 122. Where the donee of a power Is given discretion in making an ap- pointment among certain persons, that discretion will not be control- led by the court provided a substantial gift is made to each object of the power. Should the donee die without exercising the power, the court cannot exercise the discretion vested in the donee, but will divide the property equally among the beneficiaries of the power. Loosing V. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (N. S.) 920. 8 6 Cramton v. Rutledge, 157 Ala. 141, 47 South. 214; Rutledge v. Oramton, 150 Ala. 275, 43 South. 822 ; Wells v. Petree, 39 Tex. 419. 8 7 Allen V. Da vies, 85 Conn. 172, 82 Atl. 189; Davis v. Vincent, 1 Houst. (Del.) 416. Where wife has life estate, with power to dispose of fee for her own benefit, she has not the right to dispose of the property merely for the purpose of defeating the rights of the residuary legatees and devisees under the will. Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648. Contra: Vamplew v. Chambers, 29 Neb. 83, 682, 45 N. W. 268, 1103; Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133 ; District v. Jones, 3S App. D. C. 560. 8 8 O'Brien v. Flint, 74 Conn. 502, 51 Atl. 547; Price v. Courtney, S7 § 160) QUANTITY OF ESTATE 425 a disposition by will/' although a power duly given may be exercised in part only."" The validity of the estates created under the ex- ercise of a power is tested by the same rules as though made by the will of the original donor of the power.'^ It is but the continuation of the act of the donor, and is not rendered void by the possibility of a void con- veyance or appointment being made thereunder; in legal effect it is a power to do only what is lav/ful.°'' § 160. Manner of executing powers At common law a power or authority was not con- sidered as executed unless by some reference to the power or authority or to the property which was the subject of it, or unless the provision made by the per- son intrusted with the power would have been in- effectual, that is, would have had nothing to operate upon except it were considered as an execution of such power or authority/^ Mo. 387, 56 Am. Eep. 453 ; Freeman v. Bristol Sav. Bank, 76 Conn. 212, 56 Atl. 527; Townsend v. Wilson, 77 Conn. 411, 59 Atl. 417; Dougherty v. Dougherty, 204 Mo. 228, 102 S. W. 1099 ; McMillan v. Cox, 109 Ga. 42, 34 S. E. 341 ; Deweln v. Hooss, 237 Mo. 23, 139 S. W. 195 ; Quisenberry v. Watkins Land Co., 92 Tex. 247, 47 S. W. 708. Nor the incorporation of the estate. Garesche y. Levering Inv. Co., 146 Mo. 436, 48 S. W. 653, 46 L. R. A. 232. 8 State V. Smith, 52 Conn. 562. 90 Bartlett r. Sears, 81 Conn. 34, 70 Atl. 33. ^91 Heald v. Briggs, 83 Conn. 5, 74 Atl. 1123. 9 2 Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33. 93 Lane v. Lane, 4 Pennewill (Del.) 368, 55 Atl. 184, 64 I* R. .1. 849, 103 Am. St. Rep. 122; Davis v. Vincent, 1 Houst. (Del.) 410 ; O'Brien v. Flint, 74 Conn. 502, 51 Atl. 547 ; Harker v. Reilly, 4 426 WILLS AND ADMINISTRATION OP ESTATES (Ch. 10 The intent to execute the power need not be recited in the instrument but may appear from the circum- stances/* A general devise or legacy which does not allude to the power is not considered an execution of the power °^ except where some statute has changed the rule of the common law. The rules of the common law in respect to the exe- cution of powers were changed by the statute 1 Vict. c. 26, § 27, passed in 1837 which provides that a general devise of real estate or a general bequest of personal property of the testator should be construed to include all real estate or personal property, over which such testator may have had a power of appoint- ment and should operate as the execution of such power unless a contrary intention should appear by the will. § 161. Personal property — Life estates and future interests While there is a growing tendency to amalga- mate the rules relating to real and personal prop- erty there remains a natural and an inherent dif- ference, arising out of the fixed and permanent Del. Ch. 72; Middlebrooks v. Ferguson, 126 Ga. 232, 55 S. E. 34; Papin V. Pieduoir, 205 Mo. 521, 104 S. W. 63 ; Lawless v. Kerns, 242 SIo. 392, 146 S. W. 1169 ; Weir v. Smith, 62 Tex. 1 ; WlUier v. Cum- mlngs, 91 Neb. 571, 136 N. W. 559, Ann. Gas. 1913D, 287. »* Coombs V. O'Neal, 1 MacArthur (D. C.) 405. 8 5 Lane v. Lane, 4 Pennewlll (Del.) 368, 55 Atl. 184, 64 L. R. A. 849, 103 Am. St. Rep. 122 ; Johnson v. Stanton, 30 Conn. 297. § 161) QUANTITY OF ESTATE 427 character of real property and the movable and perishable character of personal property. An ab- solute estate is more readily inferred in a gift of personal property than in one of real property.*' But limited interests may now be created in chattels. Chattels, other than such as are consumed by using, may be bequeathed for life, with remainder over,"' or an interest may be given in personal prop- erty, to begin in the future."' The common law did not permit future interests in personal property. All such gifts were absolute, and attempted limitations over were void. They were permitted only in wills and hence, solely because they violated the rules of the common law, they were class- ed as executory devises. This classification is mislead- so Martin v. Fort, S3 Fed. 19, 27 C. C. A. 428; Robinson v. Bishop, 23 Ark. 378; State v. Warrington, 4 liar. (Del.) 55; Angus v. Noble, 73 Conn. 56, 46 Atl. 278 ; State v. Sliney, 78 Conn. 397, 62 Ati. 621 ; Lorton t. Woodward, 5 Del. Ch. 505 ; Snyder v. Baker, 16 D. C. 443 ; Roberts v. Carr, Dud. (Ga.) 178. s>7 Swearingen v. Taylor, 14 Mo. 391 ; Riggins v. McClellan, 28 Mo. 23 ; Turner v. Timberlake, 53 Mo. 377 ; Harbison v. James, 90 Mo. 411, 2 S. W. 292 ; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52 ; Hitcii- coek V. Clendennin, 6 Mo. App. 99 ; Board v. Dimmitt, 113 Mo. App. 41, 87 S. W. 536 ; State v. Warrington, 4 Har. (Del.) 55 ; Clarke v. Terry, 34 Conn. 177 ; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322 ; Vaughan V. Parr, 20 Ark. 600 ; Cox v. Britt, 22 Ark. 567 ; Forley v. Gilmer, 12 Ala. 141, 46 Am. Dec. 249; Underwood v. Underwood, 162 Ala. 553-561, 50 South. 305, 136 Am. St. Rep. 61 ; Holman's Case, 24 Pa. 174 ; Stoner's Case, 2 Pa. 42S, 45 Am. Dec. 608 ; Baskin's Case, 3 Pa. 304, 45 Am. Dec. 641; Armiger v. Reitz, 91 Md. 334, 46 Atl. 99; Sutphen v. Ellis, 35 Mich. 446; Langworthy v. Chadwick, 13 Conn. 42 ; Thornton v. Burch, 20 Ga. 791 ; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404. 98 Austin V. Watts, 19 Mo. 293. 428 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 ing and should now be abandoned. In truth they bear no analogy to executory devises of real property. The latter are estates created by will which are neither vested nor contingent remainders. Future interests in personal property, even though created by will, are ei- ther vested or contingent remainders. The same expressions which in a freehold create an estate tail or an executory devise, in chattels create an absolute interest; otherwise it would tend to a perpetuity, as the devisee or grantee in tail has no method of barring the entail. °° The law having recognized these future interests in personalty, it is better to treat them frankly as vested and contingent remainders, and drop the obsolete term "executory devise" as applied to per- sonal property. At the common law there was no remainder to a chattel interest, and any gift or bequest of a chattel, no matter how short the time, passed the absolute property. This rule was gradually relaxed, and a distinction taken between a gift of the thing itself and of the use of the thing; the law attaching a validity to the latter which it denied to the former. This modification of the common law rule in time also gave way to the rule, as we now understand it to exist, that whether the gift be of the thing itself for life, or only of the use of the thing, a limitation over to a subsequent devisee after the de- cease of the first taker will be supported. Such life estate or use, however, must be clearly expressed, for it has been decid- 9 8 Hudson V. Wadsworth, 8 Conn. 348-361; State v. Tolson, 73 Mo. 320 ; Chlsm v. Williams, 29 Mo. 28S ; Moody v. Walker, 3 Ark. 147 ; Jones V. Jones, 20 Ga. 699; Gray v. Gray, 20 Ga. 804; CMlders v. Childers, 21 Ga. 377 ; Lee v. McElvy, 23 Ga. 129. § 162) QUANTITY OP ESTATE 429 ed with great unanimity, by the EngHsh and American courts, that whatever will directly or constructively constitute an es- tate in tail in lands, will pass an absolute estate in personal property.^ § 162. Protection of remaindermen in future es- tates in personal property What protection has the remainderman in such a case, and what assurance has he that he will ulti- mately get the bequest? This is one of the natural difficulties in recognizing future estates in personal property. Such property is liable to be wasted, de- stroyed, converted into other forms, or carried out of the jurisdiction. Some courts have held that it is the duty of the executor to require a bond of the life tenant that the property will be forthcoming to answer the claim of the remaindermen. In default of such bond the executors should retain and invest the property and pay over only the income to the life tenant.^ Most courts, however, hold that the life tenant is entitled to demand possession of the property, and that he is a quasi trustee for the remaindermen.* 1 Maiilding v. Scott, 13 Ark. 88-91, 56 Am. Dec. 298. 2 Clarke v. Terry, 34 Conn. 177 ; Cbase v. Howie, 64 Kan. 320, 67 Pac. 822 ; Chisholm v. Lee, 53 Ga. 611 ; Lee v. Cliisholm, 56 Ga. 126 ; Sanford v. Gilman, 44 Conn. ^63. ^ Estate of Garrity, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485 ; Under- wood V. Underwood, 162 Ala. 553, 50 South. 305, 136 Am. St. Rep. 61; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404. "It is contended by the appellant that the widow was not entitled to the possession of the personal property, in which she was given only a life estate, but that the superior court, instead of distributing 430 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 Where there is danger that the personal property given to a life tenant will be either wasted, secreted the property directly to her during the term of her life, should have directed that it be converted into money, and invested in some se- curities from which she would be entitled to receive only the in- come thereof during her lifetime, and, at her death, the securities should be delivered to the children. In England, and in some juris- dictions within the United States, the administration of an estate is regarded as a continuing trust, and the executor as a trustee for all the parties interested in the estate, for the purpose of carrying into effect the various provisions of the will ; and in these jurisdictions the rule prevails that when personal property, consisting of money or securities, is given to one for life, with a remainder to another, the executor, as a trustee of both, shall convert the property into interest bearing securities, and pay the income thereof to the legatee for life, and, after his death, deliver the securities to the remaindermen. Howe V. Earl of Dartmouth, 7 Ves. 137 ; Howard v. Howard, 16 N. J. Eq. 486; Covenhoven v. Shuler, 2 Paige (N. Y.) 132, 21 Am. Dec. 73. At an early day in England it was the rule in chancery that the life tenant, before he could demand the delivery to him of prop- erty bequeathed to him for life, should give security to the executor ; but as early as the time of Lord Talbot, in 1734, this rule had been modified to such an extent as to require the life tenant merely to de- liver to the remainderman an inventory that the property was held by him for life only. Slanning v. Style, 3 P. Wms. 336. See, 'a) so, B'o- ley V. Burnell, 1 Brown Ch. 279; Westeott v. Cady, 5 Johns. Ch. (N. Y.) 349, 9 Am. Dec. 306. This rule has been made applicable in this state only to a bequest for life of specific legacies. Civ. Code § 1365. If the will is silent concerning the disposition of the corpus of the lega- cy during the continuance of the life estate, the general rule in equity is that the legatee for life is not entitled to demand from the executor the possession of the legacy, unless he gives security to the executor, and that the remainderman may require that the tenant for life, before receiving the property bequeathed to him, shall give such security ; but, in order that the remainderman may demand that such security be given, he must make it appear that there is some danger that the estate will be impaired or suffer waste if left In the possession of the life tenant. In re Camp, 126 N. T. 377, 27 N. E. 799 ; Story's Equity Jurisprudence, § 604 ; Langworthy v. Chadwick, 13 Conn. 42. The rule is one of equity, established by courts for the § 162) QUANTITY OF ESTATE 431 or removed out of the state a 'court of chancery will protect the interest in remainder, by compelling the tenant for life to give security.* protection of the remainderman, in the absence of any direction in the will; but the rule thus established must yield to the terms of the will, and if it appears from a proper construction of the will that it was the intention of the testator that the property should be placed in possession of the life tenant without security, such in- tention will be carried out. It is to be assumed that the testator in- tended the life tenant to have the full enjoyment during his lifetime of the property bequeathed to him, and that this enjoyment shall not be impaired, except for the protection of the remainderman. The testator has the right to make the life tenant the trustee of the prop- erty bequeathed, without requiring any security from him ; and very slight indications in the will will be construed as showing that the testator intended the life tenant, rather than the executor, to be the trustee, subject of course, to the general rules applicable to the obli- gation of a trustee to his cestui que trust. If the testator has not re- quired such security to be given by the life tenant, courts are not authorized to require it, in the absence of any showing of danger or liability of waste ; otherwise, the will of the testator that the life tenant shall enjoy the property will be frustrated. There is noth- ing, however, in the rules of procedure in this state, or in the will under consideration, which authorized such a procedure in the dis- tribution of an estate. The administration of an estate in this state is conducted under the direction of the superior court, mainly for the purpose of securing to the creditors payment of their claims, and, after this purpose has been accomplished, in the absence of any ex- press provisions in the will, the estate is to be distributed to the beneficiaries under the will in accordance with its terms, and the executor is entitled to be discharged from any further duties. The provisions of the will become merged in the decree of distribution, and the terms of this decree become the measure of the rights of the several beneficiaries. Sitting as a court in probate, the function of the superior court is limited to a judicial determination that the i Langworthy v. Chadwick, 13 Conn. 42 ; Hudson v. Wadsworth, 8 Conn. 348 ; Horton v. TJpham, 72 Conn. 29, 43 Atl. 492 ; De Loney v. Hull, 128 Ga. 778, 58 S. E. 349. 432 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 The remainderman may also recover at law from the representatives of the life tenant," but as the property has passed out of the control of the ex- ecutor the latter has no such right.' § 163. Dying without issue — History of phrase One of the most troublesome provisions, occur- ring in wills, with which courts have to deal is where the testator has made a general or absolute devise to one, followed mediately or immediately by a provision that if the first taker die without is- sue the estate shall pass to others. Various forms of language may be used to express this provision, and sometimes, though rarely, the particular Ian- estate of the testator is to be transferred to the beneficiaries as the testator has provided in Ms will ; and the court is not authorized to add to its terms or qualify those provisions. There is no provision in our statutes authorizing the court to direct a conversion of the testator's property, or requiring the legatee for life to give any se- curity before receiving his legacy. If the legatees in remainder deem it necessary that their rights in the property, shall be protected or preserved, they must seek such relief from the equity arm of the superior court." In re Garrity, 108 Gal. 463^69, 38 Pac. 628, 41 Pac. 485. 5 Grawford v. Clark, 110 Ga. T29, 36 S. E. 404; Griggs v. Dodge, 2 Day (Conn.) 28, 2 Am. Dec. 82 ; Taber v. Packwood, 2 Day (Conn.) 52. Difficulty of preserving identity of personal property bequeathed to wife for life with remainder. Leonard v. Owen, 93 Ga. 678, 20 S. E. 65. Assets distributed by a corporation in liquidation are regarded as principal and not income as between life tenant and remainderman. Bulkeley v. Worthington Ecc. Soc., 78 Conn. 526, 63 Atl. 351, 12 L. R. A. (N. S.) 785 ; Bishop v. Bishop, 81 Conn. 509, 71 Atl. 583, 20 L. R. A. (N. S.) 863, 15 Ann. Cas. 306. Bates V. Woolfolk, 5 Ga. 329. § 163) QUANTITY OF ESTATE 433 guage used by the testator will indicate with a fair degree of clearness the exact intention that he had in mind in regard to the character, extent and dura- tion of the various estates which he has sought to create. In the larger number of cases, however, it is apparent that the choice of the language em- ployed was purely accidental. The slight variation of language, or the order or arrangement of words in the various cases, indicates no fundamental dif- ference in the legal effect of the provisions. All those cases which profess to be decided by discov- ering the testator's "intention" in the particular case are here, as in other branches of this subject, utterly worthless as precedents, and confusing and misleading to laymen, lawyers and trial courts. It is said that the early common law favored free- dom both of person and property, but the introduc- tion of the feudal system changed all that as to real property, and turned alodial lands into mere tenancies. No sooner had that system seized the land in its mailed grasp than the battle for freedom began again and continued slowly and painfully through the ages, freedom always taking one firm step in advance and holding the ground she gained. In the struggle the courts both of common law and equity were usually on the side of freedom and Parliament, dominated by the feudal barons, fought for archaic privilege. In this battle of wits the courts had a steady advantage over the legislature. When feoffments came into use the estate most BoBL. Wills— 28 434 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 often conveyed bears its Norman stamp in its name of fee-tail. It was a grant of the fee but limited in descent to the heirs of the grantee's body or the heirs male of his body — in other words, to his issue. The dominant idea was of course to keep the land within the family — to make of land a political and social, instead of an economic factor. The courts promptly held that, under such a grant, as soon as the grantee had issue the estate became absolute in him and that he could alien or encumber the estate and cut off the entail. Parliament responded by passing the statute "de donis," ^ requiring the courts to enforce the exact language of the grant. Under this statute estates tail became permanent in the law, until the courts, borne down by the weight of a great public evil for which there was no legis- lative remedy, by another stretch of judicial power held that the tenant in tail might suffer a common recovery and thus bar the entail.* As an estate tail is a particular estate an estate of freehold, limited after an estate tail, is a contingent remainder." If the particular estate upon which a contingent remainder is limited fails or comes to an end before the contingent remainder can take effect the remainder fails also. Therefore, when it was decided that a fee tail could be barred by a common recovery, the contingent remainder limited upon 7 statute of Westminster II, 13 Bdw. I, c. I (12S5). sTaturam's Case, 12 Edw. IV (1472). » 2 Washburn, Real Prop. § 1747. § 163) QUANTITY OF ESTATE 435 the indefinite failure of the issue in tail was barred also. This put an end to the contingent remainder upon the indefinite failure of issue of the tenant in tail and left the land free and unfettered of the en- tail. But the Parliament in 1542 passed the Statute of Wills, conferring the power to make wills of free- hold lands. Very soon after that the feudal law- yers invented the executory devise — an estate which could be created only by will and which vio- lated the common law rules of conveyancing. At common law a fee could not be limited after a fee, but this could be done by will and was called an ex- ecutory devise, which was a simple transplanting into the common law of the shifting and springing uses which had become familiar in equity before the Statute of Uses and the Statute of Wills. It was decided that if a devise be made to one and in case he die without issue then to another, this was a fee limited upon a fee and was good as an ex- ecutory devise and could not be barred by a com- mon recovery. '^° It had always been held that there could be no fee tail in chattel interests, such as a term of years, because such interest could not be barred by a common recovery. Words which would create a fee tail as to real estate would if applied to personal property create an absolute in- 10 Pells V. Brown, Oro. Jac. 590 (ITtti year James I — 1619). This case established executory devises. 436 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 terest." When executory devises were first in- vented they applied, as their name indicates, only to real property. The original case of Pells v. Brown was silent as to chattels. In the Duke of Norfolk's case, however, in 1695,^^ there was a dif- ference of opinion between the three common law judges and Lord Chancellor Nottingham as to whether an executory devise over on a devisee dy- ing without issue was valid as to a chattel interest, a term of years. The judges were against the lim- itation and the Chancellor for it. The case was taken to the House of Lords and the Chancellor's opinion affirmed. Thus the old system of entail writhed its slimy way back into the law in a more pernicious form than ever. It was considered that a devise to one, and if he died without issue, then to another, meant an indefinite failure of issue at any time in the future unless there were qualifying words showing an intention on the part of the tes- tator to limit it to a definite failure of issue, that is, a failure of issue living at the death of the first taker. As to personal property the presumption was that the words imported a definite failure of issue." The fact that as to real estate it was possible to create an executory devise which could not be 11 Chandless v. Price, 3 Ves. Jr. 99 ; Paterson v. Ellis, H Wend. (N. Y.) 259 ; Robert v. West, 15 Ga. 122 ; Hose v. King, 24 Ga. 424 ; Brown v. Weaver, 28 Ga. 377 ; Hollifield v. Stell, 17 Ga. 280. 12 Duke of Norfolk's Case, 8 Chan. Cases, 1 FoUex, 223. 13 Forth V. Chapman, 1 P. Wm. 663. § 163) QUANTITY OP ESTATE 437 barred by a common recovery and from which the land could not be freed in any known way and which might depend upon an indefinite failure of issue, caused the courts to again assume unblush- ingly the power of legislation. They accordingly invented the rule against perpetuities." There- after no executory devise which exceeded or might exceed the limit set by the rule against perpetuities was valid. The effect of this rule in conjunction with the established presumption that "dying with- out issue" unqualified by the context must refer to an indefinite failure of issue was to render many executory devises void. It thereupon became fash- ionable to find in the context or language of the will some pretext for holding the intention of the testator to be that the words "dying without issue" meant issue living at the death of the first taker or the person named as ancestor and therefore valid within the rule against perpetuities." The fact 1* Stephens v. Stephens, Cas. Tenn. Talbott, 228 (1736). IB Porter y. Bradley, 3 Term Eepts. 143 (17S9) r Paterson v. Ellis, 11 Wend. (N. Y.) 259 ; Atwell's Ex'r v. Barney, Dud. (Ga.) 207 ; Craw- ford V. Clark, 110 Ga. 729, 36 S. E. 404 ; Klingman v. Gilbert, 90 Kan. 545-553, 135 Pac. 682 ; Strain v. Sweeny, 163 111. 603, 45 N. E. 201 ; Parish v. Ferris, 6 Ohio St. 576 ; Nusshaum v. Evans, 71 Ga. 753 ; Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (X. S.) 1047. "Dying without issue'' under statute In Georgia prior to 1854 is a devise limited upon indefinite failure of issue, created an estate tall by implication, which statute converted into fee simple; executory devise limited thereon was void for remoteness. Hertz v. Abrahams, 110 Ga. 707, 36 S. E. 409, 50 L. R. A. 361. In this opinion is full reference to line of English decisions on "dying without issue." 438 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 that the devise over was made to a surviving broth- er or other living person; that personal and real property were mingled in the same gift, as well as various forms of variation in the language used, were held to indicate such an intention. The con- fusion became so great that the question was finally settled by act of Parliament,^" providing that "dy- ing without issue" refers to a failure of issue at the death of the first taker, unless a contrary intention appears from the will. In the United States the confusion is much great- er, owing to the large number of separate jurisdic- tions, each with its own judicial and statutory his- tory. Estates tail have been abolished very generally by statute in this country. In some states they are converted into estates in fee simple " and in others, into life estates in the first taker with remainder in fee simple in his immediate heirs. ^^ Many courts have struggled with this phrase "dy- ing without issue" in its relation to the statutes abolishing estates tail, without grasping the fact that the purpose of inventing the executory devise was 18 1 Vict. c. 26, § 29 (1837). 17 New York. Paterson v. ElUs, 11 Wend. (N. Y.) 259-293. Alabama. English v. JlcCreary, 157 Ala. 487, 48 South. 113. Maryland. Bengal v. Brown, 1 App. D. C. 423. Georgia. Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322 ; Wilkerson V. Clarke, 80 Ga. 367, 7 S. B. 319, 12 Am. St. Rep. 258 ; Johnsan v. Sirmans, 69 Ga. 617 ; Butler v. Ralston, 69 Ga. 485 ; Benton v. Pat- terson, 8 Ga. 146 ; Lessee of Miller v. Hurt, 12 Ga. 357 ; Pournell V. Harris, 29 Ga. 736. 18 Missouri. Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Yocum v. § 164) QUANTITY OP ESTATE 439 to write back into the English law an estate tail in such form that it could not be barred by a common recovery. § 164. "Dying without issue" — Three theories prevail in the courts So far as it is possible to group the cases in this country construing the phrase, "dying without issue" they may be grouped under three heads : First: Those in which it is assumed that the ex- pression "dying without issue" refers to the death of the devisee without issue in the lifetime of the tes- tator. The gift over, in this case would be substitu- tionary only, and if the devisee survived the testator he would take a fee simple.^' Parker, 134 Fed. 205, 67 C. C. A. 227; Cox v. Jones, 229 Mo. 53, 129 S. W. 495. Arkansas. Wheelock v. Simons, 75 Ark. 19, 86 S. W. 830 ; Mercan- tile Tr. Co. V. Adams, 95 Ark. 333, 129 S. W. 1101. Connecticut. Borden v. Kingsbury, 2 Root (Conn.) 40 ; St. John V. Dann, 66 Conn. 401-407, 34 Atl. 110. Estates tail are not abolished in Kansas. Ewing v. Nesbitt, 88 Kan. 709, 129 Pac. 1131; Lewis v. Earnhardt (C. C.) 43 Fed. 854. See Lewis v. Earnhardt, 145 U. S. 56, 12 Sup. Ct, 772, 26 L. Ed. 621. 19 Jones V. Webb, 5 Del. Ch. 132; Eickards v. Gray, 6 Houst. (Del.) 232 ; Hull v. Holmes, 78 Conn. 362, 62 Atl. 705 ; Strong v. Elliott, 84 Conn. 665, 81 Atl. 1020; St. John v. Dann, 66 Conn. 401, 34 AU. 110: Phelps V. Phelps, 55 Conn. 359, 11 Atl. 596; Turner v. Balfour, 62 Conn. 89, 25 Atl. 448 ; Johnes v. Beers, 57 Conn. 295, 18 Atl. 100, 14 Am. St. Rep. 101; Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468; King V. Frick, 135 Pa. 575, 19 Atl. 951, 20 Am. St. Rep. 889 ; Mick- ley's Appeal, 92 Pa. 514; McCormick v. McBlligott, 127 Pa. 230, 17 Atl. 896, 14 Am. St. Rep. 837; Biddle's Estate, 28 Pa. 59; Smith v. Smith, 139 Ala. 406, 36 South. 616 ; Phelps v. Robbins, 40 Conn. 250 ; 440 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 When in a will an estate in fee is followed by an appar- ently inconsistent limitation, the whole should be reconciled by reading the latter disposition as applying exclusively to the event of the prior devisee in fee dying in the lifetiriie of the testator — the intention of the testator being, it is considered, to provide a substituted devisee in case of a lapse.^" Second : Those in which it is assumed that the fail- ure of issue meant is an indefinite failure of issue, and hence that the first devisee takes a fee tail/^ Coe V. James, 54 Conn. 511, 9 Atl. 392; White v. White, 52 Conn. 518 ; Webb v. Lines, 57 Conn. 154, 17 Atl. 90 ; Lawlor v. Holohan, 70 Conn. 87, 38 Atl. 903 ; Stone v. McEckron, 57 Conn. 194, 17 Atl. 852; First Nat'l Bank v. De fauw, 86 Fed. 722, 30 C. C. A. 360 (Ind.), reversing (C. C.) 75 Fed. 775; Bartlett v. Bartlett, 33 Ga. Supp. 172-179. 20 Walsh V. McCutcheon, 71 Conn. 283-287, 41 Att. 813 ; HoUister V. Butterworth, 71 Conn. 57, 40 Atl. 1044. 21 HoUett's Lessee v. Pope, 3 Har. (Del.) 542; Caulk v. Caulk, 3 Pennewill (Del.) 528, 52 Atl. 340 ; James' Claim, 1 Dall. 47, 1 L. Ed. 31 ; McColley v. Lampleugh, 3 Houst. (Del.) 461 ; Allyn v. Mather, 9 Conn. 124 ; Williams v. McCall, 12 Conn. 330 ; Larabee v. Larabee, 1 Root (Conn.) 556 ; Comstock v. Comstock, 23 Conn. 349-351 ; Smith V. Pendell, 19 Conn. Ill, 48 Am. Dec. 146; Turrill v. Northrop, 51 Conn. 33 ; Chesebro v. Palmer, 68 Conn. 207, 36 Atl. 42 ; Pearsal v. Maxwell, 76 Fed. 428, 22 C. C. A. 262 (Pa.); Thre^sher's Appeal, 74 Conn. 40, 49 Atl. 861 ; Moody v. Walker, 3 Ark. 147 ; Williamson v. Daniel, 12 Wheat. 568, 6 L. Ed. 731; Myrick v. Heard, 31 Fed. 241 (Ga.) ; Wiley v. Smith, 3 Ga. 551. A limitation of property after an indefinite failure of issue is void, and to make an executory devise good to a second legatee the gift to the first taker must be restricted to a life interest or must be some- thing less than an absolute' gift. Slaughter v. Slaughter, 23 Ark. 356, 79 Am. Dec. Ill; Watkins f. Quarles, 23 Ark. 179; Robinson v. Bish- op, 23 Ark. 378 ; Moody v. Walker, 3 Ark. 147-198 ; Clark v. Stan- field, 38 Ark. 347; Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432, 4 Ann. Oas. 1136; Carlton v. Price, 10 Ga. 495; Strong v. Middleton, 51 Ga. 462^65 ; Holt v. Wilson, 82 Kan. 268-274, 108 Pac. 87. § 164) QUANTITY OF ESTATE 441 The old English rule was that a limitation over, if the first devisee should die without issue, created an estate tail by im- plication only if an indefinite failure of issue was intended. That such was the testator's intention, was, however, pre- sumed, if the first devise were made either in fee, or for life, or generally without any particular limit as to its duration. Ma- chell V. Weeding, 8 Sim. 4. The courts of this State, while adopting the same rule, have not admitted the existence of the presumption upon which it was based by the English law. On the contrary they have always construed the words "dying without issue," if not otherwise explained in the context, as referring to a dying without leaving issue living at the time of such death (Hudson v. Wadsworth, 8 Conn. 348-360). This difference between the views of the English courts and those of Connecticut is, no doubt, attributable. to the effect of an ancient principle in our jurisprudence, confirmed by the Statute of 1784, that an estate tail becomes an estate in fee simple in the issue of- the first donee in tail. Under this rule, a strict limitation in tail, to endure from generation to genera- tion, was impossible and an attetopt to constitute it was there- fore not to be presumed. There is no difference between the common law of England and that of this State in reference to the creation of a remainder after an estate tail in land. An estate tail is a particular estate, which when carved out of an estate in fee simple, leaves something remaining, which is a proper subject of immediate disposition. Hall v. Priest, 6 Gray (Mass.) 18-20. A devise in tail might be followed at common law, by a de- vise in remainder, contingent upon the death of the devisee in tail without leaving issue surviving him at the time of his decease. This simply prescribed a particular mode for the termination of the estate in tail. Ex parte Daviss, 2 Sim. (N. S.) 104." 22 St. John V. Dann, 66 Conn. 401^07, 34 Atl. 110. "It is a principle of tJie common law to whicli the English court* have always adhered with great tenacity that a fee cannot be limit- ed after a fee. Thus when by deed land is conveyed to one in fee. 442 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 Third : Those in which it is assumed that the fail- ure of issue meant is a failure at the death of the first devisee, and hence that he takes a conditional with a limitation over to another upon the happening of a particular event, the limitation over is void. But in a will, for the purpose of giving effect to the intention of the testator, such a limitation is held to the good as an executory devise. Executory devises are not favored in law, and the English judges have gone great lengths to construe the estate in the first devisee to be less than a fee, so as to give effect to the limitation over as a contingent remainder. Thus where land is devised to A and his heir, but in case A should die without issue then to B and his heirs, they construe the words "die without issue" to mean an indefinite failure of issue, and not a fail- ure at the time of the death of A, thereby giving A an estate tail by implication, and giving effect to the limitation over to B as a con- tingent remainder. And it is only when the language used clearly requires it that they construe such words to mean a failure at the death of the first devisee, as such a construction gives the first devi- see a fee, and allows the second to take only by "way of an executory devise. But our own courts have been less rigid in the construction of wills of this character." Bullock v. Seymour, 33 Conn. 289-293. When a devise can be construed as a remainder it will never be construed as an executory devise. Therefore a devise to two broth- ers with provision that on dying without issue the share shall go to survivor and on survivor dying without issue to others, is held to be a life estate in each, with cross remainders if life estate, and con- tingent remainder over. Anderson v. Messinger, 146 Fed. 929, 77 0. C. A. 179, 7 L. R. A. (N. S.) 1094 (Ohio). "Dying without issue" construed life estate followed by contingent remainder in children, if any. Stone v. Franklin, 89 Ga. 195, 15 S. E. 47 ; Haddock v. Perham, 70 Ga. 578 ; Wetter v. U. H. 0. P. Co., 75 Ga. 540; O'Bryne v. Feeley, 61 Ga. 77; Gaboury v. McGovern, 74 Ga. 133 ; Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 731. Estate for life with contingent remainder to his children if he have any, and executory devise over on failure of children. Eule in Wild's case, 6 Reports 17 (41 Elizabeth 1599), that where lands are devised to a person and his children, and he has no children at the time of the devise the parent takes an estate tail, is not followed in Georgia because estates tail are abolished. Miller's Lessee v. Hurt, 12 Ga. 857-359. § 164) QUANTITY OF ESTATE 443 fee.^* This is also a rule established by statute in some states/* 23 Abbott V. Essex Co., 18 How. 202, 15 L. Ed. 352 ; Robinson v. Adams, 4 Ball. App'x xii, 1 L. Ed. 920 ; Jackson v. Chew, 12 Wheat. 153, 6 L. Ed. 583; Gannon v. Pauk, 200 Mo. 75, 98 S. W. 471; Yocum V. Slier, 160 Mo. 281, 61 S. W. 208 ; Jewell v. Pierce, 120 Oal. 79-84, 52 Pac. 132 ; E'state of Blake, 157 Cal. 448^72, 108 Pac. 287 ; Estate of Carothers, 161 Cal. 588, 119 Pac. 926 ; Oronin's Estate, Myr. Prob. 252; Holmes v. Williams, 1 Root (Conn.) 335-340, 1 Am. Dec. 49; Morgan v. Morgan, 5 Day (Conn.) 517-520 ; Couch v. Gorham, 1 Conn. 36; Hudson v. Wadsworth, 8 Conn. 848; Bullock v. Seymour, 33 Conn. 289; Alfred v. Marks, 49 Conn. 473; HoUister v. Butterworth, 71 Conn. 57, 40 Atl. 1044; Harrington v. Roe, 1 Houst. (Del.) 398; Cooper V. Townsend, 1 Houst. (Del.) 365; Dooling v. Hobbs, 5 Har. (Del.) 405; Russ v. Russ, 9 Fla. 105; Benton v. Patterson, 8 Ga. 146; Phinizy v. Few, 19 Ga. 66; Clements v. Glass, 23 Ga. 395; Payne v. Rosser, 53 Ga. 662 ; Daniel v. Daniel, 102 Ga. 181 ; Gibson v. Hard- away, 68 Ga. 370; Robertson v. Johnston, 24 Ga. 102; Groee v. Rit- tenberry, 14 Ga. 233. O'Mahoney v. Burdett, L. R. 7 H. L. 388; Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816 ; Briggs v. Shaw, 9 Al- len (Mass.) 516 ; Summers v. Smith, 127 111. 649, 21 N. E. 191 ; Smith V. Kimbell, 153 111. 378, 38 N. E. 1029; In re N. ¥., L. & W. Ry. Co., 105 N. Y. 95, 11 N. E. 492, 59 Am. Rep. 478 ; Shadden v. Hem- bree, 17 Or. 25, 18 Pac. 572 ; Parish's Heirs v. Ferris, 6 Ohio St. 563 ; Moore v. Moore, 12 B. Mon. (51 Ky.) 651 ; Daniel v. Thomson, 14 B. Mon. (53 Ky.) 662. Harris v. Smith, 16 Ga. 545; Chewning v. Shumate, 106 Ga. 751, 32 S. E. 544 ; Smith v. Usher, 108 Ga. 231, 33 S. E. 876 ; Hill v. Terrell, 123 Ga. 49, 51 S. E. 81 ; Tyler v. Theilig, 124 Ga. 204, 52 S. E. 606 ; Kinard v. Hale, 128 Ga. 485, 57 S. E. 761; Maynard v. Greer, 129 Ga. 709, 59 S. E. 798; Satterfield v. Tate, 132 Ga. 256, 64 S. E. 60; Phinizy v. Wallace, 136 Ga. 520-525, 71 S. E. 896 ; McCune v. Good- willie, 204 Mo. 306-337, 102 S. W. 997 ; Tebow v. Dougherty, 205 Mo. 315, 103 S. W. 985 ; Chase v. Gregg, 88 Tex. 552, 32 S. W. 520 ; St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S. W. 425, 132 Am. St. Rep. 886; Yoesel v. Rieger, 75 Neb. 180, 106 N. W. 42S; Schnit- ter V. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047. 2* Waring v. Jackson, 1 Pet. 570, 7 L. Ed. 266 (N. Y.) ; Yocum v. 44i WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 The question then arises does the estate of the first devisee become absolute upon his having issue, or does it remain conditional during his lifetime and become absolute only upon his leaving issue at that time? The latter would seem to be the logical rule/^ The holder of this conditional or defeasible fee can convey his fee and such conveyance is good against his issue if he have any, but is not good against the one who takes by way of executory devise on the failure of issue.^° The devise over, on failure of issue is held to be good as an executory devise. Parker, 134 Fed. 205, 67 C. C. A. 227 (Mo.) ; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208. 25 Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816; Toesel v. Rieger, 75 Neb. ISO, 106 N. W. 428 ; Pearce v. Pearce, 104 Tex. 73, 134 S. W. 210. 215 "The result is that Wm. F. Yocum took an estate in fee simple subject .to its devestment in the event that he left no legitimate is- sue ; but that, having left such issue, his title became an absolute one, which passed to his grantees." Yocum v. Parker, 134 Fed. 205- 210, 67 C. C. A. 227; St. John v. Dann, 66 Conn. 401-410, 34 Atl. 110. "Die without lawful children" with remainder over. Held the re- mainder could not be defeated by adoption of child. Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 731. It was said by Judge Gantt that the much litigated case of the Yocum will, established as a rule of property in Missouri that "dy- ing without issue" created a defeasible fee, followed by an executory devise. But, alas, this "rule of property" did not remain establish- ed. In a later case "dying without issue" were held to create a life estate in the first devisee, with a remainder (contingent?) in those to whom the estate is given over. Armor v. Frey, 226 Mo. 646-687, 126 S. W. 483. In distinguishing this case from Yocum v. Siler, 160 Mo. 281, 61 S. W. 208, Judge Fox says: "It will be observed that the devise over in that case was, as said by the court, conditional, and rested upon a single contingency that never happened ; hence it followed that that § 166) QUANTITY OF ESTATE 445 § 165. "What remains" Much difficulty has arisen from the careless use by testators, following a general bequest of per- sonal property, or of a mixed estate of real and personal property, of the expression "what remains," or kindred words indicating that some portion of the bequest is to go to others on the death of the first legatee. The bequest, usually, is one made to a wife or husband and those who are to take the undisposed of property usually are the descendents or others within the natural range of the testator's bounty. It was early determined that a gift over of such part of the personal estate as his wife should leave at her decease was valid," and this decision has been followed repeatedly in this country.^* The clause of the will concerning that single contingency was inopera- tive, and it was properly held in our opinion, that that clause was insufficient to limit the absolute estate given in the first instance to that of a life estate. In this case the contingency is douMe, that iS, of either dying icith or without issue." This refined distinction be- tween a single contingency and a double contingency reminds me of the fortunate man who said he had three changes of clothes — put on, take off and go without ! Still later the supreme court of Missouri held that the words "dy- ing without bodily heirs" created a fee tail. Cox v. Jones, 229 Mo. 53, 129 S. W. 495. So you can take your choice: First. Conditional fee followed by executory devise. Yocum v. Siler, 160 Mo. 281, 61 S. W. 208. Sec- ond. Life estate, followed by a remainder (contingent?). Armor v. Frey, 226 Mo. 646-687, 126 S. W. 483. Third. Fee tail. Cox v. Jones, 229 Mo. 53, 129 S. W. 495. 27 Upwell V. Halsey, 1 P. Wms. 651 (1720). 2 8 The following are cases in which the first taker was given the Tight to use and absolutely dispose of the property, in which a legal 446 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 courts have endeavored in each of such cases to ar- rive at the real intention of the testator; and, with the aid of scientific rules of construction to read some sense into language which is often contradictory and confusing. Sometimes the testator gives to the first taker what is clearly a life estate, and then adds a clause to the effect that, "what remains" of the prop- erty, or "if any of said property be left," after the death of the first taker, it shall go to the others. Some authorities hold that such expressions do not, by implication, necessarily confer a power of dispo- sition on the first taker.^' If the property devised is mixed, both real and personal, such words may as well imply that some of it may be consumed or lost, as that it may be sold. But the language of the will may be so strong as to show, from such a provision, or equitable estate was given in so much as might remain at the death of the first taker to another person: McMurry v. Stanley, 69 Tex. 227-233, 6 S. W. 412; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; Wager v. Wager, 96 N. Y. 164 ; Anderson v. Hall, SO Ky. 91 ; Flick- Inger v. Saum, 40 Ohio St. 591; Hamlin v. Express Co., 107 111. 448; Terry v. Wiggins, 47 N. Y. 512 ; Smith v. Van Ostrand, 64 N. Y. 278 ; In re Estate of Nichols, 93 Neb. 80, 139 N. W. 719 ; Smullin v. Whar- ton, S3 Neb. 328, 119 N. W. 773, 121 N. W. 441 ; Id., 86 Neb. 553, 125 N. W. 1112. Such provisions were void by the early law of Texas. A bequest to one with a limitation of what remains at his death to another held to be a fldei-commissa and void under the Spanish and Mex- ican law, and that the bequest become absolute in the first taker. Gortario v. Cantu, 7 Tex. 35. 29 Bramell v. Adams, 146 Mo. 80, 47 S. W. 931 ; Bramell v. Cole, 136 Mo. 201, 37 S. W. 924, 58 Am. St. Kep. 619; Foote v. Sanders, 72 Mo. 616. § 165) QUANTITY OF ESTATE 447 that the testator intended to give the first devisee power to sell the land.^" Where the gift is expressed to be for life, the su- peradded power of disposal, either expressed or im- plied from the gift over of what remains at the death of the first taker, has been held not to enlarge the life estate into an absolute interest." But the authorities are not agreed on this, and such expres- sions as "what remains at the death of my wife," following a life estate, have been held to enlarge such estate to a fee/^ Another phase of the difficulty is where such words follow a devise which is sufficient in itself to vest an absolute title in the devisee. It is held in such case that a gift over of "what remains" does not by implication cut down a fee to a life estate.^^ Such provisions are held to be repugnant to the ab- solute gift and therefore void." But even this prop- osition has not escaped conflict of decision." 80 Underwood v. Cave, 176 Mo. 18, 75 S. W. 451. 31 Hardy v. May hew, 158 Oal. 95, 110 Pac. 113, 139 Am. St. Rep. 73 ; Mansfield v. Shelton, 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285; Adams v. Lillibridge, 73 Conn. 655, 49 Atl. 21; Weathers v. Patterson, 30 Ala. 404; Robertson v. Johnston, 24 Ga. 102. 32 Ely ton Land Co. v. McElrath, 53 Fed. 763, 3 C. C. A. 649 ; Rut- ledge V. Crampton, 150 Ala. 275, 43 South. 822. 33 Roth V. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455 ; Young v. Robinson, 122 Mo. App. 194, 99 S. W. 20. 3* Howard v. Carusl, 109 U. S. 725, 3 Sup. Ct. 575, 27 L. Ed. 1089; Flinn v. Davis, 18 Ala. 132 ; Hovey v. Walbank, 100 Cal. 192, 34 Pac. 650; McKenzie's Appeal, 41 Conn. 607, 19 Am. Rep. 525; Trustees 3 5 Williams v. McKinney, 34 Kan. 514, 9 Pac. 265. 448 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 § 166. "What remains" — Necessity for clearness of expression The confusion on this subject is not due to con- flicting opinions of the courts so much as it is to a real confusion existing in the mind of the testator. The courts do their best to arrive at and effectuate the intention of the testator, but in reading the cases, we find it hard to escape the conviction that the testator himself did not know what he was talk- ing about. This confusion seems to arise from the fact that the testator either did not know, or did not keep in mind the simple rules of law governing the vesting of estates. He did not realize that when he dies he ceases to own or have dominion over any property. The title to what was once his vests in some one else. The law permits him, in the interest of public policy, to create certain estates in har- mony with the general rules of law; but does not of Methodist Church v. Harris, 62 Conn. 93, 25 Atl. 456 ; Browning V. Southworth, 71 Conn. 224, 41 Atl. 768 ; Atty. Gen'l v. Hall, Fitzg. 114; Jackson v. Bull, 10 Johns. (N. T.) 20; Kamsdell v. Ramsdell, 21 Me. 288 ; Harris v. Knapp, 21 Pick. (Mass.) 416 ; Homer v. Shelton, 2 Mete. (Mass.) 202 ; Lynde v. Estabrook, 7 Allen (Mass.) 68 ; Fiske V. Cobb, 6 Gray (Mass.) 144 ; McNutt v. McComb, 61 Kan. 29, 58 Pac. 965. Devise with power of disposition and devise over of what remains undisposed of in case of her death without issue. Held she took a fee and devise over was void for repugnancy. Spencer v. Scovil, 70 Neb. 87-97, 96 N. W. 1016; Attorney General v. Hall, Fitzg. (Eng.) 314 ; Jackson v. Bull, 10 Johns. (N. Y.) 19 ; Ide v. Ide, 5 Mass. 500. The controlling feature of these cases is the unlimited power of disposal in the first taker, gathered from the words of the will, which implies a fee and renders the devise over repugnant and void. § 167) QUANTITY OF ESTATE 449 permit his dead hand to fetter, in a wholly arbitrary way, what is then the property of the living. He may carve out life estates, followed by remainders, vested or contingent; he may create a life estate with power to dispose of the fee; he may create a fee simple estate, which is now presumed from an unqualified gift; he may even create executory de- vises or vest the title in trustees upon specific trusts; but some one besides himself is to be the owner of that property. The title vests somewhere. He cannot have his cake and eat it too. This seems to be a hard thing for testators to realize, but the draftsman of a will fails in his duty if he does not point out plainly to the testator that he must make some clear-cut disposition of his property which can be enforced in harmony with the rules of law. § 167. Analysis of the estate given by such pro- visions Not many of the decisions have analysed very closely the exact nature of the estates given to the first taker, and to those subsequently entitled, be- ing content to dispose of the whole question by a sweeping use of the rather misleading term "execu- tory devise" as applied to all future interests in per- sonal estate. As far as the first legatee is concerned an exact definition of his legal status is not very important to him, except where he claims the right to sell land without express authority of the will. Then it is important to determine whether he took BoEL. Wills — 29 450 WILLS AND ADMINISTRATION OF ESTATES (Ch. 10 a fee, or took a life estate with power to dispose of the fee, or a life estate with the power only of use and consumption. But the nature of the preceding estate is always important to those who are to take the undisposed of surpkis, as it indicates the exact nature of their own estate. These gifts may as- sume the following form: First: The gift may be a life estate in the first taker, accompanied by a power of disposal, more or less broad according to the testator's intention as expressed or implied in the will. Such an estate would be followed by a remainder in the undis- posed of property, which remainder would be vest- ed or contingent according as the remaindermen were or were not definitely ascertained.^* In this case the remaindermen are, of course, de- feated of their rights by any disposition of the prop- erty made by the life tenant under the authority contained in the will.'' Second: The gift may be of a fee to the first taker accompanied by a trust, by precatory words 36 Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233; Melton v. Camp, 121 Ga. 693, 49 S. E. 690 ; Edaar v. Emerson, 235 Mo. 552, 139 S. W. 122 ; Threlkeld v. Threlkeld, 238 Mo. 459, 141 S. W. 1121 ; Gibson v. Gibson, 239 Mo. 490-505, 144 S. W. 770 (overruling Papin v. Piednolr, 205 Mo. 521, 104 S. W. 63, and Jackson v. Ldttell, 213 Mo. 589, 112 S. W. 53, 127 Am. St. Rep. 620). 37 Life estate in widow with power to consumption inferred from gift over of "what remains." Widow not bound to account for personal property expended. In re Estate of Nichols, 93 Neb. 80, 139 N. W. 719. § 167) QUANTITY OP ESTATE 451 or otherwise, in the undisposed of balance for the benefit of the ultimate beneficiaries/' In this case the remedy of the beneficiaries against the representatives of the life tenant is in equity, and it seems to me this is a more convenient and satisfactory remedy in all such cases. In any case the life tenant is entitled to have the entire property turned over to him on the distribu- tion of the estate.*' 3 8 King V. Bock, 80 Tex. 156-166, 15 S. W. 804. "We know of no inflexible rule of law forbidding Mrs. Bagley to so dispose of lier property by will as to vest the entire legal estate in her husband, with power in him to use or dispose of any or all of It during his lifetime, even for his own benefit, and at the same time to vest an equitable estate in what might remain at his death in her nieces, and to confer upon her husband the power and to make it his duty by will or otherwise to vest the legal estate in such remaining property, at his death. In them. If she had provided in express terms in her will that the part of her estate remaining at the time of her husband's death should go to the persons named in the fourth para- graph, then a legal estate therein would have vested in them under the will ; but this she did not." Held that the nieces had an equita- ble title by virtue of a precatory trust in what remained and it was duty of husband to will them the legal title. McMurry v. Stan- ley, 69 Tex. 227-233, 6 S. W. 412. 3 8 Estate of Mayhew, 4 Cal. App. 162, 87 Pac. 417. Where will provides for support and maintenance for the widow out of the estate, remainder to others, the court may by decree fix the amount of such support Smullin v. Wharton, 83 Neb. 328, 110 N. W. 773, 121 N. W. 441. 452 WILLS AND ADMINISTRATION OF ESTATES (Ch. H CHAPTER XI TRUST ESTATES § 168. Trust estates— Their purpose in wills. 169. What is necessary to a valid trust. 170. Limitation of trust powers. 171. Testamentary trusts distinguished from trust deed. 172. Trusts ex maleflcio. 173. Trusts by precatory words. 174. Executors as trustees — Modem distinction between the two functions. 175. Powers as trustee expressed or implied in the will. 176. Administration of testamentary trusts. 177. Testamentary trusts may be active or passive. 178. When trust terminates. 179. Trusts for accumulation. Charitable oe Public Tbusts 180. Their nature and kinds. 181. Statute 43 Mizabeth. 182. Discretion in trustee as to objects. 183. Designation of institution or association. 184. Doctrine of cy pres. 185. Void charitable uses. § 168. Trust estates — Their purpose in wills Trusts in one form or another are of frequent occurrence in wills. There seems to be a strong and almost universal desire implanted in the human breast to control and dictate the management of property after one's death. Often no better reason exists for this than the fact that the testator has once had dominion over the property. As the right § 168) TEUST ESTATES 453 to dispose of property by will is the creature of pos- itive law, it is well within the power of the law to determine how far it will permit such testamentary control. A clear-cut public policy forbids unneces- sary and unreasonable restraints upon alienation, and upon the vesting of estates, and in this regard it matters not whether such restrictions are in the form of conditions or in the form of trusts. A trust is, however, the more effective mode of continuing the control of the testator over his for- mer property, and is often a very useful and prov- ident arrangement.^ Under the device of a trust a variety of objects can be accomplished: support can be provided for minors, incompetents, married wo- men and spendthrifts ; charities can be established, and the plan of their operation designated; annui- ties can be granted; debts and encumbrances can be cleared off; the estate can be kept intact during the continuance of a life estate in the testator's widow or others. So, also, the administration of the estate can be continued beyond the time given by statute so as to protect the property from sacri- 1 Woolverton v. Johnson, 69 Kan. 708, 7T Pac. 559 ; Dulin v. Moore, 96 Tex. 135, 70. S. W. 742. Trusts compared with fldei commissa under the Eoman law. Gor- tario V. Cantu, 7 Tex. 35. Creation of a trust may postpone the vesting of the legal title but not of the equitable title. Potter v. Couch, 141 U. S. 296, .313, 11 Sup. Ct. 1005, 35 L. Ed. 721 ; Phipps v. Ackers, 9 CI. & Fin. 583 ; Weston V. Weston, 125 Mass. 268; Nicoll v. Scott, 99 111. 529; Scofleld v. Olcott, 120 111. 362, 11 N. E. 351. 454 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 fice or forced sale. In a well considered case in New York it was decided that a testamentary trus- tee may be empowered to continue the testator's business.^ All such trusts are necessarily express trusts, and usually active, although the duties may be no more than collecting and paying over the in- come/ Testamentary trusts fall, roughly, into four classes: 1. Trusts for charities, sometimes called public trusts. 2. Trusts for incompetents, including infants, married women and spendthrifts.* 3. Trusts to preserve life estates and contingent remainders." 4. Trusts for accumulation. § 169. What is necessary to a valid trust No higher degree of skill can be shown by the draftsman of a will than that required to draw a good trust. It is a two-edged sword that the tyro should handle with care, or let entirely alone. No more can be done in a work like this than to set 2 Thorn v. De Breteuil, 86 App. Div. 410, 83 N. X. Supp. 849. 3 Pugh V. Hayes, 113 Mo. 424, 21 S. W. 23 ; Slater v. Rudderforth, 25 App. D. 0. 497. - Hamilton v. Downs, 33 Conn. 211 ; Aldrich v. Barton, 153 Cal. 488, 95 Pac. 900; Parker v. Wilson, 98 Ark. 553, 136 S. W. 981; In re li'Hommedieu (D. 0.) 138 Fed. 606 ; Hare v. Sisters of Mercy, 105 Ark. 549, 151 S. W. 515. 5 Hill V. Dade, 68 Ark. 409, 59 S. W. 39. § 169) TRUST ESTATES 455 a few danger signals near the most common pit- falls. In the first place it should be remembered that when a man dies he ceases to be the owner of his property. All the title, both legal and equitable, must vest in some one else. The equitable title is flexible and may come into existence in the future or upon a contingency; but the legal title is rigid. It cannot remain suspended in the air but must vest in some one capable of taking immediately and continuously. One of the most common omissions in wills is the neglect to provide for the vesting of the legal title; which omission is remedied by the courts, as far as possible, by the rule that the legal title to real property, not otherwise disposed of, vests in the heir at law, while the legal title to per- sonal property vests primarily in the executor. To the constitution of every valid express trust it is essen- tial that there should be a trustee, an estate conveyed to him, a beneficiary, a legal purpose, and a legal term. While equity will in certain instances make good the lack of the first req- uisite, if the second or third be lacking, or the fourth or fifth be illegal the trust itself must fail." It is necessary, then, that the draftsman of a will, in attempting to create a trust, should point out with sufficient clearness not only the property which is to be the subject matter, but also the ob- 6 In re Walkerly, lOS Cal. 627-650, 41 Pac. 772, 49 Am. St. Rep. 97; Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29. 456 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 jects and purposes thereof. The beneficiaries should be designated by name if possible. If they consist of a class, such as "children," "nephews," "surviving heirs," etc., the time at which the mem- bership of the class is to be determined should be exactly stated. The designation of the trus'tee is the least important matter, as equity will never allow a trust to fail for want of a trustee,^ but if discretionary powers are to be exercised the trus- tee should not only be named, but provision made for the appointment of his successor ^ and that the discretionary powers shall pass to and be exercised by the successor, if such be the intention. In any event the trustee should be clothed with sufficient express powers to carry out the purposes of the trust, as to sell land and execute the necessary con- tracts and conveyances therefor; to execute mort- gages and readjust encumbrances; to sell, invest and re-invest personal property, etc.' T Willis V. Alvey, 30 Tex. Civ. App. 96, 69 S. W. 1035. 8 May V. May, 167 U. S. 310, 17 Sup. Ct. 824, 42 L. Ed. 179 ; Wil- cox's Appeal, 54 Conn. 820, 8 Atl. 186. 9 Massey v. Stout, 4 Del. Ch. 274. Power of sale in trustee Is limited to the purposes expressed. Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061. Powers of testamentary trustees may be made ample. Duckworth V. Ocean S. S. Co., 98 Ga. 193, 26 S. B. 736. § 170) TRUST ESTATES 457 § 170. Limitation of trust powers Again, testators frequently lose sight of the fact that the unlimited power of control which they enjoy over their property in their life time, and the wide latitude of discretion with which they can deal with the altered circumstances of the various recipients of their bounty does not survive their death. Upon the death of the testator, new titles arise, the property has new owners, and the law- must deal with the rights of these new owners ac- cording to established principles. If the testator desires to control those rights he must state his in- tention clearly and within the limits which the law permits. A trustee, as such, has by law very few rights, very limited powers, and practically no dis- cretion. He must point to the trust instrument, the will, for such powers as he may exercise, and espe- cially is this so if the power involves a discretion.^* It is true that the will may, by clear terms, commit a discretion to the trustee; as, for example, how 10 Price v. Courtney, 87 Mo. 387, 56 Am. Kep. 453; Jamison v. Mc- Whorter, 7 Houst. (Del.) 242, 31 Atl. 517 ; Beacli v. Beers, 80 Conn. 459, 68 Atl. 990 ; Reed v. Reed, 80 Conn. 401, .68 Atl. 849 ; Conn. Tr. Co.'s Appeal, 80 Conn. 540, 69 Atl. 360 ; Clement's Appeal, 49 Conn. 519 ; Marx v. Clisby, 126 Ala. 107, 28 South. 388 ; Owen v. Reed, 27 Ark. 122 ; Anderson v. Messinger, 146 Fed. 929, 77 C. C. A. 179, 7 L*. R. A. (N. S.) 1094 ; Haldeman v. Openheimer, 103 Tex. 275, 126 S. W. 566; Byron Reed Co. v. Klabunde, 76 Neb. 801, 108 N. W. 133; Clark V. Fleischmann, 81 Neb. 445, 116 N. "W. 290. Neither good faith nor the oral advice of the probate court will protect a trustee in disregarding the terms of his trust. State v. Thresher, 77 Conn. 70, 58 Atl. 460. 458 WILLS AND ADMINISTRATION OP ESTATES (Ch. 11 much of a fund he may use for the beneficiaries' support." But the discretion is rather narrowly construed, is usually personal to the individual named as trustee/^ and can in no case extend beyond the circumstances foreseen and provided for by the testator. Each passing moment, the great ka- leidoscope of life swings around, throwing circum- stances into an infinite variety of combinations which no human mind can foresee. Trustees cannot have the same latitude in managing the estate that the tes- tator would have had, nor can the courts of equity give it to them." iiHaydel v. Hurck, 72 Mo. 253, reversing 5 Mo. App. 267; Jarboe V. Hey, 122 Mo. 341, 26 S. W. 968 ; Keeler v. Lauer, 73 Kan. 396, 85 Pae. 541 ; Eussell v. Hartley, 83 Conn. 654, 78 Atl. 320 ; Sterling v. Ives, 78 Conn. 498, 62 Atl. 948. Trustees having the power to exercise discretion will not be in- terfered with by a court of equity at the instance of the beneficia- ries so long as they are acting in good faith. Shelton v. King, 229 U. S. 90, 33 Sup. Ct. 686, 57 L. Ed. 1086. 12 Whitaker v. McDowell, 82 Conn. 195, 72 Atl. 938, 16 Ann. Cas. 324; Johnson v. Childs, 61 Conn. 66, 23 Atl. 719; Security Co. v. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107; Partee v. Thomas (C. C.) 11 Fed. 769; Markel v. Peck, 144 Mo. App. 701, 129 S. W. 243. 13 Stevens v. De La Vaulx, 166 Mo. 20, 65 S. W. 1003; West v. Bailey, 196 Mo. 517, 94 S. W. 273; Lanyon Z. Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, 1 Ann. Cas. 403. _ A testator may limit the extent of power conferred by him and prescribe the particular manner of executing it, and the agent is as little able to vary the manner as to transcend the limit, for in either case he would be found usurping instead of executing authority. Mackay v. Moore, Dud. (Ga.) 94. It has been held in Missouri that trustees might make a donation to a public enterprise for the benefit of the estate. Drake v. Crane, 127 Mo. 85, 29 S. W. 990, 27 L. R. A. 653. § 171) TRUST ESTATES 459 § 171. Testamentary trust distinguished from trust deed It is always possible to create a trust by a trust deed or declaration of trust, executed, delivered and taking effect during the lifetime of the maker." But this is totally distinct from a testamentary trust. The latter must be found in the will and its terms should be fully embraced therein. It takes effect when the will takes effect, and the trustee is a devisee or legatee under the will, deriving his rights in the usual way like other devisees, subject to the pro- bate of the will and the settlement and distribution of the estate. An attempt to appoint trustees directly, without the intervention of administration, is void.'^ So all attempts to create trusts by instructions, ver- bal or written, to the alleged trustees, dehors the will are discouraged.^* 1* Shields v. McAuley (O. C.) 37 Fed. 302. Power to make a voluntary deed in trust, to be executed after death, with express reservation of power of revocation. Nichols v. Emery, 109 Cal. 323, 41 Pac. 1089, 50 Am. St. Rep. 43; Sims v. Brown, 252 Mo. 58, 158 S. W. 624. Where a father made a deed of all of his property to his son as trustee for the father's heirs, thus avoiding administration, an ad- ministrator appointed for the father's estate may sue to set aside the deed for undue influence and lack of capacity. Griesel v. Jones, 123 Mo. App. 45, 99 S. W. 769. 15 Hunter v. Bryson, 5 Gill & J. (Md.) 483-488, 25 Am. Dec. 313; Wall V. Bissell, 125 U. S. 382-388, 8 Sup. Ct. 979, 31 L. Ed. 772. Attempted trust for benefit of heir not sustained. Crowley v. Crowley, 131 Mo. App. 178, 110 S. W. 1100. 16 Colbert v. Speer, 24 App. D. C. 187. Where a bequest is made for a purpose "named in a sealed letter" which letter was refused probate as not being properly incorporated 460 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 § 172. Trusts ex maleficio If a testator is induced either to make a will or not to change one after it is made, by a promise, express or implied on the part of the legatee that he will devote his legacy to a certain lawful pur- pose, a secret trust is created and equity will com- pel him to apply property thus obtained in accord- ance with his promise. The trust springs from the intention of the testator and the promise of the legatee. The same rule applies to heirs and next of kin who induce their ancestor, or relative, not to make a will by promising in case of intestacy to dispose of the property or a part of it in the manner indicated by him. The rule is founded on the prin- ciple that the legacy would not have been given or intestacy allowed to ensue unless the promise had been made, and hence the person promising is bound in equity to keep it, as to violate it would be fraud." The rule does not interfere with the in tlie will; the letter cannot be set up as a declaration of trust binding on the residuary legatees. Bryan v. Bigelow, 77 Conn. 604, 60 Atl. 266, 107 Am. St. Kep. 64 ; Heidenheimer v. Bauman, 81 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29. 17 Trustees of Amherst College v. Ritch, 151 N. T. 282, 45 N. E. 876, 37 L. R. A. 321; Williams v. Fitch, 18 N. Y. 546; Parker v. Urie, 21 Pa. 305 ; Hooker v. Axford, 33 Mich. 453 ; Bennett v. Har- per, 36 W. Va. 546, 15 S. E. 143 ; O'Hara's Will, 95 N. Y. 403, 47 Am. Rep. 53 ; Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 667, 88 Am. St. Rep. 620; Owing's Case, 1 Bland (Md.) 370, 17 Am. Dec. 338; Grant v. Bradstreet, 87 Me. 583, 33 Atl. 165 ; Brook v. Chappell, 34 Wis. 405 ; Mead v. Robertson, 131 Mo. App. 185, 110 S. W. 1095; Cooney \. Glynn, 157 Cal. 583, 108 Pac. 506 ; Cassells v. Finn, 122 Ga. 33, 49 § 172) TRUST ESTATES 461 probating of the will or with the course of descent and distribution in case of intestacy. The remedy of the intended beneficiary is to hold the legatee or heir as trustee ex maleficio on the ground of fraud in case he refuses to carry out the agreement. The trust thus created may be established by parol evi- S. E. 749, 68 If R. A. 80, 106 Am. St. Rep. 91, 2 Arm. Cas. 554; O'Donnell v. Murphy, 17 Cal. App. 625, 120 Pac. 1076 ; Edson v. Bar- tow, 154 N. Y. 218, 48 N. E. 541 ; O'Hara v. Dudley, 95 N. Y. 403, 47 Am. Rep. 53 ; Amherst College v. Rltch, 151 N. Y. 283-323, 45 N. E. 876, 37 L. R. A. 305; Dowd v. Tucker, 41 Conn. 203; Sellack v. Har- ris, 5 Vin. Abr. 521; Marriott v. Marriott, 1 Strange (Bng.) 666; Devenish v. Baines, Finch, Ch. Prec. 3 ; Barrow v. Greenough, 3 Ves. (Eng.) 151 ; Chamberlain v. Agar, 2 Ves. & Bea. (Eng.) 259 ; Mestaer V. Gillespie, 11 Ves. (Eng.) 638; Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305; Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753 (authorities collect- ed) ; SmuUin v. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267 ; Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713, 93 Pac. 339; Larmon v. Knight, 140 111. 232, 29 N. E. 1116, 33 Am. St. Rep. 229 ; Brook v. Chappell, 34 Wis. 405 ; Kimball V. Tripp, 136 Cal. 631, 69 Pac. 428; Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 431 ; Curdy v. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. Rep. 157; Ragsdale v. Ragsdale, 68 Miss. 92, 8 South. 315, 11 L. R. A. 316, 24 Am. St. Rep. 256 ; Meredith v. Mere- dith, 150 Ind. 299, 50 N. E. 29 ; Giffen v. Taylor, 139 Ind. 573, 37 N. E. 392 ; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245 ; In re Will of O'Hara, 95 N. Y. 403, 47 Am. Rep. 53. Where testator intended to make will and was fraudulently induced to make deed, the instrument may be cancelled in equity. Carter v. Warlden, 136 Ga. 700, 71 S. E. 1047. Letter by testator to devisee stating certain trusts, upon which devise is made, with acceptance by devisee in writing creates a valid trust which equity will enforce, though not specified in will. De Laurence! v. De Boom, 48 Cal. 581 ; Curdy v. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. Rep. 157. 462 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 dence/' although some cases distinguish in this re- gard between the fraudulent promise of a devisee and the promise of an heir. The distinction is made that the heir takes the title by descent and not by virtue of a will and therefore his oral promise in derogation of the title which the law casts upon him is void as a verbal trust/" In all of these cases of trusts ex maleficio the will is entitled to probate and goes into force according to its terms, leaving to an independent suit in equity the enforcement of the alleged trust."" 18 Cassells v. Finn, 122 Ga. 33, 49 S. E. 749, 68 L. E. A. 80, 106 Am. St. Rep. 91, 2 Ann. Cas. 554 ; Oldham v. Litclifield, 2 Vern. 506 ; Thynn v. Thynn, 1 Vern. 296 ; Williams v. Vreeland, 29 N. J. Eq. 417 ; Williams v. Fitch, 18 N. Y. 546 ; Cliurch v. Ruland, 64 Pa. 432 ; Gil- patrick v. Glldden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245 ; Hoge v. Hoge, 1 Watts (Pa.) 163, 26 Am. Dec. 52 ; Dixon V. Olmins, 1 Cox Ch. 414 ; Lantry v. Lantry, 51 111. 458, 2 Am. Rep. 310 ; Flschheck v. Gross, 112 111. 208 ; Manning v. Plppen, 95 Ala. 537, 11 South. 56 ; Holcomb v. Gillett, 2 Root (Conn.) 450. InsuflBcient to show assumption or promise by devisee. Jordan V. Abney, 97 Tex. 296, 78 S. W. 486 ; Overly v. Angel, 84 Kan. 259, 113 Pac. 1041. 19 Bedilian v. Seaton, 3 Wall. Jr. 279, 3 Fed. Cas. 38 ; Patton v. Beecher, 62 Ala. 579. Statute of Frauds provides: "VII. And be it further enacted by the authority aforesaid, that from and after the said four and twen- tieth day of June (1677) all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be mani- fested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will In writing, or else they shall be utterly void and of none effect." 2 In re Sharp, 17 Cal. App. 634, 120 Pac. 1079; Estate of Everts, 163 Cal. 449, 125 Pac. 1058 ; Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267. § 173) TRUST ESTATES 463 Where no promise express or implied is made by the legatee, but the disposal of the property is left wholly to his discretion, there is no trust, even though the property may have been given him with the expectation that he will carry out a certain pur- pose and to enable him to do so. Whatever moral , obligation there may be, no legal obligation rests upon him.^^ § 173. Trusts by precatory words Trusts created by what are known as "precatory words" are found almost exclusively in wills. Precatory words are words of entreaty or wish as distinguished from words of command. They have often been held to be sufficient to raise a trust in favor of the object pointed out. On this subject the court has said: Words of desire, request, recommendation or confidence in a will, addressed by a testator to a legatee whom he has the power to command, create no trust in favor of the parties, rec- ommended, unless : (1) The intention of the testator to make the desire, request, recommendation or confidence imperative upon the legatee, so that he should have no option to comply or to refuse to comply with it, clearly appears from the whole will and the relation and circumstances of the testator when it was made; (2) unless the subject matter is certain; and (3) unless the beneficiaries are clearly designated. When 21 O'Donnell v. Murphy, 17 Cal. App. 625, 120 Pac. 1076 ; 'Amherst College V. Kitch, 151 N. Y. 283-323, 45 N. E. 876, 37 L. R. A. 305 ; Rowbotham v. Dunnett, 8 L. R. Ch. D. 430; McCormick v. Grogan, 4 L. R. Eng. & Ir. Ap. 82. 464 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 these three conditions exist a precatory trust may be created in favor of the parties recommended.^" The real question to be determined in such case is whether looking at the entire context of the will, the testator intended to impose an obligation on the legatee to carry his wishes into effect, or intended to leave it to the legatee to act on them or not, at her discretion."' But expressions in a will showing that the gift is for the benefit of others will not always be regarded as indicating an intention to create a trust. Some- times such expressions are merely indicative of the motive of the gift to the devisee.^* 22 Burnes v. Burnes, 137 Fed. 781, 70 O. O. A. 357; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138 ; Peake v. Jamison, 6 Mo. App. 590 ; Hunter v. Stembridge, 12 Ga. 192 ; Noe v. Kern, 93 Mo. 367, 6 S. W. 239, 3 Am. St. Rep. 544 ; Lines v. Darden, 5 Fla. 51 ; Reeves v. Baker, 18 Beav. 372; Hood v. Oglander, 34 Beav. 513; Blakeney v. Blakeney, 6 Sim. 52; Cole v. Littlefield, 35 Me. 439; Smullln V. Wharton, 73 Neb. 667-685, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267. No express words are necessary to create a trust. Estate of Haines, 150 Cal. 640, 89 Pae. 606 ; Doe ex dem. Patton v. Dillon, 1 Marvel (Del.) 232, 40 Atl. 1106 ; Heywood's Estate, 148 Cal. 184, 82 Pac. 755 ; Ryder v. Lyon, 85 Conn. 245, 82 Atl. 573 ; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138 ; Cockrill v. Armstrong, 31 Ark. 580 ; McKee's Adm'rs v. Means, 34 Ala. 349 ; Plaut v. Plant, 80 Conn. 673, 70 Atl. 52. 2 3 Murphy v. Caslin, 113 Mo. 112, 20 S. W. 786, 35 Am. St. Rep. 699; Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357 ; KaufEman v. Gries, 141 Cal. 295, 74 Pac. 846 ; Martt's Estate, 132 Cal. 666, 61 Pac. 964, 64 I'ae. 1071 ; Hughes v. Fitzgerald, 78 Conn. 4, 60 Atl. 694 ; Corby v. Corby, 85 Mo. 371; Hartman v. Armstrong, 59 Kan. 696, 54 Pac. 1046 ; Bryan v. Milby, 6 Del. Ch. 208, 24 Atl. 333, 13 L. R. A. 563 ; Hunt V. Hunt, 11 Nev. 442 ; Weller v. Weller, 22 Tex. Civ. App. 247, 54 S. W. 652. 24 Small V. Field, 102 Mo. 125, 14 S. W. 815 ; Toland v. Toland, 123 Cal. 140, 55 Pac. 681 ; McDuffie v. Montgomery (C. C.) 128 Fed. 105 ; § 173) TRUST ESTATES 465 A precatory trust is not to be inferred from ex- pressions of confidence or desire on the part of the testator contained in the will regarding the use to be made of the property devised or bequeathed, un- less it fairly appears from the will that the testator contemplated and intended to create such a trust; and especially no such trust will be implied when it clearly appears from the will that the testator in- tended to give the devisee full discretion in the use of the property. A trust is not readily inferred from directions or request to a wife to provide for children/'^ but may be from provisions for support and maintenance of other persons.^® The tenor of modern decisions is unfavorable to the conversion of a devisee or legatee into a trustee by reason of precatory ot- commendatory words, and it is well settled that such expressions must be essentially imperative in their character to create a trust." Russell V. U. S. Trust Co., 136 Fed. 758, 69 C. C. A. 410; Pierce v. Phelps, 75 Conn. S3, 52 Atl. 612 ; Seamonds v. Hodge, 36 W. Va. 301, 15 S. E. 156, 32 Am. St. Rep. 851 ; McCroan v. Pope, 17 Ala. 612. 25 Glass' Estate, Myr. Prob. (Cal.) 213 ; Molk's Estate, Myr. Prob. (Cal.) 212. Compare Cowman v. Harrison, 10 Hare, 234 ; Hora v. Hora, 33 Beav. 88 ; Johnson v. Johnson, 215 Mass. 276, 102 N. E. 465. 2 6 Bloom V. Strauss, 73 Ark. 56, 84 S. W. 511. 27 Bristol V. Austin, 40 Conn. 438 ; Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155. Words held sufficient to create precatory trust. Estate of Buhr- meister, 1 Cal. App. 80, 81 Pac. 752 ; Dexter v. Evans, 63 Conn. 58, 27 BoBL. Wills — 30 466 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 § 174. Executors as trustees — Modern distinction between the two functions In the construction of wills some interesting questions arise when, and how far, an executor is clothed with the powers of a trustee. In a broad and general sense an executor may always be re- garded as a trustee. His duties as executor are of a fiduciary character, and courts of equity early ex- ercised a superintending control over him — in the administration of assets, by compelling him in the due execution of his trust, to apply the property to the payment of the debts and legacies, and the surplus according to the will.28 But in this country, as probate courts created by statute are given ample jurisdiction to issue letters of authority to executors, compel them to account, and generally to superintend their acts, the courts of equity have either lost a portion of their juris- diction by the exclusive jurisdiction vested in the probate courts, or have discouraged an appeal to its exercise when only the ordinary duties of an ex- Atl. 308, 38 Am. St. Rep. 336 ; Busby v. Lynn, 37 Tex. 146 ; McMurry V. Stanley, 69 Tex. 227, 6 S. W. 412 ; Pratt v. Miller, 23 Neb. 496, 37 N. W. 263. Words held insuflBcient to create trust. Bills v. Ellis' Adm'r, 15 Ala. 296, 50 Am. Dec. 132 ; Whitcomb's Estate, 86 Cal. 270, 24 Pac. 1028 ; Floyd v. Smith, 59 Fla. 485, 51 South. 537, 37 L.. R. A. (N. S.) 651, 138 Am. St. Rep. 133, 21 Ann. Gas. 318 ; Speairs v. Ligon, 59 Tex. 233. 28 Shoemaker v. Brown, 10 Kau. 390 ; Klemp v. Winter, 23 Kan. 703 ; Carter v. Christie, 57 Kan. 496, 46 Pac. 964. § 175) TRUST ESTATES 467 ecutor are involved.'" Thus, while the duties of an executor are in the nature of a trust, they are regu- lated by law, the time and manner of their perform- ance prescribed, and they are placed under the su- pervision of the probate court. § 175. Powers as trustee expressed or implied in the will But in many cases the testator imposes upon the executor duties of a trust character in addition to his ordinary functions as executor. The executor then becomes trustee as well as executor."' 28 Proctor V. Dickie w, 57 Kan. 119, 45 Pac. 86. The chancery power of the federal circuit courts extends to the supervision of executors who are acting as trustees under a will. This jurisdiction does not extend to the appointment of administra- tors, the confirmation of executors, nor will it be exercised when the state courts of concurrent jurisdiction have taken possession of the subject matter of the controversy. BaU v. Tompkins (O. C.) 41 Fed. 486. 30 McLaughlin v. Penney, 65 Kan. 523, 70 Pac. 341; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Mead v. Jennings, 46 Mo. 91; Allen V. Claybrook, 58 Mo. 124; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786 ; Peugnet v. Berthold, 183 Mo. 61, 81 S. W. 874 ; Gaston v. Hayden, 98 Mo. App. 683, 73 S. W. 938 ; Hall v. Howdeshell, 33 Mo. 475; Webb v. Hayden, 166 Mo. 39, 65 S. W. 760; St. Lukes Church V. Witters (0. C.) 54 Fed. 56; Ames v. Holderbain (C. C.) 44 Fed. 224 ; Estate of Pf orr, 144 Cal. 121, 77 Pac. 825 ; Crenshaw v. Cren- shaw, 127 Ala. 208, 28 South. 396 ; Mastin v. Barnard, 33 Ga. 520 ; Toombs V. Spratlin, 127 Ga. 766, 57 S. E. 59; Wilson v. Snow, 35 App. D. C. 562 ; Matthews v. Daniell, 27 Tex. Civ. App. 181, 65 S. W. 890; Lannis v. Fletcher, 100 Tex. 550, 101 S. W. 1076; Tuckerman v. Currier, 54 Colo. 25, 129 Pac. 210. An executor, as a trustee, cannot hold the legal title to land de- vised for the use of the beneficiary unless the testator has by his will expressly or impliedly created in him a trust estate other and 468 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 The executor may be expressly designated as the trustee of a testamentary trust/^ If a will directs something to be done which is the proper subject of a trust, but appoints no one to per- form it, the executor may then be held to be a trus- tee, by implication, to carry out the terms of the trust.'^ In all such cases the functions of the ex- ecutor should be kept distinct as far as possible from his duties as trustee. Some courts have held that the trust powers attach to the ofifice of executor and not to the individuals named.^' In any case the fact that the same persons different from that of executor. In re Estate of Buerstetta, 83 Neb. 287, 119 N. W. 469. 31 Potter V. Couch, 141 V. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721; Chase v. Cartright, 53 Ark. 858, l'4 S. W. 90, 22 Am. St. Rep. 207; Judd V. Bushnell, 7 Conn. 211 ; Willingham v. Bentley, 20 Ga. 783 ; Appel V. Childress, 53 Tex. Civ. App. 607, 116 S. W. 129. 32 Where a will expressly or by necessary implication creates cer- tain trusts and imposes upon the executor duties which are usually performed by a trustee, he will take such interest or title in the property as is requisite, although the will does not specifically desig- nate him as trustee nor expressly devise the property to him in trust. Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388; Marshall v. Meyers, 96 Mo. App. 648, 70 S. W. 927; Cockrill v. Armstrong, 31 Ark. 580 ; Abercrombies' Ex'r v. Abercrombies' Heirs, 27 Ala. 489 ; Delaney's Estate, 49 Cal. 76 ; Killgore v. Cranmer, 48 Colo. 226, 109 Pac. 950 ; Shepard v. Shepard, 57 Conn. 30, 17 Atl. 173 ; Pinney v. Newton, 66 Conn. 141, 33 Atl. 591 ; Angus v. Noble, 73 Conn. 56, 46 Atl. 278 ; Ryder v. Lyon, 85 Conn. 245, 82 Atl. 573 ; Marfield v. Mc- Murdy, 25 App. D. C. 342 ; Mitchell v. Thomson, 18 D. C. 130 ; Wil- son V. Snow, 228 U. S. 217, 33 Sup. Ct. 487, 57 L. Ed. 807. What not sufficient to constitute executors trustees. McCloud v. Hewlett, 135 Cal. 361, 67 Pac. 333. 3 3Pforr's Estate, 144 Cal. 121, 77 Pac. 825; Shey's Appeal, 73 Conn. 122, 46 Atl. 832. See a careful consideration of the difference between a personal § l'i'^5) TRUST ESTATES 469 who are named as executors are also named as trus- tees does not merge the trusteeship in the execu- torship." The proper course in such a case is for the executor to first discharge his duties as execu- tor by winding up the estate and properly distrib- uting it, paying over to himself as trustee such por- tion of the property as is clothed with the trust ; and thereafter proceed to manage the latter in his capacity as trustee/^ Trusts conferred in a will on several executors named may be discharged by those who qualify, ac- cording to the statute 21 Hen. VIII, c. 4.'" Until final distribution of the estate he is still executor and under the control of the probate court, al- though he may also be as to his special trust pow- ers subject to the jurisdiction of equity." After trust and an official duty. Donaldson v. Allen, 182 Mo. 634, 81 S. W. 1151 ; Taylor v. Benham, 5 How. 233, 12 L. Ed. 130. 3* West V. Bailey, 196 Mo. 517, 94 S. W. 273; ScUey v. Brown, 70 Ga. 64. 3 5 SchoU V. Olmstead, 84 Ga. 693, 11 S. E. 541; Peavy v. Dure, 131 Ga. 104, 62 S. E. 47 ; Judson v. Bennett, 233 Mo. 607, 136 S. W. 681 ; Ryder v. Lyon, 85 Conn. 245, 82 Atl. 573. When a sale is directed by the testator at a time beyond the settle- ment of the estate, the court must appoint a trustee to make the sale. Chandler v. Delaplaine, 4 Del. Ch. 503. 3 6 Blanton v. Mayes, 58 Tex. 422. 37 Colt V. Colt, 111 U. S. 566, 4 Sup. Ct. 553, 28 L. Ed. 520; State V. Hunter, 73 Conn. 435, 47 Atl. 665 ; Woodruff v. Williams, 35 Colo. 28, 85 Pac. 90, 5 L. K. A. (N. S.) 986 ; Parsons v. Lyman, 32 Conn. 566, Fed. Cas. No. 10,780; Green v. Anderson, 38 Ga. 655; Bullard v. Farrar, 33 Ga. 620; Park v. Fogarty, 134 Ga. 861, 68 S. E. 699; Moore's Ex'r v. Moore's Dis., 18 Ala. 242; Travis v. Morrison, 28 Ala. 494 ; Nagle v. Von Rosenberg, 55 Tex. Civ. App. 354, 119 S. W. 706. 470 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 final distribution of the estate and segregation of the trust fund he is accountable to equity as other trustees.'" § 176. Administration of testamentary trusts The administration of testamentary trusts is gov- erned by the general principles of equity.'* The main thing is that the trust fund should be segre- 3 8 Marfield v. McMurdy, 25 App. D. O. 342; McClelland v. McClel- land, 46 Tex. Civ. App. 26, 101 S. W. 1171. Where the executors who are also trustees set aside by their own act, without the concurrence of the court or the beneficiaries certain property in satisfaction of the trust fund, which property afterward proves insufficient they cannot set up their unauthorized act as re- lieving the general estate from liability for the trust fund. Sherman V. Jerome, 120 V. S. 319, 7 Sup. Ct. 577, 30 L. Ed. 680. 3 9 Estate of Hey wood, 148 Cal. 184, 82 Pac. 755; Bell v. Towner, 55 Conn. 364, 11 Atl. 185 ; McCaffrey v. Little, 20 App. D. C. 116- 124 1 Jamison v. McWhorter, 7 Houst. (Del.) 242 ; Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 1057, 34 L. Ed. 525 ; Williamson v. Grider, 97 Ark. 588, 135 S. W. 361 ; Ingram v. Fraley, 29 Ga. 553 ; Berry v. Stigall, 125 Mo. App. 264, 102 S. W. 585; Harrison v. Watkins, 127 Ga. 314, 56 S. E. 437 ; Freeman v. Brown, 115 Ga. 23, 41 S. E. 385. Courts of equity have inherent power to construe and enforce testa- mentary trusts. Knox v. Knox, 87 Kan. 381, 124 Pac. 409 ; McGehee V. Polk, 24 Ga. 406 ; Partee v. Thomas (C. C.) 11 Fed. 769. A trust shall never fail for want of a trustee. White v. McKeon, 92 Ga. 343, 17 S. E. 283. Court of equity has inherent power to appoint a trustee. O'Brien V. Battle, 98 Ga. 766, 25 S. E. 7S0 ; Rothenberger v. Garrett, 224 Mo. 191, 123 S. W. 574. Or to remove a trustee and appoint another. Holman v. Eenaud, 141 Mo. App. 399, 125 S. W. 843; Cooper v. Carter, 145 Mo. App. 387, 129 S. W. 224. Even though the trust in- volves a discretion. Prince v. Barrow, 120 Ga. 810, 48 S. E. 412. Powers of trustees. Maynard v. Greer, 129 Ga. 709, 59 S. E. 798; Heard v. Sill, 26 Ga. 302 ; Pope v. Tift, 69 Ga. 741 ; Albert v. San- ford, 201 Mo. 117-130, 99 S. W. 1068. § i^e) TRUST ESTATES 471 gated as soon as possible from the general estate." The trust must of course be a lawful one, particu- larly as relates to the statutes of the state govern- ing testamentary trusts.*^ If a valid trust can be separated from a void trust in the same will, the valid trust will stand." Where the duties imposed require the trustees to take the title they will do so without express de- vise," and the quantity of estate taken will be lim- ited to the purposes of the trust." So the interest of the beneficiary is limited by the purposes of the trust." *" Mackay v. Mackay, 107 Gal. 303, 40 Pac. 558. *i Under the statutes of California it was decided that a trust "to convey'' was illegal and void. Fair's Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Kep. 70. As a result of course, trouble followed this effort by the court to twist the law to effect a par- ticular result in a particular case. Estate of Heywood, 148 Cal. 184, 82 Pac. 755; Estate of Lux, 149 Cal. 200, 85 Pac. 147; Estate of Heberle, 153 Oal. 275, 95 Pac. 41 ; Estate of Peabody, 154 Cal. 173, 97 Pac. 184. Until the whole rule of the earlier decision was neatly sidestepped in the later case of Estate of Spreckels, 162 Cal. 559, 123 Pac. 371. *2 Chilcott V. Hart, 23 Colo. 40, 45 Pac. 391, 35 h. R. A. 41 ; Pi- choir's Estate, 139 Cal. 682, 73 Pac. 606 ; In re Walkerly, 108 Cal. 627, 41 Pac. 779, 49 Am. St. Eep. 97; Andrews v. Rice, 53 Conn. 566, 5 Atl. 823 ; Coltman v. Moore, 1 MacArthur (D. C.) 197. 43 Keith's Estate, 144 Cal. 314, 77 Pac. 942 ; Bell County v. Alex- ander, 22 Tex. 350, 73 Am. Dec. 268. 4* Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169; Doe v. Considine, 6 Wall. 458, 18 L. Ed. 869 ; In re L'Hommedieu (D. C.) 138 Fed. 606; Powell V. Glenn, 21 Ala. 458 ; Smith v. Dunwoody, 19 Ga. 237 ; Har- mon v. Smith (C. C.) 38 Fed. 482. 4B Gray v. Cor bit, 4 Del. Chan. 135; Sparks v. De La Guerra, 18 Cal. 676; Hurst v. Weaver, 75 Kan. 758, 90 Pac. 297; Estate of tux, 149 Cal. 200, 85 Pac. 147. The intervention of trustees does not render the estate or interest 472 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 § 177. Testamentary trusts may be active or pas- sive Testamentary trusts, like other trusts, are affected by the Statute of Uses, and the distinction between ac- tive trusts and passive trusts. *° Though the will vests the legal title in a trustee, if no control over the land is given to him and no duties to perform, the trust is a dry one and is executed by the Statute of Uses/^ A person sui juris needs no trustee.** A trust for persons who at the time of the execution of the will vested in the beneficiaries inalienable. In general, the cestui que trust or beneficiary in a trust estate may convey his interest at pleas- ure as if he were the legal owner. Nimmo v. Davis, 7 Tex. 26-29. 46 Difference between active and passive trust Jones v. Jones, 223 Mo. 424, 123 S. W. 29, 25 L. R. A. (N. S.) 424. *7 Jones V. Jones, 223 Mo. 424, 123 S. W. 29, 25 L. R. A. (N. S.) 424 ; Ringrose v. Gleadall, 17 Gal. App. 664, 121 Pac. 407. A devise in trust for one who is of full age and competent and not a spendthrift and where there is no restraint upon his alienation, and no duties for the trustee to perform is a dry trust, and the court may terminate it. Hill v. Hill, 90 Neb. 43, 132 N. W. 738, 38 L. R. A. (N. S.) 198. Such a trust would be executed by the statute of uses but that statute is not part of the law of Nebraska. Hill v. HUl, 90 Neb. 48, 132 N. W. 738, 38 L. R. A. (N. S.) 198. 48 Am. Mtg. Co. V. Hill, 92 Ga. 297-306, 18 S. B. 425 ; Harrison v. Baldwin, 92 Ga. 329-331, 18 S. E. 402; Thompson v. Sanders, 118 Ga. 928, 45 S. E. 715 ; Collins v. Carr, 118 Ga. 205, 44 S. E. 1000. Since Married Woman's Statute a trust for a married woman be- comes executed and vests in her the legal estate. Woodward v. Stubbs, 102 Ga. 187, 29 S. E. 119 ; Carswell v. Lovett, 80 Ga. 36, 4 S. E. 866 ; Brantley v. Porter, 111 Ga. 886, 36 S. E. 970 ; Mathews V. Paradise, 74 Ga. 523. Contra: Lanius v. Fletcher, 100 Tex. 550, 101 S. W. 1076; EUis V. Birkhead, 30 Tex. Civ. App. 529, 71 S. W. 31, § 178) TRUST ESTATES 473 and at the time of the death of the testatrix were sui juris and not spendthrifts or otherwise incompetent, and without Hmitation over, is executed at the death of the testator, and legal title passes to beneficiaries." If the beneficiaries become sui juris, so that there is no longer need for the executor or other trustee to retain and manage the property, the trust becomes executed/" But otherwise if the beneficiary is in- competent," or the interest of others is involved." § 178. When trust terminates A trust terminates when the purposes of it are ac- complished. ^° If there is any uncertainty in the time of termination as intended by the testator it is the duty of the court to fix such time as will best aid in carrying into effect the purposes for which the trust was established.^* When a trust is created for the benefit of a life tenant, or for the support, education 49 Lester v. Stephens, 113 Ga. 495, 39 S. E. 109. 5 Turner v. Kirkpatrick, 77 Ga. 794, 3 S. E. 246; Gibson v. Max- well, 85 Ga. 235, 11 S. E. 615 ; McClelland v. Rose, 208 Fed. 503, 125 C. C. A. 505 (Tex.). Bi Gray v. Obear, 54 Ga. 231 ; Gray v. Obear, 59 Ga. 675. 62 Middlebrooks v. Ferguson, 126 Ga. 232, 55 S. E. 34. B3 Thompson v. Marshall, 73 Conn. 89, 46 Atl. 825 ; Vogt v. Vogt, 26 App. D. 0. 46 ; Carswell v. Lovett, 80 Ga. 36, 4 S. E. 866 ; Booe V. Vinson, 104 Ark. 439, 149 S. W. 524; Hill v. Hill, 90 Neb. 43, 132 N. W. 738, 38 L. R. A. (N. S.) 198 ; Ringrose v. Gleadall, 17 Cal. App. 664, 121 Pac. 407. A person cannot be trustee for himself so as to require him to keep his own interest in estate intact, though the will direct it to be kept together. Harrison v. Baldwin, 92 Ga. 329-331, 18 S. E. 402. 54 Frost V. McCaulley, 7 Del. Chan. 162, 44 Atl. 779. 474 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 or Other personal benefit of a person, the death of the beneficiary will terminate the trust, unless there be express language in the will requiring its continuance, and vest the absolute property in the remaindermen, discharged of the trust." The trust cannot be ter- minated or affected by any act, default or estoppel of the life tenant alone or of the trustee, or of the life tenant in conjunction with the trustee or any heir ap- parent, or contingent remainderman/" But it is pos- sible for the life tenant of an equitable estate if sui juris, to sell out and release to the vested remainder- man and thus terminate the trust." This results from the doctrine of merger. But if there be any contingent interests, or interests of a person not sui juris, or if a merger would defeat the intention of the testator, it cannot occur."* 5 5 Hutchinson's Appeal, 34 'Conn. 303; Cowles v. Cowles, 56 Conn. 240-248, 13 Atl. 414; Thomas v. Castle, 76 Conn. 447, 56 Atl. 854; Bradley v. Young, 2 MacArthur (D. C.) 229 ; Jordan v. Thornton, 7 Ga. '517; Newman v. Dotson, 57 Tex. 117; Bull v. Walker, 71 6a. 195 ; Ford v. Cook, 73 Ga. 215 ; Brantley v. Porter, 111 Ga. 886, 36 S. E. 970; De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E.'211; McDon- ald V. McCall, 91 Ga. 304, 18 S. E. 157; Baxter v. Wolfe, 93lGa. 334, 20 S. E. 825; Henderson v. Williams, 97 Ga. 709, 25 S. B.i395; Flem- ing V. Hughes, 99 Ga. 444, 27 S. E. 791. 5 6 Chandler v. Pomeroy, 96 Fed. 156, 37 C. G. A. 430; Moredock V. Moredock i (C. C.) 179 Fed. 163 ; Anderson v. Messinger, 146 Fed. 929, 77 C. C. A. 179, 7 L. R. A. (N. S.) 1094 ; Estate of Washburn, 11 Cal. App. 735, 106 Pac. 415. 5 7 Drennen v. Heard (D. C.) 198 Fed. 414. 5 8 Estate of Washburn, 11 Cal. App. 735, 1 106 Pac. 415. § 179) TRUST ESTATES 475 § 179. Trusts for accumulation Trusts for accumulation are not favored by the law, even when they do not transcend the rule against perpetuities. There is no just reason for permitting a man arbitrarily to accumulate property after his death. Such a course not only casts a moral and eco- nomic blight upon his descendants, but is a distinct injury to the community. The celebrated case of Thelusson v. Woodford, 4 Vesey, 227; was of this character, of which Chancellor Kent has said: This is the most extraordinary instanpe upon record of calculating and impelling pride and vanity in a testator, and disregarding the ease and comfort of his immediate descend- ants, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity. Such an iron-hearted scheme of settlement, by withdrawing proper- ty for so long a period from all the uses and purposes of social life, was intolerable. It gave occasion to the Statute of 39 and 40 Geo. Ill, c. 98, prohibiting thereafter any person by deed or will from settling or devising real or personal property, for the purpose of accumulation by means of rents or profits for a longer period than the life of the settler, or twenty-one years after his death, or during the minority of any person or persons, living at his decease, who under the deed or will directing the accumulation would, if then of full age, be en- titled to the rents and profits.^" The act referred to, known as Lord Thelusson's Act, has been adopted in New York, and other states.*" 58 4 Kent's Commentaries, p. 285. •0 See an interesting discussion of this act and its spirit. Thorn V. De Breteuil, 86 App. Div. 410, 83 N.iY. Supp. 849. The act is followed by statute in California. Goldtree v. Thomp- son. 79 Cal. 613, 22 Pac. 50. 476 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 In the absence of such a statute there seems to be no Hmitation, except the rule against perpetuities, to such accumulations." Charitable or Public Trusts § 180. Their nature and kinds Trusts for charities are sometimes called public trusts to distinguish them from private trusts for des- ignated individuals. They differ from the latter in two important particulars : First : In a private trust the beneficiaries must be designated with reasonable certainty, and be capable of taking a vested equitable title. Public trusts, on the other hand, are for the benefit of an uncertain, unascertained and often fluctuating body of persons, being that portion of the public which from time to time comes within the range of the testator's scheme 61 Fltchie V. Brown, 211 U. S. 321, 29 Sup. Ot. 106, 53 L. Ed. 202, affirming 18 Hawaii, 52. Trust for accumulation for twenty years and then the income to be divided for twenty years upheld. Conn. Trust & S. D. Co. v. Hol- llster, 74 Conn. 228, 50 Atl. 750. Trust until beneficiaries ' reached thirty years of age construed but not attacked. Holcombe v. Spencer, 82 Conn. 532, 74 Atl. 904. Trusts for accumulation for a fixed period, within the rule against perpetuities, and then 'to be paid to the legatee, held valid under authority of Nichols v." Eaton, 91 U. S. 716, 23 L. Ed. 254, and Eng- lish chancery rule against restraints or alienation not followed. King V. Shelton, 36 App. D. C. 1. Trust and postponement of legacies until youngest beneficiary was twenty-five years of age sustained. Bill in equity to terminate trust refused. Shelton v. King, 229 U. S. i90, 33 Sup. Ct. 686, 57 L. Ed. 1086 ; Claflin v. Claflin, 149 Mass. 19, 20 N. E. 454, 3 L. R. A. 370, 14 Am. St. Kep. 393. § 180) TRUST ESTATES 477 of bounty." It is not contemplated that the persons to be directly benefited by the charity shall have any right to control or enforce the trust. That right re- sides in the public in its organized capacity, i. e., the state. Second : The second important distinction between a public and a private trust is that a charity is not affected by the rule against perpetuities. It is, in its very nature, perpetual. ^^ After a charitable trust is once completely created the heirs of the donor have no further interest in the property.^* 62 Tincher v. Arnold, 147 Fed. 665, 77 C. C. A. 649, 7 L. R. A. (N. S.) 471, 8 Ann. Cas. 917; McDonald' v. Shaw, 81 Ark. 235, 98 S. W. 952 ; State v. Griffith, 2 Del. Chan. 393 ; Ould v. Wash. Hospital, 1 MacArthur (D. C.) 541, 29 Am. Rep. 605; Holman v. Renaud, 141 Mo. App. 399, 125 S. W. 843 ; Sllcox v. Harper, 32 Ga. 639. 63 Biscoe V. Thweatt, 74 Ark. .545, 86 S. W. 432, 4 Ann. Oas. 1136 ; Estate of Hinckley, 58 Cal. 457 ; Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St.. Rep. 117; Pierce v. Bhelps, 75 Conn. 83, 52 Atl. 612; State v. Griffith, 2 Del. Chan. 392; Ould v. Wash. Hospital, 1 MacArthur (D. C.) 541, 29 Am. Rep. 605; Jones V. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401; White v. Keller, 68 Fed. 796, 15 C. C. A. 683 ; Tincher v. Arnold, 147 Fed. 665, 77 C. O. A. 649, 7 L. R. A. (N. S.) 471, 8 Ann. Cas. 917 ; Inglehart v. Inglehart, 204 U. S. 478, 27 Sup. Ct. 329, 51 L. Ed. 575 ; Stewart v. Coshow, 238 5Io. 662, 142 S. W. 283 ; Paschal v. Acklin, 27 Tex. 173. 8 4 Lackland v. Walker, 151 Mo. 210, 52 S. W. 414 ; Women's Chris- tian Ass'n V. Kansas City, 147 Mo. 103, 48 S. W. 960; Goode v. Mc- pherson, 51 Mo. 126 ; White v. Keller, 68 Fed. 796, 15 C. C. A. 683 ; Sickles V. New Orleans, 80 Fed. 868, 26 C. C. A. 204; i Sherman v. Am. Cong. Ass'n (C. O.) 98 Fed. 495 ; Taylor v. Columbian University, 35 App. D. C. 69; Lewis v. Gaillard, 61 Fla. 819, 56 South. 281; Gum- ming V. Trustees, 64 Ga. 105. A public charity is a public benefit and the 'attorney general, upon request of the governor, may represent the public in giving force and effect to such charity when its interests are not otherwise adequate- 478 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 The purposes which may properly be considered charitable are divided by some writers into four classes : First: Gifts for strictly eleemosynary purposes, such as "to the poor," "for a hospital," "for the re- lief of poor emigrants," "for a home for the aged," etc."^ Second: Gifts for educational purposes, such as colleges, libraries, literary institutes, etc/° Third: Gifts for religious purposes, such as for churches, bible societies, missionaries, etc/^ Fourth: Gifts for erecting or maintaining public buildings or works, or otherwise lessening the bur- dens of government. § 181. Statute 43 Elizabeth During the reign of Queen Elizabeth, an act of Parliament was passed known as the Statute of Char- itable Uses, 43 Elizabeth, c. 4, which was designed to correct certain abuses in the management of public charities in England, by vesting their control more ly represented. In re Estate of Creighton, 91 Neb. 654, 136 N. W. 1001, Ann. Gas. 1913D,'128. 06 McDonogh v. Murdoch, 15 How. 367, 14 L. Ed. 732; Weeks v. Mansfield, 84 Conn. 544, 80 Atl. 784; In re Estate of Creighton, 91 Neb. 654, 136 N. W. 1001, Ann. Cas. 1913D, 128. 6 8 Taylor v. Columbian University, 226 U. S. 126, 33 Sup. Ct. 73, 57 L. Ed. 152 (Columbian University v. Taylor, 25 App. D. C. 124, affirmed) ; Washburn College v. O'Hara, 75 Kan. 700, 90 Pac. 234 ; Bell Co. V. Alexander, J2 Tex. 350, 73 Am. Dec. 268 ; Smith v. Gardi- ner, 36 App. D. C. 485. 6 7 Mack's Appeal, 71 Conn. 122, 41 Atl. 242 ; In re Estate of Doug- lass, 94 Neb. 280, 143 N. W. 299. § 181) TRUST ESTATES 479 directly in the crown. That statute has since been followed in England with great strictness, as its scope was very sweeping, it contained an express enumer- ation of purposes properly considered charitable, and its remedies were peculiarly adapted to the English form of government. Much confusion was occasion- ed at an early day in this country by reason of the fact that the English decisions under that statute were too hastily adopted by the supreme court of the Unit- ed States. The confusion arose from the fact that in some of the states the Statute 43 Elizabeth had been expressly repealed, while in other states it had been held not to be part of the common law because local to the kingdom of Great Britain. If it were held that the courts derived their jurisdiction over charitable trusts only from the Statute 43 Elizabeth, then in the absence of that statute, no power of con- trol existed, and in some cases the charities were without legal foundation. Afterward in the great Girard Will case,"^ the question was more exhaustive- ly examined by Justice Story, and it was decided that the jurisdiction of courts of equity over charities, did not arise from the Statute 43 Elizabeth, but had existed long prior to that statute, and was inherent in courts of equity in this country. This is now the settled rule."" ssvidal V. Girard, 2 How. 128, 11 L. Ed. 205. 6 9 Estate of Hinckley, 58 Cal. 457; Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St. Rep. 117 ; State v. Grif- fith, 2 Del. Chan. 392 ; Ould v. Wash. Hospital, 1 MacArthur (D. C.) 541, 29 Am. Rep. 605; Chambers v. City of St. Louis, 29 Mo. 543; 480 WILLS AND ADMINISTEATION OF ESTATES (Ch. 11 § 182. Discretion in trustee as to objects In creating a charity the testator sets apart a por- tion of his property and designates a purpose proper- 1}^ within the class known as charitable. This is or- dinarily sufficient. It is of the very nature of a char- ity that the beneficiaries are uncertain, and mere ob- scurity or indefiniteness will not necessarily defeat a gift to charitable uses.'" Thus it has been held that if the purpose is clearly charitable and a definite trus- tee is named, he may be given discretion as to the selection of the objects.''^ Howe V. Wilson, 91 Mo. 45, 3 S. W. 390, 60 Am. Rep. 226 ; Lackland V. Walker, 151 Mo. 210, 52 S. W. 414 ; Sherman v. Am. Cong. Ass'n (C. C.) 98 Fed. 495; Bell Co. v. Alexander, 22 Tex. 350, 73 Am. Dec. 268 ; In re Estate of Nilson, 81 Neb. 809, 116 N. W. 971. Statute 43 Eliz. c. 4, was adopted by Statutes of Arkansas. Biscoe V. Thweatt, 74 Ark. 545, 86 S. W. 432, 4 Ann. Cas. 1136. Statute 43 Bliz. c. 4, was never in force in District of Columbia. Ould V. Wash. Hospital, 95 U. S. 303, 24 L. Ed. 450. Nor in Nebras- ka. St. James O. A. v. Shelby, 60 Neb. 797, 84 N. W. 273, 83 Am. St. Rep. 553. 7 Chambers v. City of St. Louis, 29 Mo. 589; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 7 L. Ed. 617 ; Banner v. Rolf, 43 Tex. Civ. App. 88, 94 S. W. 1125; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831 ; In re Estate of Nilson, 81 Neb. 809, 116 N. W. 971. Valid charitable trusts. King v. Grant, 55 Conn. 166, 10 Atl. 505 ; Bronson v. Strouse, 57 Conn. 147, 17 Atl. 699; WoodrufE v. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St. Rep. 346 ; Conklin v. Davis, 63 Conn. 377, 28 Atl. 537; Strong's Appeal, 68 Conn. 527, 37 Atl. 395; Eliot's Appeal, 74 Conn. 586, 51 Atl. 558 ; Doughten v. Vandever, 5 Del. Chan. 51. 71 Loring v. Marsh, 6 Wall. 337, 18 L. Ed. 802 ; Sickles v. New Or- leans, 80 Fed; 868, 26 O. C. A. 204; Woodroof v. Hundley, 147 Ala. 287, 39 South. 907 ; Fay v. Howe, 136 Cal. 599, 69 Pac. 423 ; Clayton V. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St. Rep. 117; Beardsley v. Selectman, 53 Conn. 489, 3 AO. 557, 55 Am. Rep. § 183) TRUST ESTATES 481 The rule in Missouri is in accordance with sound principles and with the decisions of the English courts but differs from the rule in some of the other states, notably New York state, where the great trust creat- ed under Tilden's will was defeated on the ground that a discretionary power given to trustees to select the objects of the trust rendered the whole trust void." § 183. Designation of institution or association The testator may provide in his will alternative plans or a succession of institutions, and if either plan is capable of enforcement, or either institution in turn is capable of taking, the trust will take ef- fect." A charitable gift will not be defeated by a mistake or omission in the name of the society or association to whom it is given if the institution intended can 152 ; Bronson v. Strouse, 57 Conn. 147, 17 Atl. 699 ; Hayden v. Conn. Hospital, 64 Conn. 320, 30 Atl. 50 ; Mack's Appeal, 71 Conn. 122, 41 Atl. 242 ; Columbian University v. Taylor, 25 App. D. C. 124 ; Howe V. Wilson, 91 Mo. 45, 3 S. W. 390, 60 Am. Rep. 226 ; Powell v. Hatch, 100 Mo. 592, 14 S. W. 49; Sappington v. School Fund Trustees, 123 Mo. 32, 27 S. W. 356 (in spite of dicta to the contrary in Schmucker V. Reel, 61 Mo. 502) ; Franklin v. Boone, 39 Tex. Civ. App. 597, 88 5. W. 262 ; St. James O. A. v. Shelby, 60 Keb. 797, 84 N. W. 273, 83 Am. St Rep. 553; Miller v. Teachout, 24 Ohio St. 525; Grimes v. Harmon, 35 Ind. 199, 9 Am. Rep. 690. 72 Tilden v. Green, 130 N. X. 29, 28 N. E. 880, 31 Am. Law Reg. 75, 14 L. R. A. 33, 27 Am. St. Rep. 487. 's Tappan's Appeal, 52 Conn. 412 ; Taylor v. Columbian Universi- ty, 226 U. S. i26, 33 Sup, Ct. 73, 57 L. Ed. 152 (Columbian University V. Taylor, 25 App. D. C. 124, affirmed). BoBL. Wills — 31 482 WILLS AND ADMINISTHATION OP ESTATES (Ch. 11 be identified/* So, a charitable trust has been up- held in many cases though given to an unincorporat- ed body, or a corporation that is not in existence at the donor's death/" The federal government or a state may be made trustee of a charitable trust, but it seems that the ac- ceptance of the state is necessary/" A municipal cor- poration may hold property in trust for charitable uses, and be compelled in equity to administer the trust." 7* Sundry bequests to charitable societies by wrong names held to go to the societies that were shown to have been Intended by the tes- tator. Am. Bible Soc. v. Wetmore, 17 Conn. 186 ; Jacobs v. Bradley, 36 Conn. 369; Dunham v. AverlU, 45 Conn. 86, 29 Am. Rep. 642; King V. Grant, 55 Conn. 170, 10 Atl. 505; Goodrich's Appeal, 57 Conn. 282, 18 Atl. 49; Bristol v. Ontario Orphan Asylum, 60 Conn. 476, 22 Atl. 848 ; Conklin v. Davis, 63 Conn. 385, 28 Atl. 537 ; Cros- grove V. Crosgrove, 69 Conn. 416, 38 Atl. 219; Ayers v. Weed, 16 Conn. 299; Brewster v. McCall's Devisees, 16 Conn. 293; Lockwood V. Weed, 2 Conn. 291; Beardsley v. Am. Home Missionary Soc, 45 Conn. 329 ; Weed v. Scotield, 73 Conn. 670, 49 Atl. 22. 75 Ould V. Wash. Hospital, 95 U. S. 303, 24 L. Ed. 450 ; Brigham v. Hospital, 134 Fed. 513, 67 C. C. A. 893 ; White v. Howard, 38 Conn. 363; Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29; Russell v. Al- len, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397; Lilly v. Tobbein, 103 Mo. 486, 15 S. W. 618, 23 Am. St Rep. 887; Schmidt v. Hess, 60 Mo. 591. Charitable trust must be within the purposes of the society or it cannot take. Am. Colonization Society v. Gartrell, 23 Ga. 448. 7 8 State V. Blake, 69 Conn. 64, 36 Atl. 1019; Appeal of Yale Col- lege, 67 Conn. 237, 34 Atl. 1036. 7 7 Chambers v. City of St. Louis, 29 Mo. 543; Handley v. Palmer (C. C.) 91 Fed. 948 ; Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St. Rep. 117; Bell Co. v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. City council held to have no authority of law to accept or admin- ister chartable trust, following Vidal v. Girard's Ex'r, 2 How. 127, 11 L. Ed. 205 ; City Council v. Walton, 77 Ga. 517, 1 S. E. 214. § 184) TRUST ESTATES 483 § 184. Doctrine of cy pres A strong aid to the courts of equity in upholding and carrying into execution a charitable trust is the doctrine of cy pres. By this doctrine if the particular purpose pointed out by the testator is clearly char- itable in its nature, but by reason of changfe of cir- cumstances the exact plan cannot be literally follow- ed, the courts have power to adjust the charity to the altered circumstances, and execute the trust cy pres, that is, as near as possible to the testator's purpose. If a charity cannot be carried out in the exact mode indicat- ed by the donor, or if that mode should become by subsequent circumstances impossible, the general object will not be de- feated, if any other way can be obtained.''* Under this power courts of equity may direct a sale of property devoted to a charitable trust, or mod- ify the directions of the founder.'* 78 Academy v. Clemens, 50 Mo. 167 ; Inglis v. Sailors' Snug Har- bor, 3 Pet. 99, 7 L. Ed. 617 ; Tlncher v. Arnold, 147 Fed. 665, 77 0. C. A. 649, 7 L. R. A. (N. S.) 471, 8 Ann. Cas. 917 ; Woodruff v. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St. Rep. 346; Lewis v. Gaillard, 61 Fla. 819, 56 South. 281; Kelley v. Welborn, 110 Ga. 540-543, 35 S. E. 636 ; Ford v. Thomas, 111 Ga. 493, 36 S. E. 841. Distinction made between cy pres as a prerogative and as a judi- cial power. As far as it is a judicial power it devolved upon the courts of this country. Estate of Hinckley, 58 Oal. 457-512; St. James O. A. v. Shelby, 60 Neb. 797, 84 N. W. 273, 83 Am. St. Rep. 553 ; Estate of Nilson, 81 Neb. 809, 116 N. W. 971. Cy pres doctrine not recognized in Alabama. Carter v. Balfour's Adm'r, 19 Ala. 814; Woodroof v. Hundley, 147 Ala. 287, 39 South. 907. Nor in Delaware. Doughten v. Vandever, 5 Del. Chan. 51. 7 9 Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Women's Chris- tian Ass'n V. Kansas City, 147 Mo. 103, 48 S. W. 960. Court may appoint trustee of charity. City Council v. Walton, 77 484 WILLS AND ADMINISTRATION OF ESTATES (Ch. 11 § 185. Void charitable uses In the EngHsh courts, after the Reformation some charitable gifts, especially those given in furtherance of the Roman religion, were denominated "Supersti- tious" and were held to be illegal. In this country no charitable gifts can properly be said to be super- stitious, and it is held that a bequest for masses is valid.^" Bequests for the care of burial lots are not charities, however, but are void as perpetuities/^ If a charitable gift is void or incapable of enforce- ment, or is too uncertain to be executed, the property usually reverts to the heir at law or next of kin, or to the residuary devisee." Ga. 517, 1 S. B. 214; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831. Legislature has no power to enact that real estate left by valid de- vise to charity shall be sold and converted into personalty. Thorp 7. Fleming, 1 Houst (Del.) 580. 80 Harrison v. Brophy, 59 Kan. 1, 51 Pac. 883, 40 L. E. A. 721; Pool's Case, 18 Ala. 514. Masses for repose of soul held void. Horn v. Foley, 13 App. D. 0. 184. 81 Johnson v. Holifleld, 79 Ala. 423, 58 Am. Rep. 596; Hollfield v. Robinson, 79 Ala. 419 ; Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29; Bronson v. Strouse, 57 Conn. 147, 17 AU. 699; Iglehart v. Igle- hart, 26 App. D. C. 209. 82 Horn -f. Foley, 13 App. D. 0. 184; Columbian University v. Tay- lor, 25 App. D. C. 124. Void for uncertainty. Ingraham v. Sutherland, 89 Ark. 596, 117 S. W. 748; Bobbins v. County Com'rs, 50 Colo. 610, 115 Pac. 526; Hughes V. Daly, 49 Conn. 34 ; Fairfield v. Lawson, 50 Conn. 501, 47 Am. Rep. 669 ; Bristol v. Bristol, 53 Conn. 242, 5 Atl. 687 ; Board of Ti-ustees v. May, 201 Mo. 360, 99 S. W. 1093 ; Beall v. Drane, 25 Ga. 430; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524. § 185) TRUST ESTATES 485 Many states have statutes regulating the amount, character and manner of gifts for rehgious or char- itable purposes/* 8 3 Jones V. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401 (Ga.); Miller v. Ahrens (C. O.) 150 Fed. 644 (W. Va.) ; Id. (O. C.) 163 Fed. 870 ; West Virginia P. & P. Co. v. Jliller, 176 Fed. 284, 100 C. C. A. 176 ; In, re Pearsons, 98 Cal. 603, 33 Pac. 4.51 ; Hewitt's Estate, 94 Cal. 376, 29 Pac. 775 ; Royer's Idlstate, 123 Cal. 614, 56 Pac. 461, 44 L. E. A. 364 ; McCauley's Estate, 138 Cal. 546, 71 Pac. 458 ; Es- tate of Kussell, 150 Cal. 604, 89 Pac. 345; Estate of Peabody, 154 Cal. 173, 97 Pac. 184 ; Am. Tract. Soc. v. Purdy, 3 Hous. (Del.) 625 ; Reynolds v. Bristow, 37 Ga. 283; Thomas v. Morrisett, 76 Ga. 384- 405 ; Kine v. Becker, 82 Ga. 563, 9 S. E. 828 ; White v. McKeon, 92 Ga. 343, 17 S. E. 283 ; Kelley v. Welborn, 110 Ga. 540, 35 S. B. 636. Under the Missouri Constitution of 1865 a trust for a religious de- nomination was void.* Boyce v. Christian, 69 Mo. 492 ; First Baptist Church V. Robberson, 71 Mo. 326. Statutory restrictions or bequests for charity, when of extra-terri- torial force. Pottstown Hospital v. N. T. Life I. & T. Co. (D. 0.) 208 Fed. 196 (N. T.) ; Estate of Lathrop, 165 Cal. 243, 131 Pac. 752. 486 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 CHAPTER XII ADMINISTRATION i 186. History of probate jurisdiction. 187. Probate jurisdiction of ecclesiastical courts. 188. American courts, of probate. EXECIIIOKS AND AdMINISTRAXOKS 189. Common law theory of executors. 190. Executor de son tort. 191. Appointment and qualification. 192. Standard of responsibility. 193. Administrators — General — With the will annexed — Pend- ing contest. 194. Title to real estate. 195. Special powers of executors. 196. "Independent" administration. 197. Primary and ancillary administrations. 198. Collection and preservation of estates. 199. Allowance and classification of demands — Common law pro- vision for allowance of demands. 200. American statutes providing for allowance in probate courts. 201. Creditor should seek probate court 202. Statutes of non-claim. 203. Jurisdiction of federal courts over claims. 204. Statutory classification of claims. 205. Debts ante mortem and post mortem. 206. Payment of demands. 207. Order in which assets are marshalled for payment of de- mands. 208. Resort to land and contribution from legatees and devisees. 209. Legacy to creditor. § 186) ADMINISTRATION 487 § 186. History of Probate Jurisdiction When an owner of property vacates his title by- death, the vacant possession is seized upon by the, sovereign and the property distributed to such per- sons and in such manner as the poHcy of the state, expressed in its laws, dictates. This is true, except where the state, under such conditions as it chooses to impose, permits the former owner to control the distribution by will/ With some historical and local variations, this has come to be the settled principle of the English law. "Administration" is the general term applied to the collection, preservation and dis- tribution of estates of deceased persons. The juris- diction over this subject is not strictly judicial nor purely administrative in its nature, but is a curious mixture of both, and for that reason has never been of such a character that it could be exercised by the common law courts. The beginnings of probate ju- risdiction are very obscure, but bear the unmistakable stamp of a Roman origin. It is supposed that the early Britons imbibed their testamentary law from their Roman conquerors, and that such customs con- tinued among them and survived the Saxon conquest." During the first period of the Norman supremacy estates were administered in the county court pre- sided over by the earl and the bishop. When William 1 2 Bla. Com. pp. 10, 494. 2 Read the interesting discussion of this subject by Justice Brad- ford in the introduction to first volume of Bradford's Surrogate's Reports, New York. 488 WILLS AND ADMINISTEATION OF ESTATES (Ch. 12 separated the bishop's court from the county court the former naturally drew to itself the probate jurisdic- tion, in accordance with the Norman custom in such cases. This embraced the proving of wills of person- alty, as well as the administration of intestates' ef- fects, and the bishop became a sort of public admin- istrator for his diocese. Moreover, the clergy claim- ed an interest in the goods of the deceased by reason of gifts to pious uses; gifts which were sometimes expressed in wills, but were afterward assumed in cases of intestacy. In this manner it resulted that the ecclesiastical courts obtained full control of ad- ministration, without any provision for distribution, or even for the payment of debts. Blackstone. says this was by special favor of the Crown, and in consequence of granting to the bishops the administration of intestates' effects.^ As a special privilege to the church, the right to administer the effects of intestates was granted to the bishop of the diocese. This clergyman was supposed to look after the king's debts, the rights of the lord of the manor, and give the deceased a Christian burial; and after that what remained of the goods was devoted to pious uses — that is, to the use of the church or the private emolument of the bishop. No remedy was provided whereby private creditors of the deceased could re- cover their debts and they were consequently deprived of their just dues. As trade grew and civilization 8 3Bla. Com. p. 95 ; 2 Bla. Com. 494. § 187) ADMINISTKATION 489 increased this evil became an intolerable one. To cor- rect the abuse that no remedy was provided for cred- itors, "It was enacted by the statute of Westminster 2 that the ordinary (bishop) should be bound to pay the debts of the in- testate as far as his goods will extend, in the same manner as executors are bound in case the deceased left a will ; a use more truly pious than any requiem or mass for his soul." * By subsequent statutes ° the ordinary was required to appoint as administrator the widow or next of kin of the deceased. Later by various statutes of distri- bution " the common law right of reasonable parts was formally abolished and the goods were made dis- tributable among the widow and next of kin as in the statutes provided. § 187. Probate jurisdiction of ecclesiastical courts In exercising this power it was natural that the ecclesiastical courts should proceed according to the course of the civil law (which was in use in such courts) thus accentuating the separation from the common law. In the fact that probate jurisdiction thus grew up in the ecclesiastical courts, with the help of various statutes, is found the explanation of many of the diffi- culties and inconsistencies in this branch of the law. The jurisdiction proper was originally confined to 4 2 Bla. Com. 495. ^ 5 31 Edw. Ill, c. 11 ; 21 Hen. VIII, c. 5. 6 22 & 23 Car. II, c. 10 ; 29 Car. II, c. 30 : 1 Jac. II, c. 17. 490 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 distributing the goods of an intestate. His land was not aftected thereby, as real property was strongly im- pressed with the rules of the feudal system. The title to land descended to the heir at law, subject to the control of the courts of common law and equity. As such heir at law was different from the next of kin who were distributees of the personal property, a conflict often arose between the interests of the heir at law and those of the administrator who rep- resented the next of kin. The most minute refine- ment of rules grew out of this antagonism. Again, while the ecclesiastical courts had power to take proof of last wills yet their control over the executor was much more limited than over an admin- istrator. An administrator was the creature of the courts and succeeded to the office formerly exercised by the bishop in person ; but the executor derived his authority directly from the will. The executor was clothed with the general title to the personal property, and might exercise wide and often discretionary powers, not only over the personal estate but also in regard to the landed property— powers which he de- rived directly from the will, and which the ecclesias- tical courts could never have conferred. He was in a broad sense a trustee, and as such amenable to the courts of equity, by which courts he could be made to account like other trustees. Furthermore, the com- mon law courts had power to enforce the payment of debts by the administrator or executor, and the courts of equity could marshal the assets to prevent injus- § 188) ADMINISTRATION 491 tice and inequalities between creditors and distribu- tees caused by the enforcement of legal demands. The jurisdiction of the ecclesiastical courts was not broad enough to cover these matters. Such is a brief outline of the ecclesiastical jurisdiction in probate as it existed at the time the American probate courts were formed. § 188. American courts of probate In the American states, in the absence of ecclesias- tical courts, it early became necessary to erect statu- tory courts to which could be confided probate juris- diction. Various names are given to them — ^probate courts, surrogate courts, orphans' courts, etc.; and in some of the newer states the jurisdiction is commit- ted to the county courts. In all, however, a similarity of form and procedure is observed — the mixture of judicial and administrative functions — modeled on the practice of the ecclesiastical courts and differing in a marked degree from the ordinary procedure of the common law. While such courts are of statutory creation, yet out of regard for their historical deriva- tion they exercise their powers as the legitimate de- scendants of the ecclesiastical courts.'' The powers of the American tribunals are much broader than 7 "Courts of probate exercise many powers solely by virtue of our statutes; but they have very extensive jurisdiction not conferred by statute, but by a general reference to the existing law of the land, that is, to that branch of the common law known and acted upon for ages, the probate or ecclesiastical law." Morgan v. Dodge, 44 N. H. 253, 25S, 82 Am. Dec. 213. Finch v. Finch, 14 Ga. 362. 492 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 those of the old ecclesiastical courts. It is intended to unite in them all of that jurisdiction, quasi-admin- istrative in its character, in which the sovereign fig- ures as parens patriae; that is to say, not only the care and distribution of property the possession of v/hich is vacated by the death of the owner, but also the protection of the persons and estates of those members of the community who are not sui juris, such as infants and lunatics/ The statutes not only confer the probate jurisdiction formerly exercised by the ordinary, but have added much of the power over executors and administrators originally belonging to courts of equity, such as the power to require an ac- counting, to compel the payment of legacies, etc. There has also been added a concurrent jurisdiction with courts of law in adjudicating claims against the estate. The spirit of the statutes is to place in the probate court all powers, general and incidental^ which are necessary in the prompt and complete ad- ministration of the estate without resort to other tri- bunals.' However, probate courts are not courts of 8 Heady v. Grouse, 203 Mo. 100, 100 S. W. 1052, 120 Am. St. Rep. 643. » Much of the general control which courts of equity formerly exercised over the executors and administrators is now vested in the probate courts and equity can only interfere where there is not an adequate remedy in those courts. Miller v. Woodward, 8 Mo., 169-174 ; Titterington v. Hooker, 58 Mo. 593-598 ; Pearce v. Calhoun, 59 Mo. 271, 274 ; Ensworth v. Curd, 68 Mo. 282 ; Holden v. Spier, 65 Kan. 412, 70 Pac. 348 ; Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435 ; Proctor V. Dicklow, 57 Kan. 119, 45 Pac. 86; Coppedge v. Weaver,. 90 Ark. 444, 119 S. W. 678 ; McArthur v. Scott, 113 U. S. 340, 5 Sup. § 188) ADMINISTRATION 493 equity/" nor courts of general jurisdiction at common law.^^ They are courts of limited jurisdiction, having such powers only as are conferred by the statute Ct. 652, 28 L. Ed. 1015 ; Green v. Saulsbury,- 6 Del. Oh. 371, 33 AU. 623 ; Sowles v. First Nat. Bank (C. C.) 54 Fed. 564 (Vt.) ; Williams V. Jliles, 63 Neb. 859-865, 89 N. W. 451. A federal court is without jurisdiction to determine matters purely of administration with respect to the estate of a decedent. Northrup V. Browne, 204 Fed. 224, 122 C. C. A. 496 (Kan.). The rule that equity loses jurisdiction in these cases because of the enlargement of the powers of the probate courts is not established in all the states. Any person entitled to share in the distribution of an estate has the right, by bill filed for that purpose, to have the administration settled in a court of equity, without showing any special equity. The original jurisdiction of equity is not defeated by the jurisdiction conferred on the orphans' court, unless jurisdiction has attached. Gould V. Hayes, 19 Ala. 439; Moore v. Randolph's Adm'r, 70 Ala. 575; James v. Faulk, 54 Ala. 184; HiU v. Armistead, 56 Ala. 118; Teague v. Corbitt, 57 Ala. 529 ; Bragg v. Beers, 71 Ala. 151 ; Brom- berg V. Bates, 98 Ala. 621, 13 South. 557 ; Baker v. Mitchell, 109 Ala. 4C0, 20 South. 40 ; Bromberg v. Bates, 112 Ala. 363, 20 South. 786. 10 Eddy v. Eddy, 168 Fed. 590, 93 C. O. A. 586 ; Bagnell v. Ives (C. C.) 184 Fed. 466 (Pa.); Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169 (Mich.) ; Estate of Garrity, 108 Gal. 463, 38 Pac. 628, 41 Pac. 485; Nerac's Estate, 35 Cal. 302, 95 Am. Dec. Ill; Ross v. Wollard, 75 Kan. 383, 89 Pac. 680 ; Peterson v. Bauer, 76 Neb. 652, 107 N. W. 993, 111 N. W. 361 ; Spangenberg v. Spangenberg, 19 Gal. App. 439, 126 Pac. 379. 11 Treat v. Treat, 35 Conn. 210-215; Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276. Probate jurisdictiOD, even when exercised by district court, does not extend to partition of land. Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117. Nor trial of title to real estate. Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242 ; AUardyce v. Hambleton, 96 Tex. 30, 70 S. W. 76 ; Best V. Gralapp, 69 Neb. 815, 96 N. W. 641, 99 N. W. 837, 5 Ann. Cas. 491 ; Higglns v. Vandeveer, 85 Neb. 89, 122 N. W. 843. 494 WILLS AND ADMINISTRATION OP ESTATES (Ch. 12 creating them ^^ and cannot decide controversies which are beyond the purposes of their creation, be- cause the parties happen to be before them. Within their proper powers their findings are judicial, and, as in the case of other courts of competent jurisdic- tion, are not subject to collateral attack." 12 Carr v. Oatlin, 13 Kan. 404. Probate courts did not exist at common law and they have no power or jurisdiction by common law; their authority within the statute or constitutional provision creating them and defining their jurisdiction. Austin v. Chambers, 33 Okl. 40-i4, 124 Pac. 310; Myrick v. Jacks, 33 Ark. 425 ; Monastes v. Catlin, 6 Or. 119 ; Chrls- tianson v. Kings County, 203 Fed. 894, 122 O. C. A. 188 (Wash.); Perea v. Barela, 5 N. M. 458-470, 23 Pac. 766 ; Ferris v. Higley, 20 WaU. 375, 22 L. Ed. 388. The probate judge cannot, at the same time, act as trustee of a power under the will and as a judge ; and where discretionary pow- ers are such as would not belong to the court because of its jurisdic- tion over the subject matter of the trust independent of the au- thority of the will, the court will not exercise it. Attempt to have judge designate objects of a charitable bequest void. Estate of Pearsons, 118 Cal. 577, 45 Pac. 849, 1062 ; Druid Park Heights Co. V. Oettinger, 53 Md. 46. 13 Ewing V. Mallison, 65 Kan. 484, 70 Pac. 369, 98 Am. St. Kep. 299 ; Shoemaker v. Brown, 10 Kan. 383 ; Dilworth v. Rice, 48 Mo. 124-131; Eowden v. Brown, 91 Mo. 429, 4 S. W. 129; McGrews v. McGrews, 1 Stew. & P. (Ala.) 30; Apperson v. Cottrell, 3 Port. (Ala.) 51, 29 Am. Dec. 239 ; McElroy v. McElroy, 5 Ala. 81 ; Herbert v. Han- rick, 16 Ala. 581; Sowell v. Sowell's Adm'r, 41 Ala. 359; Rogers v. Kennard, 54 Tex. 30; Mills v. Herndon, 60 Tex. 353; Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502, 33 L. R. A. (N. S.) 658; Bag- ley V. Bloom, 19 Cal. App. 255, 125 Pac. 931 ; In re Estate of Oreigh- ton, 91 Neb. 654, 136 N. W. 1001, Ann. Cas. 1913D, 128; Beer v. Plant, 1 Neb. Unof. 372, 96 N. W. 348 ; Lethbridge v. Lauder, 13 Wyo. 9, 76 Pac. 682; Rice v. Tilton, 14 Wyo. 101, 82 Pac. 577; Nelson v. Bridge. 39 Tex. Civ. App. 283, 87 S. W. 885 ; King v. Battaglia, 38 Tex. Civ. App. 28, 84 S. W. 839; Murphy v. Sisters, 43 Tex. Civ App. 638, 97 S. W. 135. § 189) ADMINISTRATION 495 In respect to the settlements of successions to prop- erty on death the states are sovereign and may give to their courts the authority to determine finally as against all the world all questions that arise therein, subject to applicable constitutional limitations, Where a decree of the probate court is final and bars all persons having claims against the estate, the courts of another state must, under the full faith and credit clause of the federal constitution, give similar force and effect to such a decree when ren- dered by a court having jurisdiction to probate the will and administer the estate.^* Executors and Administrators § 189. Common law theory of executors If the will names an executor who is willing and qualified to act, the duty devolves upon him to carry out its terms. By the theory of the common law the executor derived his powers directly from his appoint- ment by the testator. The ecclesiastical courts could probate the will, but the executor did not need an appointment by them and they had very little control over him. He could do many acts by virtue of his position as executor, even before the will was pro- bated." He was clothed with the general title to the personal property and might deal with it as his own. In case of his death his office together with the undis- 14 TUt V. Kelsey, 207 U. S. 43, 28 Sup. Ct. 1, 52 L. Ed. 95. IB Marcy v. Marcy, 32 Conn. 308. 496 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 posed of property passed to his executor. The testa- tor might appoint any one as executor, whether qual- ified to perform the duties or not. In case the person so named was not able, by reason of infancy or other- wise, to discharge the office, a temporary administra- tor might be appointed to preserve the estate until he should become qualified. An executor was not permitted to charge any fees for his services, but re- tained the residuary personal estate for his own use. If, however, the will gave him a legacy, such legacy was by implication in lieu of all commissions and oth- er interest in the estate." Much of this is changed by the modern American statutes." The law now pre- scribes certain qualifications for the executor, pro- 16 When a legacy is given to one who Is appointed executor, wheth- 3r the same he expressed as In consideration of care and pains or lot, the law presumes that It was given in consideration of services IS executor unless there are words in the will which show that it .vas founded on a different consideration ; and the legacy must fall f the person so appointed does not qualify as executor. The provi- sion made by our law for payment of commission to an executor, hough weakening the strength of this presumption, is not necessarily 10 repugnant as to repel it. Billingslea v. Moore, 14 Ga. 370. 17 Sinnott v. Kenaday, 14 App. D. O. 1; Kenan y. Graham, 135 ila. 585, 33 South.- 699 ; Chamberlin's Appeal, 70 Conn. 363, 39 Atl. '34, 41 L. K. A. 204. At common law, executors and administrators were regarded as he real owners of the property ; and in fact for a long period were intitled to the residue, after the payment of the debts. It was not mtil the Statute of 22 Chas. II that administrators were definitely ompelled to distribute the surplusage among the next of kin. The loctrine itself no longer exists at common law; but many of its races are visible on the law of administration. No such principles r any resembling them were ever embodied in our various codes of urisprudence. The heirs testamentary or ab intestate were always § 190) ADMINISTRATION 497 vides for his appointment by the probate court," and requires him to give bond for the faithful discharge of his duties, unless expressly excused by the terms of the will. The doctrine of the common law in this regard has not been adopted in most of the states. The executor here does not, as in England, derive his power solely from the will, but the law imposes certain obligations upon him before he is permitted to execute it. The fact that one is named in the will as executor does not, as at common law, make him executor in fact, but only gives him the legal right to become executor upon com- plying with the conditions required by law.^* § 190. Executor de son tort At common law if one intermeddled with the prop- erty of the deceased without authority, he made him- self executor de son tort, or "of his own wrong." He was subject to all the burdens and liabilities of execu- torship, but was entitled to none of its benefits. As no public appointment of an executor was necessary, regarded as the true owners of the succession and administrators as but trustees, with, it is true, Important and very enlarged powers and obligations. Bufford v. Holliman, 10 Tex. 560, 575, 60 Am. Dec. 223 ; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574 ; Fletcher v. Worming- ton, 24 Kan. 259-261; Foote v. Foote, 61 Mich. 181, 28 N. W. 90; Walworth v. Abel, 52 Pa. 370. 18 Gardner v. Gantt, 19 Ala. 666. 19 Stagg V. Green, 47 Mo. 500; Belton v. Summer, 31 Fla. 139, 12 South. 371, 21 L. R. A. 146 ; Thomas v. Williamson, 51 Fla. 332, 40 South. 831 ; Rice v. Tilton, 13 Wyo. 420-431, 80 Pac. 828. The nomination of an executor is evidence of the confidence re- posed in him by the testator and courts will give weight to this in- tention and not set aside or remove the executor except for sub- stantial cause. Estate of Chadbourne, 15 Cal. App. 363, 114 Pac. 1012. B0KI,.WlLLS 82 498 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 any one who was found intermeddling with the goods thereby held himself out to creditors and others as the true executor, and must take the risk of being charged accordingly. Statutes providing for the appointment of an executor by the probate court have abrogated this common law rule/" § 191. Appointment and qualification The word "executor" need not be used if the will imposes duties on a person which clearly make him such.^^ Where several executors are named in the will, and one only proves the will and receives letters, lie only can act.^^ A corporation, qualified under its charter, may be appointed executor and its paid up :apital may dispense with the necessity for bond." The appointment of an executor is not absolutely es- 20 "All of the provisions of our statutes are wholly inconsistent ivith the idea of executor de son tort as at common law." Rozelle r. Harmon, 103 Mo. 343, 15 S. W. 432, 12 L. R. A. 187 ; Pox v. Van STorman, 11 Kan. 214; Litz v. Exchange Bank, 15 Okl. 564^72, 83 ?ac. 790. Executor de son tort exists in Connecticut. Marcy v. Marcy, 32 3onn. 308; Gleaton v. Lewis, 24 Ga. 209; Wilson v. Hall, 67 Ga. 53. 21 Stone V. Brown, 16 Tex. 425. Trustee of testamentary trust does not become executor by Im- plication. Crawford v. Horn, 40 Tex. Civ. App. 352, 89 S. W. 1097. 2 2 Rubber Co. v. Goodyear, 9 Wall. 788, 19 L. Ed. 566. Powers delegated to named executors may be exercised by such IS qualify notwithstanding they are called "joint executors." Act 3f 21 Hen. VIII, c. 4 ; Anderson v. Stockdale, 62 Tex. 54 ; McCown '. Terrell, 9 Tex. Civ. App. 66, 29 S. W. 484. 2 3 Estate of Kilborn, 5 Cal. App. 161, 89 Pac. 985. § 192) ADMINISTRATION 499 sential to a will." The testator may provide for the appointment of an executor or of a substitute by the probate court." An executor of an executor does not, as at common law, become as such executor of the first testator. Further as to the qualifications of an executor it is required in some states that he be and remain a resident of the state. ^* Removal from the state is a forfeiture of the office. In some states it is still the rule that a married wo- man cannot be executrix, and that letters testamen- tary to a woman abate on her marriage.^' In other states no distinction is made.^° § 192. Standard of responsibility The care, prudence and judgment which the man of fair average capacity and ability exercises in the transaction of his own business furnishes the standard to govern an executor or administrator in the discharge of his trust duties.^® 21 Barton's Estate, 52 Cal. 538; Wolffe v. Loeb, 98 Ala. 426, 13 South. 744. 26 State V. Eogers, 1 Houst. (Del.) 569; Bishop v. Bishop, 56 Coiin. 208, 14 Atl. 808. Testator may designate successors to the executor. Tuckerman v. Currier, 54 Colo. 25, 129 Pac. 210 ; Von Rosenberg V; Wickes, 50 Tex. Civ. App. 455, 109 S. W. 968. 2 6 Statutes may authorize appointment of non-resident. Hecht v. Carey, 13 Wyo. 154, 78 Pac. 705, 110 Am. St Rep. 981. Non-resident executor may take out letters in Alabama. Keith V. Proctor, 114 Ala. 676, 21 South. 502 ; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. 718. 2 7 Baxter v. Wolfe, 93 Ga. 334, 20 S. E. 325. 2 8 Airhart v. Murphy, 32 Tex. 131. 2 » In re Estate of Bush, 89 Neb. 334, 131 N. W. 602. 500 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 An executor is not permitted to make private profit in his dealings with the property of the estate.^" Executors represent generally the creditors and distributees of the estate/^ § 193. Administrators — General — With the will annexed — Pending contest If the person named in the will as executor is not qualified or refuses to act, after the will is duly pro- bated an administrator is appointed, to whom letters of administration witli the will annexed are granted. Such an administrator cum testamento annexo be- comes in effect an executor and performs all the terms of the will except those which commit discre- tionary powers to the executor/^ A temporary ad- ministrator may also be appointed during a contest of the will, or during the minority or temporary ab- 3 Stitt V. Stitt, 205 Mo. 155, 103 S. W. 547. Every one who acquires assets by a breach of trust in the executor is responsible to those who are entitled to the assets if he is a party to the breach of trust. Hargroves v. Batty, 19 Ga. 130. 31 Glover v. Patten, 165 V. &. 394, 17 Sup. Ot. 411, 41 L. Ed. 760; Beau V. Blake, 16 Ga. 119. 3 2 Ochetree v. McDaniel, 5 Fennewill (Del.) 288, 63 AU. 687; Cur- ran V. Ruth, 4 Del. Ch. 27 ; Uompton v. McMahan, 19 Mo. App. 494 ; ITrancisco v. Wingfield, 161 Mo. 542, 61 S. W. 842 ; Frisby v. Withers, 51 Tex. 134 ; Moore v. Minerva, 17 Tex. 20 ; Beaty v. Stapleton, 110 3a. 580, 35 S. E. 770; Avery v. Sims, 69 Ga. 314; Judson v. Ben- lett, 233 Mo. 607, 136 S. W. 681 ; Allen v. Barnes, 5 Utah, 100, 12 Pac. 912. Power of sale for purpose of distribution given to executor by the Ni\l may be carried out under the direction of the court by the idministrator c. t. a. McLeod v. Butts, 89 Kan. 785, 132 Pac. 1174 ; Dcheltree v. McDaniel, 5 Pennewill (Del.) 288-294, 63 Atl. 687. § 193) ADMINISTRATION 501 sence of the executor." In the absence of a will, a general administrator is appointed by the court whose powers and duties are defined by the statutes.'' Pri- ority of right to appointment as administrator is giv- en by law to certain relatives and distributees. Sur- viving partners have a prior right to administer upon the partnership estate."' If the persons entitled to administration fail to apply, as they are very likely to do if the estate be insolvent, administration may nevertheless be had at the instance of any creditor or other person interested. In some states there is an official known as public administrator whose duty it is to take charge of estates when no other person ([ualifies. If the administrator first appointed dies, resigns or is removed before the administration is completed, an administrator de bonis non (of goods not administered) is appointed to finish the task. Executors generally, and all kinds of administra- tors must give bond for the faithful performance of their duties; usually in an amount double the value of the personal estate."" 3 3 In re Estes, 65 Mo. App. 38. 3* Acts of an administrator prior to the discovery of a -will are valid. Tapley v. McPike, £0 Mo. 589. Under Georgia code, executor administers undevised as well as devised land. Lamar v. Gardner, 113 Ga. 781, 39 S. E. 498 ; Knowle.s V. Knowles, 132 Ga. 806, 65 S. E. 128. The validity of a decree or order appointing an administrator, cannot be collaterally assailed or otherwise questioned except in a direct proceeding. Burke v. Mutch, 66 Ala. 568 ; Barclift v. Treece. 77 Ala. 528; Breeding v. Breeding, 128 Ala. 412, 30 South. 881. 3s Clark V. Fleisclimann, 81 Neb. 445, 116 N. W. 200. 3 6 Grant of letter without bond is not void, but voidable. Leather- 502 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 § 194. Title to real estate The title to real estate does not, like that of person- al property, vest primarily in the executor " but de- scends to the heir or vests in the devisees subject to the debts of the estate,'' unless the statute or the pro- visions of the will confer upon the executor some title, power or right of possession/' wood V. Sullivan, 81 Ala. 458, 1 South. 718; Keith v. Proctor, 114 Ala. 676, 21 South. 502. Where a will has been admitted to probate, and the executors ap- pointed without bond as provided in the will, whether they should be required to give bond was a matter exclusively for the court of probate of the state, and not within the jurisdiction of the federal court in a suit in equity involving the validity of the will. Field v. Camp (C. C.) 193 Fed. 160. Executor may be removed by probate court for malfeasance, on petition of legatees. Gibson v. Maxwell, 85 6a. 235, 11 S. E. 615. Probate court has exclusive jurisdiction of accounts of executors. Williams v. Williams, 145 Mo. App. 382, 129 S. W. 454. 3 7 Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032. 38 Clark V. Flelschmann, 81 Neb. 445, 116 N. W. 290. 3 9 If there are no debts against the estate, or there Is sufficient other property subject to the payment thereof to pay all the debts, the title to the lands of a deceased person descends to his heirs, or passes to the devisees under his will, free of any claims of the ad- ministrator or right to the possession thereof. Austin v. Chambers, 33 Okl. 40-43, 124 Pac. 310 ; Stewart v. Smiley, 46 Ark. 373 ; Sisk V. Almon, 34 Ark. 391; Tate v. Jay, 31 Ark. 577; Culberhouse v. Shirly, 42 Ark. 25. § 195) ADMINISTRATION 503 § 195. Special powers of executors The special powers that executors have as trustees have already been considered." They may also have, under the terms of the will, special powers over the real estate greater than they would have by law gen- erally. These are usually the power of encumbrance or sale of the realty, for the payment of debts or for distribution." No precise form of words is neces- *o See Thomas v. Matthews, 51 Tex. Civ. App. 304, 112 S. W. 120 ; Weller v. NofCsinger, 57 Neb. 455, 77 N. W. 1075 ; Meek v Briggs, 87 Iowa, 610, 54 N. W. 456, 43 Am. St Kep. 410 ; Clark v. Fleischmann, 81 Neb. 445, 116 N. W. 290. It is inconsistent with law for testator, by direction to executors, to suspend the power of alienation for a period. Estate of Pforr, 144 Cal. 121, 77 Pac. 825. 41 Warner v. Conn. Mut. Life Ins. Co., 109 U. S. 357, 3 Sup. Ct. 221, 27 L. Ed. 962 ; Leavens v. Butler, 8 Port. (Ala.) 380 ; In re Pear- sons, 98 Cal. 603, 33 Pac. 451; Carpenter v. Webb, 4 Pennewill (Del.) 34, 55 Atl. 1011; Lockwood v. Stradley, 1 Del. Ch. 298, 12 Am. Dec. 97; Estate of Journey, 7 Del. Ch. 1, 44 Atl. 795; Griffith V. Stewart, 31 App. D. C. 29; Anderson v. Stockdale, 62 Tex. 54; Cardwell v. Eogers, 76 Tex. 37, 12 S. W. 1006 ; Jackson v. Williams, 50 Ga. 553; Neisler v. Moore, 58 Ga. 334; Smith v. Hulsey, 62 Ga. 341 ; Board v. Day, 128 Ga. 156, 57 S. E. 359 ; Hart v. Lewis, 130 Ga. 504, 61 S. E. 26 ; Satterfield v. Tate, 132 Ga. 256, 64 S, E. 60 ; Terry V. Kodahan, 79 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420 ; Anderson v. Holland, 83 Ga. 330, 9 S. E. 670 ; Napier v. Napier, 89 Ga. 48, 14 S. E. 870; Harwell v. Foster, 102 Ga. 38, 28 S. E. 967; Maxwell v. Willingham, 101 Ga. 55, 28 S. E. 672; Rakestraw v. Rakestraw, 70 Ga. 806 ; Connely v. Putnam, 51 Tex. Civ. App. 233, 111 S. W. 164. Power of sale must be executed by all who qualify. Wolfe v. Hines, 93 Ga. 329, 20 S. E. 322 ; Board v. Day, 128 Ga. 156, 57 S. B. 359 ; Hoset Lbr. Co. v. Weeks, 123 Ga. 336, 51 S. E. 439 ; s. c, 133 Ga. 472, 66 S. E. 168, 134 Am. St. Rep. 213; Daugharty v. Drawdy, 134 Ga. 650, 68 S. E. 472 ; Johnson v. Bowdeu, 37 Tex. 621 ; Id., 43 Tex. 670. Power of sale does not ordinarily Include power to mortgage. Willis V. Smith, 66 Tex. 31, 17 S. W. 247. But may. Fletcher v. 504 WILLS AND ADIIINISTRATION OF ESTATES (Ch. 12 sary to confer power to sell upon the executor. Where a testator directs real estate to be sold, but names no one to do it, the power devolves upon the executor.*^ But an executor has no implied powers, by virtue of his office, either to sell or to encumber lands. When not expressly empowered by the will he can only sell under order of the probate court, in accordance with statute.*' Am. Tr. & B. Co., Ill Ga. 300, 36 S. E. 767, 78 Am. St. Rep. 164; Bailie v. Kinchley, 52 Ga. 487. Distinction between a naked power to executors to sell land and a personal trust. Anderson v. McGowan, 42 Ala. 280 ; Patton v. Crow, 26 Ala. 426 ; Tarver v. Haines, 55 Ala. 503 ; Watson v. Martin, 75 Ala. 506. *2 Blount V. Bloore, 54 Ala. 360; State v. Hunter, 73 Conn. 435, 47 Atl. 665 ; Flinn v. Frank, 8 Del. Ch. 186, 68 Atl. 196 ; Leeds v. Sparks, 8 Del. Ch. 280, 68 Atl. 239 ; Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031 ; In re Estate of Manning, 85 Neb. 60, 122 N. W. 711 ; Grif- fith V. Witten, 252 Mo. 627, 161 S. W. 708. Presumption is that executors are invested with sufficient power to carry out testator's intentions. Where executors were directed to sell and convey the real estate for debts and distribution, legal title Is vested in them. Such power must be exercised for the pur- pose of the will and none other. Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303. 43 Anderson v. Messinger, 146 Fed. 929, 77 O. C. A. 179, 7 L. R. A. (N. S.) 1094 ; Lester v. Kirtley, 83 Ark. 554, 104 S. W. 213 ; Neal V. Patten, 40 Ga. 363 ; Smith v. Swan, 2 Tex. Civ. App. 563, 22 S. W. 247 ; McCown v. Terrell, 9 Tex. Civ. App. 66, 29 S. W. 484. At common law a power given to the executor to sell land did not pass to an administrator cum testamento anneso. Lucas v. Price, 4 Ala. 679. But this rule has been broadened. Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; In re Estate of Manning, 85 Neb. 60, 122 N. W. 711. When an executor or administrator sells land under proper order of the court, liens thereon are divested and transferred to the pro- ceeds of the sale. But a sale by an executor without order of court § 196) ADMINISTRATION 505 Executors have no right to exercise discretion — even an honest discretion — beyond and above the du- ties of their office and the directions of the will." § 196. "Independent" administration A direction in the will that the executor may act without taking out letters testamentary, as the stat- utes require, is held in most of the states to be of no legal effect." But some states have what are known as "non-intervention" wills by which full powers are conferred on the executor to take possession of and wind up the estate of the testator without any judi- under directions of will does not divest liens. Hollinshed v. Woodard, 124 Ga. 721, 52 S. E. 815. Statute governs sales of real estate by executors except so far as expressly provided by v?ill. Walker's Estate, 6 Utah, 369, 23 Pac. 930. a Ogiers' Estate, 101 Cal. 381, 35 Pac. 900, 40 Am. St. Eep. 61. Executors have no power to make subscription to railroad. Jud- son V. Bennett, 233 Mo. 60T, 136 S. W. 681. An executor who delays for an unreasonable time to sell cotton belonging to the estate because he believes it will advance in price is liable for the resulting loss by depreciation, even though he treated his own cotton the same way. Pulliam v. Pulliam (0. 0.) 10 Fed. 53. Provision in will of twenty-five thousand dollars for funeral ex- penses and monument to testator's memory, requesting that his re- mains be buried in a particular place, gives executors no power to spend two thousand dollars on his tomb and balance in construction of building for public library in city, with tablet to testator's mem- ory. Fancher v. Fancher, 156 Cal. 13, 103 Pac. 206, 23 L. R. A. (N. S.) 944, 19 Ann. Cas. 1157. *5 Wall V. Bissell, 125 U. S. 382, 388, 8 Sup. Ct. 979, 31 L. Ed. 772. Attempts of the testator by provision in his will, to "overturn the statutes of the state upon the subject of administration of es- tates" are void. State ex rel. v. Morrison, 244 Mo. 193-202, 148 S. W. £07. 506 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 cial proceedings whatever, except those necessary to establish the will.'" The statutes of Texas permit a testator to provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probate and registration of his will and the return of an inventory of the estate. The validity of such a provision depends, of course, upon the va- lidity of the will itself and does not deprive the court of jurisdiction to annul the will.*^ If a testator de- sires to remove his estate from the jurisdiction of the probate tribunal he should do so in plain and un- ambiguous terms: all doubts should be resolved in favor of the jurisdiction of the court."' In case, how- ever, the words of the will are sufficient, the estate is withdrawn from the control of the court after the proof of the will and the filing of the inventory, and the court can make no further orders respecting it.*' *8 Korsstrom v. Barnes (C. C.) 156 Fed. 280 (Wash.). *■! Prather v. McClelland, 76 Tex. 574, 13 S. W. 543. Probate of a will as an "Independent" one, when it was not so in fact, cannot be attacked collaterally. Glover v. Coit, 36 Tex. Civ. App. 104, 81 S. W. 136. *8 Epperson V. Reeves, 35 Tex. Civ. App. 167, 79 S. W. 845; crit- icised and distinguished Berry v. Hindman (Tex. Civ. App.) 129 S. W. 1181; approved Carlton v. Goebler, 94 Tex. 97, 58 S. W. 829; distinguished Hughes v. Mulanax, 105 Tex. 576, 153 S. W. 299. Sufficient words in will to comply with statute for administration without supervision of probate court. Pierce v. Wallace, 48 Tex. 399. Insufficient words. Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486. 4 9 Lumpkin v. Smith, 62 Tex. 249; Roberts v. Connellee, 71 Tex. 11, 8 S. W. 626; McLane v. Belvin, 47 Tex. 493; Nelson v. Lyster, 32 Tex. Civ. App. 356, 74 S. W. 54. § 196) ADMINISTRATION 507 It cannot refuse letters to one named as independent executor in the will," cannot fix or add to his com- pensa,tion, grant him a final discharge, or appoint another independent executor in the room of one who dies." That the estate is insolvent does not disable a tes- tator from exercising his power under the statute of exonerating his estate from the probate juris- diction of the county court. A remedy is afforded creditors to force the executors, devisees, legatees or heirs to give bond for the protection of creditors. If the bond be not given upon the return of the citation, the estate is taken in charge by the court and admin- istered as other estates. ^^ The power of executors to administer without control of the court is a per- sonal trust in those named." While joint action by BO Joumeay v. Shook, 105 Tex. 551, 152 S. W. 809. Bi In re Estate of Grant, 93 Tex. 68, 53 S. W. 372. Thongli an independent executor has qualified and commenced to administer the estate, the county court may, upon his application, place the estate again under control of the court. King v. Battaglia, 38 Tex. Civ. App. 28, 84 S. W. 839. 5 2Hogue V. Sims, 9 Tex. 546; Shackleford's Adm'x v. Gates, 35 Tex. 781 ; Kauffinan v. Wooters, 79 Tex. 205, 13 S. W. 549. S3 Blanton v. Mayes, 58 Tex. 422. A provision in a will, exempting the executor from taking the oath or giving the bond required by law and that the county court shall exercise no other control over the estate than probating the will and inventorying the property is a personal trust confided by the testator to the executor and the statute which gives the right to insert such a provision in a will contemplates an acceptance of the trust by the executors. Such special trust cannot he transferred by the master nor delegated to another by the county court, and where the executor fails to accept and qualify under the will and the court 508 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 all those who qualify is necessary/* those who qualify may act, though less than those named." The appointment of an "independent" executor, without other provision either enlarging or restrict- ing his powers, confers upon him authority to do with- out an order of court every act which an administra- tor could perform with such order, including the power to sell property,^^ even land," for the payment of debts. It seems that if the will expressly gives the "independent" executor power to sell for the payment of debts, the existence of debts will be presumed," otherwise the actual existence of debts must be shown and the burden is on the purchaser of land to show that such a condition existed as would have authorized the probate court to order the sale of the land.^° appoints an administrator c. t. a. tbe clause is inoperative. Langley V. Harris. 23 Tex. 564. 54 McLane v. Belvin, 47 Tex. 493. 5 5 Anderson v. Stockdale, 62 Tex. 54-60; Jolinson v. Bowden, 43 Tex. 670; Roberts v. Connellee, 71 Tex. 11, 8 S. W. 626; McDonald V. Hamblen, 78 Tex. 628, 14 S. W. 1042. 5s Carlton v. Goebler, 94 Tex. 93, 58 S. W. 829 ; Thomson v. Shac- kelford, 6 Tex. Civ. App. 121, 24 S. W. 980. 5 7 Hughes V. Mulanax, 105 Tex. 576, 153 S. W. 299. In the absence of express power independent executor cannot sell land except for purpose of paying debts of estate. Johnson v. Short, 43 Tex. Civ. App. 128, 94 S. W. 1082. 58 Terrell v. McCown, 91 Tex. 231, 43 S. W. 2; Rogers v. Jones, 13 Tex. Civ. App, 453, 35 S. W. 812. 5 9 Haring v. Shelton, 103 Tex. 10, 122 S. W. 13. We think it may be doubted whether the power granted by a will to independent executors to "settle the affairs" or "settle up the es- tate" of the testator confers upon such executors the power to sell and convey real estate. Wright v. Dunn, 73 Tex. 293, 11 S. W. 330. Powers of "independent" executor. McDonough v. Cross, 40 Tex. § 197) ADMINISTRATION 509 Nebraska has a statutor}'- provision for dispensing with administration on the giving of a bond by the residuary legatee."" § 197. Primary and ancillary administrations It is a general rule of law that each state or sov- ereignty reserves to itself the right to administer the goods of a deceased person actually found within its borders. It matters not whether the owner was a res- ident or a non-resident, if the goods are within the state the custody and control of them vests in the local tribunals." This is for the purpose of securing and protecting the rights of local creditors and distribu- tees, and the control thus assumed is exercised in 251 ; Cooper v. Homer, 62 Tex. 356 ; I'aulk v. Dasliiele, 62 Tex. 642, 50 Am. Rep. 542 ; Mayes v. Blanton, 67 Tex. 245, 3 S. W. 40 ; Lagow V. Glover, 77 Tex. 448, 14 S. W. 141 ; Hallum v. Silliman, 78 Tex. 347, 14 S. W. 797; Eskridge v. Patterson, 78 Tex. 417, 14 S. W. 1000; Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75 ; Prieto v. Leonards, 32 Tex. Civ. App. 205, 74 S. W. 41 ; Epperson v. Reeves, 35 Tex. Civ. App. 167, 79 S. W. 845 ; Carleton v. Hausler, 20 Tex. Civ. App. 275, 49 S. W. 118. "Independent" executor with special powers by terms of will. Cardwell v. Rogers, 76 Tex. 37, 12 S. W. 1006. It is not true that independent executors can do whatever the tes- tator could do if living. They must find their powers in the will. Dealy v. Shepherd, 54 Tex. Civ. App. 80, 116 S. W. 638. In the absence of authority conferred by the will an independent executor is without authority to partition the estate among the devi- sees. Johnson v. Short, 43 Tex. Civ. App. 128, 94 S. W. 1082. In re Estate of Pope, 83 Neb. 723, 120 N. W. 191. And Texas. Hummel v. Del Greco, 40 Tex. Civ. App. 510, 90 S. W. 339.. 61 Bartlett v. Hyde, 3 Mo. 490; Lecouturier v. Ickelheimer (D. C.) 205 Fed. 682 (N. Y.). 510 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 complete harmony with the principle that the goods are to be finally distributed according to the law of the owner's domicile. It is a settled rule of law that the administration of all the goods of an intestate, wherever situated or found, is to be made according to the law of his domicile. When they are in a different country they are first applied, under the laws of that country, to the satisfaction of the claims of creditors who establish their claims under its laws; and if there are any of its citizens that claim as distributees, distribution of the assets will be made there. But after the claims of creditors are satis- fied, and when the distributees reside in the country of the in- testate's domicile, or there are other creditors there whose claims remain unsatisfied, the tribunals of the country in which the assets are found will direct them to be remitted to the country of the domicile for further administration. In de- termining whether assets of a deceased person shall be trans- ferred from this state, the first thing to be ascertained is, where did the intestate have his domicile. In whatever state that may have been, the administration granted there is the principal one, and that in any other state is ancillary, and pri- ority of administration has no effect on this question."^ Letters testamentary or of administration granted in one state have no extra-territorial force. °^ The 6 2 Spraddling v. Tipkin, 15 Mo. 118. esMcCarty v. Hall, 13 Mo. 480; Naylor v. Moffatt, 29 Mo. 126; State V. St. Louis County Court, 47 Mo. 602 ; Cabanne v. Skinker, 56 Mo. 357-367 ; McPike v. McPike, 111 Mo. 225, 20 S. W. 12 ; Gregory V. McCormick, 120 Mo. 657, 25 S. W. 565 ; Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 784 ; EentscMer v. Jamison, 6 Mo. App. 135 ; Wilkinson v. Leland, 2 Pet. 627, 7 L. Ed. 542 ; Kerr v. Moon, 9 Wheat. 565, 6 L. Ed. 161 ; Murdoch v. Murdoch, 81 Conn. 681, 72 Atl. 290, 129 Am. St. Kep. 231 ; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913 ; Mattison v. B. & M. E. H. (D. C.) 205 Fed. 821 (N. T.) ; St. Bernard v. Shane (D. C.) 201 Fed. 453 (Ohio). § 197) ADMINISTRATION 511 authority of an executor or administrator does not extend beyond the limits of the government which granted to him his letters unless the laws of the for- eign state controlling the assets permit it/* In some states, as in Missouri, this rule is enforced strictly; and a foreign executor or administrator has no title, as such, to any property in this state, cannot take pos- session of any assets, collect any debts, sue or be sued, or exercise any of his powers there.°° In other states, as in Kansas, the local statutes and a policy of comity confer upon foreign executors and administrators, in the absence of a local administration, power to act within the state, and to take possession of assets, col- lect debts, sue and be sued, etc."" The extent to which this is permitted is entirely a matter of local policy, so that it remains true that each state controls as it sees fit the administration of property found within its borders. e* In re Estate of Ames, 52 Mo. 290; Emmons v. Gordon, 140 Mo. 498, 41 S. W. 998, 62 Am. St. Kep. 734 ; Moore v. Jordan, 36 Kan. 271, 13 Pac. 337, 59 Am. Rep. 550. Foreign executor may sue on judgment obtained by him in other state. Arizona Cattle Co. v. Huber, 4 Ariz. 69, 33 Pac. 555. 8 5 Administration may be taken out here whether there is any at place of domicile or not. Wood v. Matthews, 73 Mo. 483 ; Simpson V. Foster, 46 Tex. 618 ; Wills v. Herndon, 60 Tex. 353. 6 6 K. P. Ry. Co. V. Cutler, 16 Kan. 568; Cady v. Bard, 21 Kan. 667 ; Denny v. Faulkner, 22 Kan. 89 ; Higgins v. Reed, 48 Kan. 272, 29 Pac. 389; Donifelser v. Heyl, 7 Kan. App. 606, 52 Pac. 468; Ni- quette v. Green, 81 Kan. 569, 106 Pac. 1270 ; Bank v. Harrison, 68 Ga. 463-471; Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683; Estate of Meier, 165 Cal. 456, 132 Pac. 764, 48 L. R. A. (N. S.) 858; De Zbrani- kov V. Burnett, 10 Tex. Civ. App. 442, 31 S. W. 71; Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032. 512 WILLS AND ADMINISTRATION OP ESTATES (Ch. 12 In case, therefore, the goods of a decedent are in two or more states or countries, there are or may be two or more separate administrations upon his estate. That granted in the state of the decedent's domicile is the primary administration, and the other or others are ancillary administrations, without regard to which is prior in point of time." These several administra- tions are separate and distinct. The primary admin- istrator and the ancillary administrator are separate officers and neither is accountable to the other, but each to the court that appointed him. Where there is a primary and an ancillary administration of an estate, if the tribunals having jurisdiction of the ancillary administration can distribute or remit the assets, the court having jurisdiction of the primary administration will not in- terfere within the limits of the ancillary administration.®' 6 7 B. & O. Ry. V. Evans, 188 Fed. 6, 110 C. C. A. 156; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913 ; Bealey v. Smith, 158 Mo. 515, 59 S. W. 984, 81 Am. St. Rep. 317. The domicile of a wife is that of her husband for the purpose of determining primary administration. McPherson v. McPherson, 70 Mo. App. 330. Administration of non-resident will be granted in any county where there are bona notabilia, and the court first taking jurisdiction will retain it. Arnold v. Arnold, 62 Ga. 627. Ancillary administration to one interested in will in preference to public administrators. Estate of Rankin, 164 Cal. 138, 127 Pac. 1034. 6 8 State V. Campbell, 10 Mo. 724. Where funds belonging to the estate of a decedent are in the pos- session of a probate court of a state acquired in ancillary proceedings a federal court cannot disturb such possession by ordering the funds transmitted to the principal administrator in another state, nor can it entertain a suit by such foreign administrator against the local administrator to determine the right to such fund, where by the law of the state the probate court having the fund alone has jurisdiction to make such adjudication subject to review on appeal. Watkins v. § 197) ADMINISTRATION 513 If the estate is solvent, the ordinary course is for the tribunal having the ancillary administration to pay the local creditors, reserve sufficient to satisfy the local distributees and remit the surplus, if any, to the court of primary administration. °° If the estate, as a whole, is insolvent, more difficult questions of ad- justment arise. The court having ancillary adminis- tration will at all events endeavor to secure to local creditors the just proportion of their claims out of the assets under its charge, and will not send them to a foreign tribunal to enforce their rights. It need not, however, permit foreign creditors to come in and ex- haust the funds. '^'' Eaton (C. C.) 173 Fed. 133 (1909 N. Y.) ; Chase v. Wetzlar, 225 U. S. 79, 32 Sup. Ct. 659, 56 D. Ed. 990. 8 9Higgins V. Eaton (C. C.) 178 Fed. 153; Id. (0. C.) 188 Fed. 938; Green v. Byrne, 46 Ark. 453 ; Irwin's Appeal, 33 Conn. 136 ; Watkins v. Eaton (C. C.) 173 Fed. 183 ; Keith v. Proctor, 114 Ala. 676, 21 South. 502. 7 Whether personal property of a testator, situated in another state and In the possession of a probate court therein, shall be trans- mitted to the court of the domicile of the testator for distribution is a matter of judicial discretion, to be exercised by any court having jurisdiction ; but under the law of New York as settled by decision where there is a difference of opinion between the probate courts of the two jurisdictions as to the construction of the will, which has been probated in both, the property should be remitted to the juris- diction of domicile. Watkins v. Eaton (C. O.) 173 Fed. 133. See, also. Estate of Lathrop, 165 Cal. 243, 131 Pac. 752 ; In re Hughes, 95 N. Y. 55. BoBL. Wills — 33 514 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 § 198. Collection and preservation of estates The whole scheme of our statutes contemplates that the estates of deceased persons shall first pass through administration for the purpose of collecting the prop- erty, ascertaining its true value and protecting the claims of creditors." The property is, in a very true sense, in the custody of the law and the next of kin and distributees cannot sue for it or establish any title to it except through administration." The com- mon law regarded the executor and administrator as the absolute owner of the personal estate. He could sell it and deal with it as his own, but this doctrine of the common law does not prevail under the American statutes.''^ Though an executor derives his power from a will, he must be appointed by the court before he is entitled to deal with the property.'* The com- mon law rule that the appointment of one as execu- 71 state ex rel. Hounsom v. Moore, 18 Mo. App. 406; Tye v. Tye, 88 MorApp. 334. 72 Hall V. Haywood, 77 Tex. 4, 13 S. W. 612 ; Acklin v. Paschal, 48 Tex. 147 ; Simpson v. Foster, 46 Tex. 618. The general rule is that while administration is pending on an estate, a suit for the recovery of the property of the estate should be brought by the administrator. To this rule there are two exceptions : First when the administrator cannot or will not act for the protection of those beneficially interested. Second : When the interests of the administrator are adverse to the estate. Rogers v. Kennard, 54 Tex. 30 ; Grain v. Grain, 17 Tex. 80. Executor in possession of property has right to sue for negligent tort. Hendricks v. So. Ey. Go., 123 Ga. 342, 51 S. E. 415. 73 Boeger v. Langenberg, 42 Mo. App. 7. 7* Stagg V. Green, 47 Mo. 500 ; Lamb v. Helm, 56 Mo. 431 ; Stagg V. Linnenfelser, 59 Mo. 341. § 1-98) ADMINISTRATION 515 tor discharged all debts owing by such person to the testator is abolished generally by statute." He has no power to dispose of assets without an order of court." The first duty of an executor or administrator, aft- er being duly commissioned, is to collect and take possession of the estate, make an inventory of it and have it appraised. He is empowered to collect all debts and represent the estate in prosecuting or de- fending all actions brought by or against it. Such special powers as he needs may, in a proper case, be given him by order of court. While he may not fol- low the property into a foreign state except by permis- sion of the laws thereof, yet if a debt or judgment has once vested in him he may sue upon it in a foreign state by virtue of his general character as trustee." The statutes provide how and when the personal prop- erty shall be sold and the disposition to be made of the proceeds. The executor or administrator, as such, except by 7 5 state ex rel. v. Morrison, 244 Mo. 193, 148 S. W. 907. Nor is a debt released by giving a legacy to tbe debtor without men- tioning the debt. Sorrelle's Ex'r v. Sorrelle, 5 Ala. 245. Debts owing to the testator by his children are not released by Implication. Sorrelle v. Craig, 8 Ala. 566. 7s Chandler v. Stevenson, 68 Mo. 450; Weil v. Jones, 70 Mo. 560; State V. Berning, 74 Mo. 96 ; Mosman v. Bender, 80 Mo. 579. Executors not personally liable to legatees for loss occasioned by following directions of will as to sale of property. Northrup t. Browne, 204 Fed. 224, 122 C. C. A. 496 (Kan.). 77 Hall V. Harrison, 21 Mo. 227, 64 Am. Dec. 225 ; Tittman v. Thorn- ton, 107 Mo. 506, 17 S. W. 979, 16 D. R. A. 410. 516 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 special statutes, takes no interest in the land of the deceased/* An executor however, may be clothed with a title to the land, or a power of sale of it, by the terms of the will ; in which case he acts more in the character of an express trustee or donee of a power than simply as executor. By statute, also, both exec- utors and administrators may be given power, by order of the probate court, to lease, repair or sell the realty or to redeem it from mortgages and liens." Federal courts have no original jurisdiction with respect to the administration of decedent's estates, and they cannot, by entertaining jurisdiction of a suit against the administrator which they have the power to do in certain cases, draw to themselves the full possession of the res, or invest themselves with the authority of determining all claims against it.*° fs Burdyne v. Mackey, 7 Mo. 374; Estate of De Bernal, 165 Cal. 223, 131 Pac. 375. Devisee may prosecute ejectment for the lands devised to liim during the pendency of probate proceedings. Beer v. Plant, 1 Neb. (Unof.) 372, 96 N. W. 348 ; Lantry v. Wolf, 49 Neb. 374, 68 N. W. 494. Under statute executor or administrator has right to possession of all real estate and personal property belonging to estate. Tillson v. Hollovpay, 90 Neb. 481, 134 N. W. 232, Ann. Gas. 1913B, 78. "Real estate" does not include a lease for twenty years, which is personal estate passing primarily to the executor. Orchard v. Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072. '9 Langston V. Canterbury, 173 Mo. 131, 73 S. W. 151; Bealey v. Blake, 70 Mo. App. 229 ; Higgins v. Reed, 48 Kan. 272, 29 Pac. 889 ; Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372. Unless expressly given otherwise by the will power of sale for the payment of debts and legacies must be made in the course of ad- ministration. Haldeman v. Openheimer, 103 Tex. 275, 126 S. W. 566. 8 Byers v. McAuley, 149 U. S. 608, 18 Sup. Ct. 906, 37 L. Ed. 867. § 198) ADMINISTRATION 517 Every executor and administrator is also re- quired by statute to file in the court which appoint- ed him periodical settlements, or statements of his accounts, showing all money collected and dis- bursed with proper receipts for each payment. The annual settlements are not conclusive upon any of the parties, but the final settlement, made after due notice, has the effect of a final judgment. ^^ To the general rule that administration is neces- sary in all cases there is one exception made by the statute. If the entire estate is so small that it does not exceed in value what would be allowed to the widower, widow or minor children as their absolute property free from the claims of creditors, the pro- bate court may refuse administration and allow the widow to collect and retain the assets. The amount allowed the widow and minor children in such case usually corresponds with the property which was exempt from execution during the lifetime of the deceased. ^^ For the purpose of providing for the immediate wants of the widow and minor children, pending the settlement of the estate, the statutes provide that the court may order such sums paid to the widov/ out of the rents of the real estate as may be in pro- si state ex rel. v. Gray, 106 Mo. 526, 17 S. W. 500. 8 2 Eans V. Eans, 79 Mo. 53; Griswold v. Mattix, 21 Mo. App. 282; Estate of Garrlty, 108 Gal. 463, 38 Pac. 628, 41 Pac. 485. This right does not extend to non-resident widows. Richardson v. Lewis, 21 Mo. App. 531. 518 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 portion to her interests therein, until her dower is assigned; and also that the court may, as occasion requires, and without prejudice to creditors, appro- priate sums to the support of minor children, which shall be charged against the distributive shares of such children/^ Allowance and Classification o^ Demands § 199. Common law provision for allowance of demands At common law the provisions for the allowance of demands against the estate of the deceased and the payment of his debts were very crude and im- perfect; subjecting the creditor to delay, expense, uncertainty, and often injustice. They operated with similar hardship upon the executor or admin- istrator; involving him in tedious and expensive litigation, with its attendant risk, and holding him responsible for innocent mistakes and omissions. The hardships of the English system arose partly from the fact that the law established a highly arti- ficial classification of demands — dividing them into debts by specialty and debts by simple contract: a division not founded upon the nature of the debt, but upon the particular form in which it was made. It required the executor or administrator to ascer- tain at his peril the existence and validity of such 83 Richardson v. Frederitze, 35 Mo. 266; In re Estate of Manning, 85 Neb. 60, 122 N. W. 711. § 199) ADMINISTRATION 519 demands, and held him personally responsible if by paying claims of a lower order he left himself with- out sufficient assets to pay subsequently discovered claims of a higher order. But perhaps the principal difficulty was that two separate tribunals exercised power over the repre- sentative, neither of which appointed him, or super- vised his general administration of the estate. Claims could be established either in the common law courts or in chancery. At common law the executor was regarded as the real owner of the property. He could not only sue, but could be sued personally for all claims against the estate, provid- ed assets could be traced into his hands. He must assume the whole burden of defending or of show- ing the existence of other and superior claims to the property. Equity, however, regarded him as a trustee and would marshal the assets in his hands and order them to be distributed according to the respective priorities of the claims. The compre- hensive jurisdiction of equity was the only protec- tion that the executor had. If he were shrewd he would throw the estate into chancery, thus greatly increasing the delay and expense to the small cred- itors. If he were not shrewd, he would allow claims to be established against him at law, and thus in- volve himself personally in the risk of making the estate pay out. 520 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 § 200. American statutes providing for allowance in probate courts The American statutes have sought to reform and simplify this cumbrous method of establishing and paying demands in the following rational ways: First: By conferring upon the probate court ju- risdiction to allow demands and order their pay- ment. Second : By discouraging creditors from resort- ing to other tribunals for the adjudication of their claims/* Third : By creating a classification of demands, based upon public policy, for the protection of cer- tain creditors. Fourth : By providing a short time limit, known as the statute of non-claim, within which demands must be presented for allowance or be forever barred. The provisions of the administration statute are designed to supersede the more cumbrous machin- ery of the common law in regard to the assets of the estate and the payment of debts." The probate court has jurisdiction of money demands against 84 Between the death of the intestate and the granting of letters of administration the title and right to possession of personal property is suspended and vested in no one. A chattel morfgagee cannot seize or sell the property under his mortgage. IJitz 7. Exchange Bank, 15 Okl. 564-571, 83 Pac. 790. 86 Titterington v. Hooker, 58 Mo. 59T. 8 200) ADMINISTRATION 521 the estate of a deceased person, whether such de- mands be of a legal or equitable character.'' In securing the allowance of a demand the cred- itor is required first to exhibit his claim to the ex- ecutor or administrator. This exhibition of the claim is strictly insisted upon as it affects the priori- ties of other creditors." The executor or adminis- trator must list and classify the demands thus ex- hibited and report the same to the court. The ex- hibition of the demand does not entitle the ex- ecutor or administrator to pay it, even though he be satisfied of its correctness. It must be allowed by the court, which is a judicial act.'' The claimant must make affidavit to his claim, even though it be a judgment rendered in the lifetime of the deceased.'"* 8 8 Hoffmann v. Hoffmann, 126 Mo. 486, 29 S. W. 603. A wife, who has separate personal estate In her husband's lands, may after his death, prove her claim and have it allowed against his estate in the probate court. Todd v. Terry, 26 Mo. App. 598; Reynolds v. Reynolds, 65 Mo. App. 415; Church v. Church, 73 Mo. App. 421. Appeal lies from probate court on the approval of a claim and is tried de novo. Moore v. Hardison, 10 Tex. 467. 87 Pfeiffer v. Suss, 73 Mo. 245 ; Burckhartt v. Helfrich, 77 Mo. 376. Commencing suit against the administrator is equivalent to exhi- bition of demand. Tevis v. Tevis, 23 Mo. 256; Wernse v. McPike, 100 Mo. 476, 13 S. W. 809 ; section 2957, G. S. Kan. 1905. Exhibition to one executor is sufficient. Clark v. Parkville R. R., 5 Kan. 654. 8 8 If executors pay demand before allowance and it turns out to be legal and the personal estate ample to pay all the debts no one can complain. Judson v. Bennett, 233 Mo. 607, 136 S. W. 681. 8 9 Merchants' Bank v. Ward, 45 Mo. 310; Clawson v. McCune, 20 Kan. 337 ; Scroggs v. Tutt, 20 Kan. 271. Judgment against defendant as executrix in another state is not 522 WILLS AND ADMINISTRATION OF ESTATES (Ch. 12 To obtain an adjudication in court the creditor must, in addition to the exhibition of his demand, summon the executor or administrator, as a party- defendant, to a hearing. At common law the executor had a right to re- tain sufficient assets to pay a debt owing to him- self/" This doctrine of retainer has been abolished in most states/^ If the executor or administrator has himself a claim against the estate, he must establish it by a proceeding against his co-executor or co-adminis- trator, or against a temporary administrator ap- pointed for that purpose. § 201, Creditor should seek probate court While the proceedings in the probate court for the allowance of a claim are summary, and without formal pleadings, yet the law contemplates a ju- dicial proceeding.'^ The judgment of allowance in the probate court is as con- clusive as the judgment of any other court and cannot be open- ed on any other ground except such as would equally apply to the judgments of other courts."^ The law, having thus provided a fairly ample remedy for the creditor in the probate court, dis- sufficient to establish claim against tbe estate here. Webster v. Clarke, 100 Tex. 333, 99 S. W. 1019, 123 Am. St. Rep. 813. 90 Harkins v. Hughes, 60 Ala. 316. 91 Nelson v. Russell, 15 Mo. 356. 9 2 Williams v. Gerber, 75 Mo. App. 18. 93 Munday v. Leeper, 120 Mo. 417, 25 S. W. 381 ; Clark v. Bettel- heim, 144 Mo. 258, 46 S. W. 135. 202) ADMINISTRATION 523 courages a resort to other tribunals for the estab- lishment of demands, with its attendant increase of costs."* But such restrictions apply only to cases in which the probate court is able to do full justice to the claimant. As such courts have no equity powers "= it follows that in all cases of a purely equitable nature, such as trust estates, accounting, and the like, resort may be had to the courts of general jurisdiction."" § 202. Statutes of non-claim Most states provide by statute a period, usually two, sometimes three, years within which claims against the estate must be exhibited and proved, with a saving exception in favor of persons not sui juris. The importance of this statute of non-claim, as it is called, is that it ascertains with some degree of definiteness the obligations of the estate, and es- pecially it advises the heirs and others who are »* Johnson v. Cain, 15 Kan. 537; Stratton v. McCandless, 27 Kan. 296 ; Kothman v. Markson, 34 Kan. 550, 9 Pac. 218 ; Richardson v. Palmer, 24 Mo. App. 480 ; Nichols v. Eeyburn, 55 Mo. App. 1. »5 Pres. Church v. McElhinney, 61 Mo. 540; First Baptist Church T. RobJberson, 71 Mo. 326 ; Butler v. Lawson, 72 Mo. 227 ; Bramell V. Cole, 136 Mo. 210, 37 S. W. 924, 58 Am. St. Rep. 619 ; Carr v. Cat- lin, 13 Kan. 393. 96 Reed v. Crissey, 63 Mo. App. 184 ; Shoemaker v. Brown, 10 Kan. 383 ; In re Hyde, 47 Kan. 281, 27 Pac. 1001. A demand against the decedent's estate, to which there exists an equitable set-off, may be adjusted in a court of equity before being allowed in probate court. Such jurisdiction may be exercised by federal courts of equity. Schwarz v. Harris (D. C.) 206 Fed. 936 41 Burris v. Jackson, 8 Del. Ch. 345 '245 Burroughs v. De Couts, 70 Cal. 361, 11 Pac. 734. ... 1 '.".". ! 386 Burton v. Holly, IS Ala. 408 H2 Burton Machinery Co. v. Davies, 205 Fed. 141, 123 C. C. A. 373 532, 562 Burwell v. Cawood, 2 How. 560, 11 L. Ed. 378 311 558 Busby V. Lynn, 37 Tex. 146 339' 466 Bush V. Bush, 87 Mo. 480 .' .233' 275 Bush V. Cunningham, 37 Ala. 68 '.'.'... . . .' 532 Bush V. Lindsey, 44 Cal. 121 24 Bush's Estate, 89 Neb. 334, 131 N. W. 602 332, 499, 526 Butcher v. Butcher, 21 Colo. App. 416, 122 Pac. 397 64,' 173,' 240 Butler V. Butler, 5 Har. (Del.) 178 .' I79 Butler V. Butler, 13 D. C. 96 304 ' Butler V. Lawson, 72 Mo. 227 523, 544 Butler V. Ralston, 69 Ga. 485 .'438 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867 200, 516, 524, 545 Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S. W. 980 317, 376 Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609 252, 261, 264, 269, 271 Byrne v. France, 131 Mo. 639, 33 S. W. 178 402 Byrne v. McGrath, 130 Cal. 316, 62 Pac. 559, 80 Am. St. Rep. 127 408 Byrne v. Weller, 61 Ark. 366, 33 S. W. 421 328 Byrnes v. Stilwell, 103 N. Y. 453, 9 N. E. 241, 57 Am. Rep. 760. . 406 Byrnes' Estate, Myr. Prob. (Cal.) 1 263 Byron Reed Co. v. Klabunde, 76 Neb. 801, 108 N. W. 133.. 155, 193, 457 c Cabanne v. Skinker, 56 Mo. 357 510 Cady V. Bard, 21 Kan. 667 511 Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620 86, 177 CaMU's Estate, 74 Cal. 54, 15 Pac. 364 256 Cain V. Cain, 127 Ala. 440, 29 South. 846 404, 409 Calef s Estate, 139 Cal. 673, 73 Pac. 539 142, 273 Calkins, In re, 112 Cal. 296, 44 Pac. 577 207, 273, 275 Callaghan's Estate, 119 Cal. 571, 51 Pac. 860, 39 L. R. A. 689 23, 25, 248, 316 Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372 41, 182, 516 Cameto's Estate, Myr. Prob. (CalJ 75 167 582 CASES CITED Page Camp, In re, 126 N. Y. 377, 27 N. E. 799 430 Camp V. Coleman, 36 Ala. 163 540 Camp V. Vaughan, 119 Ga. 131, 46 S. B. 79 336 Camp's Estate, 134 Cal. 233, 66 Pac. 227 74, 75, 177, 179 Campbell, In re, 27 Utah, 361, 75 Pac. 851 303, 311, 332 Campbell v. Campbell, 13 Ark. 513 , 297 CampbeU v. Carlisle, 162 Mo. 634, 63 S. W. 701 253, 258 Campbell v. Foster, 35 N. T. 361 369 Campbell v. Garven, 5 Ark. 485 151 Campbell v. Logan, 2 Brad. Sur. (N. Y.) 90 155 Campbell v. Noble, 110 Ala. 382, 19 South. 28 306 Campbell v. Porter, 162 U. S. 482, 16 Sup. Ct. 871, 40 L. Ed. 1044 43, 151, 152, 201 Campbell v. Robertson, 62 Ga. 709 401 Campbell v. Shotwell, 51 Tex. 27 530 Campbell v. Weakley, 121 Ala. 64, 25 South. 694 297, 394, 422 CampbeU v. Whitsett, 66 Mo. App. 444 390 Campbell's Estate, 149 Cal. 712, 87 Pac. 573 396, 403, 423 Canada's Appeal, 47 Conn. 450 58, 276, 277 Canal Bank v. Hudson, 111 U. S. 66, 4 Sup. Ct. 303, 28 L. Ed. 354 374 Canfleld v. Bostwlck, 21 Conn. 553 313, 320, 549 Canfleld v. Canfield, 118 Fed. 1, 55 C. C. A. 169.. 318, 326, 392, 471, 493 Capal V. McMillan, 8 Port. (Ala.) 197 304 Card V. Alexander, 48 Conn. 504, 40 Am. Rep. 187 102 Card V. Grinman, 5, Conn. 164 93 Cardwell r. Rogers, 76 Tex. 37, 12 S. W. 1006 ,325, 503, 509 Carey v. Baughn, 36 Iowa, 540, 14 Am. Rep. 534 103 Carither's Estate, 156 Cal. 422, 105 Pac. 127 128, 245, 267 Carl V. Gabel, 120 Mo. 283, 25 S. W. 214 220, 253, 259 Carle v. Miles, 89 Kan. 540, 132 Pac. 146 30 Carleton v. Hausler, 20 Tex. Civ. App. 275, 49 S. W. 118 509 Carlson v. Lofgran, 250 Mo. 527, 157 S. W. 555 59, 272 Carlton v. Cameron, 54 Tex. 72, 38 Am. Rep. 620 47 Carlton v. Goebler, 94 Tex. 97, 58 S. W. 829 506, 503 Carlton v. Price, 10 Ga. 495 305, 419, 440 Carlton v. Taylor, 89 Ga. 490, 15 S. E. 643 196 Carmen v. Kight, 85 Kan. 18, 116 Pac. 231 258, 273, 383 Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528 27 Carnes v. Baker, 100 Ga. 779, 28 S. E. 496 306 Carother's Estate, 161 Cal. 588, 119 Pac. 926 405, 443 Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101 142, 144, 266, 273 Carpenter v. Gardiner, 29 Cal. 160 152 Carpenter v. Jones, 121 Cal. 362, 53 Pac. 842 218 Carpenter v. Perkins, 83 Conn. 11, 74 Atl. 1062 301, 305, 395 CASES CITED 583 Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed.^^^^ "40 gg^ Carpenter v. Webb, 4 Pennewill (Del.) 34, 55 Atl. loii' 503 Carpenter's Estate, 79 Cal. 382, 21 Pac. 835 2''9 235 Carpenter's Estate, In re, 127 Cal. 582, 60 Pac. 162. .199, 218 23o' 240 Carr v. Berry, 116 Ga. 372 ' 35I Carr v. Catlln, 13 Kan. 404 '.'.' 494 523 Carr r. Sraln, 7 Ark. 241 ". 424 Carr v. Dings, 58 Mo. 400 '.296,'298,' 304, 353, 411 Carrau v. O'Callaghan, 125 Fed. 657, 60 C. C. A. 347 204 Carraway v. Moore, 75 Ark. 146, 86 S. W. 993 " '. 192 Carrfco v. Kirby, 3 Crancli (C. C.) 594, Fed. Cas. No. 2442! .' ! ! .' 221 Carrie v. Cummings, 26 Ga. 690 60 Carriger, In re, 104 Cal. 81, 37 Pac. 785 .'.'.'.'.. . . ' " '241 257 Carroll v. Carroll, 20 Tex. 731 16, 305, 38l', 387 Carroll v. Carroll, 16 How. 275, 14 L. Ed. 936 324 Carroll v. Kelly, 111 Ala. 661, 20 South. 456 .'..'. 213 Carroll v. Reid, 158 Mo. 319, 59 S. W. 69 245 Carroll v. Richardson, 87 Ala. 605, 6 South. 342 284 Carson v. Carson, 1 Mete. (58 Ky.) 300 ' .' . 354 Carson v. Hickman, 4 Houst. (Del.) 328 .' . 314 Carson v. Searcy, 66 Ga. 550 313 Carswell v. Lovett, 80 Ga. 36, 4 S. E. 866 '. . 472, 473 Carter v. Alexander, 71 Mo. 585 308 Carter v. Balfour's Adm'r, 19 Ala. 814 Gi3, 483, 529 Carter v. Cantrell, 16 Ark. 154 54O Carter v. Christie, 57 Kan. 496, 46 Pac. 964 466 Carter v. Dixon, 69 Ga. 82 142, 266 Carter v. Long, 181 Mo. 701, 81 S. W. 162 399 Carter v. Warlden, 136 Ga. 700, 71 S. E. 1047 461 Carter's Heirs v. Carter's Adm'r, 39 Ala. 579 358, 359 Cartery's Estate, 56 Cal. 470 170 Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385 221, 224 CaiTer v. Jackson, 4 Pet. 1, 7 L. Ed. 761 395 Case V. Case, Kirb. (Conn.) 284 548 Case V. Haggerty, 91 Neb. 746, 137 N. W. 979 397 Casement's Estate, In re, 78 Cal. 136, 20 Pac. 362 317, 562 Casey v. Sherwood (C. C.) 193 Fed. 290 397 Cash V. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St. Rep. 576. .. . 121, 218, 243, 267 easier v. Gray, 159 Mo. 588, 60 S. W. 1032 378 Casly V. Gilder, 13 Ala. 322 545 Cassells v. Finn, 122 Ga. 33, 49 S. E. 749, 68 L. E. A. 80, 106 Am. St. Rep. 91, 2 Ann. Cas. 554 460, 462 Castens v. Murray, 122 Ga. 396, 50 S. E. 131, 2 Ann. Cas. 590. .39, 86 Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757 380 584 CASES CITED Page Castro V. Castro, 6 Cal. 158 35 Castro V. Richardson, 18 Cal. 478 152, 193 Catholic University v. O'Brien, 181 Mo. 71, .79 S. W. 901 76, 121, 240, 259 Catlett V. Catlett, 55 Mo. 330 76 Cato V. Gentry, 28 Ga. 327 371 Cato V. Hunt, 112 6a. 139, 37 S. E. 183 272 Catron's Estate, 82 Mo. App. 416 '.361, 537 Caulk V. Caulk, 3 Permewill (Del.) 528, 52 AtL 340 305, 440 Oavarly's Estate, 119 Cal. 406, 51 Pae. 629 307, 346, 421 Cavenaugh v. Ainchbacker, 36 Ga. 500, 91 Am. Dec. 778 112 Cawley's Estate, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93 30 Cawthorn v. Haynes, 24 Mo. 236 173, 231 Chace v. Gregg, 88 Tex. 552, 32 S. W. 520 381, 382, 386, 397 Chadbourne's Estate, 15 Cal. App. 363, 114 Pac. 1012 497 Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233 233, 256, 273 Chamberlain v. Agar, 2 Ves. & Bea. (Eng.) 259 461 Chamberlln's Appeal, 70 Conn. 363, 39 Atl. 734, 41 L. R. A. 204. . 281, 496 Chambers v. City of St. Louis, 29 Mo. 543 344, 479, 480, 482 Chambers v. Elliott, 161 Mo. App. 479, 143 S. W. 521 236 Chandler v. Delaplaine, 4 Del. Ch. 503 469 Chandler v. Ferris, 1 Har. (Del.) 454 116, 221, 255, 258 Chandler v. Jost, 96 Ala. 596, 11 South. 636 234, 263, 271 Chandler v. Pomeroy, 96 Fed. 156, 37 C. C. A. 430 474 Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168 173, 385 Chandler v. Stevenson, 68 Mo. 450 515 Chandler's Appeal, 34 Wis. 505 555 Chandless v. Price, 3 Ves. Jr. 99 436 Chapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Rep. 139. . . 364 Chapman v. Allen, 56 Conn. 152, 14 Atl. 780 313, 351, 376 Chapman v. Gray, 8 Ga. 337 112 Chappel v. Avery, 6 Conn. 33 249, 300, 364 Chappie V. Gidney, 38 Okl. 596, 134 Pac. 859 204, 208 Charle v. Safiold, 13 Tex. 94 26, 35 Charlton v. Brown, 49 Mo. 353 173 Chace v. Gregg, 88 Tex. 552, 32 S. W. 520 443 Chase v. Cartright, 53 Ark. 358, 14 S. W. 90, 22 Am. St. Rep. 207 468 Chase v. Howie, 64 Kan. 320, 67 Pac. 822 429 Chase v. Lincoln, 3 Mass. 236 170 Chase v. Wetzlar, 225 U. S. 79, 32 Sup. Ot. 659, 56 L. Ed. 990 513, 545, 546 Ohaworth v. Beech, 4 Ves. 555 333 Cheney v. Selman, 71 Ga. 384 317, 354 Chesebro v. Palmer, 68 Conn. 207, 36 Atl. 42 440 CASES CITED 585 Chevallier's Estate, 159 Cal. 161, 113 Pac. 130 74, 135 232,^240 Chew V. Keller, 100 Mo. 362, 13 S. W. 395 298, 306, 394, 406, 415 Chewning v. Shumate, 106 Ga. 751, 32 ^. E. 544 443 Chicago B. & Q. R. Co. v. Wasserman (C. C.) 22 Fed 872 22, 176 Chick V. Ives, 2 Neb. (Unof.) 879, 90 N. W. 751 298, 318, 555, 556 Chidsey v. Brookes, 130 Ga. 218, 60 S. E. 529, 14 Ann. Gas. 975.. . 183 Chilcott V. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41 151, 195, 419, 471 Childers v. Childers, 21 Ga. 377 428 ChUdress v. Harrison, 47 Ala. 556 544 Chiles V. Bartleson, 21 Mo. 344 298, 407 Chinmark's Estate, Myr. Prob. (Cal.) 128 .' 96 Chisholm v. Lee, 53 Ga. 611 429 Chisholm's Heirs v. Ben, 7 B. Mon. (Ky.),408 179 Chism V. Williams, 29 Mo. 288 428 Chisolm V. Spullock, 87 Ga. 665, 13 S. E. 571 213 Choice V. Marshall, 1 Ga. 97 304 Chouquette v. Barada, 23 Mo. 331 25 Chouquette v. Barada, 28 Mo. 491 25 Chrisman v. Chrisman, 16 Or. 128, 18 Pac. 6 210 Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 750 46 Christ V. Kuehne, 172 Mo. 118, 72 S. W. 537 45 Christian v. Christian, 3 Port. (Ala.) 350 332 Christianson v. Kings Co., 203 Fed. 894, 122 C. 0. A. 188 (Wash.) 494 Christopher v. Christopher, 4 Bwn. (Eng.) 2182 103 Church v. Church, 73 Mo. 421 521 Church V. Crocker, 3 Mass. 17 22 Church V. Robberson, 71 Mo. 326 485 Church V. Ruland, 64 Pa. 432 462 ChurchUl v. Bee, 66 Ga. 621 382, 528 Churchill v. Corker, 25 Ga. 479 112, 195 Churchill v. Jackson, 132 Ga. 666, 64 S. E. 691, 49 L. R. A. (N. S.) 875, Ann. Cas. 1913E, 1203 192, 560 Cilly, In re (C. C. N. H.) 58 Fed. 977 203 Cilly V. Patten (C. C.) 62 Fed. 498 201 City Council v. Walton, 77 Ga. 517, 1 S. E. 214 482, 483 City of Huntsville v. Smith, 137 Ala. 382, 35 South. 120 344 Claflin V. Claflin, 149 Mass. 19, 20 N. E. 454, 3 L. B. A. 370, 14 Am. St. Rep. 393 476 Claiborne's Estate, 158 Cal. 646, 112 Pac. 278 404 Clanton v. Estes, 77 Ga. 352, 1 S. E. 163 396, 398 Clapham's Estate, 73 Neb. 492, 103 N. W. 61 142, 243 Clark V. Bettelheim, 144 Mo. 258, 46 S. W. 135 522 Clark V. Carter, 200 Mo. 515, 98 S. W. 594 290 Clark V. Cattron, 23 Tex. Clr. App. 51, 56 S. W. 99 299 586 CASES CITED Page Clark V. Flelschmann, 81 Neb. 445, 116 N. W. 290 . 358, 457, 501, 502, 503 Clark V. Hammerle, 27 Mo. 55 35 Clark V. Hershy, 52 Ark. 473, 12 S. W. 1077 376 Clark V. Hoskins, 6 Conn. 106 67 Clark V. Kuff, 49 Colo. 197, 112 Pac. 542 182 Clark V. Lyons, 38 Misc. Eep. 516, 77 N. Y. Supp. 967 214 Clark V. Miller, 65 Kan. 726, 68 Pac. 1071, 70 Pac. 586. 60, 68 Clark V. Morton, 5 Eawle (Pa.) 235, 28 Am. Dec. 667 179 Clark V. Parkvllle R. R., 5 Kan. 654 521 Clark V. Stanfield, 38 Ark. 347 440 Clark V. Turner, 50 Neb. 290, 69 N. W. 843, 38 L. R. A. 433 38, 179, 243 Clark V. West, 96 Tex. 437, 74 S. W. 797 20 Clark V. Wright, 3 Pick. (Mass.) 68 211 Clark's Appeal, 70 Conn. 195, 30 Atl. 155 289, 556 Clark's Estate, 148 Cal. 108, 82 Pac. 760, 1 L. R. A. (N. S.) 996, 113 Am. St. Rep. 197, 7 Ann. Cas. 306. . . .161, 180, 181, 185, 195 Clark's Heirs v. Ellis, 9 Or. 113 210 Clarke v. Clarke, 46 S. C. 230, 24 S. E. 202, 57 Am. St. Rep. 675. . 555 Clarke v. Harker, 48 Ga. 596 541 Clarke v. Perry, 5 Cal. 60, 63 Am. Dec. £2 285 Clarke v. Ransom, 50 Cal. 595 74, 87 Clarke v. Sinks, 144 Mo. 448, 46 S. W. 199 537 Clarke v. Terry, 34 Conn. 177 407, 415, 427, 429 Clarke's Estate, Myr. Prob. (Cal.) 259 216 Clawson v. McCune, 20 Kan. 337 521 Claxton V. Weeks, 21 Ga. 265 306, 395 Clay V. Gurley, 62 Ala. 14 284 Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 59 L,. R. A. 407, 97 Am. St. Rep. 117 325, 344, 477, 479, 480, 482 Cleland v. Waters, 16 Ga. 496 309 Clemens v. Patterson, 38 Ala. 721 208 Clements v. Glass, 23 Ga. 395 443 Clements v. McGinn, 4 Cal. Unrep. 163, 33 Pac. 920 221, 233 Clements v. Maury, 50 Tex. Civ. App. 158, 110 S. W. 185 175, 554 Clement's Appeal, 49 Conn. 519 457 Cleveland v. Cleveland, 89 Tex. 445, 35 S. W. 145 299, 318 Oliett V. Cliett, 1 Posey Unrep. Cas. (Tex.) 407 321, 358 Cliflt V. Wade, 51 Tex. 14 322 Clifton V. Murray, 7 Ga. 564, 50 Am. Dec. 411 60 Clisby's Estate, 145 Cal. 407, 78 Pac. 964, 104 Am. St. Rep. 58. .74, 75 Clotilde V. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847. .315, 552 Cloud V. Whiteman, 2 Del. Ch. 23 544 Clough V. Clough, 10 Colo. App. 433, 51 Pac. 513, s. c. 27 Colo. 97, 59 P^c. 736 156, 166, 207 CASES CITED 587 Coachman v. Sims, 36 Okl. 536, 129 Pae. 845 '^3^31 Coates V. Semper, 82 Minn. 460, 85 N. W. 2i7. '.'.'.*. *. 237 Coats V. Lynch, 152 Mo. 168, 53 S. W. 895 . . . 225 Cobb V. Battle, 34 Ga. 458 301 302 Cobb V. McFarland, 87 Neb. 408, 127 N. W. 377 ! 26' 376 Cobb's Estate, 49 Cal. 599 iqq ^q Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. TOl! iiio, 442 444 Cochran v. Cochran's Ex'r, 3 Pennewill, 524, 52 Atl. 346 '554 Cochran v. Hudson, 110 Ga. 762, 36 S. E. 71 303, 313 Cockrill V. Armstrong, 31 Ark. 580 297, 374, 403, 464, 468 Cockrill V. Cox, 65 Tex. 669 224, 229, 244 Cody V. Conly, 27 Grat. (Va.) 313 ..." '357 Cody V. Staples, 80 Conn. 82, 67 Atl. 1 394, 395, 418, 420 Coe V. James, 54 Conn. 511, 9 Atl. 392 440 Coffee V. Coffee, 119 Ga. 533, 46 S. E. 620 84 Coffin V. CoflSn, 23 N. Y. 9, 80 Am. Dec. 235 264 Coghlll V. Kennedy, 119 Ala. 641, 24 South. 459 131, 233, 252, 261, 263, 264, 272, 276 Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Eep. 772 184, 192, 194, 346 Coll V. Ins. Co., 169 Mo. App. 634, 155 S. W. 872 557 Coit V. Comstock, 51 Conn. 352, 50 Am. Kep. 29 320, 482, 484 Colbert v. Speer, 24 App. D. C. 187 302, 315, 343, 344, 459 Colcord V. Conroy, 40 Fla. 97, 23 South. 561 104 Cole V. Littlefleld, 35 Me. 439 464 Coleman v. Camp, 36 Ala. 159 408 Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439 306, 422 Coleman v. Floyd, 105 Ark. 301, 150 S. W. 703 207, 210 Coleman v. Lane, 26 Ga. 515 '. 540 Coleman v. Martin, 6 Blatchf. 118, Fed. Oas. No. 2985 199 Coleman v. Robertson's Ex'rs, 17 Ala. 84 112, 115, 225, 234 Collier v. Slaughter, 20 Ala. 263 364 Collier's Case, 6 Coke, 16 404 Collier's Will, 40 Mo. 287 394, 402 Collins, In re, 151 Cal. 340, 90 Pac. 827, 91 Pac. 397, 129 Am. St. Eep. 122 : 193 Collins V. Carr, 118 Ga. 205, 44 S. E. 1000 472 Collins V. Smith, 105 Ga. 525, 31 S. E. 449 397 Collins V. Wickwire, 162 Mass. 143, 38 N. E. 365 411 Collins' Estate, Myr. Prob. (Cal.) 73 220 CoUyer v. CoUyer, 110 N. Y. 484, 18 N. E. 110, 6 Am. St. Rep. 405 96 Colonna v. Alton, 23 App. D. C. 296. . : 42 Colquitt ^. Tarver, 45 Ga. 631 ■. 88 Colt V. Colt, 111 U. S. 566, 4 Sup. Ct. 553, 28 L. Ed. 520 403, 469 Colt V. Colt, 33 Conn. 270 353, 537 Colt V. Hubbard, 33 Conn.- 281 401 588 CASES CITED Page Coltman v. Moore, 1 MacArthur (D. C.) 197 296, 471 Colton V. Oolton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138. . 17, 296, 340, 464 Columbian University v. Taylor, 25 App. D. C. 124 478, 481, 484 Colville V. Trust Co., 10 App. D. C. 56 314, 328 Colwell V. Miles, 2 Del. Oh. 110 545 Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. K. A. 414 16, 104, 105, 112 Compton V. McMahan, 19 Mo. App. 494 17, 424, 500 Comstock V. Adams, 23 Kan: 513, 33 Am. Rep. 191 383 Comstock V. Comstock, 23 Conn. 349 440 Comstock V. Comstock, 78 Conn. 606, 63 Atl. 449 339 Comstock V. Hadlyme, 8 Conn. 254, 20 Am. Dec. 100 116, 219, 243, 249, 276 Comstock V. Herron, 55 Fed. 803, 5 C. C. A. 266 545 Conkey v. Everett, 11 Gray (Mass.) 95 340 Conklin v. Davis, 63 Conn. 377, 28 Atl. 537 317, 322, 344, 350, 480, 482 Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112. .. . 255 Conn V. Davis, 33 Tex. 203 383 Conn. T. & S. D. Co. v. Chase, 75 Conn. 683, 55 Atl. 171 106, 351 Conn. T. & S. D. Co. v. Hollister, 74 Conn. 228, 50 Atl. 750 476 Conn. Tr. Co.'s Appeal, 80 Conn. 540, 69 Atl. 360 457 Connely v. Putnam, 51 Tex. Civ. App. 233, 111 S. W. 164 503 Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132 141, 144, 273 Conoly V. Gayle, 61 Ala. 116 49, 70 Conoway v. Fulmer, 172 Ala. 283, 54 South. 624, 34 L. K. A. (N. S.) 963 86, 176 Conoway v. Piper, 3 Har. (Del.) 482 404 Conrad v. Kennedy, 123 Ga. 242, 51 S. E. 299 183 Conwell's Adm'r v. Heavilo, 5 Har. (Del.) 296 403 Cooch V. Clark, 8 Del. Ch. 299, 68 Atl. 247 337, 353 Cooch's Ex'r v. Cooch's Admr., 5 Houst. Del. 540, 1 Am. St. Rep. 161 332, 528 Cook V. Couch, 100 Mo. 29, 13 S. W. 80 405 Cook V. Lawson, 63 Kan. 854, 66 Pac. 1028 383 Cook V. Weaver, 12 Ga. 47 295, 298 Cook V. Winchester, 81 Mich. 581, 46 N. W. 106, 8 L. R. A. 822. . . 64 Cooke V. Turner, 14 Sims, 493 362 Coombs V. O'Neal, 1 MacArthur (D. C.) 405 ; . . 291, 426 Cooney v. Glynn, 157 Cal. 583, 108 Pac. 506 360, 460 Cooper V. Carter, 145 Mo. App. 387, 129 S. W. 224 339, 470 Cooper V. Claxton, 122 Ga. 596, 50 S. E. 399 29 Cooper V. Cooper, 7 Houst. 488, 31 Atl. 1043 309 Cooper V. Homer, 62 Tex. 356 303, 509 CASES CITED 589 Cooper V. Mitchell Inv. Co., 133 Ga. 769, 66 S. E. 1090, 29 L. R. A. (N. S.) 291 305 Cooper V. Townsend, 1 Houst. (Del.) 365 443 Coopland v. Lake, 9 Tex. Civ. App. 39, 28 S. W. 104 334 Copeland v. Bruning (0. O. Ind.) 72 Fed. 5 204 Copeland's Ex'rs v. Copeland's Heirs, 32 Ala. 512 222 Copley V. Ball (W. Va.) 176 Fed. 682, 100 C. C. A. 234 192, 415 Coppedge v. Weaver, 90 Ark. 444, 119 S. W. 678 360, 492 Corbett v. Corbett, 13 P. D. 136 366 Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976 109 Corby v. Corby, 85 Mo. 371 411, 464 Cord V. Alexander, 48 Conn. 492, 40 Am. Rep. 187 549 Cordrey v. Cordrey, 1 Houst. (Del.) 269 116, 221, 255 Corker v. Corker, 87 Cal. 647, 25 Pac. 922 ' 104, 381 Cornelius, Will of, 14 Ark. 675 55, 62, 167 Cornet v. Cornet, 248 Mo. 184, 154 S. W. 121. .298, 318, 368, 369, 406 Cornwell v. Isham, 1 Day (Conn.) 35, 2 Am. Dec. 50 67 Oorrigan v. Jones, 14 Colo. 311, 23 Pae. 913 161, 162, 184, 195, 510, 512 Corry v. Fleming, 29 Ohio St. 149 284 Cotton V. TJlmer, 45 Ala. 378, 6 Am. Rep. 703 140, 222 Couch V. Couch, 7 Ala. 519, 42 Am. Dec. 602 61, 234 Couch V. Eastham, 27 W. Va. 796, 55 Am. Rep. 346 249 Couch V. Gentry, 113 Mo. 248, 20 S. W. 890 116, 121, 233, 273 Couch V. Gorham, 1 Conn. 36 297, 309, 416, 443 Coulam V. DouU, 4 Utah, 267, 9 Pac. 568, s. c, 133 U. S. 216, 10 Sup. Ct. 253, 33 L. Ed. 596 23 Coulter V. People, 53 Colo. 40, 123 Pac. 647 169 Coulton V. Pope, 77 Neb. 882, 110 N. W. 630 243 Council! V. May hew, 172 Ala. 295, 55 South. 314 222, 231, 260 Couts V. Holland, 48 Tex. Civ. App. 476, 107 S. W. 913 282, 375 Coveney v. Conlin, 20 App. D. C. 303 28, 31, 289 Covenhoven v. Shuler, 2 Paige (N. Y.) 132, 21 Am. Dec. 73 430 Cowan V. Shaver, 197 Mo. 211, 95 S. W. 200 249 Cowell V. Southern Denver R. E. Co., 16 Colo. App. 108, 63 Pac. 991 297, 412 Cowell's Estate, 164 Cal. 636, 130 Pac. 209 381, 390 Cowherd v. Kitchen, 57 Neb. 426, 77 N. W. 1107 565 Cowles V. Cowles, 56 Conn. 247, 13 Atl. 414 348, 351, 403, 474 Cowman v. Harrison, 10 Hare, 234 465 Cox V. Britt, 22 Ark. 567 300, 309, 427 Cox V. Cox, 101 Mo. 168, 13 S. W. 1055 175, 223, 280 Cox V. Jones, 229 Mo. 53, 129 S. W. 495 295, 439, 445 Cox V. Weems, 64 Ga. 165 • 290 Cox V. Wills, 49. N. J. Eq. 130, 22 Atl. 794 409, 412 Cox V. Teazel, 49 Neb. 343, 68 N. W. 485 538 590 CASES CITED Page Cox's Adm'r v. McKinney, 32 Ala. 461 403, 540, 543 Cozzens v. Jamison, 12 Mo. App. 452 81, 106, 325 Craig V. Ambrose, 80 Ga. 134, 4 S. B. 1 295 Craig V. Craig, 156 Mo. 358, 56 S. W. 1097 171, 227 Craig V. Leslie, 3 Wheat. 563, 4 L. Ed. 460 556 Craig V. Rowland, 10 App. D. C. 402 336, 348, 395, 414 Crain v. Crain, 17 Tex. 80 6, 21, 30, 35, 514 Crain v. Crain, 21 Tex. 790 48 Cramton v. Rutledge, 157 Ala. 141, 47 South. 214 424 Crandall's Appeal, 63 Conn. 367, 28 Atl. 531, 38 Am. St. Eep. 375 228, 234, 277 Crane v. Fipps, 29 Kan. 585 383 Cravens v. Faulconer, 28 Mo. 19 62, 219 Cravy v. KSwlins, 8 Ga. 450 46 Crawford v. Clart, 110 Ga. 729, 36 S. E. 404. .397, 427, 429, 432, 437 Crawford v. Engram, 153 Ala. 420, 45 South. 584 394 Crawford v. Horn, 40 Tex. Civ. App. 352, 89 S. W. 1097 498 Crawley v. Blackman, 81 Ga. 775, 8 S. E. 533 539 Crawley v. Kendrick, 122 Ga. 183, 50 S. E. 41, 2 Ann. Gas. 643 . . 290, 349 Creasy v. Alverson, 43 Mo. 13 165, 316 Crecelius v. Horst, 78 Mo. 566, s. e. 9 Mo. App. 51 292 Credille v. Credille, 131 Ga. 40, 61 S. E. 1042, s. c. 123 Ga. 673, 51 S. E. 628, 107 Am. St. Rep. 157 137, 221, 232 Creditors of Spicer v. Spicer, 21 Ga. 200 410 Creighton's Estate, 88 Neb. 107, 129 N. W. 181 542 Creighton's Estate, 91 Neb. 654, 136 N. W. 1001, Ann. Cas. 1913D, 128 299, 308, 478, 494, 542, 561 Crenshaw v. Crenshaw, 127 Ala. 208, 28 South. 398 467 Crenshaw v. McCormick, 19 App. D. C. 494 321, 325 Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527 409, 412 Crew V. Pratt, 119 Cal. 131, 51 Pac. 44 538, 550 Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244 45 Crittenden's Estate, Myr. Prob. (Cal.) 50 57, 58, 65 Crocker v. Crocker, 11 Pick. (Mass.) 252 340 Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. E. A. 576. . . . 46 Orofut V. Dayton, 68 Conn. 91, 35 Atl. 765 27 CroUy V. Clark, 20 Pla. 849 39 Cronin's Estate, Myr. Prob. 252 443 Crook's Estate, Myr. Prob. (Cal.) 247. . ! 281, 348 Croom V. Ocala P. & E. Co., 62 Fla. 460, 57 South. 243 369 Cropley v. Cooper, 7 D. C. 226 398, 402, 556 Cropley v. Cooper, 19 Wall. 167, 22 L. Ed. 109 416 Crosby v. Mason, 32 Conn. 482 284 Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219 109, 286, 308, 405, 482 CASES CITED 591 Cross V. Benson, 68 Kan. 496, 75 Pac. 558, 64 L. E. A. 560 ^^^^ ^ „ 45, 389, 390 Cross V. Hoch, 149 Mo. 325, 50 S. W. 786 292, 296, 804, 306, 407, 415, 467 Cross V. Robinson, 21 Conn. 384 392 Cross' Estate, 163 Cal. 778, 127 Pac. 70 '.30, 88, 299, 422 Crossan v. Crossan, 169 Mo. 634, 70 S. W. 136 '. 136 Crossett Lbr. Co. v. Files, 104 Ark. 600, 149 S. W. 908.'. ... .23, 39, 40 Crossley v. LesUe, 130 Ga. 782, 61 S. E. 851, 14 Ann. Cas. 703. . . 283 392 398 Crosson v. Dwyer, 9 Tex. Civ. App. 482, 80 S. W. 929 '.....' 286, 305, 314, 383 Crow V. Blakey's Ex'r, 31 Ala. 728 174 Crow V. Powers, 19 Ark. 424 152, 540 Crowley v. Crowley, 131 Mo. App. 178, 110 S. W. 1100 .' 459 Crowson v. Crowson, 172 Mo. 700, 72 S. W. 1065 61, 121, 124, 172, 230, 283, 258, 256, 267, 276 Crozier, In re, 74 Cal. 180, 15 Pac. 618 230 Crozier's Estate, 65 Cal. 332, 4 Pac. 412 216 Cruit V. Owen, 21 App. D. C. 878 50, 58, 199 Cruit V. Owen, 25 App. D. C. 514 297, 298, 818, 899 Cruit V. Owen, 208 TJ. S. 368, 27 Slip. Ct. 71, 51 L. Ed. 227 809 Cram V. Crum, 231 Mo. 626, 182 S. W. 1070 115, 241 Crumley v. Scales, 135 Ga. 800, 69 S. E. 581 820 Grumpier v. Barfleld, 114 Ga. 570, 40 S. E. 808 366 Cubbage v. Franklin, 62 Mo. 364 366 Cudney v. Cudney, 68 N. Y. 148 257 Culberhouse v. Shirly, 42 Ark. 25 502 Culbertson v. Witbeck, 127 U. S. 326, 8 Sup. Ot. 1136, 82 L. Ed. 134 184 CuUum V. Col well, 85 Conn. 459, 88 Atl. 695 235, 253 Gumming v. Trustees, 64 Ga. 105 477 Gummings v. Cummings, 3 Ga. 460 45 Cummings v. Cummings, 51 Mo. 261 390 Cummins v. Cummins, 1 Marv. (Del.) 423 166 Cummins v. Eiordon, 84 Kan. 791, 115 Pac. 568 316 Cunningham, In re, 38 Minn. 169, 36 N. W. 269, 8 Am. St. Kep. 650 89 Cunningham v. Cunningham, 72 Conn. 258, 43 Atl. 1046 287, 551 Cunningham v. Mills, 103 Ga. 584, 30 S. E. 429 61 Cunningham's Estate, Myr. Prob. (Cal.) 214 205 Cunningham's Estate, 52 Cal. 465 271 Cunningham's Estate, 54 Cal. 556 208 Curdy v. Berton, 79 Cal. 421, 21 Pac. 858, 5 L. R. A. 189, 13 Am. St. Rep. 157 461 592 CASES CITED Curran v. Kuth, 4 Del. Ch. 27 500 Currell v. Villars (C. 0.) 72 Fed. 330 184 Current v. Current, 244 Mo. 429, 148 S. W. 860 142, 233 Currie v. Murphy, 35 Miss. 473 318 Curry's Estate, 39 Cal. 529 -304, 305 Curtis V. Smith, 6 Blatchf. 550, Fed. Cas. No. 3,505 182 Curtis V. Underwood, 101 Cal. 661, 36 Pac. 110 167, 382 Curtiss V. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179 70 Custis V. Potter's Adm'r, 1 Houst. (Del.) 382, 68 Am. Dec. 422. . 537 Cutler V. Zollinger, 117 Mo. 92, 22 S. W. 895 143 Cutter V. Hardy, 48 Cal. 568 369 D Dado V. Maguire, 71 Mo. App. 641 367, 393, 402 Dahlgren, In re, 30 App. D. C. 588 166 Dalby v. Maxfield, 244 111. 214, 91 N. E. 420, 135 Am. St. Rep. 312 27 Dale V. White, 33 Conn. 294 403 Dale's Appeal, 57 Conn. 127, 17 Atl. 757 235, 257, 278 Dalrymple's Estate, 67 Cal. 444, 7 Pac. 906 220, 234, 240 Daly, In re, 15 Cal. App. 329, 114 Pac. 787 241 Daly V. James, 8 Wheat. 495, 5 L. Ed. 670 306 Dameron v. Lanyon, 234 Mo. 627, 138 S. W. 1 297, 298, 401 Damon v. Damon, 8 Allen (Mass.) 192 357 Dandridge v. Washington, 2 Pet. 370, 7 L. Ed. 454. 287 Dangerfield v. Williams, 26 App. D. C. 508 331 Daniel v. Daniel, 102 Ga. 181 443 Daniel v. Duncan, 38 Ga. Sup. 29 403 Daniel v. Hill, 52 Ala. 430 17, 39, 111, 152, 162, 222, 263 Daniel v. Thomson, 14 B. Mon. (53 Ky.) 662 443 Daniel v. Veal, 32 Ga. 589 45 Daniel v. Whartenby, 17 Wall. 639, 21 L. Ed. 661 414 Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166 341 Danish v. Disbrow, 51 Tex. 285 339 Darby v. Mayer, 10 Wheat. 465, 6 L. Ed. 367 181 Darnell v. Barton, 75 Ga. 377 397 Darrell v. Brooke, 2 Hayw. & H. (D.. C.) 829, Fed. Cas. No. 18,- 287 88, 181, 140 Darsey v. Darsey, 181 Ga. 208, 62 S. E. 20 331 Darusemont v. Jones, 4 Lea (Tenn.) 251, 40 Am. Rep. 12 163 Daugberty v. Drawdy, 184 Ga. 650, 68 S. E. 472 503 Dausman v. Rankin, 189 Mo. 677, 88 S. W. 696, 107 Am. St. Rep. 391 265 Davidson v. Davidson, 2 Neb. (Unof.) 90, 96 N. W. 409 275 Davidson v. Dockery, 179 Mo. 687, 78 S. W. 624 331 Davie v. Wynn, 80 Ga. 673, 6 S. E. 183 348 CASES CITED 593 Davies v. Da vies, 55 Conn. 319, 11 Atl. 500 ^Ho D'Avignon's Will, 12 Colo. App. 489, 55 Pac. 9-36 126 171 Davis V. Albritton, 127 Ga. 517, 56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. Kep. 353 178 Davis V. Cranclall, 101 N. T. 311, 4 N. E. 721 ........]. 333 Davis V. Davis, 5 Mo. 189 384 Davis v. Davis, 34 Tex. 15 '.'..'.'..'.'..'.. 224 Davis V. Davis, 51 Tex. Civ. App. 491, 112 S. W. 948. !.!!.!!!. ! .' 543 Davis V. Kirksey, 14 Tex. Civ. App. 380, 37 S. W. 994 409 Davis V. Mason, 1 Pet. 503, 7 L. Ed. 239 181 Davis V. Rogers, 1 Houst. (Del.) 44 69, 171, 220, 221, 232, 239 Davis V. Rogers, 1 Houst. (Del.) 183 207, 242 Davis V. Sanders, 123 Ga. 177, 51 S. E. 298 349 Davis V. Segourney, 8 Mete. (Mass.) 487 97 Davis V. Semmes, 51 Ark. 48, 9 S. W. 434 65 Davis V. Smith, 4 Har. (Del.) 68 346 Davis V. Vincent, 1 Houst. (Del.) 416 424, 425 Davis V. Whitaker, 38 Ark. 435 351 Davis' Estate, 136 Cal. 590, 69 Pac. 412 167 Davis' Estate, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105 190, 193, 194, 199 Davis' Estate, 36 Iowa, 24 388 Davis' Will, In re, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771 30 Daviss, Ex parte, 2 Sim. (N. J.) 104 ' 441 Dawson v. Smith, 3 Houst. (Del.) 92 100 Dawson V. Smith's Will, 3 Houst. (Del.) 335 96, 178 Day, Ex parte, 1 Bradf. Sur. (N. Y.) 476 30 Day V. Floyd, 130 Mass. 488 163 Dealy v. Shepherd, 54 Tex. Civ. App. 80, 116 S. W. 638 509 Dean v. Jagoe, 46 Tex. Civ. App. 389, 103 S. W. 195 106 Dean v. Negley, 41 Pa. 312, 80 Am. Dec. 620 257 Dean v. OUver, 131 Ala. 637, 30 South. 865 28 Dean v. Swayne, 67 Kan. 241, 72 Pac. 780 208 De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95. . . 82 De Bardelaben v. Dickson, 166 Ala. 59, 51 South. 986 304, 306 De Bernal's Estate, 165 Cal. 223, 131 Pac. 375 332, 333, 516, 529, 531 Defoe V. Defoe, 144 Mo. 458, 46 S. W. 433. . .• 267 Delafield v. Parish, 25 N. Y. 27 117 Delaney v. City of Salina, 34 Kan. 532, 9 Pac. 271 115, 261, 344 Delaney's Estate, 49 Cal. 76 388, 468 De Laurencel v. De Boom, 48 Cal. 581 461 De Laurencel v. De Boom, 67 Cal. 362, 7 Pac. 758 349 BoEL. Wills — 38 594 CASES CITED De Laveaga's Estate, 119 Cal. 651, 51 Pac. 1074; s. c. 165 Cal. 607, 133 Pac. 307 88, 116, 119, 230, 238, 262, 299, 837 Del Campo v. Camarillo, 154 Cal. 647, 98 Pac. 1049 160 De Leon, In re, 102 Cal. 537, 36 Pac. 864. 285, 561 De Loney v. Hull, 128 Ga. 778, 58 S. E. 349 431 Demartinl v. AUegretti, 146 Cal. 214, 79 Pac. 871 48 Dempsey v. Taylor, 4 Tex. Civ. App. 126, 23 S. W. 220 327 Dengel v. Brown, 1 App. D. C. 423 438 Denise v. Denise, 37 N. J. Bq. 163 354 Denison's Appeal, 29 Conn. 402 233, 234 Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69 236 Dennis v. Weekes, 46 Ga. 514 238, 262 Dennis v. Weekes, 51 Ga. 24 228, 273, 276, 278 Denny v. Faulkner, 22 Kan. 89 511 Denslow v. Moore, 2 Day (Conn.) 12 255 Denson v. Beazley, 34 Tex. 191 116, 140 Denson v. Mitchell, 26 Ala. 360 411 Derickson v. Garden, 5 Del. Ch. 323 359 De Roux V. Girard's Ex'r, 112 Fed. 89, 50 C. C. A. 136 183 Deslonde v. Darrington's Heirs, 29 Ala. 92 169, 188, 190 Desribes v. Wilmer, 69 Ala. 25, 44 Am. Rep. 501 152 Deupree v. Deupree, 45 Ga. 415 64, 103, 227 Deutsch V. Bohlfing, 22 Colo. App. 543, 126 Pac. 1123 193, 386 De Vaughn v. De Vaughn, 3 App. D. C. 50 296, 306, 414 De Vaughn v. Hutchinson, 165 U. S. 566, 17 Sup. Ot. 461, 41 L. Ed. 827 294, 414 De Vaughn v. McLeroy, 82 Ga. 687, 10 S. B. 211.-. .395, 474, 555, 556 Deveney v. Burton, 110 Ga. 56, 35 S. E. 268 213 Devenish v. Baines, Finch, Ch. Prec. 3 461 Devlin V. Commonwealth, 101 Pa. 273, 47 Am. Rep. 710 163 De Vries, In re, 17 Cal. App. 184, 119 Pac. 109.. ..358, 395, 396, 397 Dewein v. Hooss, 237 Mo. 23, 139 S. W. 195 425 Dexter v. Evans, 63 Conn. 58, 27 Atl. 308, 38 Am. St Rep. 336. . 465 De Zbranikov v. Burnett, 10 Tex. Civ. App. 442, 81 S. W. 71. . 182, 511 Dickerman v. Ailing, 83 Conn. 342, 76 Atl. 362 313 Dickerson v. Dickerson, 211 Mo. 488, 110 S. W. 700 395, 397, 398 Dickerson's Appeal, 55 Conn. 230, 10 Atl. 194, 15 Atl. 99 325 Dickey v. Dickey, 94 Fed. 231, 36 C. C. A. 211 857, 587, 548 Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130 176 Dickey v. Vann, 81 Ala. 425, 8 South. 195 167, 185, 208 Dickinson v. Aldrich, 79 Neb. 198, 112 N. W. 293 83 Dickinson v. Hayes, 31 Conn. 417 193 Dickinson v. Holden, 184 Ga. 818, 68 S. E. 728 396 Dickinson v. Worthington (C. C.) 10 Fed. 860 371 Diez, Will of, In re, 50 N. Y. 88 80 CASES CITED 595 Page Dillard v. Ellington, 57 Ga. 567 336 Dillon's Estate, 149 Cal. 683, 87 Pac. 379 242 Dilworth v. Rice, 48 Mo. 124 190, 494 Dingley v. Dingley, 5 Mass. 535 .'399 Dingman v. Eomine, 141 Mo. 466, 42 S. W. 1087 265 Dismukes v. Parrott, 56 Ga. 513 48 District v. Jones, 38 App. D. C. 560 424 Dixon V. Dixon, 85 Kan. 379, 116 Pac. 886 409 Dixon V. Olmins, 1 Cox Ch. 414 462 Dobson V. Butler, 17 Mo. 87 390 Dodge V. Pond, 23 N. Y. 69 555 Dodge V. Sherwood, 176 Mo. 33, 75 S. W. 417 346 Dodge V. "Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103 555 Doe V. Oonsidine, 6 Wall. 458, 18 L. Ed. 869 395, 403, 471 Dc3 V. Pickett, 51 Ala. 584 184 Doe V. Eoe, 31 Ga. 593 183 Doe V. Watson, 8 How. 263, 12 L. Ed. 1072 359 Doe d. Ingram v. Girard, 1 Houst. (Del.) 276 347 Doe ex. dem Patton v. Dillon, 1 Mar. (Del.) 232, 40 Atl. 1106 297, 464 Doerner v. Doerner, 161 Mo. 399, 61 S. W. 801 399 Doherty v. Gilmore, 136 Mo. 414, 37 S. W. 1127 , 221, 240, 253, 259, 275 Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726, 17 L. R. A. 188, 34 Am. St. Rep. 258 237 Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695, 9 Ann. Oas. 795 135, 222, 236. Dolbeer's Estate, 153 Cal. 652, 96 Pac. 266, 15 Ann. Cas. 207 238, 257 Dole's Estate, 147 Cal. 188, 81 Pac. 534. .121, 123, 195, 222, 234, 240 Dombrowski, Estate of, 163 Cal. 290, 125 Pac. 233 55 Dominici's Estate, 7 Cal. TJnrep. 289, 87 Pac. 389 ; s. c. 151 Cal. 181, 90 Pac. 448 88. 214, 317 Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367 47 Donaldson v. Allen, 182 Mo. 634, 81 S. W. 1151 469 Donegan v. Wade, 70 Ala. 501 361 Donifelser v. Heyl, 7 Kan. App. 606, 52 Pac. 468 511 Donnellan, Estate of, 164 Cal. 14, 127 Pac. 166 281, 290, 316, 317, 321 Donoho's Estate, Myr. Prob. (Cal.) 140 75 Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998 316, 371 Donovan's Estate, 140 Cal. 390, 73 Pac. 1081 267, 269, 275 Donovan's Lessees v. Donovan, 4 Har. (Del.) 177 404 Dooling V. Hobbs, 5 Har. (Del.) 405 443 Doolittle's Estate, 153 Cal. 29, 94 Pac. 240........... 244 Dougherty v. Dougherty, 204 Mo. 228, 102 S. W. 1099 425 596 CASES CITED Page Dougherty v. Holscheiaer, 40 Tex. Civ. App. 31, 88 S. W. 1113 74, 89, 356 Dougherty's Estate, 139 Cal. 10, 72 Pac. 358 121 Doughten v. Vandever, 5 Del. Ch. 51 317, 480, 488 Douglass V. Douglass, 13 App. D. O. 21 351 Douglass V. Sharpe, 52 Ark. 113, 12 S. W. 202 408 Douglass' Estate, 94 Neb. 280, 143 N. W. 299 478 Dowd V. Tucker, 41 -Conn. 203 461 Dowell V. Tucker, 46 Ark. 438 209 Downle v. Downie (C. O.) 4 Fed. 55 412 Doyal V. Smith, 28 Ga. 262 313, 365 Doyal V. Smith, 31 Ga. 198 316 Doyle, In re, 73 Cal. 564, 15 Pac. 125 168 Doyle V. Doyle, 50 Ohio, 330, 34 N. E. 1G6 378 Dozier v. Toalson, 180 Mo. 546, 79 S. W. 420, 103 Am. St. Rep. 586 45 Drake v. Crane, 127 Mo. 85, 29 S. W. 990, 27 L. R. A. 653. .304, 45S Drake v. Curtis, 88 Mo. 646 184 Drake's Appeal, 45 Conn. 17 270 Drane v. Beall, 21 Ga. 21 175, 374 Drane v. Gunter, 19 Ala. 731 405 Drennen v. Heard (D. C.) 198 Fed. 414 360, 474 Drew V. Drew, 66 Ala. 455 359 Drinkhouse v. Merritt, 134 Cal. 580, 66 Pac. 785 30 Driscoll V. Driscoll, 143 Cal. 528, 77 Pac. 471 45 Druid Park Heights Co. v. Oettinger, 53 Md. 46 491 Dryer v. Crawford, 90 Ala. 131, 7 South. 445 346, 411 Duckworth v. Ocean S. S. Co., 98 Ga. 193, 26 S. E. 736 456 Duckworth's Ex'r v. Butler, 31 Ala. 164 350 Dudgeon v. Dudgeon, 87 Mo. 218 371 Dudley v. Davenport, 85 Mo. 462 381 Dudley v. Mallery, 4 Ga. 52 46 Duffel V. Burton, 4 Har. (Del.) 290 325 Duffie V. Corridon, 40 Ga. 122 61 DuflBeld V. Morris' Ex'r, 2 Har. (Del.) 375 116, 127, 131, 135, 172, 222, 258 Duffield V. Pike, 71 Conn. 521, 42 Atl. 641 423, 548, 556 Dugans V. Livingston, 15 Mo. 230 292, 307, 326 Dugdall, In re, 38 Ch. D. 176 366 Duke of Norfolk's Case, 3 Chan. Cases 1 Pollex, 223 436 Dulin V. Moore, 96 Tex. 135, 70 S. W. 742 299, 366, 453 Dumey v. Sasse, 24 Mo. 177 365 Dumey v. Schoeffler, 24 Mo. 170, 69 Am. Dec. 422 364 Duncan v. Stewart, 25 Ala. 408, 60 Am. Dec. 527 163 Dunephant v. Dickson, 153 Mo. App. 309, 133 S. W. 165 369 CASES CITED 597 Page Dunham v. AverUl, 45 Conn. 61, 29 Am. Rep. 642 107, 249, 320, 343, 482 Dunham's Appeal, 27 Conn. 192 113, 140, 142 Dunihue v. Hurd, 50 Tex. Civ. App. 360, 109 S. W. 1145 350 Dunlap V. Robinson, 28 Ala. 100 222, 250, 254, 270 Dunn V. Bank of Mobile, 2 Ala. 152 46 Dunn r. Bryan, 38 Ga. 154 346 Dunn V. German American Bank, 109 Mo. 90, 18 S. W. 1139.. 33, 34 Dunn V. Schell, 122 Cal. 626, 55 Pae. 595 392 Dunne v. Dunne, 66 Cal. 157, 4 Pac. 441, 1152 371, 376 Dunphy's Estate, 147~Cal. 95, 81 Pac. 315 301, 387 Dunsmuir v. Coffey, 148 Cal. 137, 82 Pac. 682 193, 195 Dunsmuir v. Hopper, 149 Cal. 67, 84 Pac. 657 193, 205 Dupon V. Walden, 84 Ga. 690, 11 S. E. 451 410 Durand v. Higgins, 67 Kan. 110, 72 Pac. 567 45 Durant v. Durant, 89 Kan. 347, 131 Pac. 613 209 Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566 325 Durham v. Harris, 134 Ga. 134, 67 S. E. 668 283 Durr V. Wilson, 116 Ala. 125, 22 South. 536 423 Dusenberry v. Abboti; 1 Neb. (Unof.) 101, 95 N. W. 466 184 Duty, In re, 27 Mo. 43 208 Duvale v. Duvale, 54 N. J. Eq. 581, 35 Atl. 750 ; s. c, 56 N. J. Eq. 375, 39 Atl. 687, 40 Atl. 440 28 Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75 509, 559 Dwyer's Estate, 159 Cal. 664, 115 Pac. 235 325 Dye V. Dye, 108 Ga. 741, 33 S. E. 848 47 Dye V. Meece, 16 N. M. 297, 120 Pac. 306 208, 212 Dyer t. Carr, 18 Mo. 246 280 Dyer v. Smith, 62 Mo. App. 606 384 E Eans V. Eans, 79 Mo. 53 517 Earl of Sefton v. Hopwood, 1 Fost. & Fin. 578 255 Earnshaw v. Daly, 1 App. D. C. 218 296, 403 EasterUn v. Easterlin, 62 Fla. 468, 56 South. 688, Ann. Cas. 1913D, 1316 ^02 Eastis V. Montgomery, 93 Ala. 293, 9 South. 311 260, 268 Eastis V. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227 207, 222, 271, 275 Eaton V.Benton, 2 Hill (N. T.) 576 533 Eaton V. Brown, 20 App. D. C. 453 356 Eaton V. Brown, 193 U. S. 411, 24 Sup. Ct. 487, 48 L. Ed. 730.. 356 Eddie v. Parke, 31 Mo. 513 209 Eddy V. Eddy, 168 Fed. 590, 93 C. C. A. 586 387, 493, 546 598 CASES CITED Page Edelman's Estate, 148 Cal. 233, 82 Pac. 962, 113 Am. St. Rep. 231 168, 183, 210, 212, 215 Edenfield v. Edenfield, 131 6a. 571, 62 S. E. 980 390 Edgar v. Emerson, 235 Mo. 552, 139 S. W. 122 450 Edgerly v. Barker, 66 N. H. 434, 81 Atl. 900, 28 L. R. A. 328. . . 298 Edmondson v. Blooms&ire, 11 Wall. 382, 20 L. Ed. 44 313 Edson V. Bartow, 154 N. Y. 218, 48 N. E. 541 461 Edson V. Parsons, 85 Hun, 268, 32 N. Y. Supp. 1036; s. c, 155 N. Y. 555, 50 N. E. 265 31 Edwards v. Bender, 121 Ala. 77, 25 South. 1010 305, 306, 422 Edwards v. Bibb, 48 Ala. 666 '.301, 807 Edwards v. Worley, 70 Ga. 667 404 Edwards' Estate, 154 Cal. 91, 97 Pac. 23 169 Egger V. Egger, 225 Mo. 116, 123 S. W. 928, 185 Am. St. Rep. 566 382, 887 Khle, In re (D. C.) 109 Fed. 625 397 Eicbboff, In re, 101 Cal. 605, 36 Pac. 11 195 Elam V. Parkhill, 60 Tex. 581 410 Elder V. Ogletree, 86 Ga. 64 314 Eliot's Appeal, 74 Conn. 586, 51 Atl. 558 281, 480 Ellington V. DlUard, 42 Ga. 361 79 Elliott V. Brent, 17 D. C. 98 67 Elliott V. Elliott, 3 Neb. (Unof.) 832, 92 N. W. 1006 56, 237, 273 Elliott V. Mayfleld, 3 Ala. 223 542 Elliott V. Welby, 18 Mo. App. 19. .20, 55, 60, 69, 138, 215, 226, 254, 265 Elliott V. Wilson, 27 Mo. App. 218 154 Elliott's Estate, 98 Mo. 379, 11 S. W. 739; s. c, 27 Mo. App. 218 554 Ellis V. Birkhead, 80 Tex. Civ. App. 529, 71 S. W. 31. 472 Ellis V. Crawson, 147 Ala. 294, 41 South. 942 216 Ellis V. Darden, 86 Ga. 368, 12 S. E. 652, 11 L. R. A. 51 104 Ellis V. Davis, 109 U. S. 485, 3 Sup. Ct. 827, 27 L. Ed. 1006. . .201, 203 Ellis V. Ellis, 119 Mo. App. 68, 96 S. W. 260 379 Ellis V. Ellis' Adm'r, 15 Ala. 296, 50 Am. Dec. 182 466 Elmore v. Mustin, 28 Ala. 309 47 El well V. Universalist G. C, 76 Tex. 521, 13 S. W. 552. . .171, 174, 175 Elyton Land Co. v. McElrath, 58 Fed. 768, 3 C. C. A. 649 447 Emerson v. Scott, 39 Tex. Civ. App. 65, 87 S. W. 369 287 Emmons v. Garnett, 18 D. C. 52 Ill, 175, 221, 280, 289 Emmons v. Gordon, 140 Mo. 490, 41 S. W. 998, 62 Am. St. Rep. 784 181, 424, 510, 511 Eneberg v. Carter, 98 Mo. 647, 12 S. W. 522, 14 Am. St. Rep. 664 424 Engle's Estate, 124 Cal. 292, 56 Pac. 1022 211 Engleman v. Deal, 14 Tex. Civ. App. 1, 87 S. W. 652 118 English V. McCreary, 157 Ala. 487, 48 South. 113 438 Ennis v. Smith, 14 How. 400, 14 L. Ed. 472 86, 162, 535 CASES CITED 599 ^"st Re?S ^^^ ^^^' ^^' ^^ ^^'- ^^°' ^^ ^- ^- ^- 221. 82 Am.'"'"' Ensworth v. Curd, 68 Mo. 282. 492 Epperson V. Reeves, 35 Tex. Civ. App. 167, 79 's.W. 845.' .'.'.'.SOe, 509 Epps V. Dean, 28 Ga. 533 106 ^'^*'^i,*^^iL^"^''*°*^® "^ ^^"^t Co- "^^ Rogers,"? Dei.'ch.'398, 44 Atl. 789 g^g Equitable L. & T. Co. v. Lewman, 124 Ga. 190, 52 S. E. 599 3 L. R. A. (N. S.) 879 ' 153 Ernst V. Foster, 58 Kan. 438, 49 Pac. 527 315 Erwin v. Hammer, 27 Ala. 296 156 Erwin v. Henry, 5 Mo. 469 .' ' 298 326 353 Erwin V. Smith, 95 Ga. 699, 22 S. E. 712 .......'....'. 313 Eskridge v. Patterson, 78 Tex. 417, 14 S. W. 1000 509 Estes, In re, 65 Mo. App. 38 ! . 501 Estes V. Bridgefortli, 114 Ala. 221, 21 Soutli. 512 272 Etclieborne v. Auzerais, 45 Cal. 121 376, 382 Ethridge v, Bennett, 9 Houst. (Del.) 295, 31 Atl. 813 '. . .' 116, 222, 228, 255 Evans V. Anderson, 15 Ohio St. 324 23 Evans v. Arnold, 52 Ga. 169 144, 207, 210, 219, 226 Evans V. Folks, 135 Mo. 397, 37 S. W. 126 411 Evans V. Opperman, 76 Tex. 293, 13 S. W. 312 25, 341 Evans V. Smith, 28 Ga. 98, 73 Am. Dee. 751 30 Evans' Appeal, 51 Conn. 435 378, 386, 404, 408 Everett v. Mount, 22 Ga. 323 402 Everhart v. Everhart (C. C.) 34 Fed. 82 : 203 Everson v. Hum, 89 Neb. 716, 131 N. W. 1130 26 Everts v. Chittendon, 2 Day (Conn.) 350, 2 Am. Dec. 97 297 Everts' Estate, 163 Cal. 449, 125 Pac. 1058 241, 261, 277, 462 Evins V. Cawthon, 132 Ala. 184, 31 South. 441 '. 285, 366 Ewart V. Peniston, 233 Mo. 695, 136 S. W. 422 241 Ewing V. Mallison, 65 Kan. 484, 70 Pac. 369, 93 Am. St. Rep. 299 162, 494 Evring V. Nesbitt, 88 Kan. 709, 129 Pac. 1131 439 Ezell V. Head, 99 Ga. 560, 27 S. E. 720 552 F Fair's Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Rep. 70 302, 327, 471 Fairfield v. Dawson, 50 Conn. 501, 47 Am. Rep. 669 484 Falligant v. Barrow, 133 Ga. 87, 65 S. E. 149 382 Fallon V. Chidester, 46 Iowa, 588, 26 Am. Kep. 164. , 103, 176 rancher v. Fancher, 156 Cal. 13, 103 Pac. 206, 23 L. R. A. (N. S.) 944, 19 Ann. Cas. 1157 505 600 CASES CITED Page Fanning v. Main, 7T Conn. 94, 58 Atl. 472 303, 406 Farish v. Cook, 78 Mo. 213, 47 Am. Rep. 107 311, 328 Fai-isU V. Cook, 6 Mo. App. 328 311, 328 Farley v. Welcli, 237 Mo. 128, 140 S. W. 875 543 Farmer v. Farmer, 129 Mo. 538, 31 S. W. 926 121, 143, 233, 259 Farmer v. Spell, 11 Rich. Eq. 547 555 Farmington Sav. Bank v. Curran, 72 Conn. 342, 44 Atl. 473 375 Farnam v. Farnam, .53 Conn. 287, 2 Atl. 325, 5 Atl. 682 303, 337, 348, 394 Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70 291, 301, 308, 310, 339, 421 Farr v. Thompson, Cheves (S. C.) 37 255 Farrell v. Brennan, 32 Mo. 333, 82 Am. Dec. 137 219, 229 Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct. 727, 50 U Ed. 101. .. . 167, 201 Farris v. Burchard, 242 Mo. 1, 145 S. W. 825 152 Fauber v. Keim, 85 Neb. 217, 122 N. W. 849 298, 550, 551 Faul V. Hulick, 18 App. D. 0. 9 322 Faulk V. Dashiele, 62 Tex. 642, 50 Am. Rep. 542 509 Fay V. Howe, 136 Cal. 599, 69 Pac. 423 480 Fay's Estate, 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17 73, 75, 211 Fellers v. Fellers, 54 Neb. 694, 74 N. W. 1077 387 Felton V. Hill, 41 Ga. 554 303, 327 Fenderson v. Missouri T. & T. Co., 104 Mo. App. 290, 78 S. W. 819 184 Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038, 18 Ann. Cas. 471. . 302, 389 Fennell v. Fennell, 81 Kan. 642, 106 Pac. 1038 388 Fergus v. Schioble, 91 Neb. 180, 135 N. W. 448 385 Ferguson v. Ferguson, 27 Tex. 339 50 Ferguson v. Gentry, 206 Mo. 189, 104 S. W. 104 16, 384 Ferrell v. Gill, 130 Ga. 534, 61 S. E. 131, 14 Ann. Gas. 471 18, 111 Ferris v. Higley, 20 Wall. 375, 22 L. Ed. 383 494 Ferris v. Neville, 127 Mich. 444, 86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Eep. 480 64 Ferris v. Van Ingen, 110 Ga. 102, 35 S. E. 347 .558, 559 Ferry v. Langley, 12 D. C. 140 318, 348 Festorazzi v. St. Joseph's Church, 104 Ala. 327, 18 South. 394, 25 L. E. A. 360, 53 Am. St. Rep. 48 345 Field V. Camp (O. C.) 193 Fed. 160 215, 254, 502 Field's Appeal, 36 Conn. 279 170 Fields V. Carlton, 75 Ga. 554 107 Finch V. Finch, 14 G a. 362 210, 211, 214, 491 Findley v. Hill, 133 Ala. 232, 32 South. 497 306 Finlay v. King, 3 Pet. 346, 7 L. Ed. 701 296, 358 CASES CITED 601 First Baptist Church v. Robberson, 71 Mo. 327 285 485 523 First Cong. Soc. v. Atwater, 23 Conn. 34 '.'.'.". ...'....' 343 First Nat Bank v. De Pauw, 86 Fed. 722, 30 0. C A 360- s c (C. O.) 75 Fed. 775 ;. .'.....'..'. .." 440 Fischbecli v. Gross, 112 111. 208 462 Fischer v. Giddings, 43 Tex. Civ. App. 393, 95 S. W. Ss! ......... 193 Fiscus V. Wilson, 74 Neb. 444, 104 N. W. 856 46 Fish V. Poorman, 85 Kan. 237, 116 Pae. 898 228,' 235,' '236, 265 Fisher v. Clopton, 110 5Io. App. 663, 85 S. W. 623 212 Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004 285, 299, 308, 358 Fisher v. Keithley, 142 Mo. 244 35O Fiske V. Cobb, 6 Gray (Jlass.) 144 US Fitch V. Brainerd, 2 Day (Conn.) 163 112 Fitch V. Miller, 20 Cal. 352 [403 Fitchie v. Brown, 211 U. S. 321, 29 Sup. Ct. 106, 53 L. Ed. 202, s. c, 18 Hawaii, 52 301, 476 Fitzgerald v. Wynne, 1 App. D. C. 107 152, 178 Fitzgerald's Estate, 161 Cal. 319, 119 Pac. 96, 49 L. R. A. (N. S.) 615 364, 562 Fitzhugh V. Hubbard, 41 Ark. 64 375 Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371 316 Fleming v. Hughes, 99 Ga. 444, 27 S. E. 791 474 Fleming's Estate, 217 Pa. 610, 66 Atl. 874, 11 L. R. A. (N. S.) 379, 118 Am. St. Rep. 900, 10 Ann. Cas. 826 386 Fletcher v. Am. Tr. & B. Co., Ill Ga. 300, 36 S. E. 767, 78 Am. St Rep. 164 503 Fletcher v. Wormington, 24 Kan. 259 497 Fliekrnger v. Saum, 40 Ohio St 591 446 Flinn v. Davis, 18 Ala. 132 300, 447 Flinn v. Flinn, 4 Del. Ch. 44 538 Flinn v. Frank, 8 Del. Ch. 186, 68 Atl. 196 18, 504 Flint, In re, 100 Cal. 391, 34 Pac. 863 50, 231, 237, 268, 271, 274 Flora V. Anderson (C. C.) 67 Fed. 182 307 Florey's Ex'rs v. Florey, 24 Ala. 241 140, 229, 251, 260 Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242 210, 232 Floyd V. Smith, 59 Fla. 485, 51 South. 537, 37 L. R. A. (N. S.) 651, 138 Am. St. Rep. 133, 21 Ann. Cas. 318 466 Focha V. Estate of Focha, 8 Cal. App. 576, 97 Pac. 321 205 Fogle V. St Michael Church, 48 S. C. 86, 26 S. E. 99 28 Foley V. Burnell, 1 Brown Ch. 279 430 Follansbee v. FoUansbee, 7 App. D. C. 282 349 Foote V. Foots, 61 Mich. 181, 28 N. W. 90 497, 538 Footev. Sanders, 72 Mo. 616 411, 446 Ford V. Cook, 73 Ga. 215 306, 408,474 Ford V. Fleming, 1 Eq. Cas. Abr. 302 333 Fordv. Gill, 109 Ga. 691, 35 S. E. 156 407 602 CASES CITED Page Ford V. Thomas, 111 Ga. 493, 36 S. E. 841 483 Ford's Appeal, 2 Root (Conn.) 232 70 Forest Oil Co. v. Crawford, 77 Fed. 106, 23 0. C. A. 55 305, 407 Forester v. Watford, 67 Ga. 508 382 Forley v. Gilmer, 12 Ala. 141, 46 Am. Dec. 249 427 Forrister v. Sullivan, 231 Mo. 345, 132 S. W. 722 28 Fortescue v. Humal, 19 Ves. 67 30 Forth V. Chapman, 1 P. Wm. 663 436 Fortner v. Wiggins, 121 Ga. 26, 48 S. E. 694 196, 213 Fortune v. Buck, 23 Conn. 1 68, 166, 193 Foscue V. Lyon, 55 Ala. 440 313, 333 Foster v. Hardee, 135 Ga. 591, 69 S. E. 1110 287 Foster v. Holland, 56 Ala. 474 394 Foster's Case, 91 Ala. 613, 8 South. 349 210 Foullie y. Zimmerman, 14 Wall. 113, 20 L'. Ed. 785 195 Fountain v. Brown, 38 Ala. 72 229 Fouvergne v. New Orleans, 18 How. 470, 15 L. Ed. 399 201 Fowler V. Fowler, 3 P. Wms. 353 533 Fowler v. Stagner, 55 Tex. 393 53, 67 Fowler v. Young, 19 Kan. 150 216 Fox V. Van Norman, 11 Kan. 214 498 Foxall V. McKenney, 3 Cranch (C. C.) 206, Fed. Cas. No. 5016. .. 298 Francis v. Holbrook, 68 Ga. 829 243 Fl-ancis' Estate, 94 Neb. 742, 144 N. W. 789 177 Francisco v. Wingfield, 161 Mo. 542, 61 S. W. 842 : . .500, 564 Frank v. Frank, 88 Ark. 1, 113 S. W. 640, 19 L. E. A. (N. S.) 176, 129 Am. St Rep. 73 286 Franklin v. Belt, 130 Ga. 37, 60 S. E. 146 226, 249, 254 Franklin v. Boone, 39 Tex. Civ. App. 597, 88 S. W. 262 215, 220, 230, 258, 481 Franks v. Chapman, 60 Tex. 46 155 Franks v. Chapman, 61 Tex. 576 208 Franks v. Chapman, 64 Tex. 159 65 Franks v. Jones, 39 Kan. 236, 17 Pac. 663 224 Frantz v. Porter, 132 Cal. 49, 64 Pac. 92 258 Eraser v. Dillon, 78 Ga. 474, 3 S. E. 695 320, 323, 350 Eraser v. Hayes (Tenn. Ch. App.) 46 S. W. 475 340 Frazier v. Boggs, 37 Fla. 307, 20 South. 245 39 Frazier v. Patterson, 243 111. 80, 90 N. E. 216, 27 L. R. ^. (N. S.) 508, 17 Ann. Cas. 1003 30, 31 Frederick's Estate, 83 Neb. 318, 119 N. W. 667, 120 N. W. 1131. . . . 116 Freeman v. Bristol Sav. Bank, 76 Conn. 212, 56 Atl. 527 425 Freeman v. Brown, 115 Ga. 23, 41 S. E. 385 470 Freeman v. Hamilton, 74 Ga. 317 220 Freeman v. Jones, 43 Tex. Civ. App. 332, 94 S. W. 1072 46 Freeman v. Layton, 41 Ga. 58 103 CASES CITED 603 Freeman v. Phillips, 113 Ga. 589, 38 S. E 943 ''4'fl Fremont E. & M. V. R. Co. v. Setright, 34 S ossVsi n! w;833 French v.,Frazier, 7 J. J. Marsh. (Ky.) 425 "^' ]lo French y. French, 14 W. Va. 458.. H^ French v. Mastin, 19 Mo. App. 614 ". V«V ^71 Freud's Estate, 73 Cal. 555, 15 Pac. 135. ' 049 Frey v. Thompson, 66 Ala. 287 Vw '^qr Fridenburg v. Wilson, 20 Fla. 359 . toh Ss Friend's Estate, 209 Pa. 442, 58 Atl. 853, eSL^ R.' a' 447 361 Fnerson v. Beall, 7 Ga. 438 'Jf.% Frinlestown v. Dalton, 1 Dow. & Clark, 85. .'. oro Frisby v. Withers, 61 Tex. 134 f^O Fritsehe v. Ftitsche, 75 Conn. 285, 53 Atl. 585 SIM Frosch V. Monday, 34 App. D. C. 338 45 29fi Frosch V. Walter, 228 U. S. 109, 33 Sup. Ct. 494, 57 L.' Ed.' 750 ' 306 Frost V. McCaulley, 7 Del. Ch. 162, 44 Atl. 779 402 473 Fryer v. Morris, 9 Ves. 360 ' '333 Fuchs V. Fuchs, 48 Mo. App. 18 27 Fuentes v. McDonald, 85 Tex. 132, 20 S. W. is. ........... . 165 Fugate V. Allen, 119 Mo. App. 183, 95 S. W. 980. ..!."!! .' 24 ' Fulbright V. Perry Co., 145 Mo. 432, 46 S. W. 955. . .121^ 140 '290 344 Fulcher v. Royal, 55 Ga. 68 .' ' 45 Fulghum V. Strickland, 123 Ga. 258, 51 S. E. 294 305, 349 Fuller V. Brakefield, 84 Ga. 459, 10 S. E. 1086 .....' 244 Fuller's Will, In re, 79 111. 99, 22 Am. Eep. 164 ! . 105 Fulton V. Freeland, 219 Mo. 494, 118 S. W. 12, 134 Am. St. Rep. ^'^^ 141, 267, 268, 270 Furlong v. Carraher, 108 Iowa, 492, 79 N. W. 277 264 Furr V. Burns, 124 Ga. 742, 53 S. B. 201 349 Fusilier's Estate, Myr. Prob. (Cal.) 40 58 G Gaboury v. McGovern, 74 Ga. 133 442 Gage V. Gage, 12 N. H. 371 44 Gaines v. Carriker, 50 Mo. 564 292 Gaines v. Fender, 57 Mo. 346 298, 309, 326 Gaines v. Fender, 82 Mo. 497 184 Gaines v. Fuentes, 92 U. S. 22, 23 L. Ed. 524 203 Gaines v. Gaines, 116 Ga. 476, 42 S. E. 763 283 Gaines y. Hennen, 24 How. 553, 16 L. Ed. 770 176, 211 Gaines v. Lizardi (S. C.) 154 U. S. 555, 14 Sup. Ct. 1201, 18 L. Ed. 967 86 Gaines y. New Orleans, 6 Wall. 642, 18 L. Ed. 950 86 Gains v. Chew, 2 How. 619, 11 L. Ed. 402 151, 201, 250 604 CASES CITED Gairdner v. Tate, 110 Ga. 456, 35 S. E. 697 243, 393 Gaither v. Gaither, 20 Ga. 709 59, 272 Gallagher v. Redmond, 64 Tex. 622 547 Gallon V. Haas, 67 Kan. 225, 72 Pac. 770 207, 224, 383 Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782 287, 328, 352, 353, 405 Galloway v. Devaney, 21 Ark. 526 47 Galloway v. Galloway, 32 App. D. C. 76 312, 326, 351 Gamble v. Butcheer, 87 Tex. 643, 30 S. W. 861 69 Gamble v. Gibson, 59 Mo. 585 526 Gannard v. Eslava, 20 Ala. 732 112 Gannon v. Albright, 183 Mo. 238, 81 S. W. 1162, 67 L. R. A. 97, 105 Am. St. Rep. 471 418 Gannon v. Pauk, 200 Mo. 87, 98 S. W. 471 366, 406, 443 Gant V. Henly, 64 Mo. 162 380 Garcelon's Estate, 104 Cal. 570, 38 Pac. 414, 32 L. R. A. 595, 43 Am. St. Rep. 134 214, 362 Gardner, In re (D. C.) 106 Fed. 670 397 Gardner v. Gautt, 19 Ala. 666 497 Gardner v. Gardner, 22 Wend. (N. Y.) 526, 34 Am. Dec. 340 127 ■ Gardner v. Gardner, 177 Pa. 218, 35 Atl. 558 97 Gardner v. Lamback, 47 Ga. 133 140, 226 Garesche v. Levering Inv. Co., 146 Mo. 436, 48 S. W. 653, 46 L. R. A. 232 425 Garland v. Smith, 127 Mo. 583, 28 S. W. 196, 29 S. W. 836. . . .160, 217 Garrand's Estate, 35 Cal. 336 24, 221 Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St. Rep. 89 65, 115, 263 Garrett v. Wheeless, 69 Ga. 466 175, 318 Garrison v. Blanton, 48 Tex. 299 116, 228, 229 Garrity's Estate, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485 429, 432, 493, 517 Garth v. Garth, 139 Mo. 456, 41 S. W. 238 296, 297, 300, 307, 315 Garvin v. Williams, 44 Mo. 465, 100 Am. Dec. 314; s. c. 50 Mo. 206 265 Gass V. Gass, 3 Humph. (Tenn.) 278 146 Gaster v. Gaster's Estate, 90 Keb. 529, 134 N. W. 235 386 Gaster v. Gaster's Estate, 92 Neb. 6, 137 N. W. 900 378 Gaston v. Gaston, 83 Kan. 215, 109 Pac. 777 121 Gaston v. Hayden, 88 Mo. App. 683, 73 S. W. 938 467 Gates V. Seibert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625 305, 422 Gaunt V. Tucker's Ex'r, 18 Ala. 27 34, 389 Gause v. Hughes, 9 Port. (Ala.) 552 543 Gaven v. Allen, 100 Mo. 297, 13 S. W. 501 182, 365, 409 Gay V. Gay, 84 Ala. 38, 4 South. 42 103 CASES CITED 605 ^ « ^ Page Gay V. Gay, 108 Ala. 739, 32 S. E. 846 45 Gay V. Gillilan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Kep. 712. . . .255, 259 Gay V. Sanders, 101 Ga. 601, 28 S. E. 1019 196, 214 Gayle v. Johnston, 80 Ala. 395 166 Geery v. Skelding, 62 Conn. 501, 27 Atl. 77 322, 350 Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834 18 Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713, 93 Pac. 339 461 Gemmell v. Wilson, 40 Kan. 764, 20 Pac. 458 41, 181 George v. Goldsby, 23 Ala. 326 540 George v. McMullln, 3 Del. Ch. 269 537, 562 Georgia C. & N. Ry. v. Archer, 87 Ga. 237, 13 S. E. 636 320 Georgia Infirmary v. Jones (C. C.) 37 Fed. 750 333, 334 Gerard v. Ives, 78 Conn. 485, 62 Atl. C07 306, 419, 561 German v. German, 7 Cold. (Tenn.) ISO 533 Getchell v. Rust, 8 Del. Ch. 284, 68 Atl. 404 549, 550, 551 Gharky's Estate, 57 Cal. 274 126, 171, 216 Gibbins v. Shepard, 125 Mass. 543 407 Gibbon v. Gibbon, 40 Ga. 562 307, 325, 379 Gibbons v. McDermott, 19 Fla. 853 104 Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 1057, 34 L. Ed. 525. . 470 Gibony v. Foster, 230 Mo. 106, 130 S. W. 314 116, 121, 123, 240, 253, 254, 256 Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648. . .381, 424 Gibson, In re, 75 Cal. 329, 17 Pac. 438 317 Gibson v. Gibson, 24 Mo. 227 231 Gibson v. Gibson, 239 Mo. 490, 144 S. W. 770 412, 450 Gibson v. Hardaway, 68 Ga. 370 443 Gibson v. Land, 27 Ala. 117 403, 541 Gibson v. Maxwell, 85 Ga. 235, 11 S. E. 615 473, 502 Giddings v. Giddings, 65 Conn. 149, 32 Atl. 334, 48 Am. St. Rep. 192 107, 336 Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831 317, 405, 480, 484 Giffen V. Taylor, 139 Ind. 573, 37 N. E. 392 461 Gifford V. Choate, 100 Mass. 346 407 Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268 233, 271 Gilbreath v. Winter, 10 Ohio, 64 333 Gilder v. Gilder, 1 Del. Ch. 331 549 Giles V. Little, 104 U. S. 291, 26 L. Ed. 745 365 Gillaume v. Adderley, 15 Ves. 384 o\V o!o Gillespie v. Shuman, 62 Ga. 252 313, 348 Gillham v. Mustin, 42 Ala. 365 46, 48 Gillis V. Gillis, 96 Ga. 1, 23 S. E. 107, 30 L. R. A. 143, 51 Am. St. Rep. 121 „65, 171 Gilmer v. Gilmer, 42 Ala. 9 ^^o- ^o" Gilmer v. Stone, 120 V. S. 586, 7 Sup. Ct. 689, 30 L. Ed. 734. .. . 316 606 CASES CITED Page Gilmore's Estate, 81 Cal. 240, 22 Pae. 655 231, 376, 381, 384 Gilpatrick v. Glidden, gl Me. 137, 16 Atl. 464, 2 L. E. A. 662, 10 Am. St. Rep. 245 461, 462 Gilroy V. Eichards, 26 Tex. Civ. App. 355, 63 S. W. 664. .355, 380, 386 Gingell v. Home, 9 Simon, 539 157, 158 Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 253, 255, 256, 257, 258, 259, 263, 274 Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458 303, 310, 326 Givens v. Ott, 222 Mo. 395, 121 S. W. 23 45, 326 Glass V. Hulbert, 102 Mass. 24, 3 Am. Rep. 431 461 Glass V. Scott, 14 Colo. App. 377, 60 Pac. 186 92, 95 Glass' Estate, Myr. Prob. (Cal.) 213 465 Glass' Estate, 164 Cal. 765, 130 Pac. 868 343 Gleason's Estate, 164 Cal. 756, 130 Pac. 872 256, 269, 275, 276 Gleaton v. Lewis, 24 Ga. 209 , 498 Glore V. Scroggins, 124 Ga. 922, 53 S. E. 690 411 Gloucester, Matter of, 11 N. Y. Supp. 899 31 Glover v. Coit, 36 Tex. Civ. App. 104, 81 S. W. 136 194, 506 Glover v. Fillmore, 88 Kan. 545, 129 Pac. 144 47 Glover v. Patten, 165 U. S. 394, 17 Sup. Ct. 411, 41 L. Ed. 760 237, 500, 532 Glover v. Stillson, 56 Conn. 318, 15 Atl. 752 323, 346, 409, 411 Godfrey v. Smith, 73 Neb. 756, 103 N. W. 405, 10 Ann. Oas. 1128. . 78, 79 Godman v. Converse, 43 Neb. 463, 61 N. W. 756 ; s. c. ,38 Neb. 657, 57 N. W. 394 380, 381, 382 Godwin v. Godwin, 129 Ga. 67, 58 S. E. 652 161, 165 Go'etz's Estate, 13 Cal. App. 266, 109 Pac. 105 ; s. c. 13 Cal. App. 292, 109 Pac. 492 295, 304, 309, 310, 311, 322, 354 Gofie V. Davenport, 96 Ga. 423, 23 S. E. 395 45 Gold V. Judson, 21 Conn. 616 306, 320 Golding V. Golding's Adm'r, 24 Ala. 122 47 Goldsby v. Goldsby, 38 Ala. 404 413 Goldtree v. McAlister, 86 Cal. 93, 23 Pac. 207, 24 Pac. 801 185 Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50 422, 475 Goldtree v. Thompson, 83 Cal. 420, 23 Pac. 383 284, 288 Gomez v. Higgins, 130 Ala. 493, 30 South. 417 44, 47 Goode V. McPherson, 51 Mo. 126 477 Goodfellow V. Shannon, 197 Mo. 271, 94 S. W. 979 136 Goodloe V. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533 265, 277 Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 18 39, 151, 153, 187, 194, 195, 393 Goodnough v. Webber, 75 Kan. 209, 88 Pac. 879 554 Goodrich v. Ferris (C. C.) 145 Fed. 844 201, 561, 562 Goodrich v. Lambert, 10 Conn. 452 303, 307, 413 Goodrich v. Pearce, 83 Ga. 781, 10 S. E. 451 408 CASES CITED 607 /^ - Page Goodrich's Appeal, 57 Conn. 282, 18 Atl. 49 67, 482 Goodright v. Glazier, 4 Barr. (Eng.) 2512 100 Good Samaritan Hospital v. a?rust Co., 137 Mo. App. 179, 117 S. ^'- 637 167 Goods of Porter, In re, L. R. 2 P. & D. 22 857 Goodsell's Appeal, 55 Conn. 179, 10 Ati. 557 94, 103 Goodwin v. Cliafleee, 4 Conn. 163 550 Goodwin v. Goodwin, 59 Cal. 561 254, 258 Goodwin v. Goodwin, 33 Conn. 314 382, 549 Goodwin v. Goodwin, 69 Mo. 617 403 Gordon v. Burris, 141 Mo. 602, 43 S. W. 64^ ; s. c. 153 Mo. 223, 54 S. W. 546. .24, 115, 217, 221, 240, 251, 253, 257, 275, 276, 278, 343 Gordon v. Pendleton, 84 N. C. 98 307 Gorman v. McDonnell, 127 Ala. 549, 28 South. 964 550, 551 Gortario v. Cantu, 7 Tex. 35 446, 453 Goss V. Eberhart, 29 Ga. 545 .' 408 Gould V. Hayes, 19 Ala. 439 493 Gould's WUl, In re, 72 Vt. 816, 47 Atl. 1082 101 Goran v. Wiley, 15 App. D. C. 233 88 Grace v. Perry, 197 Mo. 550, 95 S. W. 875, 7 Ann. Cas. 948. .298, 409 Graham v. Allison, 24 Mo. App. 516 284, 285, 341 Graham v. De Yampert, 106 Ala. 279, 17 South. 355 807, 325, 335 Graham v. O'Fallon, 3 Mo. 507 177 Graham v. O'Fallon, 4 Mo. 601 68, 177 Graham v. Roseburgh, 47 Mo. Ill 374 Grand Lodge v. Bollman, 22 Tex. Civ. App. 106, 53 S. W. 829. . . 342 Granniss' Estate, 142 Cal. 1, 75 Pac. 324 326, 836, 406 Grant v. Bradstreet, 87 Me. 583, 33 Atl. 165 460 Grant v. Stimpson, 79 Conn. 617, 66 Atl. 166 382, 419 Grant's Estate, 93 Tex. 68, 53 S. W. 372 507 Grantham v. Gossett, 182 Mo. 651, 81 S. W. 895 29 Graves v. Northrop, 18 Conn. 338 309 Gray v. Corbit, 4 Del. Ch. 135 321, 471 Gray v. Corbit, 4 Del. Ch. 357 322 Gray v. Gray, 20 Ga. 804 428 Gray v. Xoholoa, 214 U. S. 108, 29 Sup. Ct. 571, 53 L. Ed. 931; s. c. 18 Hawaii, 265 49, 326 Gray v. Obear, 54 Ga. 231 ; s. c. 59 Ga. 675 478 Gray v. Parks, 94 Ark. 39, 125 S. W. 1023 24, 160 Gray's Estate, 159 Cal. 159, 112 Pac. 890 384 Gray's Estate, 88 Neb. 835, 130 N. W. 746, 33 L. R. A. (N. S.) 319, Ann. Cas. 1912B, 1037 V«« 007 Greathouse v. Jameson, 3 Colo. 397 106, ^ Green v. Anderson, 38 Ga. 655 469 Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547 405 Green v. Benton, 3 Tex. Civ. App. 92, 22 S. W. 256 183 608 CASES CITED Page Green v. Byrne, 46 Ark. 453 513, 552 Green v. Gordon, 38 App. D. 0. 443 359, 395, 398 Green v. Green, 7 Port. (Ala.) 19 385 Green v. Hewett, 54 Tex. Civ. App. 534, 118 S. W. 170 211, 220 Green v. Saulsbury, 6 Del. Ch. 371, 33 Ati. 623 387, 493 Green v. Sutton, 50 Mo. 186 405 Greene v. Dennis, 6 Conn. 299, 16 Am. Dec. 58 297, 316, 343 Greene v. Huntington, 73 Conn. 106, 46 Atl. 883 282, 309 Greenland v. Waddell, 116 N. Y. 234, 22 N. E. 367, 15 Am. St. Kep. 400 556 Greenough v. Greenough, 11 Pa. 489, 51 Am. Dee. 567 56 Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233 450 Greer v. McNeal, 11 Okl. 519, 69 Pac. 891 564 Greffet v. Willman, 114 Mo. 109, 21 S. W. 481 409 Gregg V. Betbea, 6 Port. (Ala.) 9 403 Gregor v. Kemp, 3 Swans. 404 30 Gregory v. Cowgill, 19 Mo. 415 313, 408, 411 Gregory v. McCormick, 120 Mo. 657, 25 S. W. 565 510 Gregory v. Welch, 90 Ark. 152, 118 S. W. 404 297, 326, 395, 396 Gregory's Estate, 12 Cal. App. 309, 107 Pac. 566 326, 354 Gregory's Estate, 133 Cal. 131, 65 Pac. 315 232, 275 Gridley v. Andrews, 8 Conn. 1 550 Griesel v. Jones, 123 Mo. App. 45, 99 S. W. 769 459, 538 Griffln v. Fleming, 72 Ga. 697 525 Griffin V. Griffln, E. M. Charlt. (Ga.) 217 227,234 Griffin v. Henderson, 117 Ga. 382, 43 S. E. 712 249 Griffin V. Mclntosli, 176 Mo. 392, 75 S. W. 677 48 Griffln v. Morgan (D. C. Vt.) 208 Fed. 660 17, 296, 416 Griffin V. Nicholas, 224 Mo. 275, 123 S. W. 1063 409, 413 Griffin v. Prlngle, 56 Ala. 486 300 Griffin v. Working Women's Ass'n, 151 Ala. 597, 44 South. 605. . 221 Griffith, In re, 84 Cal. 107, 23 Pac. 528, 24 Pac. 381 195 Griffith V. Derringer, 5 Har. (Del.) 284 413 Griffith V. Douglass, 120 Ga. 582, 48 S. E. 129 45 Griffith V. Frazier, 8 Cranch. 9, 3 L. Ed. 471 163 Griffith V. Marsh, 86 Ala. 302, 5 South. 569 47 Griffith V. Stewart, 31 App. D. C. 29 503 Griffith V. Witlen, 252 Mo. 627, 161 S. W. 708 295, 305, 318, 327, 423, 504, 557 Griggs V. Dodge, 2 Day (Conn.) 28, 2 Am. Dec. 82 432 Grignon v. Astor, 2 How. 319, 11 L. Ed. 283 204 Grigsby v. Willis, 25 Tex. Civ. App. 1, 59 S. W. 574 18 Grimball v. Patton, 70 Ala. 626 18, 88, 359 Grimes v. Harmon, 35 Ind. 199, 9 Am. Rep. 690 481 Grimes v. Norrls, 6 Cal. 621, 65 Am. Dec. 545 174 Grimes v. Smith, 70 Tex. 217, 8 S. W. 33 565 CASES CITED 609 Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664 59 62 ^68 Griswold V. Grlswold, 148 Ala. 239, 42 South. 554, 121 Am. St. ' Rep. 64 45 Griswold V. Mattix, 21 Mo. App. 282 '.'. .... .'.'.'.".390 517 Groce v. Kittenberry, 14 Ga. 233 343' 443 Gross V. Sheeler, 7 Houst. (Del.) 280, 31 Atl. 812 .339' 414 Grote V. Pace, 71 Ga. 231 ' 41 Grou V. Brinley, 35 Conn. 109 320 Gruendike, Estate of, 154 Cal. 628, 98 Pac. 1057 317 Guardhouse v. Blackburn, L. R. 1, P. & D. 109 248 Guerard v. Guerard; 73 Ga. 506 ! ! ! ! 322 Guesnard v. Guesnard, 173 Ala. 250, 55 South. 524 306, 309, 422 Gugolz V. Gehrkins, 164 Cal. 596, 130 Pac. 8, 43 L. R. A. (N. S.) 575 214 Guice V. Thornton, 76 Ala. 466 227 Guilfoyle, Will of. In re, 96 Cal. 598, 31 Pac. 553, 22 L. R. A. 370 55, 57 Gulnasso's Estate, 13 Cal. App. 518, 110 Pac. 335 177, 178 Guitar v. Gordon, 17 Mo. 408. 20, 24, 354 Gullet V. Farley, 164 111. 566, 45 N. E. 972 388 Gunn v. Thruston, 130 Mo. 345, 32 S. W. 654 553 Gunn's Appeal, 63 Conn. 254, 27 Atl. 1113 271 Gunter v. Gunter, 174 Fed. 933, 98 C. O. A. 515 28 Gupton V. Gupton, 47 Mo. 37 26, 27 Guthrie v. Guthrie, 105 Ga. 86, 31 S. E. 40 45 Guthrie v. Price, 23 Ark. 396 55, 120 Guthrie v. Wheeler, 51 Conn. 207 288, 561 Guy V. Mayes, 235 Mo. 390, 138 S. W. 510 368 Gwin's Estate, 77 Cal. 314, 19 Pac. 527 378, 381, 385, 387 Gwinn v. Taylor, 134 Ga. 783, 68 S. E. 508 398 Gwynn v. Gwynn, 11 App. D. C. 564 357 H Haas V. Atkinson, 20 D. 0. 537 347, 349 Hacker v. Newborn, 82 Eng. Rep. Reprint, 834 269 Haddock v. B. & M. Ry., 146 Mass. 155, 15 N. E. 495, 4 Am. St. Rep. 295 207 Haddock v. Perham, 70 Ga. 573 442 Hafner, In re, 45 App. Div. 549, 61 N. Y. Supp. 565 354 Hagerty v. Hagerty's Ex'r, 12 Tex. 456 35 Hagerty v. Olmstead, 39 App. D. C. 170 265 Haile V. Hill, 13 Mo. 618 184 Haines v. Christie, 28 Colo. 502, 66 Pac. 883. ... , 554 Haines' Estate, 150 Cal. 640, 89 Pac. 606 374, 464 BoBL. Wills — 39 (510 CASES CITED Page Halbert v. Halbert, 19 Mo. 453 379 Haldeman v. Openheimer, 103 Tex. 275, 126 S. W. 566. . .457, 516, 551 Hale V. Audsley, 122 Mo. 316, 26 S. W. 963 325 Hale V. Coffin (C. C.) 114 Fed. 567 546 Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25 325, 383 Hall V. Bragg, 28 Ga. 330 46 Hall V. Burkham, 59 Ala. 349 45 Hall V. David, 67 Ga. 72 403 Hall V. Dougherty, 5 Houst. (Del.) 435 116, 166, 228 Hall V. Fields, 81 Tex. 553, 17 S. W. 82 23 Hall V. Hall, 47 Ala. 290 151, 170, 194 Hall V. Hall, 18 Ga. 40 116, 227 Hall V. Hall, 1 Prob. & Div. 481 255 Hall V. Harrison, 21 Mo. 227, 64 Am. Dec. 225 515 Hall V. Haywood, 77 Tex. 4, 13 S. W. 612 514 Hall V. Howdeshell, 33 Mo. 475 467 Hall V. i'riest, 6 Gray (Mass.) 18 441 Hall V. Smith, 103 Mo. 289, 15 S. W. 621 379 Hall V. Stephens, 65 Mo. 670, 27 Am. Rep. 302 308, 316 Hall's Estate, 149 Cal. 143, 84 Pae. 839 45 Hall's Heirs v. Hall's Ex'rs, 38 Ala. 131 141, 171, 176, 227 Hallett V. Allen, 13 Ala. 554 537, 542 Hallum V. Silliman, 78 Tex. 347, 14 S. W. 797 509 Halsey v. Goddard (C. C.) 86 Fed. 25 358, 421 Hamburger v. Rinkel, 164 Mo. 398, 64 S. W. 104 244 Hamer v. Cook, 118 Mo. 489, 24 S. W. 180 285 Hamilton v. Cargile, 127 Ga. 762, 56 S. E. 1022 45 Hamilton v. Clark, 25 Mo. App. 428 33 Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 3S9 96, 236 Hamilton v. Downs, 33 Conn. 213 322, 405, 454 Hamilton v. FUnn, 21 Tex. 713 22, 325 Hamilton v. Lewis, 13 Mo. 184 393 Hamilton v. Rathbone (D. C.) 175 U. S. 414, 20 Sup. Ct. 155, 44 L. Ed. 219 112 Hamilton v. Serra, 17 D. C. 168 312, 320 Hamilton's Estate, 120 Cal. 430, 52 Pac. 708 166 Hamiet v. Johnson, 26 Ala. 557 353 Hamlin v. Express Co., 107 111. 448 446 Hamlin v. Fletcher, 64 Ga. 549 63 Hammond v. Hammond, 135 Ga. 768, 70 S. E. 588 528 Hamon v. Hamon, 180 Mo. 685, 79 S. W. 422 121, 230 Hancock v. Butler, 21 Tex. 804 414 Handley v. Heflin, 84 Ala. 603, 4 South. 725 528 Handley v. Palmer (C. C.) 91 Fed. 948 289, 344, 482, 555 Handlin v. Morgan Co., 57 Mo. 114 390 Haney v. Gartin, 51 Tex. Civ. App. 577, 113 s". W. 166 153, 317 CASES CITED 611 Hanley v. K. & T. Coal Co., 110 Fed. 62 ^421 Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133 424 Hanna v. Palmer, 5 Colo. 156, 45 Am. Rep. 524 385, 389 Hannah v. Anderson, 125 Ga. 407, 54 S. E. 131 251 Hannigan's Estate, Myr. Prob. (Cal.) 135 ' 222 Hans V. Holler, 165 Mo. 47, 65 S. W. 308 .'.160, 250 Hansen's Estate, In re, 87 Neb. 567, 127 N. W. 879 32 322 Hansford v. ElUott, 9 Leigh (Va.) 79 .'398 Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444 383 Haralson v. Kedd, 15 Ga. 148 328, 411 Harber v. Nash, 126 Ga. 777, 55 S. B. 928 '338 Harbison v. Beets, 84 Kan. 11, 113 Pac. 423 144, 244 Harbison v. James, 90 Mo. 411, 2 S. W. 292 41l' 427 Harbison v. Swan, 58 Mo. 147 ' 296 Hardenbergh v. Ray, 151 U. S. 112, 14 Sup. Ct. 305, 38 L. Ed. 93 13, 43, 296, 324 Harding v. Handy, 11 Wheat. 103, 6 L. Ed. 429 254 Hardy v. Hardy's Heirs, 26 Ala. 524 205, 219 Hardy v. Mayhew, 158 Cal. 95, 110 Pac. 113, 139 Am. St. Rep. 73 447, 562 Hardy v. Toney, 20 Ala. 237 332 Hare v. Sisters of Mercy, 105 Ark. 549, 151 S. W. 515 454 Hargadine v. Pulte, 27 Mo. 423 22 Hargraves v. Lott, 67 Ga. 133 175 Hargroves v. Batty, 19 Ga. 130 500' Hargroves v. Redd, 43 Ga. 142 94, 201 Haring v: Shelton, 103 Tex. 10, 122 S. W. 13 331, 365, 508 Barker v. ReUly, 4 Del. Ch. 72 425, 555 Harkins v. Hughes, 60 Ala. 316 522, 530, 540 Harmon v. Harmon, 80 Conn. 44, 66 Atl. 771 289, 382, 420 Harmon v. Smith (C. C.) 38 Fed. 482 471 Harp V. WalUn, 93 Ga. 811, 20 S. E. 966 412 Harper v. Bibb, 47 Ala. 547 335, 545 Harper v. Harper, 83 Kan. 761, 113 Pac. 300 121 Harper v. Reaves, 132 Ala. 625, 37 South. 721 45 HarreU r. Hamilton, 6 Ga. 37 207 Harrell v. HarreU, 123 Ga. 267, 51 S. E. 283 152 Harring v. Allen, 25 Mich. 505 93 Harrington v. Roe, 1 Houst. (Del.) 398 401, 405, 416, 443 Harris v. Cole, 114 Ga. 295, 40 S. E. 271 540 Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681 185 Harris y. Harris, 53 Ga. 678 60 Harris V. Hays, 53 Mo. 90 218 Harris r. Kittle, 119 Ga. 29, 45 S. E. 729 541 Harris v. Knapp, 21 Pick. (Mass.) 416 448 Harris v. Smith, 16 Ga. 545 44a 612 CASES CITED Page Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242 156, 176 Harris v. Woodard, 133 Ga. 104, 65 S. B. 250 526 Harrison v. Baldwin, 92 Ga. 329, 18 S. E. 402 472, 473 Harrison v. Brophy, 59 Kan. 1, 51 Pac. 883, 40 L. R. A. 721 484 Harrison v. Foote, 9 Tex. Civ. App. 576 359 Harrison v. Harrison, 105 Ga. 517, 31 S. E. 455, 70 Am. St. Rep. 60 359 Harrison v. Moore, 64 Conn. 348, 30 Atl. 55 394, 403 Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas. No. 614 60 Harrison v. Watkins, 127 Ga. 314, 56 S. E. 437 470 Harrison's Appeal, 48 Conn. 203 260 Harrod v. McComas, 78 Kan. 407, 96 Pac. 484 46 Hart V. Hart, 70 Ga. 764 104 Hart V. Hart, 81 Ga. 785, 8 S. E. 182 339 Hart V. Johnson, 81 Ga. 734, 8 S. E. 73 351 Hart V. Lewis, 130 Ga. 504, 61 S. E. 26 503 Hart V. West, 16 Tex. Civ. App. 395, 41 S. W. 183 81 Hartford Tr. Co. v. Purdue, 84 Conn. 256, 79 Atl. 581 306 Hartford Tr. Co. v. Wolcott, 85 Conn. 134, 81 Atl. 1057 295, 310, 328, 352, 398, 420 Hartman v. Armstrong, 59 Kan. 696, 54 Pac. 1046 464 Hartwell v. Parks, 240 Mo. 537, 144 S. W. 793 152 Hartz V. Sobel, 136 Ga. 565, 71 S. E. 995, 38 L. R. A. (N. S.) 797. Ann. Cas. 1912D, 165 .72, 96 Harvey v. Anderson, 12 Ga. 69 238, 239 Harvey v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120 53, 75, 173 Harvey v. Miller, 95 Ga. 766, 22 S. E. 668 298 Harvey v. Sullens, 46 Mo. 147, 2 Am. Rep. 491 124, 264, 265 Harvey v. Sullens, 56 Mo. 372 125, 219, 265 Harwell v. Foster, 102 Ga. 38, 28 S. E. 967 503 Harwell v. Lively, 30 Ga. 315, 76 Am. Dec. 649 101 Harwood v. Goodright, 1 Cowp. (Eng.) 87 100 Hasenritter v. Hasenritter, 77 Mo. 162 381, 390 Hasler v. Williams, 34 App. D. C. 319 286 Hastings v. Myers, 21 Mo. 519 390 Hatch V. Ferguson (C. C.) 57 Fed. 966 326, 383 Hatche v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507 33 Hatcher v. Cade, 55 Ga. 359 538 Hatcher v. Smith, 103 Ga. 843, 31 S. E. 447 366 Hatchett v. Hatchett, 103 Ala. 556, 16 South. 550 423 Hatfield's Will, 21 Colo. App. 443, 122 Pac. 63 69 Hatheway v. Smith, 79 Conn. 506, 65 Atl. 1058, 9 L. R. A. (N. S.) 310, 9 Ann. Cas. 99 16, 17, 51 Hauptman v. Carpenter, 16 App. D. C. 524 392 Hause, In re, 32 Minn. 155, 19 N. W. 973 155 Havens v. Mason, 78 Conn. 410, 62 Atl. 615, 3 L. R. A. (N. S.) 172 115 CASES CITED 613 Havens v. Van Den Burgh, i Denio (N. T.) 2T ""lOS H=^^.S^ ^- -«: - -■ - -:- '^'^--^'^ III Hawes y. Nicholas, 72 Tex 481, 10 S.' W. 558V2L: R.' A.les 65 101 Hawke y. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391 Hawkin's Adm'r y. Dumas, 41 Ala. 391 ^^^' ^^'' ^^^' JS Hawkins v. Greene, 23 Ark. 89 Vw ^^^ Hawkins y. Lee, 22 Tex. 544 ' Z^l Hawley v. Brown, 1 Root (Conn.) 494. 67 Haydel y. Hurck, 72 Mo. 253, s. c. 5 Mo. 267. . . ! ! "458 Hayden v. Conn. Hospital, 64 Conn. 320, 30 Atl. 50 481 Hayden y. Marmaduke, 19 Mo. 403 284 Hay den's Estate, 149 Cal. 680, 87 Pac. 275. .... ..." 170 221 Hayes y. Hayes, 242 Mo. 155, 145 S. W. 1155 '.'.'.'........' „ , ^ ^ 241, 254, 259, 273, 276, 465 Hayes' Estate, 55 Colo. 340, 135 Pae. 449 173, 193, 215, 220, 234, 265, 277 Hayne v. Dunlap, 72 Ga. 534 339 Hays y. Bo wdoin, 159 Ala. 600, 49 South. 122 .210, 216 Hays V. Ernest, 32 Ela. 18, 13 South. 451 ' 69 Hazel y. Hagan, 47 Mo. 277 409 Head y. Phillips, 70 Ark. 432, 68 S. W. 878 28Q Heady y. Grouse, 203 Mo. 100, 100 S. W. 1052, 120 Am. St. Rep. 643 410, 492 Heald v. Briggs, 83 Conn. 5, 74 Atl. 1123 306, 425 Healy y. Healy, 70 Conn. 467, 39 Atl. 793 306, 309. 421 Heard y. Palmer, 72 Ga. 178 47 Heard y. Sill, 26 Ga. 302 47O Heam y. Cannon, 4 Houst. (Del.) 20 347 Hearn v. Ross, 4 Har. (Del.) 46 249, 313 Heath y. Bancroft, 49 Conn. 220 315, 322, 350 Heatley y. Long, 135 Ga. 153, 68 S. B. 783 325 Heaton y. Dickson, 153 Mo. App. 312, 133 S. W. 159 29S, 369 Heberle's Estate, 153 Cal. 275, 95 Pac. 41 326, 471 Heberton y. McClain (C. C.) 135 Fed. 226 396 Hecht y. Carey, 13 Wyo. 154, 78 Pac. 705, 110 Am. St. Rep. 981. . 499 Hecht y. Skaggs, 53 Ark. 291, 13 S. W. 9.30, 22 Am. St. Rep. 192. . 530 Heery y. Reed, 80 Kan. 380, 102 Pac. 846 27 Heffner y. Heffner, 48 La. Ann. 10S9, 20 South. 281 75 Hegney y. Head, 126 Mo. 619, 29 S. W. 587 265, 266 Heidenheimer y. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29 37, 52, 312, 313, 323, 455, 460 Heidt V. Heidt, 115 Ga. 965, 42 S. E. 263 16 614 CASES CITED Heilman v. Reitz, 89 Neb. 422, 131 N. W. 909 323, 328 Heist V. Universallst G. C, 76 Tex. 514, 13 S. W. 552 215, 227, 237, 343 Helm V. Leggett, 66 Ark. 23, 48 S. W. 675 364, 380 Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599 273 Hemingway v. Hemingway, 22 Conn. 462 331 Hemphill v. Moody, 62 Ala. 510 18 Hemphill v. Moody, 64 Ala. 468 540 Henderson v. Belden, 78 Kan. 121, 95 Pac. 1055 183 Henderson v. Ryan, 27 Tex. 670 375, 378 Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590 > 243 Henderson v. Williams, 97 Ga. 709, 25 S. E. 395 474 Henderson's Estate, 161 Cal. 353, 119 Pac. 496 295, 304, 311, 347 Hendricks v. So. R. Co., 123 Ga. 342, 51 S. H; 415 514 Hendrix v. Boggs, 15 Neb. 469, 20 N. W. 28 162 Henry, Ex parte, 24 Ala. 638 50, 61, 241 Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22 67, 234, 260, 266 Henry v. Pittsburgh Clay Mfg. Co., 80 Fed. 485, 25 C. C. A. 581 407 Henry v. Superior Court, 93 Cal. 569, 29 Pac. 230 168 Herbert v. Hanrick, 16 Ala. 581 494 Herdlitchka v. Foss, 2 Neb. (Unof.) 428, 89 N. W. 300 551 Hernandez v. Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 137, 7 Ann. Cas. 446 560 Herring v. Patten, 18 Tex. Civ. App. 147, 44 S. W. 50 368 Herring v. Ricketts, 101 Ala. 340, 13 South. 502 166, 208, 215 Hershy v. Clark, 35 Ark. 17, 37 Am. Rep. 1 32 Hertz V. Abrahams, 110 Ga. 707, 36 S. B. 409, 50 L. R. A. 361 297, 301, 437 Herwick v. Langford, 108 Cal. 608, 41 Pac. 701 267, 274 Hess' Appeal, 43 Pa. 73, 82 Am. Dec. 551 59 Hess' Will, In re, 31 Am. St. Rep. 691 260 Hester v. Young, 2 Ga. 31 45 Hewitt V. Wheeler School, 82 Conn. 188, 72 Atl. 935 344 Hewitt's Estate, 94 Cal. 376, 29 Pac. 775 483 Heydenfeldt's Estate, 106 Cal. 434, 39 Pac. 788 529 Hey wood v. Hey wood, 92 Neb. 72, 137 N. W. 984 ,.296, 317, 318 Hey wood's Estate, 148 Cal. 184, 82 Pac. 755 .' 295, 298, 301, 464, 470, '471 Hickman v. Gillum, 66 Tex. 314, 1 S. W. 339 173 Hickman's Estate, 101 Cal. 609, 36 Pac. 118 49, 212 Hicks V. Webb, 127 Ga. 170, 56 S. E. 307 311, 410 Higbie v. Morris, 53 N. J. Eq. 177, 32 Atl. 372 529 Higginbotham v. Higginbotham, 106 Ala. 314, 17 South. 516. .254, 272 Higgins V. Eaton, 178 Fed. 153 201, 359, 513, 546 Higgins V. Eaton, 183 Fed. 388, 105 C. C. A. 608 195, 535, 545 CASES CITED 615 Higglns V. Eaton, 188 Fed. 938 ^^^* „. . ^ 39, 41, 88, 164, 201, 204, 300,' 360, 'siS, 535 Higgms V. Eaton, 202 Fed. 75, 122 G. C. A. 1. . 41 iso Higgins V. Reed, 48 Kan. 272, 29 Pac. 389 511 ' 516 Higglns V. Vandeveer, 85 Neb. 89, 122 N. W. 843 175, 280 281 493 Higgms V. Waller, 57 Ala. 396 403 Higgins' Estate, 156 Cal. 257, 104 Pac. 6 „. ^ .^ , „ 116, 225, 231, 234, 237, 240, 254 Higb V. Worley, 32 Ala. 709 394 Hightower v. Williams, 104 Ga. 608, 30 S. E. 862. . . ! . ! . . .... . . . .190 Hilford V. Way, 1 Del. Ch. 342 551 Hill V. Armistead, 56 Ala. 118 493 HUl V. Arnold, 79 Ga. 367, 4 S. B. 751 ":.....[[........ 539 Hill V. Barge, 12 Ala. 687 63, 263 Hill V. Boyd, 199 Mo. 4-38, 97 S. W. 918 12l' 244 Hill V. Clark, 48 Ga. 526 ' 405 HiU V. Dade, 68 Ark. 409, 59 S. W. 39 454. HUl V. Den, 54 Cal. 6 375 HUl V. Felton, 47 Ga. 455, 15 Am. Rep. 643 314 HIU V. Harding, 92 Ky. 76, 17 S. W. 199 30 HUl V. HiU, 6 Ala. 166 208 HiU V. HiU, 81 Ga. 516, 8 S. E. 879 539 HIU V. HUl, 90 Neb. 43, 132 N. W. 738, 38 L. JR. A. (N. S.) 198 296,348,402,472,473 HUl V. Jones, 65 Ala. 214 530 HiU V. Martin, 28 Mo. 78 25 HUl V. TerreU, 123 Ga. 49, 51 S. E. 81 443 HUliard v. Binford, 10 Ala. 977 60, 194, 378, 379, 385 Hilton V. HUton, 2 MacArthur (D. C.) 70 551, 556 Hinckley v. Stebbins, 3 Cal. (Unrep. Cas.) 478, 29 Pac. 52 291 Hinckley's Estate, Myr. Prob. (Cal.) 189 352 Hinckley's Estate, 58 Cal. 457 477, 479, 483 nine's Appeal, 68 Conn. 551, 37 Atl. 384 140, 267 Hines v. Gordon, 2 Hayw. & H. (D. C.) 222, Fed. Cas. No. 18,302 112 nines V. Hines, 243 Mo. 480, 147 S. W. 774 182, 242, 554 Hinzie v. Hinzie, 45 Tex. Civ. App. 297, 100 S. W. 803. .327, 328, 336 Hitch V. Patten, 8 Houst. (Del.) 334, 16 Atl. 558, 2 L. R. A. 724. . 298, 323 Hitchcock V. Olendennin, 6 Mo., App. 99 427 Hitchcock's Case, 7 Ala. 386 300 Hite's Estate, 155 Cal. 436, 101 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993 361, 362 Hittell's Estate, 141 Cal. 435, 75 Pac. 53 347 Hixon V. West, S3 Ga. 786, 10 S. E. 450 216, 249 Hoadley, In re (D. C.) 101 Fed. 233 397 Hoadly v. Wood, 71 Conn. 452, 42 Atl. 263 308 616 CASES CITED Page Hobson V. Hobson, 40 Colo. 332, 91 Pac. 929 103 Hockensmith v. Slusher, 26 Mo. 237 24 Hodge V. Rambo, 155 Ala. 175, 45 South. 678 239 Hodges V. Stuart Lbr. Co., 128 Ga. 735, 58 S. E. 354 565 Hoehn v. Struttmann, 71 Mo. App. 399 34 Hoepner v. Bell, 35 App. D. C. 534 260 Hoffman v. Hoffman, 26 Ala. 535 16, 62 Hoffman v. Hoffman, 126 Mo. 486, 29 S. W. 603 521 Hogan V. Hinchey, 195 Mo. 527, 94 S. W. 522 218 Hogane v. Hogane, 57 Ark. 508, 22 S. W. 167 207 Hoge V. Fisher, 1 Pet. (C. C.) 163, Fed. Gas. No. 6,585 137 Hoge V. Hoge, 1 Waj;ts (Pa.) 163, 26 Am. Dec. 52 462 Hogue V. Sims, 9 Tex. 546 507, 538 Hoit V. Hoit, 42 N. J. Eq. 388, 7 Atl. 856, 59 Am. Rep. 43 362 Hoitt V. Hoitt, 63 N. H. 475, 3 Atl. 604, 56 Am. Rep. 530 102 Holcomb V. Gillett, 2 Root (Conn.) 450 462 Holcomb V. Wright, 5 App. D. O. 76 296, 322, 416 Holcombe v. Spencer, 82 Conn. 532, 74 Atl. 904 476 Holden v. Spier, 65 Kan. 412, 70 Pac. 348 492 Holdren v. Holdren, 78 Ohio St. 276, 85 N. E. 537, 18 L. R. A. (N. S.) 272 302 Holifield V. Robinson, 79 Ala. 419 484 Holland V. Couts, 42 Tex. Civ. App. 515, 58 S. W. 233, s. c, 100 Tex. 232, 98 S. W. 236 212, 213 Holland v. Zeigler, 135 Ga. 512, 69 S. E. 814 338 HoUett's Lessee v. Pope, 3 Har. (Del.) 542 440 HoUifield v. Stell, 17 Ga. 280 436 HoUingshed v. Alston, 13 Ga. 277 411 Hollinshed v. Woodard, 124 Ga. 721, 52 S. E. 815 505 Hollister v. Butterworth, 71 Conn. 57, 40 Atl. 1044 440, 443 HolUster v. Shaw, 46 Conn. 256 337, 407, 409 Holloman v. Copeland, 10 Ga. 79 103 Holman v. Hopkins, 27 Tex. 38 39, 40, 41, 180 Holman v. Renaud, 141 Mo. App. 399, 125 S. W. 843 470, 477 Holman v. Riddle, 8 Ohio St. 384 72 Holman's Case, 24 Pa. 174 427 Holmes v. Bushnell, 80 Conn. 233, 67 Atl. 479 ; 369 Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, 41 L. R. A. (N. S.) 1120, Ann. Cas. 1914A, 475 216, 249, 260, 314 Holmes v. Holloman, 12 Mo. 535 71 Holmes v. Williams, 1 Hoot (Conn.) 341, 1 Am. Dec. 49 404, 443 Holt V. Bowman, 33 Ga. Supp. 129 408 Holt V. Pickett, 111 Ala. 362, 20 South. 432 312, 404, 413 Holt V. Wilson, 82 Kan. 268, 108 Pac. 87 310, 404, 406, 440 Holt's Estate, 146 Cal. 77, 79 Pac. 585 232, 309, 313 CASES CITED 617 Holton V. Oochran, 208 Mo. 314, 106 S. W. 1035 ^^^^ „ , , ^ 116, 120, 127, 130, 185, 144* 229, 234 Holyoke v. Tipp, 77 Neb. 394, 109 N. W. 506. . . ■ 65 Home for Incurables v. Noble, 172 U. S. 383, 19 Sup. Ct. 226,' 43 „^- ^^-f^ 17,88,296 Homer v. Brown, 16 How. 354, 14 L. Ed. 970 88 Homer v. Shelton, 2 Mete. (Mass.) 202 [[ 448 Hone V. Van Schaick, 20 Wend. (N. Y.) 568 401 Hood V. Braulett, 105 Ala. 660, 17 Soutli. 105 405 Hood V. McGehee, 189 Fed. 205, 117 0. C. A. 664 28 Hood V. Oglander, 34 Beav. 513 '464 Hook V. Pratt, 8 Hun (N. Y.) 102 ........[.[. 179 Hooker v. Axford, 33 Mich. 453 ! 460 Hooks V. Brown, 125 Ga. 122, 53 S. E. 583 164, 192, 204, 207, 211 Hooks V. Stamper, 18 Ga. 471 42 Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468 439 Hope, In re, 48 Mich. 518, 12 N. W. 682 '. 179 Hopf V. State, 72 Tex. 281, 10 S. W. 589 71, 175, 227 Hopkin's Appeal, 77 Conn. 644, 60 Atl. 657 161 Hopper's Estate, 66 Gal. 80, 4 Pac. 984 325 Hopper's Estate, In re, 90 Neb. 622, 134 N. W. 237 52, 61 Hora V. Hora, 33 Beav. 88 465 Horn V. Foley, 13 App. D. C. 184 484 Hornier, Ex parte, 27 Ark. 443 74 Hornsey v. Casey, 21 Mo. 545 384 Horsey v. Horsey's Ex'r, 1 Houst. (Del.) 438 322 Horton v. Aberett, 20 Ala. 719 .' 542, 544 Horton v. Garrison, 1 Tex. Civ. App. 31, 20 S. "W. 773 153 Horton v. Johnson, 18 Ga. 396 65 Horton v. Upham, 72 Conn. 29, 43 Atl. 492 291, 431 Hose V. King, 24 Ga. 424 436 Hoselton v. Hoselton, 166 Mo. 182, 65 S. W. 10O5 359 Hoset Lbr. Co. v. Weeks, 123 Ga. 336, 51 S. E. 439, s. c, 133 Ga. 472, 66 S. E. 168, 134 Am. St. Rep. 213 503 Hospital Co. V. Hale, 69 Kan. 616, 77 Pac. 537 165, 169 Hospital Co. V. PMlippi, 82 Kan. 64, 107 Pac. 530, 30 L. R. A. (N. S.) 194 83 Hotchkiss V. Ladd's Estate, 62 Vt. 209, 19 Atl. 638 155 Houts V. McCluney, 102 Mo. 13, 14 S. W. 766 527 Houze V. Houze, 16 Tex. 598 183 Hovey v. Walbank, 100 Gal. 192, 34 Pac. 650 447 Howard v. Carusi, 11 D. C. 260, s. c, 109 U. S. 725, 3 Sup. Ct. 575, 27 L. Ed. 1089 107, 366, 447 Howard v. Carter, 71 Kan. 85, 80 Pac. 61 228 Howard v. Evans, 24 App. D. C. 127 328 Howard V. Howard, 19 Conn. 318 323 G18 CASES CITED Page Howard v. Howard, 16 N. J. Eq. 486 430 Howard v. Hunter, 115 Ga. 357, 41 S. E. 638, 90 Am. St. Rep. 121 95 Howard's Estate, 22 Cal. 395 168, 169 Howe V. Earl of Dartmouth, 7 Ves. 137 430 Howe V. Watson, 179 Mass. 30, 60 N. E. 415 28 Howe V. Wilson, 91 Mo. 45, 3 S. W. 390, 60 Am. Rep. 226 480, 481 Howze V. Davis, 76 Ala. 381 360, 375, 530 Howze V. Howze, 19 Tex. 553 318 Howze V. Howze, 14 Tex. 232 292 Hubbard v. Hubbard, 7 Or. 42 198, 210 Hube* V. Donoghue, 49 N. J. Eq. 125, 23 Atl. 495 556 Huckabee v. Swoope, 20 Ala. 491 359, 544 Hudgens v. Wilkins, 77 Ga. 555. .. i 398 Hudgins v. Leggett, 84 Tex. 207, 19 S. W. 387 280 Hudgins v. Sansom, 72 Tex. 229, 10 S. W. 104 390 Hudson V. Hudson, 87 Ga. 678, 13 S. E. 583, 27 Am. St. Rep. 270 27 Hudson V. Hughan, 56 Kan. 152, 42 Pae. 701 115, 120, 224 Hudson V. Wadsworth, 8 Conn. 348 428, 431, 441, 443 Huff V. Huff, 41 Ga. 696 54, 58, 70 Huffaker v. Beers, 95 Ark. 158, 128 S. W. 1040 121 Huggins V. Huggins, 72 Ga. 825 349 Hughes' Case, 31 Ala. 519 227 Hughes, In re, 95 N. Y. 55 513 Hughes V. Burriss, 85 Nev. 660 206, 218 Hughes V. Daly, 49 Conn. 34 484 Hughes V. Fitzgerald, 78 Conn. 4, 60 Atl. 694 284, 464 Hughes V. Hughes' Bx'r, 31 Ala. 519 225, 228, 230, 233 Hughes V. Hughes' Ex'r, 135 Ga. 468, 69 S. E. 818 45 Hughes V. Knowlton, 37 Conn. 432 323, 406 Hughes V. Meredith, 24 Ga. 325, 71 Am. Dec. 127 60 Hughes V. Mulanax, 105 Tex. 576, 153 S. W. 299 506, 508 Hughes V. Eader, 183 Mo. 707, 82 S. W. 32 58, 245, 259 Huguley v. Lanier, 86 Ga. 636, 12 S. E. 922, 22 Am. St. Rep. 487 46 Hulburt V. Emerson, 16 Mass. 241 398 Hull V. Culver, 34 Conn. 404 405, 412 Hull V. Holloway, 58 Conn. 210, 20 Atl. 445 411 Hull V. Holmes, 78 Conn. 362, 62 Atl. 705 439 Hull V. Thoms, 82 Conn. 647, 74 Atl. 925 27 Hummel v. Del Greco, 40 Tex. Civ. App. 510, 90 S. W. 339 509 Humphreys v. Humphreys, 2 Cox, 185 333 Hungerford v. Anderson, 4 Day (Conn.) 368 404 Hunkgpillar v. Harrison, 59 Ark. 453, 27 S. W. 1004 371 Hunt V. Acre, 28 Ala. 580 209 Hunt V. Hunt, 11 Nev. 442 24, 464, 544 Hunt V. Inicas, 68 Mo. App. 518 531 CASES CITED 619 Hunt V. White, 24 Tex. 643 79 311 ^318 Hunt's Will, In re, 81 Me. 275, 17 Atl. 68.".'.'.".'.".".".'.".".'.'...'....' 105 Hunt's Will, In re, 122 Wis. 460, 100 N. W. 874 287 Hunter v. Bryant, 2 Wheat. 32, 4 L. Ed. 177 80 Hunter v. Bryson, 5 Gill. & J. (Md.) 483, 25 Am. Dec. 813. . .".149, 459 Hunter v. Green, 22 Ala. 329 403, 541 Hunter v. Stembridge, 12 Ga. 192 374,' 464 Hurd V. Shelton, 64 Conn. 496, 30 Atl. 766 303, 304, 359, 375 Hurst V. Mellinger, 73 Tex. 189, 11 S. W. 184 180 Hurst V. Weaver, 75 Kan. 758, 90 Pac. 297.' 291, 318, 471 Hurst V. Von de Veld, 158 Mo. 246, 58 S. W. 1056 296, 313, 315, 326, 328 Hurt V. Blackburn, 20 Tex. 601 79 Huston, Estate of, 163 Cal. 166, 124 Pac. 852. . .120, 122, 229, 230, 237 Hutcheson v. Bibb, 142 Ala. 586, 38 South. 754 264 Hutchinson v. Fuller, 75 Ga. 88 834 Hutchinson's Appeal, 34 Conn. 300 353, 474 Huyck V. Rennie, 151 Cal. 411, 90 Pac. 929 229, 230 Hyde, In re, 47 Kan. 281, 27 Pac. 1001 523, 558 Hyde v. Baldwin, 17 Pick. (Mass.) 303 381 Hysmith v. Patton, 72 Ark. 296, 80 S. W. 151 405 I Ide V. Ide, 5 Mass. 500 407, 448 Iglehart v. Iglehart, 26 App. D. 0. 209, 6 Ann. Cas. 732 484, 556 lUg V. Garcia, 92 Tex. 251, 47 S. W. 717 154 Inge V. Jones, 109 Ala. 175, 19 South. 435 346 Ingersol v. IngersoU, 77 Conn. 408, 59 Atl. 413 401 Ingersol v. Knowlton, 15 Conn. 468 405 Inglehart v. Inglehart, 204 U. S. 478, 27 Sup. Ct. 829, 51 L. Ed. 575 477 Inglis V. Inglis, 2 Dall. 45, 1 L. Ed. 282. 392 Inglis V. Sailor's Snug Harbor, 3 Pet. 99, 7 L. Ed. 617 296, 405, 480, 483 Ingraham v. Sutherland, 89 Ark. 596, 117 S. W. 743 484 Ingram v. Fraley, 29 Ga. 553 470 Ingram t. Girard, 1 Houst. (Del.) 276 347 Ingram v. Porter, 4 McCord (S. C.) 198 44 International Tr. Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 D. R A. (N. S.) 1002, 16 Ann. Cas. 1087 61, 63 Irvin V. Porterfield, 126 Ga. 729, 55 S. E. 946 399 Irwin V. Scriber, 18 Cal. 499 195 Trwin's Appeal, 33 Conn. 136 °^° iZc V. Haldeman, 76 Neh. 823, 107 N W. 1016 56, 229, 273 Isham V. Austin's Estate, 73 Mo. App. 61 rf»U 620 CASES CITED Isler V. Griffin, 134 Ga. 192, 67 S. B. 854 45 Israel v. Wolf, 100 Ga. 339, 28 S. E. 109 160 Ives V. Canby (O. C.) 48 Fed. 718 334, 351 Jack V. Hooker, 71 Kan. 652, 81 Pac. 203 27 Jackman, In re, 26 Wis. 104 155, 224, 254, 258, 270, 276 Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106 311, 328, 350 Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899 375, 529 Jackson v. Bull, 10 Johns. (N. Y.) 20 448 Jackson v. Chew, 12 Wheat. 153, 6 L. Ed. 583 443 Jackson v. Coggin, 29 Ga. 403 404 Jackson v. Culpepper, 3 Ga. 569 45 Jackson v. Hardin, 83 Mo. 175 114, 121, 125, 141, 218, 222, 240, 253, 260 Jackson v. Jackson, 32 Ga. 325 ' 262, 278 Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643 323 Jackson v. Jackson, 4 Mo. 210 177, 179 Jackson v. Littell, 213 Mo. 590, 112 S. W. 53, 127 Am. St. Rep. 620 404, 406, 450 Jackson v. Phillips, 57 Neb. 189, 77 N. W. 683... 193, 371, 511, 543 Jackson v. Powell, 87 Ala. 685, 6 South. 95, 4 L. R. A. 637 44 Jackson v. Vanderspreigles, 2 Dall. (Pa.) 142, 1 L. Ed. 323 310 Jackson v. Williams, 50 Ga. 553 503 Jackson's Succession, 47 La. Ann. 1089, 17 South. 598 533 Jacobs V. Bradley, 36 Conn. 369 346, 359, 482, 536 Jacobs V. Button, 79 Conn. 360, 65 Atl. 150 17, 320, 352, 529 James v. Cherokee Lodge, 110 Ga. 627, 36 S. E. 69 184 James v. Dunstan, 38 Kan. 289, 16 Pac. 459, 5 Am. St. Rep. 741 385 James v. Faulk, 54 Ala. 184 493 James v. Marvin, 3 Conn. 576 100 James v. Sutton, 36 Neb. 393, 54 N. W. 670 262 James' Claim, 1 Dall. (Pa.) 47, 1 L. Ed. 31 440 James' Estate, 65 Cal. 25, 2 Pac. 494 528, 537 Jamison v. Hay, 46 Mo. 546 354 Jamison v. Jamison's Will, 3 Houst. (Del.) 108 116, 136, 219, 228, 230, 231 Jamison v. McWhorter, 7 Houst. (Del.) 242, 31 Atl. 517 414, 457, 470 Jamison v. May, 13 Ark. 600 374 Jamison v. Zausch, 227 Mo. 406, 126 S. W. 1023, 21 Ann. Cas. 1132 385 Janes v. Dougherty, 123 Ga. 43, 50 S. E. 954 196 Janes v. Williams, 31 Ark. 175 151, 170, 184, 187, 192, 209 CASES CITED 621 Page Jaques v. Horton, 76 Ala. 238 162, 177, 244 Jarboe v. Hey, 122 Mo. 341, 26 S. W. 968 306, 357, 368, 458 Jaudon v. Ducker, 27 S. C. 295, 3 S. E. 465 555 Jeffrey's Estate, 1 Cal. App. 524, 82 Pae. 549 312 Jenkins v. Merritt, 17 Fla. 304 316, 358, 360 Jenkins v. Tobin, 31 Ark. 306 263 Jenkins' Will, 43 Wis. 610 55 Jensen's Estate, 37 Utab, 428, 108 Pac. 927 46, 74 Jewell V. Pierce, 120 Cal. 79, 52 Pac. 132 290, 416, 443, 562 Jocelyn v. Nott, 44 Conn. 55 421 Jockumsen v. Suffolk Sav. Bank, 3 Allen (Mass.) 87 163 Jobn li Estate v. Brown, 201 Fed. 224, 119 C. C. A. 458 (H. T.) 299, 303, 308, 406, 408 Jobnes v. Beers, 57 Conn. 303, 18 Atl. 100, 14 Am. St. Rep. 101 393, 394, 439 Jobnes v. Jackson, 67 Conn. 81, 34 Atl. 709 152, 155 Jobnson, Arbitration of, In re, 87 Neb. 375, 127 N. W. 133 218 Jobnson v. Armstrong, 97 Ala. 731, 12 South. 72 130, 222, 268 Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276 163 Johnson v. Bowden, 37 Tex. 621 503 Johnson v. Bowden, 43 Tex. 670 503, 508 Johnson v. Brown, 51 Tex. 65 232, 233 Johnson v. Cain, 15 Kan. 537 523 Johnson v. Childs, 61 Conn. 66, 23 Atl. 719 458 Johnson v. Conn. Bank, 21 Conn. 156 540 Johnson v. Edmond, 65 Conn. 492, 33 Atl. 503 422 Johnson v. Glasscock, 2 Ala. 218 198 Johnson v. Holifield, 79 Ala. 423, 58 Am. Rep. 596 484 Johnson v. Holifield, 82 Ala. 123, 2 South. 753 327, 328, 352, 353, 556 Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773 27 Johnson v. Johnson, 215 Mass. 276, 102 N. E. 465 465 Johnson V. Porter, 115 Ga. 401, 41 S. E. 644 213, 544 Jobnson V. Short, 43 Tex. Civ. App. 128, 94 S. W. 1082 508, 509 Johnson V. Sirmans, 69 Ga. 617 ot'Tol Johnson v. Stanton, 30 Conn. 297 ■ ■ ■ -^^7, 4^b Johnson V. Wash. Loan & T. Co., 224 U. S. 224, 32 Sup. Ct. 421, 56 L. Ed. 741 • • • • -/o Johnson V. Wash. Loan & T. Co., 33 App. D. ^^-^-^^ ^^^ Johnson V. Webber, 65 Conn. 501, 33 Atl 506 oVn Ip^' tl Johnson V. White, 76 Kan. 159, 90 Pac. 810 320, 325, 326 Johnson V. Yancey, 20 Ga. 707, 65 Am. Dec. 646 47 Johnson's Estate, Myr. Prob. (Cal.) 5 oV^s'iVfi 1^5 Johnson's Estate, 57 Cal. 529 37, 58, 126, 135 Johnson's Estate, 134 Cal. 662, 66 Pac. 847 " ' 622 CASES CITED Page Johnson's Estate, 152 Cal. 778, 93 Pac. 1015 58, 97, 222 Johnson's Will, In re, 40 Conn. 588 92, 96, 177, 179 Johnston v. Duncan, 67 Ga. 61 382, 387, 544 Johnstone v. Taliaferro, 107 Ga. 6, 32 S. E. 931, 45 L. R. A. 95 . . 305 Jones V. Bacon, 68 Me. 36, 28 Am. Rep. 1 407 Jones V. Crawley, 68 Ga. 175 408 Jones V. Davis, 37 Mo. App. 69 524 Jones V. Deyer, 16 Ala. 221 33 Jones V. Dove, 6 Or. 188 210 Jones V. Frost, Jacobs, 466 157 Jones V. Grogan, 98 Ga. 552, 25 S. E. 590 273 Jones V. Habersham, 63 Ga. 146 52, 54, 67, 249 Jones V. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401 394, 477, 485 Jones V. Hudson, 93 Neb. 561, 141 N. W. 141, 44 L. R. A. (N. S.) 1182 298, 327 Jones V. Johnson, 67 Ga. 269 16 Jones V. Jones, 3 Herivale, 171 158 Jones V. Jones, 7 Price Ex. R. 663. 157 Jones V. Jones, 20 Ga. 699 312, 428 Jones V. Jones, 223 Mo. 424, 123 S. W. 29, 25 L. R. A. (N. S.) 424 360, 472 Jones V. Jones' Ex'r, 37 Ala. 646 354 Jones V. Lingo, 120 Ga. 693, 48 S. E. 190. 45 Jones V. Martin, 5 Ves. 266 30 Jones V. Norton, 10 Tex. 120 78 Jones V. Perkins (C. C.) 76 Fed. 82 28 Jones V. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 U R. A. (N. S.) 734 414 Jones V. Reese, 65 Ala. 134 369 Jones V. Roberts, 37 Mo. App. 174 222, 231, 253, 265, 267, 275 Jones V. Shewmake, 35 Ga. 151 321, 324 Jones V. Shomaker, 41 Fla. 232, 26 South. 191 892, 532 Jones V. Waters, 17 Mo. 587 ; 403 Jones V. Weakley, 99 Ala. 441, 12 South. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84 33 Jones V. Webb, 5 Del. T!h. 132 439 Jones' Adm'r v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 L. R. A. 293 388 Jones' Appeal, 48 Conn. 60 348 Jordan v. Abney, 97 Tex. 296, 78 S. W. 486 26, 28, 462 Jordan v. Cameron, 12 Ga. 267 194 Jordan v. Jordan, 65 Ala. 301 17, 46, 51, 152 Jordan v. Miller, 47 Ga. 346 333 Jordan v. O'Brien, 33 App. D. C. 187 286 Jordan v. Thompson, 67 Ala. 469 245, 322 Jordan v. Thornton, 7 Ga. 517 474 CASES CITED 623 Jossey V. Brown, 119 Ga. 758, 47 S. B. 350 395 Jossey V. White, 28 Ga. 265 407 Jost V. Jost, 12 D. C. 487 .109, 323 Jourden v. Meier, 31 Mo. 40 191, 193' 407 Journeay v. Shook, 105 Tex. 551, 152 S. W. 809 ....'.....' 507 Journey's Estate, 7 Del. Ch. 1, 44 Atl. 795 503, 555 Jourolmon v. Massenglll, 86 Tenn. 81, 5 S. W. 719 369 Judd V. Bushnell, 7 Conn. 211 405, 468 Judson V. Bennett, 233 Mo. 607, 136 S. W. 681 469, 500, 505, 521 Judson V. Lake, 3 Day (Conn.) 326 194 K Kabelmacher v. Kabelmacher, 21 Tex. Civ. App. 317, 50 S. W. 1118, 51 S. W. 353 271 Kaes V. Gross, 92 Mo. 647, 3 S. W. 840, 1 Am. St. Rep. 767 389 Kaiser v. Brandenburg, 16 App. D. O. 310 313, 332 K. P. Ry. Co. V. Cutter, 16 Kan. 568 511 KaufEman v. Gries, 141 Cal. 299, 74 Pac. 846 297, 304, 318, 464 Kauflfman's Will, In re, 131 N. Y. 620, 30 N. E. 242, 15 L. R. A. 292 104 Kaufman v. Ehrlich, 94 Ga. 159, 21 S. E. 377 45 Kaufman v. Redwine, 97 Ark. 546, 134 S. W. 1193 527 Kaufman v. Wooters, 79 Tex. 205, 13 S. W. 549 507 Kaufman's Estate, In re, 117 Cal. 296, 49 Pac. 192, 59 Am. St. Rep. 179 225, 232, 245,- 254, 256, 273, 274, 275 Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103, 29 Am. Dec. 336 304, 418 Kean's Lessee v. Roe, 2 Har. (Del.) 103, 29 Am. Dec. 336 349 Kearns v. Kearns' Ex'r, 4 Har. (Del.) 83 178 Keating v. Smith, 154 Cal. 186, 97 Pac. 300 562 Keed V. Campbell, 2 Hayw. & H. (D. C.) 417 379 Keefe v. Keefe, 19 Cal. App. 310, 125 Pac. 929 28 Keegan's Estate, 139 Cal. 123, 72 Pac. 828 23, 256, 274 Keeler v. Lauer, 73 Kan. 396, 85 Pac. 541 383, 422, 458 Keely v. Moore, 196 TT. S. 38, 25 S. Ct. 169, 49 L. Ed. 376 134 Keely v. Weir (C. C.) 38 Fed. 291 409 Keen v. Watson, 39 Mo. App. 165 531 Keir v. Keir, 155 Cal. 96, 99 Pac. 487 371 Keith V. Eaton, 58 Kan. 732, 51 Pac. 271 289 Keith V. Guthrie, 59 Kan. 200, 52 Pac. 435 492 Keith V. Johnson, 97 Mo. 223, 10 S. W. 597 40 Keith V. Keith, 80 Mo. 125 184 Keith V. Keith, 197 Mo. 223, 10 S. W. 597 181, 186 Keith V. Proctor, 114 Ala. 671, 71 South. 502 499, 502, 513 Kelby's Will (D. C.) 2 Hayw. & H. 150, Fed. Cas. No. 18,306. .. 78 624 CASES CITED Page Keller v. Gaylor, 40 Conn. 348 342 Kelley v. Meins, 135 Mass. 231 366 Kelley v. Welborn, 110 Ga. 540, 35 S. E. 636 483, 485 Kellogg V. Mix, srConn. 247 309 Kelly V. Kelly's Adm'r, 3 Pennewill (Del.) 286 360 Kelly V. Moore, 22 App. D. C. 9 64, 65, 171, 173, 231, 301 Kelly V. Richardson, 100 Ala. 584, 13 South. 785 18, 88, 325, 332, 333, 334, 335, 548 Kelly V. Settegast, 68 Tex. 13, 2 S. W. 870 59, 60, 215 Kelty V. Burgess, 84 Kan. 678, 115 Pac. 583 239 Kemp V. Daniel, 8 Ga. 385 305 Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339 326, 334, 351 Kenan v. Graham, 135 Ala. 585, 33 South. 699 ■■■■ 496 Kendrick's Estate, 130 Cal. 360, 62 Pac. 605 142, 143, 272 Kengla v. Randall, 22 App. D. O. 463 243 Kennedy v. Alexander, 21 App. D. C. 424 326, 363, 411 Kennedy v. Merricfi, 46 Neb. 260, 64 N. W. 960 284, 286 Kennedy v. XJpshaw, 64 Tex. 411, s. c, 66 Tex. 442, 1 S. W. 308 69, 84, 217, 232 Kennerly v. Shepley, 15 Mo. 640, 57 Am. Dee. 219 527 Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, 44 L. R. A. (N. S.) 544, Ann. Gas. 1914A, 592 69, 121, 343 Kenney v. Parks (Cal.) 54 Pac. 251 45 Kenrick v. Cole, 61 Ho. 572 175 Kent's Estate, 161 Cal. 142, 118 Pac. 523 64, 171 Kerlin v. Bull, 1 Dall. 175, 1 L. Ed. 88 403 Kern v. Stushel, 156 Mo. App. 13, 135 S. W. 1007 331 Kerr v. Kerr, 80 Kan. 83, 101 Pac. 647 272 Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880 273 Kerr v. Moon, 9 Wheat. 565, 6 L. EdL 161 181, 510 Kerr v. White, 52 Ga. 362 39 Kerrick v. Bransby, 7 Brown's Cas. in Pat. 437 157, 158 Kesterson v. Bailey, 35 Tex. Civ. App. 235, 80 S. W. 97. .348, 399, 414 Ketchum v. Corse, 65 Conn. 85, 31 Atl. 486 419, 554 Ketchum v. Stearns, 8 Mo. App. 66, (s. c.) 76 Mo. 396 51, 76, 255, 267 Key V. Harlan, 52 Ga. 476 39 Keyl V. Westerhaus, 42 Mo. App. 49 33 Kidder, Estate of, 57 Cal. 282, 6 Pac. 326 177 Kidder, Estate of, 66 Cal. 487, 6 Pac. 326 ' 177 Kidwell V. Brummagin, 32 Cal. 442 301 Kidwell V. Ketler, 146 Cal. 12, 79 Pac. 514 350 Kilborn, Estate of, 5 Cal. App. 161, 89 Pac. 985 107, 175, 498 Kilborn, Estate of, 162 Cal. 4, 120 Pac. 762 221, 241, 254, 266, 274, 275, 276 CASES CITED 625 Kllborn, Estate of, 158 Cal. 593, 112 Pac. 52 216 Kllby V. Godwin, 2 Del. Ch. 61 33 Kiles' Estate, 72 Cal. 133, 13 Pac. 320 ." ....'. 216 KiUgore v. Oranmer, 48 Colo. 226, 109 Pac. 950 468 Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428 461 Kimberly's Appeal, 68 Conn. 428, 36 Atl. 847, 37 L. R. A. 261, 57 Am. St. Rep. 101 144, 225 Kimbrougli v. Smith, 128 Ga. 690, 58 S. E. 23 408 Kimsey v. Allison, 120 Ga. 413, 47 S. E. 899 92 Kinard v. Hale, 128 Ga. 485, 57 S. E. 761 443 Kine v. Becker, 82 Ga. 563, 9 S. E. 828 485 King V. Ackerman, 2 Black. 408, 17 L. Ed. 292 316, 326, 404 King V. Battaglia, 38 Tex. Civ. App. 28, 84 S. W. 839 491, 507 King V. Beck, 15 Ohio, 561 415 King V. Bock, 80 Tex. 156, 15 S. W. 804 , 451 King V. Byrne, 92 Ark. 88, 122 S. W. 96 24 King V. Frick, 135 Pa. 575, 19 Atl. 951, 20 Am. St. Rep. 889... 439 King V. Gilson, 191 Mo. 307, 90 S. W. 367 131, 238, 269 King V. Gilson, 206 Mo. 264, 104 S. W. 52 231 King V. Grant, 55 Conn. 106, 10 Atl. 505 480, 482 King V. Gridley, 46 Conn. 556 360 King V. King, 64 Mo. App. 301 390 King V. Kinsey, 74 N. C. 261 59 King V. La Grange, 50 Cal. 328 376, 387 King V. Mitchell, 8 Pet. 326, 8 L. Ed. 962 321 King V. Ponton, 82 Cal. 421, 22 Pac. 1087 93 King V. Shelton, 36 App. D. 0. 1 357, 476 Kingsbury v. Whitaker, 32 La. Ann. 1055, 36 Am. Rep. 278 131 Kinkead v. Maxwell, 75 Kan. 50, 88 Pac. 523 327 Kinne v. Ktnne, 9 Conn. 102, 21 Am. Dec. 732.... 116, 121, 124, 132 Kinne v. Phares, 79 Kan. 366, 100 Pac. 287 352, 382 Kinnebrew's Dis. v. Kinnebrew's Adm'rs, 35 Ala. 628 44, 152 Kinney v. Murray, 170 Mo. 674, 71 S. W. 197 29 Kinsey v. Woodward, 2 Del. Ch. 92 381 Kinsman v. Kinsman, 1 Root (Conn.) 180,. 1 Am. Dec. 37 313 Kirbell v. Pittsen, 75 Conn. 301, 53 Atl. 587 193 Kirby v. Kirby's Adm'r, 40 Ala. 492 198, 208 Kirk V. BowUng, 20 Neb. 260, 29 N. W. 928 173 Kirkman v. Mason, 17 Ala. 134 338 Kirkpatrick v. Kirkpatrick's Ex'r, 6 Houst. (Del.) 509 46 Kischman v. Scott, 166 Mo. 227, 65 S. W. 1031 121, 124, 267 Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453 177, 178 Kleimann v. Gieselmann, 114 Mo. 437, 21 S. W. 796, 35 Am. St. Rep. 761 389 Klemp V. Winter, 23 Kan. 703 40b BoRL. Wills — 10 626 CASES CITED Page Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682 422, 437 Klostermann, In re, 6 Mo. App. 314 390 Knapp V. Trust Co., 199 Mo. 667, 98 S. W. 70 124, 143 Knauf V. Mack, 93 Neb. 524, 141 N. W. 199. 555 Knight V. Newkirk, 92 Mo. App. 258 529 Kniglit V. Tripp, 121 Cal. 674, 54 Pac. 267 33, 34 Knight V. Wlieedon, 104 Ga. 309, 30 S. E. 794 41 Knorr v. Eaymond, 73 Ga. 749 12 Knost V. Knost, 229 Mo. 170, 129 S. W. 665, 49 L. R. A. (N. S.) 627 364 Knowles v. Knowles, 132 Ga. 806, 65 S. E. 128 416, 501 Knox V. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 231 207, 222, 234, 256, 261 Knox V. Knox, 87 Kan. 381, 124 Pac. 409 470 Knox V. Paull, 95 Ala. 505, Jl South. 156 152, 190, 192, 193, 198, 208, 209, 219 Knox V. Richards, 110 Ga. 5, 35 S. E. 295 79 Knox's Appeal, 26 Conn. 22 220 Koch's Estate, 8 Cal. App. 90, 96 Pac. 100 298, 299, 326 Kofka V. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685 28 Kohler, In re, 79 Cal. 313, 21 Pac. 758 224 Kolterman v. Chilvers, 82 Neb. 216, 117 N. W. 405 173, 193 Koppikus' Estate, 1 Cal. App. 84, 81 Pac. 732 338 Korn V. Cutler, 26 Conn. 6 406 Korsstrom v. Barnes (C. C.) 156 Fed. 280 (Wash.) 506 Kosminsky v. Estes, 27 Tex. Civ. App. 69, 65 S. W. 1108 313 Kothman v. Markson, 34 Kan. 550, 9 Pac. 218 523 Kramer v. Lyle (D. C.) 197 Fed. 618 342, 553 Kramer v. Weinert, 81 Ala. 416, 1 South. 26 115, 123, 254 Krechter v. Grofe, 166 Mo. 385, 66 S. W. 358 312 Kuhman's Estate, In re, 94 Neb. 783, 144 N. W. 778 240 Kulp V. Kulp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550 524 Kultz V. Jaeger, 29 App. D. C. 300 50, 223, 241, 268, 274, 276 Kumpe V. Coons, 63 Ala. 448 67, 190, 194, 198, 199, 396, 403 Kunkler's Estate, 163 Cal. 797, 127 Pac. 43 328, 347, 351 Kyle V. Perdue, 87 Ala. 423, 6 South. 296 44 Kytle V. Kytle, 128 Ga. 387, 57 S. E. 748 45 Labs V. Labs, 92 Neb. 378, 138 N. W. 561 29 Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665 403, 413 Lackland v. Stevenson, 54 Mo. 108 386 Lackland v. Walker, 151 Mo. 210, 52 S. W. 414 477, 480, 483 Ladd's Estate, 94 Cal. 670, 30 Pac. 99 53, 300, 406 CASES CITED 627 Page Lagow V. Glover, 77 Tex. 448, 14 S. W. 141 153, 509 LaMff, In re, 86 Cal. 151, 24 Pac. 850 557 Lake v. Copeland, 82 Tex. 464, 17 S. W. 786 303 Lake v. Hood, 35 Tex. Civ. App. 32, 79 S. W. 323 152 Lake V. Warner, 34 Conn. 484 41, 302 Lakemeyer's Estate, 135 Cal. 28, 66 Pac. 961, 87 Am. St. Rep. 96 75 Lakeview M. & M. Co. v. Hannon, 93 Ala. 88, 95 South. 539 285 Lallerstedt v. Jennings, 23 Ga. 571 307 Lamar v. Gardner, 113 Ga. 781, 39 S. E. 498 501 Lamar v. McLaren, 107 Ga. 591, 34 S. E. 116 304, 375 Lamb v. Girtman, 26 Ga. 625 63 Lamb v. Girtman, 33 Ga. 289 63 Lamb v. Helm, 56 Mo. 420 215, 245, 514 Lamb v. Lynch, 56 Neb. 135, 76 N. W. 428 229, 422 Lambden v. West, 7 Del. Ch. 266, 44 Atl. 797 555 Lambert v. Paine, 3 Cranch, 97, 2 L. Ed. 377 404 Lamble, In re, 97 Mich. 49, 56 N. W. 223 179 Lampert v. Haydel, 96 Mo. 439, 9 S. W. 780, 2 L. R. A. 113, 9 Am. St. Rep. 358 368 Lampkin v. Hayden, 99 Ga. 363, 27 S. E. 764 410 Landers v. Dell, 61 Conn. 189, 23 Atl. 1083 419 Landic v. Simms, 1 App. D. C. 507 323 Landis v. Eppstein, 82 Mo. 99 315 Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814 160 Landram v. Jordan, 25 App. D. C. 291 288, 302, 397, 421 Landram v. Jordan, 203 U. S. 56, 27 Sup. Ct. 17, 51 L. Ed. 88 421 Lane v. Lane, 4 Pennewill (Del.) 368, 55 Atl. 184, 64 L. R. A. 849, 103 Am. St. Rep. 122 424, 425, 426 Lane v. Lane, 125 Ga. 386, 54 S. E. 90, 114 Am. St. Rep. 207, 5 Ann. Cas. 462 ■• 61 Lane v. Vick, 3 How. 464, 11 L. Ed. 681 293, 298 Lane's Appeal, 57 Conn. 182, 17 Atl. 926, 4 L. R. A. 45, 14 Am. St. Rep. 94 42 Lang's Estate, 65 Cal. 19, 2 Pac. 491 92, 126, 233 Langdon's Estate, 129 Cal. 451, 62 Pac. 73 318 Langford v. Langford, 79 Ga. 520, 4 S. E. 900 303 Langford's Estate, 108 Cal. 608, 41 Pac. 701. 225, 257, 259 Langley v. Harris, 23 Tex. 564 508 Langley's Estate, 140 Cal. 129, 73 Pac. 824 120, 211 Langston v. Canterbury, 173 Mo. 131, 73 S. W. 151 516 Langston v. Marks, 68 Ga. 435 192, 542 Langworthy v. Chadwick, 13 Conn. 42 427, 430, 431 Lanham v. Lanham, 105 Tex. 91, 145 S. W. 336 229 Lanlus v. Fletcher, 100 Tex. 550, 101 S. W. 1076 467, 472, 535 Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407 68, 218 Lantry v. Lantry, 51 111. 458, 2 Am. Rep. 310 462 628 CASES CITED Page I^antry v. Wolf, 49 Neb. 374, 68 N. W. 494 516 Lanyon Z. Co. v. Freeman, 68 Kan. 691, 75 Pac. 985, 1 Ann. Gas. 403 458 Larabee v. Larabee, 1 Root (Conn.) 556 440 Larmon v. Knight, 140 111. 232, 29 N. E. 1116, 33 Am. St. Rep. 229 461 Larned v. Adams, 1 Hayw. & H. (D. C.) 384, Fed. Cas. No. 8,092. . 332 Larson v. How, 71 Minn. 250, 73 N. W. 966 155 Lasb V. Lash, 209 111. 595, 70 N. E. 1049 556 Latham v. Schaal, 25 Neb. 535, 41 N. W. 354 255 Lathrop's Estate, 165 Cal. 243, 131 Pac. 752 485, 513, 535 Latour's Estate, 140 Cal. 414, 73 Pac. 1070, 74 Pac. 441 60, 121, 168, 195, 221, 254 Latta V. Brown, 96 Tenn. 343, 34 S. W. 417, 31 L. R. A. 840 388 Lauer v. Griffin, 67 Mo. 654 531 Laufer v. Powell, 30 Tex. Civ. App. 604, 71 S. W. 549 356 Lausman v. Drahos, 12 Neb. 102, 10 N. W. 573 371 Lautenshlager v. Lautenshlager, 80 Mich. 285, 45 N. W. 147 64 Laval V. StafCel, 64 Tex. 370 296, 417, 419 Laveaga's Estate, 119 Cal. 653, 51 Pac. 1074 337 Lavlnburg's Estate, 161 Cal. 536, 119 Pac. 915. . . . .264, 267, 272, 274 Law V. Law, 83 Ala. 432, 3 South. 752 92, 93, 93 Lawless v. Kerns, 242 Mo. 392, 146 S. W. 1169 406, 409, 426 Lawlor V. Holohan, 70 Conn. 87, 38 Atl. 903 440 Lawrence v. Beardsley, 74 Conn. 1, 49 Atl. 190 412 Lawrence v. Security Co., 56 Conn. 423, 15 Atl. 406, 1 L. R. A. 342 538 Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499 207 Lawson v. Dawson, 21 Tex. Civ. App. 361, 53 S. W. 64 75 Lawson v. Morrison, 2 Dall. 286, 1 L. Ed. 384 86 Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460 98 Layman's Will, In re, 40 Minn. 371, 42 N. W. 286 237 Layton v. Jacobs, 5 Pennewill (Del.) 71, 62 Atl. 691 210 Layton v. State, 4 Har. (Del.) 8 542 Leach y. Burr, 188 U. S. 510, 23 Sup. Ct. 393, 47 L. Ed. 567 240 Leach V. Burr, 17 App. D. C. 128 240, 274 Leake v. Watson, 60 Conn. 508, 21 Atl. 1075 304, 306, 419 Leard v. Askew, 28 Okl. 300, 114 Pac. 251, Ann. Cas. 1912D, 234 86 Learned's Estate, 70 Cal. 140, 11 Pac. 587 74, 168, 220, 240 Leatherwood v. Sullivan, 81 Ala. 458, 1 South. 718 184, 499, 501 Leavens v. Butler, 8 Port. (Ala.) 380 503, 544, 545 Leavenworth v. Marshall, 19 Conn. 408 207, 243 Leavitt v. Beirne, 21 Conn. 1 369 Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552 326, 338 Lecouturier v. Ickelheimer (D. 0.) 205 Fed. 682 509 Lee V. Chlsholm, 56 Ga. 126 429 CASES CITED 629 Lee V. McFarland, 19 Tex. Civ. App. 292, 46 S. W. 281 381, 397 Lee V. MeElvy, 23 Ga. 129 428 Lee V. Shivers, 70 Ala. 288 313 Lee V. Simpson, 134 U. S. 572, 10 Sup. Ct. 631, 33 L. Ed. 1038. . 112 Lee Co. V. Grace Hospital (D. C.) 206 Fed. 994 545 Lee's Appeal, 53 Conn. 863, 2 Atl. 758 29 Leeds v. Sparks, 8 Del. Ch. 280, 68 Atl. 239 504 Leeper v. Taylor, 47 Ala. 221 123, 258 Lees V. Browning, 15 Ala. 495 19i, 208 Legare v. Ashe, 1 Bay (S. C.) 464 97 Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 956 225, 261, 265 Lehnhoff v. Theine, 184 Mo. 346, 83 S. W. 469 313, 327, 343 Lemmons v. Reynolds, 170 Mo. 227, 71 S. W. 135 296, 352 Lemon v. Jenkins, 48 Ga. 313, 824 124 Lennon's Estate, 152 Cal. 327, 92 Pac. 870, 125 Am. St. Rep. 58, 14 Ann. Cas. 1024 223, 345 Lenox v. Lenox's Ex'r, 1 Hayw. & H. (D. C.) 11 Fed. Cas. No. 8,246a 402 Lenz V. Sens, 27 Tex. Civ. App. 442, 66 S. W. 110 318, 353 Leonard v. Owen, 93 Ga. 678, 20 S. B. 65 432 Lepard v. Clapp, 80 Conn. 29, 66 Atl. 780 302, 303, 309, 420 Lepard v. Skumer, 58 Conn. 330, 20 Atl. 427 393, 394, 536 Lesiur v. Sipherd, 84 Neb. 296, 121 N. W. 104 280, 318, 409 Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33 232 LesUe v. Sims, 39 Ala. 161 238 Lessley v. Lessley, 44 111. 527 380 Lester v. Kirtley, 83 Ark. 554, 104 S. W. 213 504 Lester v. Stephens, 113 Ga. 495, 39 S. E. 109 297, 473, 544 Lethbridge v. Lauder, 13 Wyo. 9, 76 Pac. 6S2 494 Leverett's Heirs v. Carlisle, 19 Ala. 80 59, 254 Levins v. Stevens, 7 Mo. 90 25, 531 Lewis V. Ames, 44 Tex. 319 82, 193 Lewis V. Aylott, 45 Tex. 190 67, 69, 78 Lewis V. Barkley, 91 Neb. 127, 135 N. W. 379 537, 565 Lewis V. Barnhart, 145 U. S. 56, 12 Sup. Ct. 772, 36 L. Ed. 621 183, 439 Lewis V. Barnhart (C. C.) 43 Fed. 854 439 Lewis V. Darling, 16 How. 1, 14 L. Ed. 819 5ol Lewis V. Ford, 67 Ala. 143 r'^lx. Lewis V. Gaillard, 61 Fla. 819, 56 So. 281 477, 483 Lewis V. Lewis, 62 Ala. 265 348 Lewis V. Luckett, 32 App. D. C. 188 • • lot> Lewis V. Maris, 1 Dall. 278, 1 L. Ed. 136 13, oo Lewis V. Nichols, 38 Tex. 54 Vnn 411 Lewis V. Palmer, 46 Conn. 459 *u^> *j-^ Lewis I: Pitman; 101 Mo. 281, 14 S. W. 52 298, 411, 427 630 CASES CITED Page Lewis V. St. Louis, 69 Mo. 595 184 Lewis V. Scofleld, 26 Conn. 455, 68 Am. Dec. 404 30 Lewis V. Snyder, 72 Kan. 671, 83 Pac. 621 224 L'Hommedieu, In re (D. C.) 138 Fed. 606 454, 471 Llch V. Lich, 158 Mo. App. 400, 138 S. W. 558 285, 289, 290, 304, 305, 307, 397, 403, 416 Liggat V. Hart, 23 Mo. 133 35, 325, 423 Lightfoot V. Lightfoot's Ex'r, 27 Ala. 351 529 Legwin v. McEee, 79 Ga. 430, 4 S. E. 863 395 Likefleld v. Llkefield, 82 Ky. 589, 56 Am. Rep. 90S 357 Lilly V. Griffin, 71 Ga. 535 332 Lilly V. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Eep. 887 175, 223, 280, 482 Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Eep. 802 182 Lindsay v. Stephens, 223 Mo. 463, 122 S. W. 724 241 Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641. .58, 122, 222, 233, 241 Lines V. Darden, 5 Fla. 51 296, 298, 464 Llnney v. Peloquin, 35 Tex. 29 20, 224, 244 Lipphard v. Humphrey, 209 U. S. 264, 28 Sup. Ot. 561, 52 L. Ed. 783, 14 Ann. Gas. 872, s. c. 28 App. D. C. 355 55, 60, 232 Lipps V. Panko, 93 Neb. 469, 140 N. W. 761 214 Lish V. Lish, 158 Mo. App. 400, 138 S. W. 558 382 Little V. Bird well, 21 Tex. 597, 73 Am. Dec. 242 493 Little V. Birdwell, 27 Tex. 688 373 Little V. Gear, 69 Conn. 411, 37 Atl. 1056 412, 413 Little V. Giles, 25 Neb. 313, 41 N. W. 186 318, 327, 365, 423 Littler V. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137 365 Littles' Estate, 22 Utah, 204, 61 Pac. 899 378, 380, 382, 388 Litz V. Exchange Bank, 15 Okl. 564, 83 Pac. 790 498, 520 Lively V. Harwell, 29 Ga. 510 96 Livingston v. Newkirk, 3 Johns. Ch. (N. Y.) 312 528 Livingston's Appeal, 63 Conn. 68, 26 Atl. 470 219, 253, 260, 263, 266, 278 Lockard v. Stephenson, 120 Ala. 641, 24 South. 906, 74 Am. St. liep. 63 210 Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145 419 Lockwood V. Lockwood, 80 Conn. 513, 69 Atl. 8 265 Lockwood V. Stradley, 1 Del. Ch. 298, 12 Am. Dec. 97 503 Lockwood V. Weed, 2 Conn. 291 482 Lockwood's Appeal, 55 Conn. 157, 10 Atl. 517 306, 313, 350 Locust V. Randle, 46 Tex. Civ. App. 544, 102 S. W. 946 94, 161, 193 Lodge V. Lodge's Will, 2 Houst. (Del.) 421 258 Loftis V. Glass, 15 Ark. 680 555 Lofton V. Murchison, 80 Ga. 391, 7 S. E. 322 438 Logan V. Logan, 11 Colo. 44, 17 Pac. 99 311, 383 CASES CITED 631 Pago LohmuUer v. Mosher, 74 Kan. 751, 87 Pac. 1140, 11 Ann. Oas. 469 408 Lones v. Lones, 108 Cal. 688, 41 Pac. 771 101 Long V. Blackball, 7 Term R. 100 419 Long V. Boyer, 88 Kan. 664, 129 Pac. 943 244 Long V. Patton, 154 U. S. 573, s. c. 14 Sup. Ct. 1167, 19 L. Ed. 881 184 Loob V. Fenaughty, 60 Kan. 570, 55 Pac. 841 241 Loomer v. Loomer, 76 Conn. 522, 57 Atl. 167 367 Loomis V. Loomis, 35 Barb. (N. Y.) 628 340 Loosemore v. Smith, 12 Neb. 343, 11 N. W. 493 155, 160, 192 Loosing V. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (N. S.) 920 ■ 366, 411, 424 Lord V. Lord, 22 Conn. 602 357, 529 Lord V. Lord, 23 Conn. 327 ; 378, 548 Loring v. Marsbl, 6 Wall. 337, 18 L. Ed. 802 22, 480 Lorton v. Woodward, 5 Del. Cb. 505 427 Lorts V. Wasb, 175 Mo. 503, 75 S. W. 95 171, 220, 231, 253 Love V. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334 45 Loveland's Estate, 162 Cal. 595, 123 Pac. 801 120, 235 Lovett V. Cbisolm, 30 Ala. 88 194, 208 Low V. Harmony, 72 N. Y. 408." 323 Lowe V. Hart, 93 Ark. 548, 125 S. W. 1030 33 Lowe V. Holder, 106 Ga. 879, 33 S. E. 30 290 Lowrey v. Harlow, 22 Colo. App. 73, 123 Pac. 143 23 Loyd V. Mason, 38 Tex. 212 524 Loyd V. Spillet, 3 P. Wms. 344 362 Lucas V. Brooks, 18 Wall. 436, 21 L. Ed. 779 51 Lucas V. Parsons, 24 Ga. 640, 71 Am. Dec. 147. . . .65, 86, 144, 234, 323 Lucas V. Price, 4 Ala. 679 504 Ludlow V. Flournoy, 34 Ark. 451 192 Luebbert v. Brockmeyer, 158 Mo. App. 196, 138 S. W. 92 116, 120, 254, 257 Lufburrow v. Koch, 75 Ga. 448 396 Lufkin's Estate, 131 Cal. 291, 63 Pac. 469 382 Lumpkin v. Smith, 62 Tex. 249 506 Luper V. Werts, 19 Or. 122, 23 Pac. 850 198, 210 Lux's Estate, 149 Cal. 200, 85 Pac. 147. 326, 385, 420, 422, 471 Lycan v. Miller, 112 Mo. 548, 20 S. W. 36 309 Lyman v. Cbapin, 23 Conn. 447 360 Lynch V. MUler, 54 Iowa, 516, 6 N. W. 740 39 Lynch's Estate, 142 Cal. 373, 75 Pac. 1086 302, 317 Lynde v. Estabrook, 7 Allen (Mass.) 68 448 Lyne v. Guardian, 1 Mo. 410, 13 Am. Dec. 509 250 Lyne v. Marcus, 1 Mo. 410, 13 Am. Dec. 509 160 Lynn v. Busby, 46 Tex. 600 •■•• ^^9 Lyon V. Acker, 33 Conn. 222 322, d49 632 CASES CITED Page Lyon V. Baker, 122 Ga. 189, 50 S. E. 44 305 Lyon V. Home, L. R. 6 Eq. 655 -. . . 146 Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52 204 Lyons v. Campbell, 88 Ala. 462, 7 South. 250. .198, 216, 219, 260, 268 M Macafee v. Higgins, 31 App. D. C. 355 229 McAleer v. Schneider, 2 App. D. C. 461 314, 316, 324, 325, 404 McArthur v. Allen (C. C.) 3 Fed. 313 204 McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015. . 210, 403, 415, 492, 545 McBain v. Wimbish, 27 6a. 259 161 McBeth V. McBeth, 11 Ala. 596 96, 176 McBride v. Sullivan, 155 Ala. 166, 45 South. 902 115, 142 McCabe, In re, 68 Cal. 520, 9 Pac. 534 37 McCabe v. Healy, 138 Cal. 81, 70 Pac. 1008 28 McCafErey v. Little, 20 App. D. C. 116 404, 470 McCaffrey v. Manogue, 22 App. D. C. 385, s. c. 196 U. S. 563, 25 Sup. Ct. 319, 49 L. Ed. 608 323, 404, 407 McCann v. Ellis, 172 Ala. 60, 55 South. 303 190, 192 McCarty v. Hall, 13 Mo. 480 510 McCauley's Estate, 138 Cal. 432, 71 Pac. 512 321 McCauley's Estate, 138 Cal. 546, 71 Pac. 458 485 McClary v. StuU, 44 Neb. 175, 62 N. W. 501 140, 145, 175, 243 McClaskey v. Barr (C. O.) 54 Fed. 781 152, 324 McClellan v. Garland, 187 Fed. 915, 110 C. C. A. 49 200, 547 McClellan v. Mackenzie, 126 Fed. 701, 61 C. O.- A. 619.... 406 McClellan v. Weaver, 4 Cal. App. 593, 88 Pac. 646 297, 326 McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S. W. 1171. . 470 McClelland v. Rose, 208 Fed. 503, 125 C. 0. A. 505 299, 473 McClintock v. Curd, 32 Mo. 411 115, 141, 219 McCloskey v. Tierney, 141 Cal. 102, 74 Pac. 699, 99 Am. St. Rep. 33 45 McCloud V. Hewlett, 135 Cal. 361, 67 Pac. 333 468 McCloud's Estate, Myr. Prob. (Cal.) 23 16 McClure v. McClure, 86 Tenn. 173, 6 S. W. 44 101, 270 McCoUey v. Lampleugh, 3 Houst. (Del.) 461 440 McConkey v. McConkey, 9 Watts (Pa.) 352 354 McConnell v. Keir, 76 Kan. 527, 92 Pac. 540 59, 164, 169, 170, 222, 226 McCord V. McCord, 77 Mo. 166, 46 Am. Rep. 9 34 McCord v. Thompson, 131 Ga. 126, 61 S. E. 1121 46 McCord V. Whitehead, 98 Ga. 381, 25 S. E. 767 346 McCormick v. Grogan, 4 L. R. Eng. & Ir. Ap. 82 463 CASES CITED 633 Mccormick y. McElligott, 127 Pa. 230, 17 Atl. 896, 14 Am. St. Rep.""'^' 439 McCormick v. McNeel, 53 Tex. 15 390 Mccormick v. Sullivant, 10 Wlieat. 192, 6 il,'. Ed. 300 40 181 McCoun V. Lay, 5 Cranch, C. C. (D. C.) 548, Fed. Cas. 8729.V. ..' 359 McCourtney v. Matties, 47 Mo. 533 24 McCown V. Owens, 15 Tex. Civ. App. 346, 40 S. W 366 323 McCown V. Terrell, 9 Tex. Ciy. App. 66, 29 S. W. 484 498 504 McCoy V. Conrad, 64 Neb. 150, 89 N. W. 665 ' 55 McCracken v. McBee, 96 Ark. 251, 131 S. W. 450 ........ 375 McCracken v. McCracken, 67 Mo. 590 25 McCrea v. Haraszthy, 51 Cal. 146 167, 194, 541, 564 McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960 ' ! ' 28 McCreary v. Robinson, 94 Tex. 221, 59 S. W. 536 340 McCroan v. Pope, 17 Ala. 612 465 McCuUoch V. Campbell, 49 Ark. 367, 5 S. W. 590 121, 222, 258 McCulloch V. McLaln's Ex'r, 1 Cranch, C. C. 304, Fed. Cas. No. 8,739 529 McCulloch V. Valentine, 24 Neb. 215, 38 N. W. 854 296, 318 McCullough's Estate, Myr. Prob. (Cal.) 76 54 McCullum V. McKenzie, 26 Iowa, 510 105 McCune v. Goodwillie, 204 Mo. 306, 102 S. W. 997 443, 538 McCutchen v. Loggins, 109 Ala. 457, 19 South. 810 211, 219 McDaniel v. Crosby, 19 Ark. 533 58, 222, 229, 255, 263, 273 McDaniel v. Pattison, 98 Cal. 86, 27 Pac. 651, 32 Pac. 805 156 McDemott v. Hannon (D. C.) 203 Fed. 1015 203, 204 McDermott's Estate, 148 Cal. 43, 82 Pac. 842 170, 171, 221 McDevitt, In re, 95 Cal. 33, 30 Pac. 106 225, 231, 253, 256, 259, 273 McDonald v. Hamblen, 78 Tex. 628, 14 S. W. 1042 508 McDonald v. McCall, 91 Ga. 304, 18 S. E. 157 474 McDonald v. McDonald, 86 Mo. App. 127 553 McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336 98 McDonald v. Shaw, 81 Ark. 235, 98 S. W. 952, s. c. 92 Ark. 15, 121 S. W. 935, 28 L. R. A. (N. S.) 657 317, 373, 376, 477 McDonald v. Taylor, 107 Ga. 43, 32 S. E. 879 396 McDonnel's Estate, Myr. Prob. (Cal.) 94 307 McDonnell v. Farrow, 132 Ala. 227, 31 South. 475 161 McDonnell v. Jordan, 142 Ala. 279, 38 South. 122 213 McDonnell v. Jordan, 178 U. S. 229, 20 Sup. Ct. 886, 44 L. Ed. 1048 201 McDonogh v. Murdock, 15 How. 367, 14 L. Ed. 732 365, 478 McDonough v. Cross, 40 Tex. 251 508 McDougald v. Gilchrist, 20 Fla. 573 388 McDuffie V. Montgomery (O. C.) 128 Fed. 105 464 McElrath v. Hally, 48 Ga. 641 316 McElroy v. McElroy, 5 Ala. 81 115, 125, 241, 494 634 CASES CITED McElroy v. Phlnk, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025. . . .92, 97 McFadin v. Catron, 120 Mo. 267, 25 S. W. 506 121, 215, 230, 231, 233, 239, 253, 259, 275, 277 McFadin v. Catron, 138 Mo. 216, 38 S. W. 932, 39 S. W. 771. . . 121, 220, 240, 253, 259 McGee v. Porter, 14 Mo. 611, 55 Am. Dee. 129 56 McGehee v. Polk, 24 Ga. 406 470 McGhee v. Alexander, 104 Ala. 116, 16 South. 148 538 McGhee v. Stephens, 83 Ala. 466, 3 South. 808 385 McGinn's Estate, 3 CofCey Prob. Dec. (Gal.) 26 20 McGinnis v. Foster, 4 Ga. 377 399 SIcGinnis v. McGinnis, 1 Ga. 496 377 McGlown V. McGlown, 17 (3a. 234 45 McGowan v. Elroy, 28 App. D. C. 188 106, 204 McGowan v. Jones, E. M. Charlt. '(Ga.) 184 112 McGraw v. McGraw, 176 Fed. 312, 99 C. C. A. 650 298, 299, 301, 326, 422 McGrews v. McGrews, 1 Stew. & P. (Ala.) 30 60, 494 McGuigan v. Jaeger, 36 App. D. C. 227 363 McGuire v. Bank of Mobile, 42 Ala. 589 46 McGuire v. Westmoreland, 36 Ala. 594 305 McHardy v. McHardy's Ex'r, 7 Fla. 301 530 McHugh V. O'Conner, 91 Ala. 243, 9 South. 165 33 McIUvain v. Hockaday, 36 Tex. Civ. App. 1, 81 S. W. 54 338, 421 McIUwrath v. Hollander, 73 Mo. 105, 39 Am. Eep. 484 218 Mcllvaine v. Smith, 42 Mo. 45, 97 Am. Dec. 295 365 Mclntire, In re, 2 Hayw. & H. 339, Fed. Cas. No. 8823a 50, 170 Mclntire v. Mclntire, 162 U. S. 383, 16 Sup. Ct. 814, 40 L. Ed. 1009 72 Mclntire v. Mclntire, 192 U. S. 116, 24 Sup. Ct. 196, 48 L. Ed. 369 349 Mclntire v. Mclntire, 19 D. C. 482 72, 74 Mclntire v. Mclntire, 14 App. D. C. 337 243, 280, 349 Mcintosh V. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611 92, 96, 122, 237, 255 Mclntyre v. Mclntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Kep. 71, 1 Ann. Cas. 606 92, 95, 97, 98 Mack's Appeal, 71 Conn. 122, 41 Atl. 242 281, 478, 481 Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84. . 268 Mackay v. Mackay, 107 Cal. 303, 40 Pac. 558 471, 538 Mackay v. Moore, Dud. (Ga.) 94 358, 458 McKee v. Higbee, 180 Mo. 263, 79 S. W. 401 29 McKee v. Stuckey, 181 Mo. 719, 81 S. W. 160 374 McKenna's Estate, 143 Cal. 580, 77 Pac. 461 140, 144, 215, 221, 230, 238, 244 McKenzie v. Roleson, 28 Ark. 102 300 McKenzie's Appeal, 41 Conn. 607, 19 Am. Rep. 525 447 CASES CITED 635 Page Mackey v. Atoka, 34 Okl. 572, 126 Pac. 767 207 Mackey's Will, 110 N. Y. 611, 18 N. E. 433, 1 L. R. A. 491, 6 Am. St. Rep. 409 57 Mackle v. Story, 93 II. S. 589, 23 L. Ed. 986 313, 347 McKlnney v. Noble, 37 Tex. 731 560 McKinney v. Noble, 38 Tex. 195 560 McKlnney v. Wells, 64 Ga. 450 338 McKinney's Estate, 112 Cal. 447, 44 Pac. 743 168 McKinnon v. McKinnon, 56 Fed. 409, 5 C. 0. A. 530, s. c, 46 Fed. 713 27 McKinster v. Smith, 27 Conn. 628 369 McLaln v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284 46 McLane v. Belvin, 47 Tex. 493 506, 508 McLaughlin v. Penny, 65 Kan. 523, 70 Pac. 341 394, 403, 467 McLavy v. Jones, 31 Tex. Civ. App. 354, 72 S. W. 407 186 McLean v. Barnard, 1 Root (Conn.) 462 70 MacLean v. Williams, 116 Ga. 257, 42 S. E. 485, 59 L. R. A. 125 322, 349 McLeod V. Butts, 89 Kan. 785, 132 Pac. 1174 500 McLeod V. Dell, 9 Fla. 451 78, 304, 305, 333, 367, 419 McMahan v. Hubbard, 217 Mo. 624, 118 S. W. 481 169, 292, 309, 316, 320, 326 McMahon v. McMafion, 100 Mo. 97, 13 S. W. 208 218 McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St. Rep. 828 237 McMichael v. Pyr, 75 Ga. 189 327 McMillan v. Cox, 109 Ga. 42, 34 S. E. 341 412, 425 McMillan v. Farrow, 141 Mo. 62, 41 S. W. 890 298, 409 McMiUen, In re, 12 N. M. 31, 71 Pac. 1083 20, 22, 37 McMurrv v. Stanley, 69 Tex. 227, 6 S. W. 412 298, 299, 310, 446, 451, 466 McNeil V. Hammond, 87 Ga. 618, 13 S. E. 640 313, 554 McNeUl V. Masterson, T9 Tex. 671, 15 S. W. 673 544, 547 McNutt V. McOomb, 61 Kan. 29, 58 Pac. 965. ....... ^ .....•■••• 448 McPherson v. Cuniff, 11 Serg. & B. (Pa.) 422, 14 Am. Dec. 642. .. . 163 McPherson v. McPherson, 70 Mo. App. 330. • • 51^ Macpherson's Will, 1 Con. Sur. 223, 4 N. Y. Supp. 181 132 McPike V McPike, 111 Mo. 225, 20 S. W. 12 ■■ f^ McQ?een V Lilly,'l31 Mo. 9, 31 S. W. 1043 .^.. •• .353, 367, 381. 549 McQueen v. Wilson, 131 Ala f06, Jl South. 94 ^^^ 263 267 McRee's Adm'r v. Means, 34 Ala. 365 312, 405, 464 McRevnolds v. Gentry, 14 Mo. 495 I;";^^ McWhorter V. Oneal, 121 Ga. 539, 49 S. E. 592. . . . . ...... • . .... lOo Maddox V. Maddox, 114 ^0^44, 21^S^^^^^^ ^, ^^ ^^^^ ^^^^ ^^^^ ^^_ ^^^ 636 CASES CITED Page Magee v. Alba, 9 Fla. 382 336 Maguire v. Moore, 108 Mo. 267, 18 S. W. 897 306, 554 Mahorner v. Hooe, 9 Smedes & M. (Miss.) 247, 48 Am. Dec. 706. . 535 Mallery v. Young, 94 Ga. 804, 22 S. E. 142 282 Mallery v. Toung, 98 Ga. 728, 25 S. B. 918 249 Malone v. Adams, 113 Ga. 791, 39 S. E. 507, 84 Am. St. Rep. 259 272 Maltby's Appeal, 47 Conn. 349 409 Mandlebaum v. McDonell, 29 Mich. 7,8, 18 Am. Rep. 61 366 Mann v. Balfour, 187 Mo. 305, 86 S. W. 103 90, 179, 232 Manning v. Manning, 135 Ga. 597, 69 S. E. 1126 329 Manning v. Pippen, 95 Ala. 537, 11 South. 56 462 Manning's Estate, In re, 85 Neb. 60, 122 N. W. 711 386, 504, 518 Manogue v. Herrell, 13 App. D. C. 455 93, 259 Mansfield v. Mrs, 71 Conn. 72, 40 Atl. 915 318 Mansfield v. Shelton, 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285 328, 447 March v. Huyter, 50 Tex. 243 30, 151, 154, 193, 331 Marcy v. Marcy, 32 Conn. 308 40, 495, 498 Marfield v. McMurdy, 25 App. D. C. 312 299, 4B8, 470 Marion v. Williams, 20 App. D. C. 20 296, 309, 326 Markel y. Peck, 144 Mo. App. 701, 129 S. W. 243 458 Markley v. Kramer, 66 Kan. 664, 72 Pac. 221 182, 186 Marriott v. Marriott, 1 Strange (Eng.) 666 461 Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122 298, 299, 309, 397 Marshall v. Augusta, 5 App. D. C. 183 395 Marshall v. Hartzfelt, 98 Mo. App. 178, 71 S. W. 1061 106, 333 Marshall v. Meyers, 96 Mo. App. 648, 70 S. W. 927 468 Marshall v. Rench, 3 Del. Ch. 239 352, 554 Marr's Ex'r v. McCollough, 6 Port. (Ala.) 507 401 Marston v. Roe, 8 Ad. & El. (Eng.) 14. . ., 102 Marti's Estate, 132 Gal. 666, 61 Pac. 964, 64 Pac. 1071. . .318, 406, 464 Martin v. Battey, 87 Kan. 582, 125 Pac. 88, Ann. Cas. 1914A, 440 388 Martin v. Bowdern, 158 Mo. 389, 59 S. W. 227 58, 138, 240, 253 Martin v. Fort, 83 Fed. 19, 27 C. C. A. 428 112, 427 Martin v. King, 72 Ala. 354 72, 190, 199 Martin v. Lackasse, 47 Mo. 591 352 Martin v. McAdams, 87 Tex. 225, 27 S. W. 255 70, 74 Martin v. Martin, 70 Neb. 207, 97 N. W. 2S9 182 Martin v. Mitchell, 28 Ga. 382 60, 226 Martin V. Smith, 23 Tex. Civ. App. 665, 57 S. W. 299 194 Martin v. Trustees, 98 Ga. 320, 25 S. E. 522 349 Martin's Estate, 58 Cal. 530 74, 75 Martin's Heirs v. Martin, 22 Ala. 86 378, 385 Martin's Will, 98 N. Y. 193 263 Martindale v. Smith, 31 Kan. 270, 1 Pac. 569 389 Martinez v. De Martinez, 19 Tex. Civ. App. 661, 48 S. W. 532 78 CASES CITED 637 Hartley v. Hartley, 77 Neb. 163, 108 N. W. 979 299 300 Harx V. Clisby, 126 Ala. 107, 28 South. 388 422,' 457 Mason v. Baily, 6 Del. Cli. 129, 14 Atl. 209 307 Mason v. R. I. Hospital Tr. Co., 78 Conn. 81, 61 Atl. 57, 3 Ann. Cas. 586 369 Mason v. Rodriguez, 53 Tex. Civ. App. 445, 115 S. W. 868. .120, 183, 209 Mason v. Slevin, 1 White & W. Civ. Oas. Ct. App. § 11 558 Mason v. Smith, 49 Ala. 71 18 Massey v. Stout, 4 Del. Ch. 274 456 Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219 361, 376 Mastic V. Supreme Court, 94 Cal. 347, 29 Pac. 869 83 Mastin v. Barnard, 33 Ga. 520 467 Matheny's Estate, 121 Cal. 267, 53 Pac. 800 389 Mathews v. Paradise, 74 Ga. 523 472 Mathews v. Warner, 4 Ves. 195 78 Mathis V. Pittman, 32 Neb. 191, 49 N. W. 182 244 Matney v. Graham, 50 Mo. 559 380 Mattfeld v. Huntington, 17 Tex. Civ. App. 716, 43 S. W. 53 173 Matthews v. Daniell, 27 Tex. Civ. App. 181, 65 S. W. 890 467 Matthews v. Forniss, 91 Ala. 157, 8 South. 661 219, 224 Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286, 12 Am. St. Rep. 305 416 Matthews v. McDade, 72 Ala. 377 51, 194 Matthewson v. Saunders, 11 Conn. 149 297 Mattison v. B. & M. R. R. (D. C.) 205 Fed. 821 510 Mattox V. Deadwyler, 130 Ga. 461, 60 S. E. 1066 397 Maulding v. Scott, 13 Ark. 88, 56 Am. Dec. 298 429 Maund v. Maund, 94 Ga. 479, 20 S. E. 360 192 Maurer v. Miller, 77 Kan. 92, 93 Pac. 596, 127 Am. St. Rep. 408, 15 Ann. Cas. 663 199, 204 Maurer v. Reifschneider, 89 Neb. 673, 132 N. W. 197, Ann. Cas. 1912C, 643 79 Maxwell v. Willingham, 101 Ga. 55, 28 S. E. 672 503 Maxwell's Estate, 74 Cal. 384, 16 Pac. 206 205 May V. May, 167 U. S. 310, 17 Sup. Ct. 824, 42 L. Ed. 179 456 May V. May, 28 Ala. 144 351 May V. S. A. & A. P. T. S. Co., 83 Tex. 502, 18 S. W. 959 404 Mayburry v. Grady, 67 Ala. 147 332, 333, 530 Mayer v. Am. Sec. & Tr. Co., 33 App. D. C. 391 331, 336 Mayer v. Hover, 81 Ga. 308, 7 S. E. 562 350 Mayes v. Blanton, 67 Tex. 245, 3 S. W. 40 509 Mayhew's Estate, 4 Cal. App. 162, 87 Pac. 417 303, 451, 542 Maynard v. Greer, 129 Ga. 709, 59 S. E. 798 443, 470 Mayo V. Harrison, 134 Ga. 737, 68 S. E. 497 409 Mayo V. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117 380, 382, 493 Mayor of HuntsviUe v. Smith, 137 Ala. 382, 35 South. 120 343 Mays V. Mays, 114 Mo. 540, 21 S. W. 921 171, 227, 267 638 CASES CITED fage Maze V. Baird, 89 Mo. App. 348 46 Mead v. Jennings, 46 Mo. 91 292, 296, 367, 467 Mead v. Robertson, 131 Mo. App. 185, 110 S. W. 1095 460 Meade's Estate, 118 Oal. 428, 50 Pac. 541, 62 Am. St. Rep. 244 37, 46, 50 Meador v. Sorsby, 2 Ala. 712, 86 Am. Dec. 432 324, 331 Mealing v. Pace, 14 Ga. 596 51, 219 Means v. Means, 5 Strob. (S. C.) 167 258, 259 Medill V. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307 143, 241, 361 Medill V. Snyder, 71 Kan. 590, 81 Pac. 216 206 Medlock v. Merritt, 102 Ga. 212, 29 S. E. 185 190, 213 Medlock v. Miller, 94 Ga. 652, 19 S. E. 978 350 Meegan v. Boyle, 19 How. 130, 15 L. Ed. 577 19, 35, 152 Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456, 43 Am. St. Rep. 410 503 Meek v. Helton, 22 Ga. 491 45 Meeker v. Boylan, 28 N. J. Law, 285 232 Meeks v. Habn, 20 Gal. 620 541 Meeks v. Kirby, 47 Gal. 168 541 Meeks v. Lafley, 99 Ga. 170, 25 S. E. 92 60, 554 Meier v. Buctter, 197 Mo. 68, 94 S. W. 883, 6 L. R. A. (N. S.) 202, 7 Ann. Gas. 887 251, 259 Meier's Estate, 165 Gal. 456, 132 Pac. 764, 48 L. R. A. (N. S.) 858 511 Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746 163 Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925 556 Melnish v. Milton, 3 Gh. D. 27 250 Melone's Estate, 141 Gal. 332, 74 Pac. 991 167 Melton V. Gamp, 121 Ga. 693, 49 S. E. 690 450 Mercantile Trust Go. v. Adams, 95 Ark. 333, 129 S. W. 1101 360, 439 Mercer's Adm'r v. Mackin, 14 Bush (Ky.) 434 179 Merchants' Bank v. Ward, 45 Mo. 310 521 Meredith v. Meredith, 150 Dud. 299, 50 N. E. 29 461 Merrill v. Morrissett, 70 Ala. 433 161, 162, 244 Merrill v. Sanborn, 2 N. H. 499 '. 22 Merrill v. Thompson, 252 Mo. 714, 161 S. W. 674 28 Merritt v. Brantley, 8 Fla. 226 309 Mersman v. Mersman, 136 Mo. 244, 37 S. W. 909 284, 299, 303, 308, 813 Messinger v. Anderson, 225 U. S. 436, 32 Sup. Gt. 739, 56 L. Ed. 1152, s. c, 146 Fed. 929, 77 G. G. A. 179, 7 L. R. A. (N. S.) 1094 293 Mestaer v. Gillespie, 11 Ves. (Eng.) 638 461 Metcalf V. Lamed, 40 Mo. 572 531 Metz V. Wright, 116 Mo. App. 631, 92 S. W. 1125 ; 290, 304 CASES CITED 639 Metzger v. Steed, 132 Ga. 822, 65 S. E 117 ^242 Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441. 69 211 Meyers V. Smith, 50 Kan. 1, 31 Pac. 670. 186 Meyers v. Watson, 234 Mo. 286, 136 S. W 236 24 Michael v. Marshall, 201 111. 70, 66 N. E. 273 264 Michon v. Ayalla, 84 Tex. 685, 19 S. W. 878 320 Miekley's Appeal, 92 Pa. 514 [[\[ 439 Middlebrooks v. Ferguson, 126 Ga. 232, 55 S. E. 34... 496 473 Middleditch v. Williams, 45 N. J. Eq. 726, 17 Atl. 826, 4 L K a' '^8 ■ • • ^45 Miles' Appeal, 68 Conn. 237, 36 Atl. 39, 36 L. R. A. 176 . . '. 96 Miles V. Miles, 78 Kan. 382, 96 Pac. 481 46 MUes V. Strong, 60 Conn. 398, 22 Atl. 959, s. c, 68 Conn. 278, 36 ■*^tl- 55 288, 418 Miller v. Ahrens (C. C.) 150 Fed. 644 485 Miller v. Ahrens (C. C.) 163 Fed. 870 485 Miller v. Carr, 94 Ark. 176, 126 S. W. 1068 253, 256 Miller v. Cooch, 5 Del. Ch. 161 '549 Miller v. Flournoy, 26 Ala. 724 300 Miller v. Foster, 76 Tex. 479, 13 S. W. 529 210 Miller v. Holt, 68 Mo. 584 44 Miller v. Livingstone, 31 Utah, 415, 88 Pac. 338, s. c, 36 Utah, 228, 102 Pac. 996 204, 217, 224, 229, 232, 244, •255, 258, 263, 269, 277, 278 Miller v. Metcalf, 77 Conn. 176, 58 Atl. 743 88, 310, 352 Miller v. Miller's Estate, 69 Neb. 441, 95 N. W. 1010 161 Miller v. Payne, 28 App. D. 0. 396 351, 556 Miller v. Speight, 61 Ga. 460 154 Miller v. Steele, 153 Fed. 714, 82 C. C. A. 572 524 Miller v. Teachout, 24 Ohio St. 525 481 Miller v. Texas & P. Ry., 132 U. S. 662, 10 Sup. Ot. 206, 33 L. Ed. 487 210 Miller r. Weston, 199 Fed. 104, 119 C. C. A. 358 204 Miller V. Woodward, 8 Mo. 169 492 Miller's Adm'r v. Miller, 5 Har. (Del.) 333 29 Miller's Estate, 39 Cal. 550 167 Miller's Estate, 48 Cal. 165, 17 Am. Rep. 422 312 Miller's Estate, 156 Cal. 119, 103 Pac. 842, 23 L. R. A. (N. S.) 868 361, 362 Miller's Lessee v. Hurt, 12 Ga. 357 438, 442 Milllcan v. Millican, 24 Tex. 426 46, 255 Millington v. HiU, 47 Ark. 30, 1 S. W. 547 371 Mills V. Herndon, 60 Tex. 353 494 Millsap V. Stanley, 50 Ala. 319 544, 545 Miltenberger v. Miltenberger, 78 Mo. 27, s. c, 8 Mo. App. 306 59 Minkler v. Minkler, 14 Vt. 125 97 640 CASES CITED PagG Minor v. Ferris, 22 Conn. 378 300 Missouri Baptist Sanitarium v. McOune, 112 Mo. App. 332, 87 S. W. 93 333 Mitchell V. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Hep. 279 49, 54, 74, 269, 309, 310 Mitchell V. Hughes, 3 Colo. App. 43, 32 Pac. 185 112, 160, 383 Mitchell V. Mitchell, 73 Conn. 303, 47 Atl. 325 348 Mitchell V. Rogers, 40 Ark. 91 166, 209 Mitchell V. Thompson, 18 D. C. 130 468 Mitchell V. Vickers, 20 Tex. 377 78 Mitchell V. Weeding, 8 Sim. 4 441 Mobley v. Lyon, 134 Ga. 125, 67 S. E. 668, 137 Am. St. Rep. 213, 19 Ann. Gas. 1004 239 Moerlein v. Heyer, 100 Tex. 245, 97 S. W. 1040 549, 552 MofCett V. MofEett, 67 Tex. 642, 4 S. W. 70 78 Mohr V. Dillon, 80 Ga. 572, 5 S. E. 770 541 Molk's Estate, Myr. Prob. (Cal.) 212 465 Mollencamp v. Farr, 70 Kan. 786, 79 Pac. 646 409 Mollenkopf s Estate, 164 Cal. 576, 129 Pac. 997 168 Monastes v. Catlln, 6 Or. 119 494 Monroe v. Basinger, 58 Ga. 118 301 Monroe v. Huddart, 79 Neb. 569, 113 N. W. 149, 14 L,. R. A. (N. S.) 259 64, 72 Montague v. Crane, 12 Mo.- App. 582 368 Montgomery v. Brown, 25 App. D. C. 490 206, 298, 381, 406, 407 Montgomery v. Foster, 91 Ala. 613, 8 South. 349. .. ; 211 Montgomery v. Robertson, 57 Ga. 258 537 Moody V. Walker, 3 Ark. 147 396, 403, 416, 417, 419, 428, 440 Mooney v. Olsen, 22 Kan. 69 233, 261, 272 Moore v. Boothe, 39 Tex. Civ. App. 339, 87 S. W. 882 273 Moore V. Campbell, 102 Ala. 445, 14 South. 780 46, 47 Moore V. Davidson, 22 S. C. 94 555 Moore V. Earl, 91 Xal. 632, 27 Pac. 1087 194 Moore v. Hardison, 10 Tex. 467 521 Moore v. Heineke, 119 Ala. 627, 24 South. 374 173, 216, 251, 252, 254 Moore V. Herd, 76 Kan. 826, 93 Pac. 157 384 Moore v. Jordan, 36 Kan. 271, 13 Pac. 337, 59 Am. Rep. 550 511 Moore v. Levyis, 21 Ala. 580 152 Moore v. Lyons, 25 Wend. (N. T.) 119 398 Moore v. McNulty, 164 Mo. Ill, 64 S. W, 159... 55, 62, 215, 217, 266 Moore v. Minerva, 17 Tex. 20 500 Moore V. Moore, 12 B. Mon. (51 Ky.) 651 443 Moore v. Moore, 23 Tex. 637 .• ^ Moore v. Randolph's' Adm'r, 70 Ala. 575 284, 493 Moore v. Smith, 11 Rich. (S. C.) 569, 73 Am. Dec. 122 163 CASES CITED 641 Moore v. Spier, 80 Ala. 129 62 lOR 99q o^a o^o ^oll Moore;s Estate. 198 Pac. 611. 48 Ati; 885; ' ' ''' '''' '''' ^ Moore s Ex'r v. Moore's Dis, 18 Ala. 242...;;; 4m Morcel's Estate, 162 Cal. 188, 121 Pac. 733 Mordecai v. Beal, 8 Port. (Ala.) 529 '.''' '"^ ''''' ^'' '^'- ^ Moredock v. Moredock (C. C.) 179 Fed. 163. .;.' ;.'.'. 308 474 Morey's Estate. 147 Cal. 495. 82 Pac. 57 121, 225'240 263 267 Morffew v. S. F. & S. R. r. Co., 107 Cal. 587, 40 Pa"; 8I0'. . . : 4ll Morgan, Succession of. 23 La. Ann. 290. . . 354 Morgan v. Adams. 29 App. D. O. 198 '.'.'.'.'.i2i"24^i 244 Morgan v. Davenport, 60 Tex. 230 23 9o' 103 Morgan v. Dodge. 44 N. H. 255. 82 Am. Dec. 213 " " ' ' 155 ' 163 491 Morgan v. Huggins (C. C.) 42 Fed. 869, 9 L. R. A. 540. . .. 'sis' 324 Morgan v. Huggins (C. 0.) 48 Fed. 3 '529 Morgan v. Morgan, 30 App. D. C. 436, 13 Ann. Cas. 1037. ;;;;;;; 141 234 273 Morgan v. Morgan, 5 Day (Conn.) 520 ' 416* 443 Morrill v. Gill, 46 Ga. 482 '352 Morris v. BoUes, 65 Conn. 45, 31 Atl. 538 ; ; ; ; ; ; ;307,' 347, 419 Morris v. Burroughs, 1 Atk. 404 '.....' 362 Morris v. Eddins, 18 Tex. Civ. App. 38, 44 S. W. 203 ;..;;;; 332 Morris v. Morris' Ex'r, 4 Houst. (Del.) 414 22, 26, 379, 386, 529 Morris v. Stephenson, 128 Mo. App. 338. 107 S. W. 449 ... ! ' 556 Morris v. Stokes, 21 Ga. 552 260. 278 Morris V. Warren, 4 Houst. (Del.) 414 549 Morris v. Watterson, 130 Ga. 442, 60 S. E. 1045 20 Morrison v. Bovsrman, 29 Cal. 337 375, 378, 382. 384 Morrison v. Thoman, 99 Tex. 248, 89 S. W. 409 251 Morrison's Estate, 138 Cal. 401, 71 Pac. 453 337 Morse v. Proper, 82 Ga. 13, 8 S. E. 625 397 Mortgage Co. v. Boyd, 92 Ala. 139. 9 South. 166 549 Morton v. Hatch, 54 Mo. 408 537 Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504 219. 227, 253 Morton v. Murrell, 68 Ga. 141 547 Morton v. Onion, 45 Vt. 145 103 Morton v. State, 25 Ark. 46 542 Morton Tr. Co. v. Chittenden, 81 Conn. 105, 70 Atl. 648 289, 394 Moseley v. Evans, 72 Ga. 203 178 Mosley v. Carr. 70 Ga. 333 178 Mosley v. Fears, 135 Ga. 71, 68 S. E. 804 229, 269 Mosman v. Bender, 80 Mo., 579 515 Moss V. Ashbrooks. 20 Ark. 128 537 Moss V. Helsley. 60 Tex. 426.. 242. 321, 333. 352. 353, 383. 386, 529 Mosser v. Mosser. 32 Ala. 551 46, 55, 226 BoEL. Wills — 41 642 CASES CITED Page Motz's Estate, 136 Cal. 558, 69 Pac. 29i 121, 172, 222, 227, 241, 253, 254, 273 Moulton's Estate, 48 Cal. 191 531 Moursund v. Priess, 84 Tex. 554, 19 S. W. 775 152 Mowry v. Norman, 204 Mo. 173, 103 S. W. 15, s. c, 223 Mo. 463, 122 S. W. 724 116, 219, 239, 241, 257, 262, 264, 270 Mueller v. Buenger, 184 Mo. 460, S3 S. W. 458, 67 L. R. A. 648, 105 Am. St. Rep. 541 292, 325, 353 Muenter v. Union Tr. Co., 195 Fed. 480, 115 C. C. A. 390 396 Mullen V. Jobnson, 157 Ala. 262, 47 South. 584 31, 115 MuUer v. St. Louis Hospital Ass'n, 73 Mo. 242 259, 265, 277 MuUer V. St. Louis Hospital Ass'n, 5 Mo. App. 397 259, 265, 277 MuUin's Estate, 110 Cal. 252, 42 Pac. 645 55, 58, 237, 245 Mumf ord's Estate, My r. Prob. (Cal.) 133 387 Munday v. Leeper, 120 Mo. 417, 25 S. W. 381 522 Munro v. Collins, 95 Mo. 37, 7 S. W. 461 298 Munroe v. Basinger, 58 Ga. 118 301 Murdoch v. Murdoch, 81 Conn. 681, 72 Atl. 290, 129 Am. St. Rep. 231 510 Murphree v. Senn, 107 Ala. 424, 18 South. 764 112 Murphree v. Singleton, 37 Ala. 412 540 Murphy v. Caslin, 113 Mo. 112, 20 S. W. 786, 35 Am. St. Rep. 699 464 Murphy v. Gabbert, 166 Mo. 596, 66 S. W. 536, 89 Am. St. Rep. 733 48 Murphy v. Murphy, 24 Mo. 526 64, 69 Murphy v. Pound, 12 Ga. 278 540 Murphy v. Sisters, 43 Tex. Civ. App. 638, 97 S. W. 135 375, 494 Murphy v. Welder, 58 Tex. 235 152 Murphy's Estate, 104 Cal. 554, 38 Pac. 543 54, 176 Murphy's Estate, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110 327, 346, 347 Murray v. McGuire, 129 Ga. 269, 58 S. E. 841 152 Murry v. Hennessy, 48 Neb. 608, 67 N. W. 470 56, 210, 221, 244 Musick V. Beebe, 17 Kan. 47 565 Mut. Benefit Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294 178 Mut. Benefit Ins. Co. v. Tisdale, 91 XJ. S. 238, 23 L. Ed. 314. .. . 163 Myars v. Mitchell, 72 Ark. 381, 80 S. W. 750 176 Myers v. Egguer, 6 Houst. (Del.) 342 112 Myers v. Hanger, 98 Mo. 433, 11 S. W. 974 121, 261, 267 Myers' Estate, Myr. Prob. (Cal.) 205 52, 216 Myers' Ex'rs v. Myers, 33 Ala. 85 332, 334, 335, 538 My her v. My her, 224 Mo. 631, 123 S. W. 806 316, 337 Myrick v. Heard (C. C.) 31 Fed. 241 294, 440 Myrick v. Jacks, 33 Ark. 425 494 CASES CITED 643 N Nagle V. Von Rosenberg, 55 Tex. Civ. App. 354, 119 S. W. 706 ^""^^ 469 543 Nail V. Nail, 243 Mo. 247, 147 S. W. 1006 '556 Napier v. Anderson, 95 Ga. 618, 23 S. E. 191 539 Napier v. Napier, S9 Ga, 48, 14 S. E. 870 503 Napier v. Trimmier, 56 Ga. 300 ' 261 Nash V. Ober, 2 App. D. C. 304 '. ..... .526, 538 Nat V. Coone, 10 Mo. 543 .' 42 Naylor v. Godman, 109 Mo. 543, 19 S. W. 56 415 Naylorv. McRuer, 248 Mo. 423, 154 S. W. 772 116, 126, 210, 234, 241, 270 Naylor v. Moffatt, 29 Mo. 126 510 Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117, Ann. Gas. 1914A, 394 27 Neal V. Patten, 40 Ga. 363 504 Needbam v. Gillett, 39 Mich. 574 538 Neel V. Powell, 130 Ga. 756, 61 S. E. 729 124 Neely v. Phelps, 63 Conn. 251, 29 Atl. 128 326 Neer v. Cowhick, 4 Wyo. 49, 31 Pae. 862, 18 L. R. A. 588. .43, 73, 74 NefE's Appeal, 48 Pa. 501 299 Negus V. Negus, 46 Iowa, 487, 26 Am. Rep. 157 103 Neil's Estate, Myr. Prob. (Cal.) 79 352 Neisler v. Moore, 58 Ga. 334 503 Neistrath's Estate, 66 Cal. 331, 5 Pac. 507 547, 548 Nelson v. Boynton, 54 Ala. 368 190 Nelson v. Bridge, 39 Tex. Civ. App. 283, 87 S. W. 885 329, 494 Nelson v. Lyster, 32 Tex. Civ. App. 356, 74 S. W. 54 386, 506 Nelson v. MeClanaban, 55 Cal. 308 232 Nelson v. Nelson, 73 Ga. 133 398 Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413 553 Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534 315, 327, 382 Nelson v. Russell, 15 Mo. 356 522 Nelson v. Scboonover, 89 Kan. 388, 131 Pac. 147 28 Nelson v. Scboonover, 89 Kan. 779, 132 Pac. 1183 526 Nelson v. Sudick, 40 Mo. App. 341 33 Nelson v. Wyan, 21 Mo. 347 554 Nelson's Estate, 132 Cal. 182, 64 Pac. 294 115, 132, 134, 222, 237, 240, 244, 257, 273 Nelson's Estate, 75 Neb. 298, 106 N. W. 326 116 Nelson's Will, 39 Minn. 204, 39 N. W. 143 274 Nerac's Estate, 35 Cal. 392, 95 Am. Dec. Ill 493 Nesbit V. Gragg, 36 Okl. 703, 129 Pac. 705 175 Neuber v. Shoel, 8 Kan. App. 345, 55 Pac. 350 383 644 CASES CITED Page New V. Nichols, 73 Ga. 143 152 New V. Potts, 55 Ga. 420 409, 539 Newberry v. Hinman, 49 Conn. 132 393, 394 New England Mtg. See. Co. v. Buiee, 98 Ga. 795, 26 S. B. 84 412 New England Mtg. & Sec. Co. v. Gordon, 95 Ga. 781, 22 S. E. 706 346 New Haven Co. v. Trinity Church Parish, 82 Conn. 378, 73 Atl. 789, 17 Ann. Oas. 432 359 ' Newlove v. Merc. Tr. Co., 156 Cal. 657, 105 Pac. 971 403 Newman v. Colbert, 13 Ga. 38 78 Newman v. Dotson, 57 Tex. 117 474 Newman v. Virginia T. & C. Co., 80 Fed. 228, 25 C. C. A. 382. . . 194 Newsom v. Thornton, 82 Ala. 402, 8 South. 261, 60 Am. Kep. 743 •549, 552' Newsome v. Tucker, 36 Ga. 71 223 Newton v. Carbery, 5 Cranch (C. C.) 626, Fed. Gas. No. 10,189 123, 146, 223, 230, 257 Newton v. Carbery, 5 Cranch (C. C.) 632, Fed. Cas. No. 10,190. . 345 Newton v. Cocke, 10 Ark. 169 166 Newton V. Lyon, 62 Kan. 306, 62 Pac. 1000 28 Newton v. Lyon, 62 Kan. 651, 64 Pac. 592 28 Newton v. Seaman's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433 52 Newton V. Snyder, 44 Ark. 42, 51 Am. Rep. 587 33 New York, L. & W. R. Co., In re, 105 N. T. 95, 11 N. B. 492, 59 Am. Rep. 478 443 Nible V. Metcalf , 157 Ala. 295, 47 South. 1007 28 Nichol V. Levy, 5 Wall. 433, 18 L. Ed. 596 368 Nicholl V. Scott, 99 111. 529 453 Nichols V. Boswell, 103 Mo. 151, 15 S. W. 343 298, 309, 315 Nichols V. Chandler, 55 Ga. 369 47 Nichols V. Eaton, 91 TJ. S. 716, 23 L. Ed. 254 368, 369, 476 Nichols V. Emery, 109 Cal. 323, 41 Pac. 10S9, 50 Am. St. Rep. 43 459 Nichols V. Kingdom Iron Co., 56 N. T. 618 178 Nichols V. Lewis, 15 Conn. 137 316 Nichols V. Postlewaite, 2 Dall. 131, 1 L. Ed. 319 371 Nichols V. Reyburn, 55 Mo. App. 1 523, 526 Nichols V. Wentz, 78 Conn. 429, 62 Atl. 610 115, 132, 135 Nichols' Estate, In re, 93 Neb. 80, 139 N. W. 719 446, '450 Nickell V. Handley, 10 Grat. (Va.) 336 369 Nit'kerson v. Buck, 12 Cush. (Mass.) 332 55 Nicoll V. Irby, 83 Conn. 530, 77 Atl. 957 301, 304, 306 Nilson's Estate, 81 Neb. 809, 116 N. W. 971 480, 483 Nimmo v. Davis, 7 Tex. 26 418, 472 Niquette v. Green, 81 Kan. 569, 106 Pac. 270 511 Nixon V. Armstrong, 38 Tex. 296 67 Nixon V. Robbins, 24 Ala. 663 541 Noble V. Garden, 146 Cal. 225, 79 Pac. 883, 2 Ann. Cas. 1001... 33 CASES CITED 645 Noe V. Kern. 93 Mo. 367, 6 S. W. 239, 3 Am. St. Rep. 544 315, ^4M Noe V. Splivalo, 54 Cal. 207 375 376 Noeeker v. Noecker, 66 Kan. 347, 71 Pac. S15. ..'.'.'.'.'.'.'.'.'.'.'.383, 467 Nolan V. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A. (N. S.) 317 12 Ann. Cas. 677 43 Norcum v. D'Oench, 17 Mo. 98 .'.'.'.... ...298, 411 ' Normond's Estate, 88 Keb. 767, 130 N. W. 571 .' 215 Norris v. Harris, 15 Cal. 226 409 Norris v. Hensley, 27 Cal. 439 301, 413 Northcutt V. Northcutt, 20 Mo. 266 56 Northern Tr. Co. v. Wheaten, 249 111. 606, 94 N. B. 980, 34 L. R. A. (N. S.) 1150 327 Northrop v. Columbian Lumber Co., 186 Fed. 770, 108 C. C. A. 640 153, 320, 541 Northrop v. Troup, 195 Fed. 262, 115 O. C. A. 218 153 Northrup v. Browne, 204 Fed. 224, 122 C. C. A. 496. . . .493, 515, 564 Norton v. Paxton, IID Mo. 465, 19 S. W. 807 121, 125, 215, 220, 222, 253, 258, 277 Notes V. Doyle, 32 App. D. C. 413 58, 59, 62, 71, 8S Noyes V. Southworth, 55 Mich. 173, 20 N. W. 891, 54 Am. Rep. 359 105^ Nunn V. Lynch, 73 Ark. 20, 83 S. W. 316 176- Nusly V. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134 332, 333, 334, 335, 342: Nussbaum v. E^^ans, 71 Ga. 753 43T Nutt V. Norton, 142 Mass. 242, 7 N. B. 720 103 Oakley v. Taylor (C. C.) 64 Fed. 245 201 O'Bannon's Estate, In re, 142 Mo. App. 268, 126 S. W. 215 556 O'Brien v. Ash, 169 Mo. 298, 69 S. W. 8 16, 384 O'Brien v. Battle, 98 Ga. 766, 25 S. E. 780 470 O'Brien v. Dougherty, 1 App. D. C. 148 346, 348, 549 O'Brien v. Flint, 74 Conn. 502, 51 Atl. 547 424, 425 O'Brien v. Galagher, 25 Conn. 231 61 O'Brien r. Spaulding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202 59, 237 O'Byrne v. Feeley, 61 Ga. 77 Ill, 442 O'Callaghan v. O'Brien, 199 U. S. 89, 25 Sup. Ct. 727, 50 L. Ed. 101 204 O'Callaghan v. O'Brien (C. C.) 116 Fed. 934 78, 204 Oeheltree v. McDaniel, 5 Pennewill (Del.) 288, 63 Atl. 687 500' Ochoa V. Miller, 59 Tex. 460 152, 174 Ockstadt V. Bowles, 31 App. D. O. 58 29 O'Conner v. Murphy, 147 Cal. 148, 81 Pac. 406 328, 336, 352 O'Connor v. Rowland, 73 Ark. 422, 84 S. W. 472 407 6^6 CASES CITED Page O'Day V. O'Day, 193 Mo. 89, 91 S. W. 921, 4 L. R. A. (N. S.) 922 304, 334 Oatjen v. Diemmer, 115 Ga. 1005, 42 S. E. 388 358 Odenwaelder v. Schorr, 8 Mo. App. 458 58, 88, 136, 227 O'Donnell v. Murphy, 17 Cal. App. 025, 120 Pac. 1076 461* 463 O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322 112, 115, 222 Oetjen v. Oetjen, 115 Ga. 1004, 42 S. E. 387 95 OfCutt's Estate, 159 Mo. App. 90, 139 S. W. 487 .'..'.' .' .' ." 303 Oglers' Estate, 101 Cal. 381, 35 Pac. 900, 40 Am. St. Rep. 61. .'.'.' 505 O'Gorman's Estate, 161 Cal. 654, 120 Pac. 33 311, 325, 327 O'Hara v. Dudley, 95 N. Y. 403, 47 Am. Rep. 53 ' 461 O'Hara's Will, In re, 95 N. Y. 403, 47 Am. Rep. 53 460, 461 Ohio River R. Co. v. Fisher, 115 Fed. 929, 53 0. C. A. 411 374 Oldham v. Litchfield, 2 Vern. 506 462 Oliver V. Henderson, 121 Ga. 836, 49 S. E. 743, 104 Am. St. Rep. 185 290 315 Oliver v. Powell, 114 Ga. 592, 40 S. E. 826 .......'. 328 Olmstead v. Benefit Soc, 37 Kan. 93, 14 Pac. 449 341 Olmstead v. Dunn, 72 Ga. 850. 295, 320, 322, 398, 399 Olmstead v. Webb, 5 App. D. C. 38 166, 238, 241, 261, 270 Olmstead's Estate, 120 Cal. 447, 52 Pac. 804 168 Olmstead's Estate, 122 Cal. 224, 54 Pac. 745 98, 220 Olson V. Court of Honor, 100 Minn. 117, 110 N. W. 374, 8 L. R. A. (N. S.) 521, 117 Am. St. Rep. 676, 10 Ann. Cas. 622 237 Olson's Estate, 19 Cal. App. 379, 126 Pac. 171 254, 255, 257, 264, 269, 272 O'Mahoney v. Burdett, L. R. H. L. 388 443 Onions v. Tyrer, 2 Vern. 742 99 Orchard v. Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072 516 O'Reilly v. Nicholson, 45 Mo. 164 375 Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805 156, 232, 254, 277 Orr V. O'Brien, 55 Tex. 149 25 Ortiz V. De Benavides, 61 Tex. 60 35 Ortt V. Leonhardt, 102 Mo. App. 38, 74 S. W. 423 59 Osborne v. Atkinson, 77 Kan. 435, 94 Pac. 796 53 Osborne v. Davies, 60 Kan. 695, 57 Pac. 941 218, 224 O'Shea's Estate, In re, 85 Neb. 156, 122 N. W. 881 385 Ostrander v. Davis (S. D.) 191 Fed. 156, 111 C. C. A. 636 107 Ostrom V. De Yoe, 4 Cal. App. 326, 87 Pac. 811 336 Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S. W. 536 115, 207 Ould V. Wash. Hospital, 1 MacArthur (D. C.) 541, 29 Am. Rep. 605, a. c, 95 U. S. 303, 24 L. Ed. 450 477, 479, 480, 482 Overly v. Angel, 84 Kan. 259, 113 Pac. 1041 462 CASES CITED 647 Overton v. Davy, 20 Mo. 273 „„„ ^f^^^ Overton v. Overton, 131 Mo. 567, 33 S. W 1 ' ^Z Owen V. Eaton, 56 Mo. App. 563.. Ht Owen V. Reed, 27 Ark. 122 jni Owen V. Smith, 91 Ga. 564, 18 S. E. 527.' ." .' .' 4. lol Owen V. Tankersley, 12 Tex. 405 ' Izt Owen's Estate, In re, 73 Neb. 840, 103 N. W '675 1 91 Owens V. Bennett, 5 Har. (Del.; 367 72 Owens V. McNally, 113 Cal. 444, 45 Pac. 710, 33 L.' R.' aV369 28 Owens V. Sinklear, 110 Mo. 54, 19 S. W. 813 29V pqn Owing's Case. 1 Bland. (Md.) 370, 17 Am. Dec.' 's'ss.'.'. 460 Owsley V. Yerkes, 187 Fed. 560, 109 0. C. A. 250 qsr Oxford V. Oxford, 136 Ga. 589, 71 S. E. 883 'oVq 072 Oxley V. Lane, 35 N. T. 350 \\\ ■.■.■.'.■.■.■... 401 P Packer's Estate, 164 Cal. 525, 129 Pac. 778. .121, 123, 226,254,264 273 Paden v. Briscoe, 81 Tex. 563, 17 S. W. 42 ' 163 Page, In re, 118 111. 576, 8 N. E. 852, 59 Am. Rep. '395.' ... . " 179 Painter v. Painter, 113 Cal. 371, 45 Pac. 689 24, 378 Painter's Estate, 150 Cal. 498, 89 Pac. 98, 11 Ann. Cas. 760 .' 318, 332, 548 Paisley's Estate, 91 Neb. 139, 135 N. W. 435 268 Palmer v. Bradley (C. C.) 142 Fed. 193 41, 175, 195 Palmer v. Bradley, 154 Fed. 311, 83 C. C. A. 231 200, 216 Palmer v. Moore, 82 Ua. 177, 8 S. E. 180, 14 Am. St. Rep. 147 ' 559 Palmer v. North, 35 Barb. (N. Y.) 282 214 Palmer v. Palmer, 47 Fla. 200, 35 South. 983 390 palmer v. Simpson, 69 Ga. 792 37I Panaud v. Jones, 1 Cal. 488 35, 69 Papin V. Piednoir, 205 Mo. 521, 104 S. W. 63 331, 426, 450 Pardee v. Kuster, 15 Wyo. 368, 89 Pac. 572, 91 Pac. 836. .299, 300, 321 Parfltt V. Lawless, 2 Prob. Div. 462 255, 264 Parish's Heirs v. Ferris, 6 Ohio St. 576 437, 443 Park V. Fogarty, 134 Ga. 861, 68 S. E. 699 312, 469 Park V. Hardy, 19 Ga. 127 545 Parker v. Chambers, 24 Ga. 518 540 Parker v. Chestnutt, 80 Ga. 12, 5 S. E. 289 107 Parker v. HUl, 85 Ark. 363, 108 S. W. 208 87, 254 Parker v. Parker, 10 Tex. 83 26, 35, 207, 378, 554 Parker v. Urie, 21 Pa. 305 460 Parker v. Walls, 75 Ark. 86, 86 S. W. 849 47 Parker v. Wilson, 98 Ark. 553, 136 S. W. 981 297, 298, 454 Parkes v. Aldridge (C. O.) 8 Fed. 220 546, 552 Parks V. Wilkerson, 134 Ga. 14, 67 S. E. 401, 137 Am. St. Rep. 209 360 648 CASES CITED Page Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502, 33 Ti. R. A. (N. S.) 658 40, 184, 494 Parriss v. Jewell, 57 Tex. Civ. App. 199, 122 S. W. 399 214 Parsons v. Lyman, 32 Conn. 566, Fed. Cas. No. 10,780 293, 469 Partee v. Thomas (C. C.) 11 Fed. 769 394, 458, 470 Partridge v. Ca vender, 96 Mo. 452, 9 S. W. 785 368 Paschal v. Acklin, 27 Tex. 173 183, 193, 375, 477 Paske V. OUat, 2 Phillimore, 323 60 Patch V. White, 117 U. S. 219, 6 Sup. Ct. 617, 29 L. Ed. 860. .249, 316 Patch V. White, 12 D. C. 468 317 Paterson v. Ellis, 11 Wend. (N. Y.) 259 401, 402, 403, 436, 437, 438 Pa ton V. Robinson, 81 Conn. 547, 71 Atl. 730 30, 311 Patten v. Cilley (C. C.) 46 Fed. 892 .253 Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388 193, 368, 468 Patterson v. Dickinson, 193 Fed. 328, 113 C. C. A. 252. . .180, 201, 563 Patterson v. Hickey, 32 Ga. 156 97 Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98 253, 255, 277 Patterson's Estate, 155 Cal. 626, 102 Pac. 941, 26 L. R. A. (N. S.) 654, 132 Am. St. Rep. 116, 18 Ann. Cas. 625 174, 179 Patton V. Beecher, 62 Ala. 579 462 Patton V. Crow, 26 Ala. 426 504 Patton V. Dillon, 1 Marvel (Del.) 232, 40 Atl. 1106 297, 461 Patty V. Goolsby, 51 Ark. 61, 9 S. W. 846 325, 409 Paul V. Ball, 31 Tex. 10 16, 308, 312, 313, 322, 336 Paulus V. Besch, 127 Mo. 255, 104 S. W. 1149 377 Payne v. Payne, 54 Ark. 415, 16 S. W. 1 65 Payne v. Payne, 18 Cal. 291 24, 881 Payne v. Rosser, 53 Ga. 662 349, 443 Peabody's Estate, 154 Cal. 173, 97 Pac. 184 298, 301, 471, 485 Peake v. Jamison, 6 Mo. App. 590 464 Peale v. Ware, 131 Ga. 826, 63 S. E. 581 220 Pearce v. Calhoun, 59 Mo. 271 492 Pearce v. Lott, 101 Ga. 395, 29 S. B. 276 402 Pearce v. Pearce, 104 Tex. 73, 134 S. W. 210 .25, 320, 444 Pearsal v. Maxwell, 76 Fed. 428, 22 C. C. A. 262 440 Pearson v. Darrington, 18 Ala. 348 544 Pearson's Estate, 113 Cal. ^77, 45 Pac. 849 317, 494, 536 Pearson's Estate, 125 Cal. 285, 57 Pac. 1015 317 Pearsons, In re, 98 Cal. 603, 33 Pac. 451 485, 503 Pearsons, In re, 99 Cal. 30, 33 Pac. 751 320 Pease v. Cornell, 84 Conn. 391, 80 Atl. 86. .297, 300, 304, 306, 310, 420 Peavy v. Dure, 131 Ga. 104, 62 S. E. 47 469 Peck v. Ayres, 79 Kan. 457, 100 Pac. 283 410 Peck V. Kinney, 143 Fed. 76, 74 C. C. A. 270 374 Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685 100 CASES CITED 649 Peckham v. Lego, 57 Conn. 559, 19 Atl. 392, 7 L. R. A. 419 14 Am ^^^' PeeWe-sVeaV-15 SeW.-&R;-(Pa,- 39-;;;;;;-'''' '''' '''' '''' S? Peet T. Ry., 70 Tex. 522, 8 S. W. 203 303 319 Pells V. Brown, Cro. Jac. 590 435 Pemberton v. Pemberton, 13 Ves. 290 '..".'.' 157 Pemberton J. Pemberton, 29 Mo. 408 .'.'.'... '375 379 Pemberton v. Perrin, 94 Neb. 718, 144 N. W. 164. . . . .' ." ." .' .' .' .' .' .20,' 317 Pendleton v. Kinney, 65 Conn. 222, 32 Atl. 331 346, 357 422' 549 Pendleton v. Larrabee, 62 Conn. 395, 26 Atl. 482 .' 323 Penfield v. Tower, 1 N. D. 216, 46 N. W. 413 ! 555 Fennel's Lessee v. Weyant, 2 Har. (Del.) 501 39, 181, 192 Pentico V. Hays, 75 Kan. 76, 88 Pac. 738, 9 L. R. A. (N. S.) 224. .' 46 People V. Rodley, 131 Cal. 240, 63 Pac. 351 194 People V. Smith, 31 Cal. 466 ! 236 Peralta v. Castro, 6 Cal. 354 ..'..', 69 Perea v. Barela, 5 N. M. 458, 23 Pac. 766. . .60, 310, 312, 494, 544, 565 Perez v. Perez, 59 Tex. 322 78 Pergason v. Btcherson, 91 Ga. 785, 18 S. E. 29 234, 249 Perkins v. Fisher, 59 Fed. 801, 8 C. 0. A. 270 421 Perkins v. Gibbs, 153 Fed. 952, 83 0. C. A. 68 898 Perkins v. Jones, 84 Va. 361, 4 S. E. 833, 10 Am. St. Rep. 863. . . 74 Perkins v. Perkins, 116 Iowa, 253, 90 N. W. 55 256 Perkins v. Windham, 4 Ala. 634 67 Perry v. Buckley, 82 Conn. 158, 72 Atl. 1014 306, 307, 310, 420 Perry v. Logan, 5 Rich. Eg;. 202 555 Perry v. Perry, 94 Tenn. 328, 29 S. W. 1 255 Perry v. Perryman, 19 Mo. 469 381 Perry v. Rogers, 52 Tex. Civ. App. 594, 114 S. W. 897 226, 361 Perry v. St. J. & W. Ry., 29 Kan. 420 163 Perry v. Sweeny, 11 App. D. C. 404 190 Peter v. Beverly, 10 Pet. 532, 9 L. Ed. 522 530 Peters v. Carr, 16 Mo. 54 303 Peters v. Siders, 126 Mass. 135, 30 Am. Rep. 671 22 Peters v. West, 70 Ga. 343 192 Peterson v. Bauer, 76 Neb. 65p, 107 N. W. 993, 111 N. W. 361, 124 Am. St. Rep. 812 28, 29, 493 Pettigrew v. Pettigrew, 1 Stew. (Ala.) 580 543 Pettit V. Black, 13 Neb. 142, 12 N. W. 841 153, 154, 166, 171, 173 Petty V. Ducker, 51 Ark. 281, 11 S. W. 2 192 Peugnet v. Berthold, 183 Mo. 61, 81 S. W. 874 296, 328, 365, 467 Pfeiffer v. Suss, 73 Mo. 245 521 Pforr's Estate, 144 Cal. 121, 77 Pac. 825 176, 467, 468, 503 Pfuelb's Estate, Myr. Prob. (Cal.) 38 311, 354 Phelps V. Ashton, 30 Tex. 344 169, 208, 356 650 CASES CITED Page Phelps V. Bates, 54 Conn. 15, 5 Atl. 301, 1 Am. St. Rep. 92 303, 309, 406 Phelps V. Phelps, 55 Conn. 359, 11 Atl. 596 439 Phelps V. Robbins, 40 Conn. 250 52, 312, 439 Philips V. Crews, 65 Ga. 274 290, 298, 300 Philleo V. Holliday, 24 Tex. 38 296, 328, 375, 388 Phillips V. Medbury, 7 Conn. 573 364 Phillips V. Phillips, 19 Ga. 261, 65 Am. Dec. 591 396 Phillips V. Smith, 119 Ga. 556, 46 S. E. 640 540 Phinizy v. Few, 19 Ga. 66 443 Phinizy v. Foster, 90 Ala. 262, 7 South. 836 305, 394, 398, 402 Phinizy v. Wallace, 136 Ga. 520, 71 S. E. 896 398, 443 Phinney's Estate, Myr. Prob. (Cal.) 239 529 Phipps V. Ackers, 9 CI. & Fin. 583 453 Pichoir's Estate, 139 Cal. 682, 73 Pac. 606 471 Pickens v. Dorris, 20 Mo. App. 1 368 Pierce v. Fulmer, 165 Ala. 344, 51 South. 728 326 Pierce v. Lee, 197 Mo. 480, 95 S. W. 426 360 Pierce v. Phelps, 75 Conn. 83, 52 Atl. 612 465, 477 Pierce v. Wallace, 48 Tex. 399 506 Pilcher v. Puckett, 77 Kan. 284, 94 Pac. 132 341 Pineland Club v. Robert, 171 Fed. 341, 96 C. C. A. 233 194 Plnkham v. Pinkham, 55 Neb. 729, 76 N. W. 411 47 Pinney v. Newton, 66 Conn. 141, 33 Atl. 591 303, 468 Pirtle V. Pirtle, 84 Kan. 782, 115 Pac. 543 382 Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, 27 L. R. A. (N. S.) 602 388 Pitts V. Burdick, 91 Neb. 123, 135 N. W. 372 287 Pitts V. Campbell, 173 Ala. 604, 55 South. 500 359, 406, 549 Pitts V. Van Orden, 158 S. W. 1043 532 Pitts V. Weakley, 155 Mo. 109, 55 S. W. 1055 160 Plant V. Donaldson, 39 App. D. C. 162 351 Plant V. Plant, 80 Conn. 673, 70 Atl. 52 298, 464 Piatt V. Brannan, 34 Colo. 125, 81 Pac. 755, 114 Am. St. Rep. 147 297, 304, 311 Piatt V. Piatt, 42 Conn. 347 358 Plumel's Estate, 151 Cal. 77, 90 Pac. 192, 121 Am. St. Rep. 100 18, 53, 75 Plummer v. Coler, 178 U. S. 115, 20 Sup. Ct. 829, 44 L. Ed. 998. . 16 Ponce V. Underwood, 55 Ga. 601 176 Pool V. Harrison, 18 Ala. 514 352 Pool's Case, 18 Ala. 514 484 Pool's Heirs v. Pool's Ex'rs, 35 Ala. 12 63, 254, 272 Poole V. Fleeger, 11 Pet. 185, 9 L. Ed. 680 153 Poole V. Jackson, 66 Tex. 380, 1 S. W. 75 165, 209 Poore V. Poore, 55 Kan. 687, 41 Pac. 973 60 CASES CITED 651 Poorman v. Mills, 39 Cal. 350, 2 Am. Rep. 451 167 Pope V. Elliott, 8 B. Mod. (Ky.) 56 369 Pope V. Pickett, 51 Ala. 584 39 Pope V. Pickett, 65 Ala. 487 311 Pope V. Tift, 69 Ga. 741 470 Pope's Estate, In re, 83 Neb. 723, 120 N. W. 191 327, 509, 538 Poppleton's Estate, 34 Utah, 285, 97 Pac. 138, 131 Am. St. Eep. 842 295, 299, 304, 318, 365 Porter, In re, 20 D. C. 493 57, 58, 62 Porter v. Bradley, 3 Term. Rep. 143 437 Porter v. Gaines, 151 Mo. 560, 52 S. W. 376 405 Porter v. Thomas, 23 Ga. 467 411 Porter's Estate, 138 Cal. 618, 72 Pac. 173 547 Portis V. Cummings, 14 Tex. 171 26, 35 Post V. Jackson, 70 Conn. 283, 39 Atl. 151 349 Post V. Mason, 91 N. Y. 539, 43 Am. Rep. 689 264 Potter V. Adams, 24 Mo. 159 206 Potter V. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721.. 365, 453, 468 Potter V. Jones, 20 Or. 240, 25 Pac. 769, 12 L. R. A. 161 210 Potts V. House, 6 Ga. 324, 50 Am. Dec. 329 59, 121, 140, 219, 228, 230, 231, 255 Potts V. Terry, 8 Tex. Civ. App. 394, 28 S. W. 122 560 Pottstown Hospital v. New York Life I. & T. Co. (D. C.) 208 Fed. 196 • 344,485 Pounds V. Dale, 48 Mo. 270 24 Pournell v. Harris, 29 Ga. 736 312, 405, 438 Powell V. Biddle, 2 Dall. 70, 1 L. Ed. 293 317 Powell V. Glenn, 21 Ala. 458 471 Powell V. Hatch, 100 Mo. 592, 14 S. W. 49 481 Powell V. Morgan, 2 Vern. 90 362 Powell V. Powell, 23 Mo. App. 365 L;" ' "no ^.n Power V. Davis, 3 McArthur (10 7^ C.) 153 50, 323, 549 Power's Estate. In re, 79 Neb. 680, 113 N. W. 198 55 Powers V. Scharling, 64 Kan. 339, 67 Pac. 820 44 Prater v. Miller, 25 Ala. 320, 60 Am. Dee. 521 -ii* Prather v. McClelland, 76 Tex. 574, 13 S. W. ^---^ ,,, Pratt V Miller, 23 Neb. 496, 37 N. W. 263 466 S V. Rairoad, 130 Mo. App. 1T5, 108 S. W. 1099 366, 404 Pratt V. Wright, 5 Mo. 192 ■•■••■■•• V ' ' . "„ 403 Pratt Co. V. Robertson, 140 Ala. 584, 37 South. 419 423 Pratte v. CofCman, 27 Mo. 424. • ■ • • Pray v. Belt, 1 Pet. 670, 7 L. Ed. 309v ••••••••••••••• ---gj l^ Presbyterian Church v. McBlhinney, 61 Mo. 540. . . .155, 282, 523, 527 President of Yale College v. Runkle (C. C.) 8 Fed. 576 358 652 CASES CITED Page Preston v. Brant, 96 Mo. 552, 10 S. W. 78 292, 298 Preston v. Foster, 75 Conn. 709, 55 Atl. 558 290 Price V. Courtney, 87 Mo. 387, 56 Am. Rep. 453 424, 457 Price V. Price, 111 Ky. 771, 64 S. W. 746, 66 S. W. 529 28 Price V. Watkins, 1 Dall. 8, 1 L. Ed. 14 394 Price's Estate, 14 Cal. App. 462, 112 Pac. 482 37, 75 ,Prleto V. Leonard, 32 Tex. Civ. App. 205, 74 S. W. 41 509 Prince v. Barrow, 120 Ga. 810, 48 S. E. 412 371, 470 Pritchard v. Henderson, 3 Pennewill (Del.) 128, 50 Atl. 217, s. c, 2 Pennewill (Del.) 553, 47 Atl. 376 116, 181, 182, 230, 234, 255 Probst V. Mathis, 115 N. C. 526, 20 S. E. 710 178 Proctor V. Dicklow, 57 Kan. 119, 45 Pac. 86 467, 492, 542, 564 Proctor V. Harrison, 34 Okl. 181, 125 Pac. 479 43 Provis V. Reed, 5 Bing. 435 232 Pryor v. Pendleton, 92 Tex. 384, 47 S. W. 706, 49 S. W. 212 375 Pryor v. Ryburn, 16 Ark. 671 46 Pryor v. Winter, 147 Cal. 554, 82 Pac. 202, 109 Am. St. Rep. 162 395 Pugh V. Bell, 21 Cal. App. 530, 132 Pac. 286 29 Pugh V. Hayes, 113 Mo. 424, 21 S. W. 23 454 PuUiam v. PulUam (C. C.) 10 Fed. 53 505, 529 Purcell V. Corder, 33 Okl. 68, 124 Pac. 457 28, 538, 548 Purcell's Estate, 164 Cal. 300, 128 Pac. 932 231, 238, 240, 252, 256, 262, 264, 274 Purvis V. Sherrod, 12 Tex. 140 282, 284 Puryear v. Beard, 14 Ala. 121 331 Q Quisenberry v. Watkins Land Co., 92 Tex. 247, 47 S. W. 708 425 R Radovich's Estate, 54 Cal. 540 ; Myr. Prob 547 Ragan v. Hill, 72 Ark. 307, 80 S. W. 150 34 Ragan v. Ragan, 33 Ga. Supp. 106 63, 72, 103, 116 Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315, 11 L. R. A. 316, 24 Am. St. Rep. 256 461 Raines v. Corbin, 24 Ga. 185 381 Bainey v. Ridgway, 148 Ala. 524, 41 South. 632 211 Rakestraw v. Rakestraw, 70 Ga. 806 410, 503 Rambo v. Rumer, 4 Del. Ch. 9 335, 549 Ramser v. Blair, 123 Ala. 139, 26 South. 341 543 Band v. Butler, 48 Conn. 293 301, 304, 419, 421 Band's Estate, 61 Cal. 468, 44 Am. Rep. 555 75 Bandle v. Carter, 62 Ala. 95 284, 545 Randolph v. Bond, 12 Ga. 362 350 CASES CITED 653 Rankin v. Rankin, 61 Mo. 295 267 Rankin's Estate, 164 Cal. 138, 127 Pac. 1034 ...512, 544 Rannels v. Rowe, 166 Fed. 425, 92 C. C. A. 177 888 Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753. .. . 461 Ransdell v. Ransdell, 21 Me. 288 411, 448 Ransome v. Bearden, 50 Tex. 119 204, 211 Rash V. Pumel, 2 Har. (Del.) 448 55, 57, 170, 172, 192, 224,' 276 Rastetter v. Hoenninger, 151 App. Div. 853, 136 N. y. Supp. 961, s. c, 157 App. Div. 553, 142 N. Y. Supp. 962 31 Ratto's Estate, 149 Cal. 552, 86 Pac. 1107 336, 551 Raub V. Carpenter, 187 U. S. 159, 23 Sup. Ot. 72, 47 L. Ed. 119. . 230 Raub V. Carpenter, 17 App. D. C. 505 230 Ray V. Loper, 65 Mo. 470 553 Ray V. Wiley, 11 Okl. 720, 69 Pac. 809 79 Raymond v. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688 347, 350 Readman v. Ferguson, 13 App. D. C. 60 160, 181, 551 Records v. Fields, 155 Mo. 314, 55 S. W. 1021 284, 346 Rector v. Teed, 120 N. Y. 583, 24 N. E. 1014 214 Redd V. Hargroves, 40 Ga. 18 301 Redfield, In re, 116 Cal. 653, 48 Pac. 794 , 140 Redfield v. Marvin, 78 Conn. 704, 63 Atl. 120 537 Redman v. Barger, 118 Mo. 568, 24 S. W. 177 296, 304, 411 Reed v. CampbeU, 2 Hayw. & H. (D. C.) 417, Fed. Cas. No. 11,640a 379 Reed v. Crissey, 63 Mo. App. 184 523 Reed v. Davis, 95 Ga. 202, 22 S. E. 140 541 Reed v. Hazleton, 37 Kan. 321, 15 Pac. 177 44 Reed v. Hazleton, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 66.. 44 Reed v. Reed, 80 Conn. 401, 68 Atl. 849 412, 457 Reed v. Reed, 68 Ga. 589 351 Reed v. Roberts, 26 Ga. 294, 71 Am. Dec. 210 63 Reese v. Nolan, 99 Ala. 203, 13 South. 677 165, 166, 190 Reeves v. Baker, 18 Beav. 372 464 Reeves v. Gower, 11 Mod. Rep. 208 373 Refeld V. Bellette, 14 Ark. 148 46, 540 Register v. Elder, 231 Mo. 321, 132 S. W. 699 385 Register v. Hensley, 70 Mo. 189 ■ • ■ 390 Reid V Voorhees, 216 111. 236, 74 N. E. 804, 3 Ann. Cas. 946 302 Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288 xvc iiuc i^f 2^2^ 296, 298, 306, 307, 315 Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802 411 Reinhardt's Estate, 74 Cal. 365, 16 Pac. 13 408 Reith's Estate, 144 Cal. 314, 77 Pac. 942 .^._. .... . .74,. 471 Renn v. Samos, 33 Tex. 760 170, 215, 220, 263, 278 Rentschler v. Jamison, 6 Mo. App. 135 oio Rety's Estate, 75 Cal. 256, 17 Pac. 65 l^« ReviUe V. Dubach, 60 Kan. 572, 57 Pac. 522 rfSf 654 CASES CITED Page Rex V. Netherseal, 4 T. E. 258 173 Reynolds v. Bristow, 37 Ga. 283 485 Reynolds v. Nowell, 129 Ga. 512, 59 S. E. 299 390 Reynolds v. Reynolds, 65 Mo. App. 415 521 Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279 27 Rhoton V. Blevin, 99 Cal. 645, 34 Pac. 513 24, 25, 297, 299, 305 Rice V. Rice, 68 Ala. 216 17 Rice V. Saxon, 28 Neb. 380, 44 N. W. 456 328 Rice V. Tilton, 13 Wyo. 420, 80 Pac. 828 183, 497 Rice V. Tilton, 14 Wyo. 101, 82 Pac. 577 166, 494, 563 Rice V. Waddill, 168 Mo. 99, 67 S. W. 605 384 Rice's Estate, Myr. Prob. (Cal.) 183 194 Rich V. Bowker, 25 Kan. 7 215, 220, 224, 232, 253 Richards' Estate, 154 Cal. 478, 98 Pac. 528 303 Richardson v. Carroll, 100 Ala. 584, 13 South. 785 559 Richardson v. Frederltze, 35 Mo. 266 518 Richardson v. Green (Or.) 9 C. 0. A. 565, 61 Fed. 423 203 Richardson v. Greese, 3 Atk. *65 533 Richardson v. Lewis, 21 Mo. App. 531 517 Richardson v. Palmer, 24 Mo. App. 480 523, 527 Richardson v. Penicks, 1 App. D. C. 261 326, 403 Richardson v. Ranghley, 1 Houst. (Del.) 561 347, 403 Richardson v. Richardson, 49 Mo. 29 407 Richardson's Estate, 94 Cal. 63, 29 Pac. 484, 15 L. R. A. 635 46 Richmond's Appeal, 59 Conn. 245, 22 AO. 82, 21 Am. St. Rep. 85 121, 263, 271 Rickards v. Gray, 6 Houst. (Del.) 232 439 Rick's Estate, 160 Cal. 450, 117 Pac. 532 216, 241, 254, 276 Rick's Estate, 160 Cal. 467, 117 Pac. 539 205, 254, 264, 276, 278 Riddle v. Gibson, 29 App. D. C. 237 142, 144, 232, 241, 265 Ridenbaugh v. Young, 145 Mo. 274, 46 S. W. 959 214 Ridgely v. Bond, 18 Md. 433 336 Riesenberg's Estate, 116 Mo. App. 808, 90 S. W. 1170 289, 310, 535 Rlggin V. Westminister College, 160 Mo. 570, 61 S. W. 803 76, 121, 220, 222 Riggins V. McClellan, 28 Mo. 23 427 Riggs V. Myers, 20 Mo. 239 316 Riley v. Riley, 36 Ala. 496 55, 65 Riley v. Sherwood, 144 Mo. 354, 45 S. W. 1077 121, 240, 253 Ringquist v. Young, 112 Mo. 25, 20 S. W. 159 '. 298 Ringrose v. Gleadall, 17 Cal. App. 664, 121 Pac. 407 472, 473 Riordan's Estate, 13 Cal. App. 313, 109 Pac. 629 142, 273 Riordon v. Holiday, 8 Ga. 79 407 Rlsse V. Gasch, 43 Neb. 287, 61 N. W. 616 244 Ritch V. Talbot, 74 Conn. 137, 50 Atl. 42 368, 555 Rixey v. Stuckey, 129 Mo. 377, 31 S. W. 770 346 CASES CITED 655 Roach's Estate, 159 Cal. 260, 113 Pac. 373 304, 3°83 Roarke's Estate, 8 Ariz. IG, 68 Pac. 527 '. . .'.'.V.V.'.V. . . .' 209 Ro Bards v. Brown, 167 Mo. 447, 67 S. W. 245 300,' 309, 314, 326 Kobbins v. Co. Com'rs, 50 Colo. 610, 115 Pac. 526. . .288, 290, 358, 484 Roberson v. Roberson, 21 Ala. 273 352 Robert v. West, 15 Ga. 122 298, SOoj 301, 303, 414, 422, 436 Roberts v. Bartlett, 190 Mo. 680, 89 S. W. 858 120, 126, 217, 233, 244, 265 Roberts v. Carr, Dud. (Ga.) 178 427 Roberts v. Connellee, 71 Tex. 11, 8 S. W. 626 506, 508 Roberts v. Grume, 173 Mo. 572, 73 S. W. 662 315, 360 Roberts v. Flanagan, 21 Neb. 503, 32 N. W. 563 173, 193 Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747. . 365 Roberts v. Trawick, 13 Ala. 68 174, 229, 234, 238 Roberts v. Trawick, 17 Ala. 55, 52 Am. Dec. 164 233, 238 Roberts v. Weatherford, 10 Ala. 72 350 Robertson v. Brown, 187 Mo. 457, 86 S. W. 187, 106 Am. St. Rep.' 485 206 Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300 543 Robertson v. Garrett, 72 Tex. 372, 10 S. W. 98 348 Robertson v. Hill, 127 Ga. 175, 56 S. E. 289 55 Robertson v. Johnston, 24 Ga. 102 312, 443, 447 Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049 151, 181, 182, 201 Robertson v. Robertson, 147 Ala. 311, 40 Soutb. 104, 3 L. R. A. (X. S.) 774, 10 Ann. Cas. 1051 33 Robinson, In re, 106 Cal. 493, 39 Pac. 862 224 Robinson v. Adams, 62 Mo. 369, 16 Am. Rep. 473 •. . . 145 Robinson v. Adams, 4 Dall. (Del.) App. XII, 1 L. Ed. 920 298, 416, 443 Robinson v. Bisbop, 23 Ark. 378 306, 314, 427, 440 Robinson v. Duvall, 27 App. D. C. 535 142, 223, 228, 238, 274 Robinson v. Female Orphan Asylum, 123 U. S. 702, 8 Sup. Ct. 327, 31 L. Ed. 293 296 Robinson v. Hillman, 36 App. D. C. 576 395 Robinson v. King, 6 Ga. 539 63, 175 Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692. . . .311, 312, 367 Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275 221, 233, 258 Robinson's Estate, 159 Cal. 608, 115 Pac. 49 299 Robnett V. Ashlock, 49 Mo. 171 356 Robson V. Robson's Adm'r, 3 Del. Ch. 51 33, 156 Rockhey V. Bockhey, 97 Mo. 76, 11 S. W. 225 389 Rockwell V. Bradshaw, 67 Conn. 8, 34 Atl. 758 287, 347, 353 Rockwell V. Swift, 59 Conn. 289, 20 Atl. 200. 346, 359, 363 Rockwell's Appeal, 54 Conn. 119, 6 Atl. 198. 253 Rodney v. Landau, 104 Mo. 260, 15 S. W. 962 186 656 CASES CITED Page Rodriguez v. VIvoni, 201 U. S. 371, 26 Sup. Ct. 475, 50 L. Ed. 792 35 Rogers v. Diamond, 13 Ark. 474 58, 227, 258 Rogers v. Dively, 51 Mo. 198 245 Rogers v. Frencli, 19 Ga. 317 351 Rogers v. Highnote, 126 Ga. 740, 56 S. B. 93 298, 300, 374 Rogers v. Johnson, 125 Mo. 202, 28 S. W. 635 564 Rogers v. Jones, 13 Tex. Civ. App. 453, 35 S. W. 812 508 Rogers v. Kennard, 54 Tex. 30 46, 494, 514 Rogers v. Law, 1 Black, 253, 17 L. Ed. 58 357 Rogers v. Moore, 11 Conn. 553 410 Rogers v. Rogers, 78 Ga. 688, 3 S. E. 451 151, 316 Rogers v. Trevathan, 67 Tex. 406, 3 S. W. 569 382 Rogers v. Troost, 51 Mo. 470 274 Rogers' Estate, 94 Cal. 526, 29 Pac. 962 402 Rogers' Estate, 123 Cal. 614, 56 Pac. 461, 44 L. R. A. 364 485 RoUwagen v. RoUwagen, 63 N. Y. 504 119 Romjue v. Randolph, 166 Mo. App. 87, 148 S. W. 185 30, 307, 411 Rooney v. Hurlbut, 79 Kan. 231, 98 Pac. 765 408 Roosevelt v. Thurman, 1 Johns. Ch. 220 366 Rose V. McHose, 26 Mo. 590 280 Rosenau v. Childress, 111 Ala. 214, 20 South. 95 312, 397 Rosenbaum v. Garrett, 57 N. J. Eq. 186, 41 Atl. 252 535 Rosenberg v. Frank, 58 Cal. 387 283, 295, 310, 313 Rosenwald v. Mlddlebrook, 188 Mo. 58, 86 S. W. 200 29 Rosher, In re, 26 Ch. D. 801 , 366 Rosier v. Nichols, 123 Ga. 20, 50 S. E. 988 410 Ross V. Davis, 17 Ark. 113 540 Ross v. WooUard, 75 Kan. 383, 89 Pac. 680 31, 82, 101, 493 Ross' Estate, 140 Cal. 282, 73 Pac. 976 24, 26, 354 Roth V. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 D. R. A. 455. 406, 447 Rothenberger v. Garrett, 224 Mo. 191, 123 S. W. 574 470 Rothrock V. Rothrock, 22 Or. 551, 30 Pac. 453 210 Rothwell V. Jamison, 147 Mo. 601, 49 S. W. 503 .165, 315 Roulett V. Mulherin, 100 Ga. 591, 28 S. E. 291 211 Rowbotham v. Dunnett, 8 L. R. Ch. D. 430 463 Rowden v. Brown, 91 Mo. 429, 4 S. W. 129 494 Rowe V. Allison, 87 Ark. 207, 112 S. W. 395 25 Roy V. Segrist, 19 Ala. 810 194, 208 Rozelle v. Harmon, 103 Mo. 343, 15 S. W. 432, 12 L. R. A. 187. . 498 Rubber Co. v. Goodyear, 9 Wall. 788, 19 L. Ed. 566 498 Rubencane v. McKee, 6 Del. Oh. 40, 6 Atl. 639 401 Rubey v. Barnett, 12 Mo. 3, 49 Am. Dec. 112 411 Rucker v. Maddox, 114 Ga. 899, 41 S. B. 68 388 Ruffino's Estate, 116 Cal. 304, 48 Pac. 127 142, 239, 251, 269, 271 Ruggles V. Randall, 70 Conn. 44, 38 Atl. 885 306, 307, 346, 349 CASES CITED 657 Page Rule V. Maupin, 84 Mo. 587 233 Russ V. Mebins, 16 Cal. 350 .'.'.'.. 28 Russ V. Russ, 9 Fla. 105 298 443 Russell V. Agar, 121 Cal. 396, 53 Pac. 926, 66 Am. St. Rep. 35. . . .' 29 Russell V. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397 482 Russell V. Andrews, 120 Ala. 222, 24 South. 573 384 Russell V. Eubanks, 84 Mo. 82 284, 296, 411 Russell V. Hartley, 83 Conn. 654, 78 Atl. 320 88, 287, 289, 295, 297, 302, 328, 458 Russell V. Jones, 135 Fed. 929, 68 O. C. A. 487 29 Russell V. Oliver, 78 Tex. 11, 14 S. W. 264 173 Russell V. Russell, 84 Ala. 48, 3 South. 900 305 Russell V. Russell's Ex'rs, 3 Houst. (Del.) 103 57, 69, 223, 265 Russell V. Switzer, 63 Ga. 711 37 Russell V. U. S. Trust Co., 136 Fed. 758, 69 C. C. A. 410 465 Russell's Estate, 150 Cal. 604, 89 Pac. 345 324, 352, 485 Ruston V. Ruston, 2 Ball. (Pa.) 243, 1 L. Ed. 365 296, 297 Ruth V. Krone, 10 Cal. App. 770, 103 Pac. 960 211, 213, 214 Rutledge v. Cramton, 150 Ala. 275, 43 So. 822 424, 447 Ryan v. T. & P. R. Co., 64 Tex. 239 153, 174 Ryder v. Lyon, 85 Conn. 245, 82 Atl. 573 310, 464, 468, 469 Safe Deposit Co. v. Heiberger, 19 App. D. C. 506 220 Safe Deposit Co. v. Sweeney, 3 App. D. C. 401 166 St Bernard v. Shane (D. C.) 201 Fed. 453 510 St James Church v. Walker, 1 Del. Ch. 284 40, 79, 180 St. James O. A. v. McDonald, 76 Neb. 625, 107 N. W. 929, 110 N. W. 626 526 St James O. A. v. Shelby, 60 Neb. 797, 84 N. W. 273, 83 Am. St. Rep. 553; s. c, 75 Neb. 591, 106 N. W. 604. .285, 316, 480, 481, 483 St. John V. Dann, 66 Conn. 401, 34 Atl. 110 301, 308, 368, 417, 439, 441, 444 St. John's Mite Ass'n v. Buckly, 16 D. C. 406 298 St. Joseph's Convent v. Garner, 66 Ark. 623, 53 S. W. 298. . . .119, 192 St. lieger's Appeal, 34 'Conn. 434, 91 Am. Dec. 735 ° 115, 116, 124, 263, 265, 267 St. Louis Hospital Ass'n v. Wegman, 21 Mo. 17 56 St Louis Hospital Ass'n v. Williams, 19 Mo. 609 55, 56, 343 St! Luke's Church v. Witters (C. O.) 54 Fed. 56. . . ... .... ...._. 467 St Marv's O. A. v. Masterson, 57 Tex. Civ. App. 646, 122 S. W. 587 151, 174, 207, 234, 381 St Paul's' Sanitarium' v.' Freeman, 102 Tex. 376, 117 S. W. 425, 132 Am. St Rep. 886 **'^ BoEL. Wills— 42 G58 ' CASES CITED Page St. Vrain's Estate, 1 Mo. App. 294 553 Salmon v. Huff, 9 Tex. Civ. App. 164, 23 S. W. 1044 165 Samson v. Samson, 64 Cal. 327, 30 Pac. 979 242 Sanders v. Godley, 23 Ala. 473 530 Sanders v. Godley, 36 Ala. 50 ; 529 Sanders v. Kirble, 94 Tex. 564, 63 S. W. 626 271 Sanders v. Simclch, 65 Cal. 51, 2 Pac. 741 103, 322 Sanders v. Thompson, 123 Ga. 4, 50 S. E. 976 332 Sanders v. Wallace, 118 Ala. 418, 24 South. 354 378, 379, 385 Sanderson's Estate, 74 Gal. 208, 15 Pac. 753 174 Sands v. Lyon, 18 Conn. 18 359 Sanford v. Gllman, 44 Conn. 463 429 Sanford v. Head, 5 Cal. 298 285 San Francisco P. O. Asylum v. Superior Court, 116 Cal. 448, 48 Pac. 379 205, 209 Sanger v. Butler, 45 Tex. Civ. App. 527, 101 S. W. 459 296, 327, 357 Sanger v. McDonald, 87 Ark. 148, 112 S. W. 365 270 Sappiagton v. School Fund Trustees, 123 Mo. 32, 27 S. W. 356. . . 481 Basse's Estate, 93 Neb. 641, 141 N. W. 1026 529 Satcher v. Satcher, 41 Ala. 26, 91 Am. Dec. 498 194 Satterfield v. Tate, 132 Ga. 256, 64 S. E. 60 417, 443, 503 Saunders' Appeal, 54 Conn. 116, 6 Atl. 193 270 Savage v. Benham, 17 Ala. 119 394 Sawyer v. White (Mo.) 122 Fed. 223, 58 C. C. A. 587 203, 264 Sayre v. Sage, 47 "Cal. 559, 108 Pac. 160 182 Sayre v. Trustees, 192 Mo. 95, 90 S. W. 787 140, 141, 217, 244 Saxon V. Rawls, 51 Fla. 555, 41 South. 594 381 Sbarboro's Estate, 63 Cal. 5 205, 209 Scales V. Heirs of Thornton, 118 Ga. 93, 44 S. E. 857 79 Scaife v. Emmons, 84 Ga. 619, 10 S. E. 1097, 20 Am. St. Bep. 383 78 Schaadt v. Mut. Life Ins. Co., 2 Cal. App. 715, 84 Pac. 249 29, 341 Schaiffner's Appeal, 41 Wis. 260 280 Schafer v. Ballow, 35 Okl. 169, 128 Pac. 498 307, 378 Schaff V. .Peters, 111 Mo. App. 447, 90 S. W. 1037 91, 176 Schedel, In re, 73 Oal. 594, 15 Pac. 297 305 Schevier y. Brown, 21 Colo. 481, 42 Pac. 668 103 Schieffelin v. Schieffelin, 127 Ala. 14, 28 South. 687 55, 67, 115, 219, 233, 261, 272, 276 Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604 58, 127, 221, 238, 250, 251, 259, 275 1 Schimpf V. Rhodewald, 62 Neb. 105, 86 N. W. 908 .408, 410 Schley v. Brown, 70 Ga. 64 469 Schley v. CoUis (O. C.) 47 Fed. 250, 13 L. R. A. 567 540 Schmidt v. Hess, 60 Mo. 591 482 CASES CITED 659 Schmidt V. Schmidt, 47 Minn. 451, 50 N. W. 598 ^2^55 Schmucker v. Reel, 61 Mo. 592 !.!.!!".!!!!""."!! 481 Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738...V.'..".65 173 176 232 Schneider v. Hoffman, 9 Mo. App. 280 389 Schneider v. Koester, 54 Mo. 500 '.'.".*.'........'..*. .'.25 26 Schnltter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 l! R.' A. ' (N. S.) 1047 299, 303, 308, 406, 437, 443 Schoenrich v. Field, 73 Mo. App. 452 .'. . 368 SchoU V. Olmstead, 84 Ga. 693, 11 S. E. 541 469 Schoonover v. Schoonover, 86 Kan. 487, 171 Pac. 485, 38 L. R. A. (N. S.) 752 28 Schorr v. Carter, 120 Mo. 409, 25 S. W. 538 408 Schorr v. Etling, 124 Mo. 42, 27 S. W. 395 378, 389 Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031 504 Schuck's Estate, 87 Neb. 46, 126 N. W. 652 409, 412 Schulenberg v. Campbell, 14 Mo. 491 40 Schultz V. Schultz, 10 Grat. (Va.) 358, 60 Am. Dec. 335 211 Schumacher v. Schumacher, 32 Tex. Civ. App. 497, 75 S. W. 50. . 342 Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135 30, 32, 82 Schwartz v. West, 37 Tex. Civ. App. 136, 84 S. W. 282 386 Schwarz v. Harris (D. 0.) 206 Fed. 936 523. Schwatken v. Doudt, 53 Mo. App. 1 381 Scoby V. Sweatt, 28 Tex. 713 154, 213, 376, 553 Scofleld V. Olcott, 120 111. 362, 11 N. E. 351 453. Scott V. Calvit, 3 How. (Miss.) 158 191 Scott V. Harris, 113 111. 447 237 Scott V. Herrell, 27 App. D. C. 395 184 Scott V. Herrell, 31 App. D. C. 45 171 Scott V. Logan, 23 Ark. 351 374, 403 Scott V. McKee, 105 Ga. 256, 31 S. E. 183 228 Scott V. McNeal, 154 tJ. S. 34, 14 Sup., Ct. 1108, 38 L. Ed. 896. .. . 164 Scott V. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. Rep. 263 96, 177 Scott V. Nelson, 3 Port. (Ala.) 452, 29 Am. Dec. 266 305- Scott V. Thrall, 77 Kan. 688, 95 Pac. 563, 17 L. R. A. (N. S.) 184, 127 Am. St. Rep. 449 72, 215, 220 Scott V. Ward, 13 Gal. 458 35, 378- Scott V. Ware, 65 Ala. 174 393 Scott's Estate, 128 Cal. 57, 60 Pac. 527 46, 142, 222 Scott's Estate, 141 Gal. 487, 75 Pac. 44 300 Scoville V. Mason, 76 Conn. 459, 57 Atl. 114 318 Scroggs V. Tutt, 20 Kan. 271 521 Scull V. Beatty, 27 Fla. 426, 9 South. 4 390 Seal V. Chambliss, 35 Ala. 19 233, 238 Seals V. Pierce, 83 Ga. 787, 10 S. E. 589, 20 Ajn. St. Rep. 344. ., . 45 660 CASES CITED Page Seaman v. Seaman, 12 "Wend. (N. Y.) 382 214 Seaman's Estate, 146 Cal. 455, 80 Pac. 700, 106 Am. St. Kep. 53, 2 Ann. Oas. 726 37, 54, 170 Seamonds v. Hodge, 36 W. Va. 304, 15 S. E. 156, 32 Am. St. Rep. 854 465 Sears v. Choate, 146 Mass. 395, 15 N. E. 786, 4 Am. St. Eep. 320. . 556 Sears' Estate, 18 Utah, 193, 55 Pac. 83 536, 547 Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160 366, 404, 413 Second U. P. Church v. 1st U. P. Ch., 71 Neb. 563, 99 N. W. 252. . 317 Secrist v. Green, 3 Wall. 744, 18 L. Ed. 153 ; 162, 184 Security Co. v. Brlnley, 49 Conn. 48 554 Security Co. v. Bryant, 52 Conn. 322, 52 Am. Rep. 599 548 Security Co. v. Hardenhurgh, 53 Conn. 171, 2 Atl. 391 407 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396 293, 409 Security Co. v. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107 300, 419, 421, 458 Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650. . . .170, 220, 253, 271 Seebrock v. Fedawa, 33 Neb. 413, 50 N. W. 270, 29 Am. St. Rep. 488 244, 317 Seeley v. Hincks, 65 Conn. 1, 31 Atl. 533 359 Seery v. Fitzpatrick, 79 Conn. 562, 65 Atl. 964, 9 Ann. Cas. 139 308, 354 Sefton V. Hopwood, 1 Fost. & Fin. 578 255 Selir V. IJindemann, 153 Mo. 288, 54 S. W. 537 121, 220, 230, 240, 253 Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962 232, 258, 265, 272 Selden v. 111. Trust & Sav. Bank, 184 Fed. 872, 107 O. C. A. 196 192, 209 Sellack v. Harris, 5 Vin. Abr. 521 461 Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73. 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214 54, 70, 95, 239, 206 Sellers v. Sellers, 35 Ala. 235 284 Selna's Estate, Myr. Prob. (Cal.) 233 396 Settle V. Shafer, 229 Mo. 561, 129 S. W. 897 303 Sevier v. Woodson, 205 Mo. 202, 104 S. W. 1, 120 Am. St. Rep. 728 149, 302, 303 Seymour v. McAvoy, 121 Cal. 438, 53 Pac. 946, 41 L. R. A. 544. . 368, 369 Shackleford v. Brown, 89 Mo. 546, 1 S. W. 390 33 Shackleford's Adm'x v. Gates, 35 Tex. 781 507, 527 Shackley v. Homer, 87 Neb. 146, 127 N. W. 145 392 Shadden v. Hembree. 17 Or. 25, 18 Pac. 572 443 Shaddix v. Watson, 130 Ga. 764, 61 S. E. 828 540 Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222, 29 Am. St. Rep. 517 27 Shankland's Appeal, 47 Pa. 113 369 CASES CITED 661 Page Shanley's Appeal, 62 Conn. 325, 25 Atl. 245 229, 235 Shapter's Estate, 35 Colo. 578, 85 Vac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216 ., 59, 61, 172, 236 Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. St. Rep. 270, s. c. 16 Mo. App. 80 26 Sharp, In re, 17 Cal. App. 634, 120 Pac. 1079 462 Sharp V. Findley, 71 Ga. 654 339 Sharp V. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28 46, 47, 149 Sharp V. Loupe, 120 Cal. 91, 52 Pac. 134 16 Sharp V. Sharp, 35 Ala. 574 309 Sharpe v. Mathews, 123 Ga. 794, 51 S. B. 706 , 45 Shaw V. I'ord, 7 Oh. D. 669 366 Shaw's Estate, 51 Mo. App. 112 343 Sheer v. Sheer, 159 111. 591, 43 N. E. 334 59 Sheftall V. Roberts, 30 Ga. 453 303 Shelby v. St. James O. A., 66 Neb. 40, 92 N. W. 155 224 Sheldon v. Rose, 41 Conn. 371 328 Sheldon v. Sheldon, 133 N. X. 1, 30 N. E. 730 533 Shell, In re, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St Rep. 181 256, 270 Shelley's Case, 1 Coke, 227 413 Shelton v. King, 229 U. S. 90, 33 Sup. Ct. 686, 57 L. Ed. 1086. . 458, 476 Shepard v. Shepard, 57 Conn. 29, 17 Atl. 173 308, 320, 468 Shepherd v. Nabors, 6 Ala. 631 46, 152 Shepherd v. White, 11 Tex. 346 290, 329 Sheppard's Estate, 149 Cal. 219, 85 Pac. 312 216 Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 989 302, 419 Sheppey v. Stevens (C. C.) 185 Fed. 147 214, 254, 256 Sheriff v. Brown, 16 D. C. 172 303 Sherman v. Am. Cong. Ass'n (C. C.) 98 Fed. 495 477, 480 Sherman v. Jerome, 120 U. S. 319, 7 Sup. Ct. 577, 30 L. Ed. 680 470 Sherrod v. Sherrod, 38 Ala. 543 303 Sheys' Appeal, 73 Conn. 122, 46 Atl. 832 300, 468 Shields V. Alston, 4 Ala. 248 166 Shields v. McAuley (C. C.) 37 Fed. 302 459 Shillaber, In re, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433. .. . 52, 74, 175 Shipp V. Gibbs, 88 Ga. 184, 14 S. E. 196 540 Shivers v. Goar, 40 Ga. 676 363 Shivers v. Latimer, 20 Ga. 737 557 Shockley V. Parvis, 4 Houst. (Del.) 568 336, 358, 359 Shoemaker v. Brown, 10 Kan. 383 466, 494, 523 Shorten v. Judd, 60 Kan. 73, 55 Pac. 286. 102 Shriverv. Lynn, 2 How. 43, 11 L. Ed. 172 408 662 CASES CITED Page Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178 296, 311 Sickles V. New Orleans, 80 Fed. 868, 26 C. C. A. 204 477, 480 Siddall V. Harrison, 73 Oal. 560, 15 Pac. 130 160, 290 Sidebotham v. Watson, 11 Hare, 170 333 Sieker's Estate, 89 Neb. 216, 131 N. W. 204, 35 L. R. A. (N. S.) 1058 167 Silcox V. Harper, 32 Ga. 639 477 Sill V. Sill, 31 Kan. 248, 1 Pac. 556 385 Sill V. Sill, 39 Kan. 189, 17 Pac. 665 527 Sill V. White, 62 Conn. 434, 26 Atl. 396, 20 L. R. A. 321 411 Sllsby V. Young, 3 Cranch, 249, 2 L. Ed. 429 548 Silvany's Estate, 127 Oal. 226, 59 Pac. 571 272 Silvey's Estate, 42 Cal. 210 383, 384, 387 Simmons v. Cabanne, 177 Mo. 336, 76 S. W. 618 292, 404 Simmons v. Hubbard, 50 Conn. 574 291, 320, 326 Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054. . 193 Simmons v. Simmons, 73 Ala. 235 313, 316 Simon v. Middleton,^51 Tex. Civ. App. 531, 112 S. W. 441 18, 251, 252, 254, 259, 270 Simon's Will, 55 Conn. 239, 11 Atl. 36 291, 318, 339, 412 Simpler v. Lord, 28 Ga. 52 252 Simpson v. Foster, 46 Tex. 618 511, 514 Simpson v. Simpson, 27 Mo. 288 56 Sims V. Brown, 252 Mo. 58, 158 S. W. 624 47, 298, 459 Sims V. Sims, 131 Ga. 262, 62 S. E. 192 249 Singer v. Taylor, 90 Kan. 285, 133 Pac. 841 259, 273, 312, 327 Sinnott v. Kenaday, 14 App. D. C. 1 333, 381, 496, 562 Sinnott v. Moore, 113 Ga. 908, 39 S. E. 415 302, 368 Sisk V. Almon, 34 Ark. 391 502 Sistrunk v. Ware, 69 Ala. 273 550 Skeggs V. Horton, 82 Ala. 352, 2 South. 110 177, 179 Skenett's Estate, 67 Cal. 585, 8 Pac. 181 48, 74 Skipwith V. Cabell, 19 Grat. (Va.) 758 357 Skouten v. Wood, 57 Mo. 380 389 Slack V. Page, 23 N. J. Eq. 238 398 Slanning v. Style, 3 P. Wms. 336 430 Slater v. Rudderforth, 25 App. D. C. 497 415, 454 Slaughter v. Heath, 127 Ga. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 1 116, 135, 221, 228 Slaughter v. Slaughter, 23 Ark. 356, 79 Am. Dec. Ill 306, 440 Slaughter v. Stephens, 81 Ala. 418, 2 South. 145 84, 107 Slay ton v. Singleton, 72 Tex. 209, 9 S. W. 876 183, 322 Sloan V. Frothingham, 65 Ala. 593 152 Small V. Field, 102 Mo. 104, 14 S. W. 815 292, 295, 304, 315, 406, 464 Small V. McOalley, 51 Ala. 527 169 CASES CITED 663 Small V. Small, 1 Greenl. (4 Me.) 220, 16 Am. Dec. 253 267 Smarr v. McMaster, 35 Mo. 351 526 Smaw V. Young, 109 Ala. 529, 20 South. 370. ./............... 396 Smith T. Baldwin, 2 Ind. 404 388 Smith V. Beardsley, 51 Fed. 122, 2 C. C. A. 118 409 Smith V. Bell, 6 Pet. 68, 8 L. Ed. 322 296, 316, 411, 427, 446 Smith V. Boswell, 93 Ark. 66, 124 S. W. 264 222, 254 Smith V. Butler, 85 Tex. 126, 19 S. W. 1083 375, 381, 386 Smith V. Cairns, 92 Tex. 667, 51 S. W. 498 552 Smith V. Chadwick, ill Ala. 542, 20 South. 436 396 Smithy. Clemson, 6 Houst. (Del.) 171 104 Smith V. Oratty, 112 Ga. 905, 38 S. E. 110 78 Smith V. Day, 2 Pennewill (Del.) 245, 45 Atl. 396 222, 226, 321 Smith V. Dolby, 4 Har. (Del.) 350 55, 59, 88 Smith V. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Eep. 260 250, 270 Smith V. Dunwoody, 19 Ga. 237 302, 421, 471 Smith V. Edrington, 8 Cranch, 66, 3 L. Ed. 490 323 Smith V. Estes, 72 Mo. 310 165 Smith V. Eureka Bank, 24 Kan. 528 564 Smith V. Furnish, 70 Cal. 424, 12 Pac. 392 376 Smith V. Gardiner, 36 App. D. C. 485 478 Smithy. Gillette, 59 Tex. 86 530 Smith V. Greer, 88 Ala. 414, 6 South. 911 306, 404 Smith V. Henline, 174 lU. 184, 51 N. B. 227 270 Smith V. Hensen, 89 Kan. 792, 132 Pac. 997 557 Smith V. Holden, 58 Kan. 535, 50 Pac. 447 44, 62, 190, 315 Smith V. Hulsey, 62 Ga. 341 503 Smith V. Hutchinson, 61 Mo. 87 296, 310 Smith V. Johnson, 21 Ga. 386 405 Smith V. Jordan,' 77 Conn. 469, 59 Atl. 507 288, 289 Smith V. Joyner, 136 Ga. 755, 72 S. E. 40 398 Smith V. Kennard's Ex'r, 38 Ala. 695 528 Smith V. Kimbell, 153 111. 378, 38 N. E. 1029 443 Smith V. Mclntyre, 95 Fed. 585, 37 C. C. A. 177 409, 412 Smith V. Marshall, 1 Koot (Conn.) 161 337 Smith V. Moore, 37 Ala. 327 368 Smith V. Moore, 129 Ga. 644, 59 S. B. 915 408 Smith V. Pendele, 19 Conn. Ill, 48 Am. Dec. 146 440 Smith V. Phillips, 131 Ala. 629, 30 South. 872 360, 405 Smith V. Pierce, 65 Vt. 200, 25 Atl. 1092 28 Smith V. Salter, 115 Ga. 286, 41 S. E. 621 78 Smith V. Smith, 139 Ala. 406, 36 South. 616 ■ • 439 Smith V. Smith, 157 Ala. 79, 47 South. 220, 25 L. R. A. (N. S.) 1045 ^\ Smith V. Smith, 23 Ga. 21 ^^^ 664 CASES CITED Page Smith V. Smith, 75 Ga. 477 261 Smith V. Smith, 14 Gray (Mass.) 532 381 Smith V. Smith, 64 Neh. 563, 90 N. W. 560 357, 358, 359 Smith V. Smith, 58 N. O. 305 354 Smith V. Smith's Adm'r, 2 Pennewill (Del.) 2i5, 45 Atl. 396 116 Smith V. Stone, 127 Ga. 483, 56 S. E. 640 192 Smith V. Swan, 2 Tex. Civ. App. 563, 22 S. W. 247 504 Smith V. Sweringen, 26 Mo. 551 22, 307 Smith V. Towers, 69 Md. 77, 14 Atl. 497, 15 Atl. 92, 9 Am. St. Rep. 398 369 Smith v. Usher, 108 Ga. 231, 33 S. E. 876 443 Smith V. Van Ostrand, 64 N. T. 278 446 Smith V. Wiggins, 3 Stew. (Ala.) 221 34 Smith V. Williams, 89 Ga. 9, 15 S. E. 130, 32 Am. St. Rep. 67 354 Smith's Estate, 4 Cal. Unrep. Gas. 919, 38 Pac. 950 384, 386 Smith's Estate, 98 Cal. 636, 33 Pac. 744 244 Smith's Estate, 108 Cal. 115, 40 Pac. 1037 387 Smith's Will, 52 Wis. 543, 8 N. W. 616, 9 N. W. 665, 38 Am. Rep. 756 145 Smith's WiU, In re, 95 N. T. 516 264 Smithsonian Institution v. Meech, 169 XJ. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793 362, 374 Smithsonian Institution v. Meech, 8 App. D. C. 490 363 Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486 281, 506 SmulUn V. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267 461, 462, 464 Smullin v. Wharton, 83 Neb. 328, 119 N. W. 773, 121 N. W. 441 243, 291, 339, 446, 451 Smullin v. Wharton, 86 Neb. 553, 125 N. W. 1112 339, 446 Smyth V. N. O. C. & B. Co., 93 Fed. 899, 35 C. C. A. 646 151 Snead v. Shreve, 81 Mo. 416 389 Snider v. Burks, 84 Ala. 53, 4 South. 225 62, 67, 97, 227, 259 Snider v. Newsom, 24 Ga. 139 365 Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312, 15 Ann. Cas. 548 219, 240, 263, 266, 272 Snorgrass v. Thomas, 166 Mo. App. 603, 150 S. W. 106 318 Snow V. Benton, 28 111. 306 236 Snowball v. Snowball, 164 Cal. 476, 129 Pac. 784 214 Snowball's Estate, 157 Cal. 301, 107 Pac. 598 244, 261, 275, 276, 278 Snowhill V. SnowhiD, 23 N. J. Law, 447 299 Snuffer v. Howerton, 124 Mo. 637, 28 S. W. 166 154, 165 Snyder v. Baker, 16 D. 0. 443 322, 327, 405, 427 Snyder v. Bull, 17 Pa. 60 56 Sobers' Estate, 78 Cal. 477, 21 Pac. 8 74, 87 Soltan V. Soltan, 93 Mo. 307, 6 S. W. 95 378 CASES CITED 665 Sorrelle t. Oralg, 8 Ala. 566 ^^l^ Sorrelle's Ex'r v. Sorrelle, 5 Ala. 245 .'.'."."' 515 Soulard's Estate, 141 Mo. 642, 43 S. W 617 243 245 Southern Marble Co. v. Stegall, 90 Ga."236, 15 S. eVsOg! ! "297 560 Southworth v. Adams, 11 Biss. 256, Fed. Cas. No. 13,194 ... 179 Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129 71, 72, 149, 172, 220, 221, 230 Sowell V. Sowell's Adm'r, 40 Ala. 243 208 Sowell V. Sowell's Adm'r, 41 Ala. 359 iQi Sowles V. First Nat. Bank (C. C.) 54 Fed. 564 '..*." ."."." .".'493, 551 Spalding v. Huntington, 1 Day (Conn.) 10 ' 313 Spangenberg v. Spangenberg, 19 Cal. App. 439, 126 Pac. 379. .493, 539 Sparks v. De La Guerra, 14 Cal. 108 34 Sparks v. De La Guerra, 18 Cal. 676 ] 47I Sparks v. Dorrell, 151 Mo. App. 173, 131 S. W. 761 375, 379, 381 Spark's Case, 63 N. J. Eq. 242, 51 Atl. 118 264 Speairs v. Ligon, 59 Tex. 233 407, 466 Speckart v. Schmidt, 190 Fed. 499, 111 C. O. A. 331 312 Speer v. Colbert, 200 U. S. 130, 26 Sup. Ct. 201, 50 L. Ed. 403. . . 316 Speer v. Speer, 67 Ga. 748 382 Speer v. Speer, 74 Ga. 179 204 Spencer v. Higgins, 22 Conn. 527 316 Spencer v. Scovil, 70 Neb. 87, 96 N. W. 1016 448 Spencer's Appeal, 77 Conn. 638, 60 Atl. 289 92, 96, 276 Spencer's Estate, 96 Cal. 448, 31 Pac. 453 142, 145, 225, 241 Sperber v. Balster, 66 Ga. 317 47, 151 Spicer v. Spicer, 21 Ga. 200 410 Spiegelhatter's Will, 1 Pennewill (Del.) 5, 39 Atl. 465 69 Spindle v. Shreve, 111 U. S. 542, 4 Sup. Ct. 522, 28 L. Ed. 512. . . 368 Spinney v. Eaton, 111 Me. 1, 87 Atl. 378, 46 L. E. A. (N. S.) 535 334 Spoonemore v. Cables, 66 Mo. 579 63, 94, 226, 232 Spradling v. Conway, 51 Mo. 51 553 Spraddling v. Tipkin, 15 Mo. 118 510 Spratt V. Lawson, 176 Mo. 175, 75 S. W. 642 385, 387 Spreckels v. Spreckels, 116 Cal. 344, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170 16 Spreckels' Estate, 162 Cal. 559, 123 Pac. 371 301, 302, 318, 327, 383, 422, 471 Spreckel's Estate, 165 Cal. 597, 133 Pac. 289 543, 561 Sprinkle v. Leslie, 36 Tex. Civ. App. 356, 81 S. W, 1018 366 Spurlock V. Burnett:, 170 Mo. 372, 70 S. W. 870 284, 384 Spurlock V. Burnett, 183 Mo. 524, 81 S. W. 1221 384 Stackhouse v. Stackhouse, 2 Dall. 80, 1 L. Ed. 298 316 Stagg V. Green, 47 Mo. 500 497, 514 Stagg V. Linnenfelser, 59 Mo. 341 514 Stakely v. Pres. Church, 145 Ala. 379, 39 South. 653 394 666 CASES CITED Page Stancell v. Kenan, 33 Ga. 56 116, 241 Standi V. Kenan, 35 Ga. 102 219 Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502 359 Stant V. Am. Sec. & Tr. Co., 23 App. D. C. 25 270, 273 Staples V. Lewis, 71 Conn. 288, 41 Atl. 815 310 Stapleton v. Stapleton, 21 Ala. 587 194, 208 Starke v. Wilson, 65 Ala. 576 529 Starr v. Starr, 2 Root (Conn.) 303 4, 17, 69, 196, 323 Starr v. Willoughby, 218 111. 485,-75 N. E. 1029, 2 L. R. A. (N. S.) 623 555 State V. Beming, 74 Mo. 96 515 State V. Blake, 69 Conn. 64, 36 Atl. 1019 482, 562 State V. Campbell, 10 Mo. 724 512 State V. Griffith, 2 Del. Chan. 393 477, 479 State V. Hunter, 73 Conn. 435, 47 AO. 665 469, 504 State V. Lyons, 5 Har. (Del.) 196 306 State V. McGlynn, 20 Cal. 233, 81 Am. Dec. 118 151, 156, 160, 189, 190, 212 State V. Rogers, 17 Houst. (Del.) 569 499 State V. St. Louis Court, 47 Mo. 602 510 State T. Sliney, 78 Conn. 397, 62 Atl. 621 427 State V. Smith, 5? Conn. 563 326, 409, 412, 425 State V. Superior Court, 148 Cal. 55, 82 Pac. 672, 2 L. R. A. (N. S.) 643 212, 216 State V. Thresher, 77 Conn. 70, 58 Atl. 460 457 State V. Tolson, 73 Mo. 320 428 State V. Walsh, 67 Mo. App. 348 526 State V. Warrington, 4 Har. (Del.) 55 427 State V. White, 30 N. C. 116 '. 163 State ex rel. v. Adams, 71 Mo. 620 361 State ex rel. v. Gray, 106 Mo. 526, 17 S. W. 500 517, 564 State ex rel. v. Guinotte, 156 Mo. 513, 57 S. W. 281, 50 L. R. A. 787 245 State ex rel. v. Imel, 243 Mo. 174, 147 S. W. 992 245 State ex rel. v. McQuillin, 246 Mo. 517, 152 S. W. 347 292 State ex rel. v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B, 526 210, 211, 218 State ex rel. v. Morrison, 244 Mo. 193, 148 S. W. 907 505, 515 State ex rel. v. Pohl, 30 Mo. App. 321 26 State ex rel. v. Tittmann, 103 Mo. 565, 15 S. W. 936 525 State ex rel. Hounsom v. Moore, 18 Mo. App. 406 514 State Bank V. Bliss, 67 Conn. 317, 35 Atl. 255 32 State Bank v. Williams, 6 Ark. 156 536 Stead V. Curtis, 191 Fed. 529, 112 C. O. A. 463 74, 204 Stead V. Curtis, 205 Fed. 439, 123 C. C. A. 507. .156, 166, 193, 194,204 Stedham v. Stedham's Ex'rs, 32 Ala. 525 138 CASES CITED 667 Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153 "^* 62, 115, 137, 220, 221, 228, 230, 231, 234, 255, 258 bteele v. Penn, 50 Tex. 467, 32 Am. Rep. 605 154, 191 Steele v. Steele, 64 Ala. 438, 38 Am. Rep. 15 529 Steen v. Springfield, 91 Ark. 73, 120 S. W. 408 245 Steib V. Whlteliead, 111 111. 247 366 Stein V. Gordon, 92 Ala. 532, 9 South. 741 405 Steiner v. Stelner Land Co., 120 Ala. 128, 26 Soutli. 494 552, 558 Stephens v. Stephens, Cas. Tenn. Talbott, 228 (1736) 437 Stephens v. Stephens, 129 Mo. 422, 31 S. W. 792, 50 Am. St. Rep. 454 55 Stephenson v. Brown, 4 N. J. Eq. 503 '. 380 Stephenson v. Stephenson, 6 Tex. Oiv. App. 529, 25 S. W. 649. . . 171 Sterling v. Ives, 78 Conn. 498, 62 Atl. 948 458 Sterns v. Weathers, 30 Ala. 712 542 Stevens v. De La Vaulx, 166 Mo. 20, 65 S. W. 1003 357, 367, 458 Stevens v. Hope, 52 Mich. 65, 17 N. W. 698 89 Stevens v. Oliver, 200 Mo. 512, 98 S. W. 492 184 Stevens v. Smith, 126 Fed. 706, 61 C. C. A. 624 545 Stevenson, In re, 2 Del. Ch. 197 555 Stevenson v. Superior Ct., 62 Oal. 60 163 Stewart v. Coshow, 238 Mo. 662, 142 S. W. 283 477 Stewart v. Elliott, 13 D. C. 307 125, 254 Stewart v. Hall, 100 Cal. 246, 34 Pac. 706 166 Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, 131 Am. St. Rep. 595 318, 537, 556 Stewart v. Lispenard, 26 Wend. (N. Y.) 255 117 Stewart v. Pettus, 10 Mo. 755 162 Stewart v. Powell, 90 Ky. 511, 14 S. W. 496, 10 L. R. A. 57 104 Stewart v. Smiley, 46 Ark. 373 502 Stewart's Estate, 74 Cal. 101, 15 Pac. 445 297, 304, 382, 384 Stlcknoth's Estate, 7 Nev. 223 16 Stier V. Nashville Trust Co., 158 Fed. 601, 85 C. C. A. 423 367 Stirling v. Winter, 80 Mo. 141 527 Stitt V. Stitt, 205 Mo. 155, 103 S. W. 547 500 Stoelker v. Thornton, 88 Ala. 241, 6 South. 680, 6 L. R. A. 140. . . . 342 Steepler v. Silverberg, 220 Mo. 258, 119 S. W. 418 382, 397 Stokes V. O'Fallon, 2 Mo. 32 378 Stokes V. Pillow, 64 Ark. 1, 40 S. W. 580 380 Stone V. Brown, 16 Tex. 425 174, 498 Stone V. Cook, 179 Mo. 534, 78 S. W. 801, 64 L. R. A. 287 213 Stone V. Franklin, 89 Ga. 195, 15 S. E. 47 442 Stone V. McEckron, 57 Conn. 194, 17 Atl. 852 407, 440 Stone V. Stone, 18 Mo. 389 • 384 Stone's Appeal, 74 Conn. 301, 50 Atl. 734 16, 78 Stoner's Case, 2 Pa. 428, 45 Am. Dec. 608 427 668 CASES CITED Page Storey v. Storey, 30 App. D. C. 41 239 Story V. Story, 188 Mo. 127, 86 S. W. 225 245 Stowe V. Stowe, 140 Mo. 594, 41 S. W. 951 15, 155, 190 Straat v. O'Nell, 84 Mo. 68 384 Strain v. Sweeny, 163 111. 603, 45 N. E. 201 437 Stratton v. McCandless, 27 Kan. 296 523 Stratton's Estate, 112 Gal. 513, 44 Pac. 1028 74, 75, 309 Strlngfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871 214 Strode v. Beall, 105 Mo. App. 495, 79 S. W. 1019 553 Strong V. Elliott, 84 Conn. 665, 81 Atl. 1020 303, 439 Strong V. Middleton, 51 Ga. 462 440 Strong V. White, 19 Conn. 245 312 Strong's Appeal, 68 Conn. 527, 37 Atl. 395 480 Strong's Appeal, 79 Conn. 123, 63 Atl. 1089, 6 L. R. A. (N. S.) 1107, 118 Am. St. Rep. 138 99 Stubbs V. Houston, 33 Ala. 555 107, 115, 222, 229, 234 Stubbs V. Marsball, 54 Tex. Civ. App. 526, 117 S. W. 1030 277 Studebaker v. Montgomery, 74 Mo. 101 527 Studer v. Seyer, 69 Ga. 125 29 StuU V. StuU, 1 Neb. (Unof.) 389, 96 N. W. 196. .122, 141, 255, 273, 278 Sturdevant's Appeal, 71 Conn. 393, 42 Atl. 70 115, 222 Sugden v. Lord St. Leonards, L. R. 1 P. D. 154 179 Suggs V. Sapp, 20 Ga. 100 541 SulUvan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605 348, 364, 397, 416 Sullivan v. Larkin, 60 Kan. 545, 57 Pac. 105 353 Sullivan v. Rabb, 86 Ala. 437, 5 South. 746 184 Sulzberger v. Sulzberger, 50 Cal. 385 390 Summerhill v. Darrow, 94 Tex. 74, 57 S. W. 942 329 SummerhlU v. Hanner, 72 Tex. 224, 9 S. W. 881 290, 555 Summerlin v. Dorsett, 65 Ga. 397 544 Summers v. Smith, 127 111. 649, 21 N. E. 191 443 Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274 395 Sunderland v. Hood, 84 Mo. 293 256, 269 Sunderland v. Hood, 13 Mo. App. 240 206, 256, 269 Sutphen v. Ellis, 35 Mich. 446 427 Sutro's Estate, 139 Cal. 87, 72 Pac. 827 30, 352 Sutton V. Chenault, 18 Ga. 1 42 Sutton V. Hancock, 115 Ga. 857, 42 S. E. 214 103 Sutton V. Hancock, 118 Ga. 436, 45 S. E. 504 190, 192, 194, 198 Sutton V. Harvey, 24 Tex. Civ. App. 26, 57 S. W. 879 560 Sutton v. Hayden, 62 Mo. 112 26 Sutton V. Sutton, 5 Har. (Del.) 459 69, 116, 171, 220, 261, 270 Suydam v. Thayer, 94 Mo. 49, 6 S. W. 502 304, 315 Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. Ed. 427, 74 Am. St. Rep. 490 27 CASES CITED 609 Swain V. Gilbert, 3 Mo. 347 1 fiO ^a-fo Swann V. Garrett, 71 Ga. 566 q^' 556 Swarthout v. Eanier, 143 N. Y. 499, 38 N E 726 '411 Swearingen v. Taylor, 14 Mo. 391 Vos 427 Sweeney's Estate, 94 Neb. 834, 144 N. W. 902 199, ■208,' 215, 561 bwift V. Edson, 5 Conn. 531 550 Swm V. Swift, 129 Ga. 848, 60 S. E. 182. '.'.'. 539 Swift V. Thomas, 101 Ga. 89, 28 S. E. 618 208 Sykes v. Sykes, 2 Stew. (Ala.) 364, 20 Am. Dec. 40 78 Symmes v. Arnold, 10 Ga. 506 [ 46 T Taber v. Packwood, 2 Day (Conn.) 52 395, 432 Talbott V. Duke of Shrewsbury, Prec. Ch. 394 '533 Talbott V. Hamill, 151 Mo. 292, 52 S. W. 203 407 Talcott V. Talcott, 39 Conn. 186 347, 350 Talley v. Moore, 5 Har. (Del.) 57 172 Taney's Estate, Myr. Prob. (Cal.) 210 58 Tapley v. McPike, 50 Mo. 589 206, 501 Tappan's Appeal, 52 Conn. 412 359' 481 Tarrant v. Backus, 63 Conn. 277, 28 Atl. 46 368 Tarver y. Haines, 55 Ala. 503 504 Tarver v. Tarver, 9 Pet. 174, 9 L. Ed. 91 201, 357 Tate V. Chandler, 115 Ga. 462, 41 S. E. 647 374 Tate V. Jay, 31 Ark. 577 502 Taturam's Case, 12 Edw. IV (1472) 434 Taylor v. Eenham, 5 How. 233, 12 L. Ed. 130 469 Taylor v. Columbian University, 226 U. S. 126, 33 Sup. Ct. 73, 57 L. Ed. 152 478, 481 Taylor v. Columbian University, 35 App. D. C. 69 477 Taylor v. Harwell, 65 Ala. 1 325, 552 Taylor v. Hilton, 23 Okl. 354, 100 Pac. 537, 18 Ann. Cas. 385. .43, 175 Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150 44, 115, 238, 256, 258 Taylor v. Kemp, 86 Ga. 181, 12 S. E. 296 410 Taylor v. Leesnitzer, 37 App. D. C. 357 325 Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 115, 141, 143, 222, 225, 231, 232, 234 Taylor v. McCowen, 154 Cal. 798, 99 Pac. 351 317, 359 Taylor v. Mason, 9 Wheat. 325, 6 L. Ed. 101 358 Taylor v. Meador, 66 Ga. 230 401 Taylor v. Parker, 33 Okl. 199, 126 Pac. 573 110 Taylor v. Wilburn, 20 Mo. 309, 64 Am. Dec. 186 253, 269 Taylor's Estate, 92 Cal. 564, 28 Pac. 603 229 Taylor's Estate, 126 Cal. 97, 58 Pac. 454 74, 75 Teague v. Corbitt, 57 Ala. 529 493 670 CASES CITED Page Tebow V. Dougherty, 205 Mo. 315, 103 S. W. 985. . . .306, 318, 326, 443 Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46 238, 240, 260, 265, 273, 274, 275 Teckenbrook v. McLaughlin, 246 Mo. 711, 152 S. W. 38 210, 242 Tendick v. Evetts, 38 Tex. 275 414 TennlUe v. Phelps, 49 Ga. 532 334 Terrell v. Cunningham, 70 Ala. 100 422 Terrell v. McCown, 91 Tex. 231, 43 S. W. 2 508 Terrell v. Reeves, 103 Ala. 264, 16 South. 54 301, 397, 422 Terry v. Buffington, 11 Ga. 337, 56 Am. Dec. 423 124, 234, 254 Terry v. Foster, 1 Mass. 146, 2 Am. Dec. 6 22 Terry v. Hood, 172 Ala. 40, 55 South. 423 413 Terry v. Eodahan, 79 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420. . . 503 Terry v. Wiggins, 47 N. Y. 512 446 TeSke v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802, s. c, 65 Neb. 167, 91 N. W. 181, 101 Am. St. Rep. 614 26, 28, 30 Tesson v. Newman, 62 Mo. 198 415 Tevis v. Pitcher, 10 Cal. 465 35, 65, 171, 173 Tevis V. Tevis, 23 Mo. 256 521 Thackara v. Mintzer, 100 Pa. 151 369 Thaggard v. Crawford, 112 Ga. 326, 37 S. B. 367 ' 540 Thaw V. Ritchie, 15 D. C. 347 407 Thaw V. Ritchie, 136 U. S. 519, 10 Sup. Ct. 1037, 34 L. Ed. 531. . 407 Thayer's Estate, 142 Cal. 453, 76 Pac. 41 376, 529 Thelusson v. Woodford, 4 Vesey, 227 475 Thomas v. Black, 113 Mo. 66, 20 S. W. 657 24, 25 Thomas v. Castle, 76 Conn. 447, 56 Atl. 854 474 Thomas v. Matthews, 51 Tex. Civ. App. 304, 112 S. W. 120. .286, 503 Thomas v. Morrisett, 76 Ga. 384 167, 175, 183, 485 Thomas v. Owens, 131 Ga. 248, 62 S. E. 218 306, 406 Thomas v. People, 107 111. 517, 47 Am. Rep. 458 163 Thomas v. Stump, 62 Mo. 275 259, 274 Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 Am. St. Rep. 639 72 Thomas v. Thomas, 149 Mo. 435, 51 S. W. Ill, 73 Am. St. Rep. 405 298, 393, 399 Thomas v. Williamson, 51 Fla. 332, 40 South. 831 497 Thomas' Estate, 147 Cal. 236, 81 Pac. 539 338 Thomas' Estate, 155 Cal. 488, 101 Pac. 798 217, 232 Thomasson v. Driskell, 13 Ga. 253 152 Thompson v. iEtna L. I. Co., 161 Ala. 507, 49 South. 802. 341 Thompson v. Betts, 74 Conn. 576, 51 Atl. 564, 92 Am. St. Rep. 235 319, 337, 379 Thompson v. Chapeau, 132 Ga. 847, 65 S. E. 127 213 Thompson v. Davitte, 59 Ga. 472 62, 65, 221, 255, 271 CASES CITED 671 Thompson v. Hawks (O. C.) 14 Fed. 902 ^146 Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. StVRepV552 ThnTr,r.c„^ T ,, ^^' ^25, 233, 236, 267, 272, 276, 277 Thompson v. Johnson, 19 Ala. 59 46 Thompson t. King, 95 Ark. 549, 129 S W. 798. . 171 Thompson v. McClernon, 142 Mo. App. 429, 127 S. W. Ssk'.'.'.'.'.V. 537. Thompson v. Marshall, 73 Conn. 89, 46 Atl. 825.. 473 Thompson v. Ralner, 117 Ala. 318, 23 South. 782 '" 217 Thompson v. Samson, 64 Cal. 330, 30 Pac. 980 563 Thompson v. Sanders, 118 Ga. 928, 45 S. E. 715 ' 472 Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372, s. c, 30 Neb 489, 46 N. W. 638 55,58,82,262 Thompson v. WUson, 82 111. App. 29 533 Thomson v. Shackelford, 6 Tex. Civ. App. 121, 24 S. W. 98o!!!! 508 Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128 309, 313 Thorington v. Hall, 111 Ala. 323, 21 South. 335, 56 Am. St. Rep. 54 539 Thorington v. Thorington, 111 Ala. 237, 20 South. 407, 36 h. R. A. 385 395 Thorn v. De Breteuil, 86 App. Div. 410, 83 N. Y. Supp. 849'.'.*.'.*.". 454 475 558 Thornton v. Britton (C. C.) 8 Fed. 308 '. '299 Thornton v. Burch, 20 Ga. 791 312, 427 Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798 243, 346 Thorp V. Fleming, 1 Houst. (Del.) 580 484 Thrasher v. Ballard, 33 W. Va. 285, 10 S. E. 411, 25 Am. St. Rep. 894 182 Thrasher v. Ingram, 32 Ala. 645 403, 541 Three States Lbr. Co. v. Rogers, 145 Mo. 445, 46 S. W. 1079 353 Threlkeld v. Threlkeld, 238 Mo. 459, 141 S. W. 1121 298, 412, 450 Thresher's Appeal, 74 Conn. 40, 49 Atl. 861 416, 421, 440 Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663, s. c, 12 App. D. C. 552 92, 97, 231, 232 Throop V. Williams, 5 Conn. 99 348 Thursby v. Myers, 57 Ga. 155 195 Thweatt v. Redd, 50 Ga. 181 336 Thynn v. Thynn, 1 Vern. 296 462 Tibbe v. Kamp, 154 Mo. 579, 54 S. W. 879, 55 S. W. 440 253, 260, 265 Tibbett's Estate, 137 Cal. 123, 69 Pac. 978 244, 271 Tichener v. Brewer, 98 Ky. 349, 33 S. W. 86 307 Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 31 Am. Law Reg. 75, 14 L. R. A. 33, 27 Am. St. Rep. 487 481 Tillman's Estate, 3 Cal. Unrep. Oas. 677, 31 Pac. 563 106 Tillson V. Holloway, 90 Neb. 481, 134 N. W. 232, Ann. Cas. 1913B, .^8 182, 392, 516 672 CASES CITED Tilt V. Kelsey, 207 U. S. 43, 28 Sup. Ot. 1, 52 L. Ed. 95 495 Tincher v. Arnold, 147 Fed. 665, 77 C. C. A. 649, 7 L. K. A. (N. S.) 471, 8 Ann. Cas. 917 290, 291, 477, 483 Tingier v. Chamberlin, 71 Conn. 466, 42 Atl. 718 419 Tingier v. Woodruff, 84 Conn. 684, 81 Atl. 967 420, 421 Tlngley v. Cowgill, 48 Mo. 291 219, 231, 232, 269 Tirrell v. Bacon (C. G.) 3 Fed. 62 305, 399 Tisdale v. Prather, 210 Mo. 402, 109 S. W. 41 318, 405, 406 Title Guar. Co. v. Holverson, 95 Ga. 707, 22 S. E. 533 298 Tittel's Estate, Myr. Prob. (Cal.) 12 115 Tltterington v. Hooker, 58 Mo. 593 492, 520 Tlttman v. Thornton, 107 Mo. 506, 17 S. W. 979, 16 L. R. A. 410. . 515 Tobin V. Jenkins, 29 Ark. 151 224, 225, 233, 259, 261, 270 Toby V. Allen, 3 Kan. 399 524 Todd V. Rennick, 13 Colo. 546, 22 Pac. 898 179 Todd V. Terry, 26 Mo. App. 598 521 Todd's Will, 2 Watts & S. (Pa.) 145 356 Toland v. Toland, 123 Cal. 140, 55 Pac. 681 176, 300, 304, 326, 367, 464 Tolbert v. Burns, 82 Ga. 213, 8 S. E. 79 349 Tolland County Ins. Co. v. Underwood, 50 Conn. 493 411 Tolley V. Qreene, 2 Sandf. Ch. (N. Y.) 91 340 Tomlinson v. Ellison, 104 Mo. 105, 16 S. W. 201 33 Tompkins v. Lear, 146 Mo. App. 642, 124 S. W. 592 554 Tompkins v. Tompkins, 1 Story, 547, Fed. Cas. No. 14091 187 Tompkins v. Troy, 130 Ala. 555, 30 South. 512 284, 378 Tompkins' Estate, l32 Cal. 173, 64 Pac. 268 318 Toms V. Owen (C. C.) 52 Fed. 417 201, 293, 406 Tooke V. Hardeman, 7 Ga. 20 379, 387 Toole V. Perry, 80 Ga. 681, 7 S. E. 118 399 Toombs V. Spratlin, 127 Ga. 766, 57 S. E. 59 396, 410, 467, 541 Toomes' Estate, 54 Cal. 509, 35 Am. Rep. 83 55, 234, 237 Torno v. Torno, 43 Tex. Civ. App. 117, 95 S. W. 762 375 Torrey v. Bruner, 60 Fla. 365, 53 South. 337 191, 195 Torrey v. Burney, 113 Ala. 496, 21 South. 348 112 Touart v. Rlckert, 163 Ala. 362, 50 South. 896 326 Towle V. Swasey, 106 Mass. 100 333 Towusend v. Wilson, 77 Conn. 411, 59 Atl. 417 425 Towson V. Moore, 11 App. D. C. 377 255, 258, 276 Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117. . 161, 190, 199, 209, 210 Trammell v. Johnston, 54 Ga. 340 366 Travers v. Reinhardt, 25 App. D. C. 567 313 Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865 ; 296 Travis v. Morrison, 28 Ala. 494 402, 469 CASES CITED G73 Page Trawick v. Davis, 85 Ala. 342, 5 South. 83 46, 152 Traylor's Estate, 81 Cal. 10, 22 Pac. 297, 15 Am. St. Rep. 17 338 Treat v. Treat, 35 Conn. 210 857, 463, 539 Trezevant v. Rains, 85 Tex. 329, 23 S. W. 890 271 Trimple v. Hensley, 10 Mo. 309 404 Trimple v. Rice, 204 Fed. 407, 122 C. C. A. 658 414, 530 Trorllcht v. Welzenecker, 1 Mo. App. 482 33 Trotter v. Trotter, 31 Ark. 145 25, 26, 545 Trotters v. Winchester, 1 Mo. 413 68, 160, 250 Truitt V. Truitt's Ex'r, 3 Pennewill (Del.) 311, 50 Atl. 174 127 Trustees of Amherst College v. Rltch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 321 460, 461, 463 Trustees of Methodist Ch. v. Harris, 62 Conn. 93, 25 Atl. 456 447 Tucker v. Tucker, 29 Mo. 350 384 Tucker v. Tucker, 32 Mo. 464 384 Tuckerman v. Currier, 54 Colo. 215, 129 Pac. 210. . . .243, 301, 467, 499 TunnicUfE v. Fox, 68 Neb. 811, 94 N. W. 1032 502, 511 Turner v. Am. Sec. & T. Co., 213 V. S. 257, 29 Sup. Ct. 420, 53 L. Ed. 788 229 Turner v. Am. Sec. & T. Co., 29 App. D. C. 460 228, 229, 230 Turner v. Anderson, 236 Mo. 523, 139 S. W. 180. . . .115, 137, 254, 267 Turner v. Balfour, 62 Conn. 89, 25 Atl. 448 310, 439 Turner v. Coll, 24 Ala. 364 378 Turner v. Kirkpatrick, 77 Ga. 794, 3 S. E. 246 473 Turner v. Laird, 68 Conn. 198, 35 Atl. 1124 529 Turner v. McDonald, 76 Cal. 177, 18 Pac. 262, 9 Am. St. Rep. 189 152, 181, 183 Turner v. Timberlake, 53 Mo. 375 296, 411, 427 Turner's Appeal, 72 Conn. 305, 44 Atl. 310 229, 230, 237, 263 Turney v. Sparks, 88 Mo. App. 363. 408 Turpin v. Turpin, 88 Mo. 337 '• 554 Turrill v. Northrop, 51 Conn. 33 440 Twitty V. Camp, 62N. C. (Phil. Eq.) 61 366 Twombley's Estate, 120 Cal. 350, 52 Pac. 815 173 Tye V. Tye, 88 Mo. App. 334 ■ &14 Tygard v. McComb, 54 Mo. App. 85 AAo '.^o Tvler V Theilig, 124 Ga. 204, 52 S. E. 606 299, 443 JSr's Estate. 121 Cal. 405, 53 Pac. 928 170, 171, 227 Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619 98, 177, 178 Tyson v. Tyson's Ex'r, 37 Md. 567 '^o* u underground Electric Ry. Co. v. Owsley (C. C. N. YO 169 Fed. 671, S. c, 176 Fed. 26, 99 C. C. A. 500 201, 246, 380, 524 Undemood y. Cave, 176 Mo. 1, 75 S. W. 451 411, 447 BoEL. Wills — 43 674 CASES CITED Page Underwood v. Thurman, 111 Ga. 325, 36 S. E. 788 54, 171, 275 Underwood v. Underwood, 162 Ala. 558, 50 South. 305, 136 Am. St. Kep. 61 427, 429 U. S. V. Fox, 94 U. S. 315, 24 L. Ed. 192 •. 9, 89, 344 U. S. V. Gillespie (C. C.) 9 Fed. 721 285 U. S. V. Parker, 2 MacArthur (D. O.) 444 551 University of Colo. v. Wilson, 54 Colo. 510, 131 Pac. 422 296, 838 Upchurch v. Norsworthy, 12 Ala. 532 540 Updike V. Mace (C. C.) 194 Fed. 1001 314 Upbam's Estate, 127 Cal. 90, 59 Pac. 815 ; 336, 353 Upwell V. Halsey, 1 P. Wms. 651 445 Urquhart v. Oliver, 56 Ga. 344 Ill Usticke V. Bowden, 2 Add. Ecc. 116 101 Utassy V. Giedinghagen, 132 Mo. 58, 38 S. W. 444 109 Utermehle v. Norment, 197 U. S. 40, 25 Sup. Ot. 291, 49 L. Ed. 655, 3 Ann. Cas. 520, s. c, 22 App. D. C. 31 213, 232, 376 Utz's Estate, 43 Cal. 200 24, 25, 414 V Vail V. Vail, 49 Conn. 56 393 Vamplew v. Chambers, 29 Neb. 83, 682, 45 N. W. 268, 1108. .423, 424 Van Alst v. Hunter, 5 Johns. Ch. (N. T.) 148 121 Van Alstine's Estate, 26 Utah, 193, 72 Pac. 942 127, 212, 219, 224, 229, 237 Van Buren v. Dash, 30 N. Y. 393 307 Vance v. Crawford, 4 Ga. 445 204, 213 Vanjce v. Upson, 66 Tex. 476, 1 S. W. 179 140, 211, 225, 231, 233, 234, 235 Van Cortlandt v. Kip, 1 Hill (N. T.) 590 ". 299 Vandeveer v. Higgins, 59 Neb. 333, 80 N. W. 1043 105, 111 Vandiver v. Vandiver, 115 Ala. 828, 22 South. 158 816 Van Pretres v. Cole, 78 Mo. 39 307, 826 Van Syckel v. Beam, 110 Mo. 589, 19 S. W. 946 182, 186 Vantine v. Butler, 250 Mo. 445, 157 S. W. 588 25 Vanzant v. Morris, 25 Ala. 285 ■ . . 398 Varner v. Bevil, 17 Ala. 286 39 Varnon v. Varnon, 67 Mo. App. 534 71, 96, 100, 177, 299 Vaughan v. Parr, 20 Ark. 600 305, 427 Vaughan v. Vaugban's Heirs, 30 Ala. 829 357, 385, 544 Vaughn v. Howard, 75 Ga. 285 310, 540 Vaughn v. Lovejoy, 84 Ala. 487 363, 364 Venable v. Veal, 112 Ga. 677, 37 S. E. 887 192 Venable v. Venable, 165 Ala. 621, 51 South. 833 221, 242, 244 Veret v. Duprey, L. R. 6 Eq. 829 245 Vernon v. Kirk, 30 Pa. St. 222 55 CASES CITED 675 Vernon y. Vemon, 53 N. T. 351 ^o|r Vestry V. Bostwick, 8 App. D. O. 452.V. ■.■■.' V.".". 52 Vts 210 Vickers V. Stone, 4 Ga. 461 ' '' 040 Vlckery y Hobbs, 21 Tex. 570, 73 Am. Dee. 238V.V.V.V.V. 60-3i2 355 Vidal y. Girard, 2 How. 128, 11 L. Ed. 205 ' 479 432 Vines V. Clingfost, 21 Ark. 309 ^<», *s^ Vining y. MTillis, 40 Kan. 609, 20 Pac. 232. . .".'.". Vsq qsq Virden v. Hubbard, 37 Colo. 37, 86 Pac. 113 ... . 288 Vitt y. Clark, 66 Mo. App. 214 325 553 Vogt y. Graff, 222 U. S. 404, 32 Sup. Ct. 134, 56 L. Ed.' 249* ' . ' 415 Vogt y. Vogt. 26 App. D. O. 46 3O6, 396, 415, 473, 556 Vogt's Estate, 154 Cal. 508, 98 Pac. 265 301 310 385 Von De Veld y. Judy, 143 Mo. 364, 44 S. W. 1117. . . .121 13l' 138* 233 Von Phul y. Hay, 122 Mo. 300, 26 S. W. 965 ' 312 Von Rosenberg y. Wicfces, 50 Tex. Ciy. App. 455, 109 S. W. 968.. 499 w Waddell y. Leonard, 53 Ga. 694 337 Waddell y. Waddell, 99 Mo. 345, 12 S. W. 349, 17 Am. "st. Rep. ^'^^ 306, 309 Waddington y. Buzby, 45 N. J. Eq. 173, 16 Atl. 690, 14 Am. St. Rep. 706 121 Wade y. Am. Col. Soc, 7 Smedes & M. (Miss.) 663, 45 Am. Dee. 324 282, 284 Wadsworth y. Wadsworth, 74 Cal. 104, 15 Pac. 447 304 Wager y. Wager, 96 N. Y. 164 446 Waggener y. Lyles, 29 Ark. 47 176 Wait y. Huntington, 40 Conn. 9 282 Walte y. Frisbie, 45 Minn. 361, 47 N. W. 1069 55 Walch y. Orrell, 53 Colo. 361, 127 Pae. 141 169 Walker y. Atmore, 50 Fed. 644, 1 C. C. A. 595, afBrming (C. C.) 46 Fed. 429 303, 394, 549 Walker y. Caldwell, 8 Del. Ch. 91, 67 Atl. 1085 544 Walker y. Deaver, 79 Mo. 664 531 Walker y. Griffin, 11 Wheat. 375, 6 L. Ed. 498 349 Walker y. Hall, 34 Pa. 483 22 Walker y. Hunter, 17 Ga. 364 255 Walker y. Johnson, 82 Ala. 347, 2 South. 744 542 Walker v. Jones, 23 Ala. 448 46, 208, 238 Walker y. Parker, 13 Pet. 166, 10 L. Ed. 109 323 Walker y. Ferryman, 23 Ga. 309 164, 167 Walker y. Peters, 139 Mo. App. 681, 124 S. W. 35 343 Walker y. Redding, 40 Fla. 124, 23 South. 565 390 Walker y. Upson, 74 Conn. 128, 49 Atl. 904 353, 375, 382 Walker y. Walker, 9 Wall. 743, 19 L. Ed. 814 213 676 CASES CITED Page Walker v. Walker, 14 Ga. 242 •... 228 Walker v. Walker's Distributees, 26 Ala. 262 540 Walker v. Williamson, 25 Ga. 549 305, 328, 554 Walker's Estate, 110 Cal. 387, 42 Pac. 815, 30 L. K. A. 460, 52 Am. St. Kep. 104 16, 37, 43, 62 Walker's Estate, 6 Utah, 369, 23 Pac. 930 505 Walker's Will, 150 Iowa, 284, 128 N. W. 386, 129 N. W. 952 236 Walkerly, In re, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Eep. 97.. 302, 311, 359, 388, 395, 401, 420, 455, 471, 562 Wall V. Bissell, 125 U. S. 382, 8 Sup. Ct. 979, 31 L. Ed. 772 149, 459, 505, 558 Wall V. Wall, 30 Miss. 91, 64 Am. Dec. 147 155 Wallace v. Denig, 152 Pa. 251, 25 Atl. 534 398 Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 918 244 Walls V. Stewart, 16 Pa. 281 334 Walsh V. McCutcheon, 71 Conn. 283, 41 Atl. 813 440 Walsh V. Mathews, 11 Mo. 134 364 Walter v. Ford, 74 Mo. 195, 41 Am. Rep. 312 33 Walton V. Ambler, 29 Neb. 626, 45 N. W. 931 539, 544 Walton V. Kendrick, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701 56, 62, 231 Walworth v. Abel, 52 Pa. 370 497, 538 Ward, In re, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174... 103 Ward V. Benner, 89 Kan. 369, 131 Pac. 609 557 Ward V. Campbell, 73 Ga. 97 47 Ward V. County Commissioners, 12 Okl. 267, 70 Pac. 378 «2, 64, 151, 156, 192 Ward V. Gates, 43 Ala. 515 167, 185 Ward V. Sage, 185 Fed. 7, 108 C. 0. A. 413 396 Ward V. Ward (C. C.) 131 Fed. 946 397 Warden v. Hinds, 163 Fed. 201, 90 C. C. A. 449, 25 L. R. A. (N. S.) 529 27 Ware v. Cann, 10 B. & C. 433 366 Ware v. Wisner (C. C.) 50 Fed. 310 39, 103, 176 Warfield's Will, 22 Cal. 51, 83 Am. Dec. 49 167, 192, 193 Waring v. Jackson, 1 Pet. 570, 7 L. Ed. 266 (N. Y.) 416 443 Warner v. Conn. Mut. L. I. Co., 109 U. S. 357, 3 Sup. Ct 221, 22 L. Ed. 962 503 Warner v. Willard, 54 Conn. 472, 9 Atl. 136 326 Warner's Appeal, 39 Conn. 253 347 Warren v. Morris, 4 Del. Ch. 289 26, 379, 3S6, 547, 549 Warring v. Jackson, 1 Pet. 570, 7 L. Ed. 266 294 Washburn College v. O'Hara, 75 Kan. 700, 90 Pac. 234 478 Washburn's Estate, II Cal. App. 735, 106 Pac. 415 396, 399, 474 Wash. Asylum v. Wash., 7 D. C. 259 332 Waterfield v. Rice, 111 Fed. 625, 49 O. C. A. 504 374, 388 CASES CITED 677 Waterhouse v. Churchin, 30 Colo. 415, 70 Pac. 678 ^5^38 Waterman v. Alden, 143 U. S. 196, 12 Sup. Ct. 435, 36 L. Ed. 123 313 Waterman v. Canal La. Bank, 186 Fed. 71, 108 C. C. A. 183. .. 313, 353 Waterman v. Hawkins, 63 Me. 156 ; 22 Waters v. Hatch, 181 Mo. 288, 79 S. W. 916. ...!!!!.' ! .300, 333, 350 Waters v. Herboth, ITS Mo. 166, 77 S. W. 305 284, 384 Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122 163, 211 Watford v. Forester, 66 Ga. 738 224 Watklns v. Blount, 43 Tex. Civ. App. 460, 94 S. W. 1116. .309, 349 Watkins v. Eaton (O. C.) 173 Fed. 133 40, 512, 513 Watklns v. Gilmore, 130 Ga. 797, 62 S. E. 32 539 Watkins v. Nugen, 118 Ga. 372, 45 S. E. 262 45 Watkins v. Quarles, 23 Ark. 179 403, 440 Watson V. Adams, 103 Ga. 733, 30 S. E. 577 397 Watson V. Alderson, 146 Mo. 349, 48 S. W. 478, 69 Am. St. Rep. ■ 615 153, 198, 209 Watson V. Anderson, 11 Ala. 43 130 Watson V. Martin, 175 Ala. 506 504 Watson V. Turner, 89 Ala. 220, 8 Soutb. 20 18, 205, 216, 219 Watson T. Watson, 22 Ga. 460 45 Watson V. Watson, 110 Mo. 164, 19 S. W. 543. .313, 315, 326, 328, 343 Watson V. Watson. 21 Tex. Civ. App. 348. 51 S. W. 1105 409 Watson V. Williamson, 129 Ala. 362, 30 South. 281 306 Wattenbarger v. Payne, 162 Mo. App. 434, 145 S. W. 148 354 Watts V. Baker, 78 Ga. 622, 3 S. E. 773 382 Watts V. Holland, 56 Tex. 54 78 Wax's Estate, 106 Cal. 343, 39 Pac. 624 229 Way V. Priest, 87 Mo. 180 537 Way V. Priest, 13 Mo. App. 555 537 Weatherhead v. Baskerville, 11 How. 329, 13 L. Ed. 717 213, 309, 313 Weathers v. McFarland, 97 Ga. 266, 22 S. E. 988 192 Weathers v. Patterson, 30 Ala. 404 447 Webb V. Archibald, 128 Mo. 299, 34 S. W. 54 325 Webb V. Fleming, 30 Ga. 808, 76 Am. Dec. 675 57, 62, 302 Webb V. Goodnough, 58 Conn. 218, 1 Atl. 797 348, 407 Webb V. Hayden, 166 Mo. 46, 68 S. W. 760 314, 315, 467 Webb V. Jones, 36 N. J. Eq. 163 103 Webb V. Lines, 57 Conn. 156, 17 Atl. 90 406, 440 Webb 7. Lines, 77 Conn. 51, 58 Atl. 227 538 Weber, In re, 15 Cal. App. 224, 114 Pac. 597 122, 222, 227, 244, 254, 273, 274, 554 Weber v. Strobel, 236 Mo. 649, 139 S. W. 188 241, 253, 258, 265 Webster v. Clarke, 100 Tex. 333, 99 S. W. 1019, 123 Am. St. Rep. 813 ^^^ 678 CASES CITED Page Webster v. Cooper, 14 How. 488, 14 L. Ed. 510 358 Webster v. Welton, 53 Conn. 183, 1 Atl. 633 , 348 Webster v. Wiers, 51 Conn. 569 333 Weed V. Hoge, 85 Conn. 490, 83 Atl. 636, Ann. Cas. 19130, 542 332, 548, 555 Weed V. Knorr, 77 Ga. 636, 1 S. E. 167 298 Weed V. Scofield, 73 Conn. 670, 49 Atl. 22 311, 320, 482, 562 Weeks v. Sego, 9 Ga. 199 112 Weeks v. McBeth, 14 Ala. 474 96, 97 Weeks V. Mansfield, 84 Conn. 544, 80 Atl. 784 478 Wehe V. Mood, 68 Kan. 373, 75 Pac. 476 218, 231, 241 Weil V. Jones, 70 Mo. 560 515 Weindel v. Weindel, 126 Mo. 640, 29 S. W. 715 390 Weir V. Smitb, 62 Tex. 1 409, 411, 426 Weir's Will, 9 Dana (Ky.) 34 146 Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608 387 Welch V. Barnett, 34 Okl. 166, 125 Pac. 472 265 Welch V. Huse, 49 Cal. 507 295, 338 Welch's Estate, 6 Cal. App. 44, 91 Pac. 336 269 Welder v. McComb, 10 Tex. Civ. App. 85, 30 S. W. 822 183, 422 Wellborn v. Rogers, 24 Ga. 558 539 Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dee. 235 46 Weller V. Noffsinger, 57 Neb. 455, 77 N. W. 1075 375, 503 Weller v. Weller, 22 Tex. Civ. App. 247, 54 S. W. 652 310, 464 Wellford V. Snyder, 137 V. S. 521, 11 Sup. Ct. 183, 34 L. Ed. 780 406 Wells V. Fuchs, 226 Mo. 97, 125 S. W. 1137 299, 302 Wells V. Petree, 39 Tex. 419 381, 382, 424 Wells V. Wells, 144 Mo. 198, 45 S. W. 1095 109, 232 Wells' Estate, 7 Cal. App. 515, 94 Pac. 856 329 Welman v. Neufville, 95 Ga. 124 310 Welsh, In re, 1 Redf. Snr. 238 '. 260 Welsh V. Pounders, 36 Ala. 668 16, 107 Wendler v. Lambeth, 163 Mo. 428, 63 S. W. 684 296, 304, 307 Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774 244, 264, 271 Wernse v. McPike, 100 Mo. 476, 13 S. W. 809 521 West V. Bailey, 196 Mo. 517, 94 S. W. 273 458, 469 West V. Clark, 28 Tex. Civ. App. 1, 66 S. W. 215 29 West V. Randle, 79 Ga. 28, 3 S. E. 454 300, 309, 310, 313 West V. West, 89 Ind. 529 307 West V. West, 144 Mo. 119, 46 S. W. 139 86, 267 West V. Williams, 15 Ark. 682 396, 551 West V. Wright, 115 Ga. 277, 41 S. E. 602 45 Westcott V. Cady, 5 Johns. Ch. (N. Y.) 349, 9 Am. Dec. 306 430 Westcott V. Sheppard, 51 N. J. Eq. 315, 30 Atl. 428 255 Westmoreland v. Westmoreland, 92 Ga. 233, 17 S. E. 1033 48 Weston v. Booster, 7 Mete. (Mass.) 297 399 * CASES CITED 679 Weston V. Hanson, 212 Mo. 248, 111 S. W. 44 ^^^^ x,r ^ ^ 116, 134, 142, 270, 271 Weston V. Weston, 125 Mass. 268 453 West Va. P. & p. Co. v. Miller, 176 Fed. 284, 100 C. C. A. 176!! 485 Wetherall v. Harris, 51 Mo. 65 24 Wetter v. Habersham, 60 Ga. 193 !!!!!!i44 175 211 Wetter v. V. H. C. P. Co., 75 Ga. 540 .' .296! 442 Wetter v. Walker, 62 Ga. 142 307! 411 Wetz V. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394..!!!255! 273 Whaley v. Whaley, 50 Mo. 577 390 AVheeler v. Alderson, 3 Hogg. 574 !!!!!! 60 Wheeler v. Brewster, 68 Conn. 177, 36 Atl. 32 ! ! ! 310 Wheeler v. Fellowes, 52 Conn. 241 88, 303, 419, 421 Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264 359 Wheeler v. Whipple, 44 N. J. Eg. 141, 14 Atl. 275 264 Wheelock v. Simons, 75 Ark. 19, 86 S. W. 830 439 Whetton's Estate, 98 Cal. 203, 32 Pac. 970 210 Whltaker v. McDowell, 82 Conn. 195, 72 Atl. 938, 16 Ann. Gas. 324 458 Whitaker v. McKinney, 134 Ala. 326, 32 South. 695, 92 Am. St. Rep. 37 205 Whitcomb's Estate, 86 Cal. 273, 24 Pac. 1028 297, 466 Whitfield V. WolfE, 51 Ala. 206 528 White V. Allen, 76 Conn. 185, 56 Atl. 519 302, 420 White V. Crawford, 87 Mo. App. 262 304 White V. Driver, 1 Phillimore Ecc. 84 132 White V. Easters, 38 Ala. 154 529, 547 White V. Farley, 81 Ala. 563, 8 South. 215 115 White V. Holland, 92 Ga. 216, 18 S. E. 17, 44 Am. St. Rep. 642.. 320 White V. Holman, 25 Tex. Civ. App. 152, 60 S. W. 437 329 White V. Hopkins, 80 Ga. 154, 4 S. E. 863 45 White V. Howard, 38 Conn. 342 260, 344, 482 White V. Keller, 68 Fed. 796, 15 0. C. A. 683 153, 311, 345, 477 White V. Mccracken, 87 Mo. App. 262 309, 326 White V. McKeon, 92 Ga. 343, 17 S. B. 283 470, 485 White V. Rowland, 67 Ga. 546, 44 Am. Rep. 731 305, 349, 538 White V. Rukes (C. 0.) 37 Fed. 754 309 White V. White, 52 Conn. 518 298, 323, 404, 440 White's Estate, Myr. Prob. (Cal.) 157 355 Whitehead v. Park, 53 Ga. 575 339 Whitelaw v. Rodney, 212 Mo. 540, 111 S. W. 560 320, 537 Whiting's Appeal, 67 Conn. 379, 35 Atl. 26S 321, 357 Whitley v. State, 38 Ga. 75 302, 527 Whitlock V. Vaun, 38 Ga. 562 321, 351 Whitman v. Haywood, 77 Tex. 557, 14 S. W. 166 193 Whitney v. Dodge, 105 Cal. 197, 38 Pac. 636 535 Whitney v. Hanington, 36 Colo. 407, 85 Pac. 84 47, 88, 167 680 CASES CITED Page Whitney v. Hay, 15 App. D. C. 164 28 Whiton V. Whlton, 179 111. 32, 53 N. E. 722 28 VVliittelsey v. Brohammer, 31 Mo. 107 531 Whitten v. McFaul, 122 Ala. 623, 26 South. 131 47 Whitsett V. Belue, 172 Ala. 256, 54 South. 677 138 Whittle V. Tarver, 75 Ga. 818 371 Whorton v. Moragne, 62 Ala. 209 323, 404, 540 Wickersham v. Johnston, 104 Cal. 407, 38 Pac. 89, 43 Am. St. Rep. 118 184 Wickersham's Estate, 138 Cal. 355, 70 Pac. 1079, 71 Pac. 437, s. c. 153 Cal. 603, 96 Pac. 311 213, 215, 389 Wickes' Estate, 128 Cal. 270, 60 Pac. 867, 49 L. R. A. 138 162 Wickes' Estate, 139 Cal. 195, 72 Pac. 906 193, 211, 267 Wiegand v. Woerner, 155 Mo. App. 227, 134 S. W. 596 304, 339 Wiess V. Goodhue, 98 Tex. 274, 83 S. W. 178 392 Wikle V. Woolley, 81 Ga. 106, 7 S. E. 210 339 Wikman's Estate, 148" Cal. 642, 84 Pac. 212 96, 97 Wilcox V. Beecher, 27 Conn. 138 338, 548 Wilcox's Appeal, 54 Conn. 320, 8 Atl. 136 456 Wild V. Brewer, 2 Mass. 570 22 Wild's Case, 6 Reports, 17 (41 Elizabeth, 1599) 442 Wilder v. Goss, 14 Mass. 359 22 Wilder v. Holland, 102 Ga. 44, 29 S. E. 134 408 Wiley V. Smith, 3 Ga. 551 440 Wiley V. Wiley, 1 Neb. (Uuof.) 350, 95 N. W. 702 407 Wilkerson v. Clark, 80 Ga. 367, 7 S. E. 319, 12 Am. St. Rep. 258 415, 438 Wilkins v. Allen, IS How. 3'85, 15 L. Ed. 396 316, 328 Wilkinson v. LelanJ, 2 Pet. 627, 7 L. Ed. 542 151, 510 WlUard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468 316, 326 Willett V. Carroll, 13 Md. 459 340 Willett's Appeal, 50 Conn. 330 180 Willett's Estate, 88 Neb. 805, 130 N. W. 757, 33 L. R. A. (N. S.) 321 403, 555 Willey's Estate, 128 Cal. 1, 56 Pac. 550, 60 Pac. 471 52, 169, 297 Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074 382, 383 Williams v. Claunch, 44 Tex. Civ. App. 25, 97 S. W. Ill 47 Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143 363 Williams v. Crary, 4 Wend. (N. Y.) 443 533 Williams v. Dickerson, 2 Root (Conn.). 194, 1 Am. Dec. 66 297 Williams v. Fitch, 18 N. Y. 546 480, 462 Williams v. Gerber, 75 Mo. App. 18 522 Williams v. Gonde, 1 Hagg. Ecc. 577 269 Williams v. Lobban, 206 Mo. 399, 104 S. W. 53 396, 556, 557 Williams v. McCall, 12 Conn. 330 440 CASES CITED 681 Williams V. MacDougall, 39 Cal. 80 ^o%^f Williams V. McKinney, 34 Kan. 514, 9 Pac. '265 .■.■:::::: 4I7 431 kTJ*^ L^- ^^^' ^2 ^- ^- ^- 383, 110 Am. St. Rep W 1R1 in« ^'- ^^'t^^- ''^ ^^*'- ^^^' 102 N. W. 482, 105 N. W. 181, 106 N. W. 769, s. c. 87 Neb. 455, 127 N W 904 Wiln«T.,= ^ i«- ». n .-, ^' ^^' ^'^' 1°^' 1°2, 155, 178, 179, 209, 493 Williams V. Nichols, 47 Ark. 254, 1 S. W 248 371 Williams V. Noland, 10 Tex. Civ. App. 629, 32 S. W.'328.' !! l".." ! 46 TVilliams v. Pearson, 38 Ala. 299 343 Williams v. Petticrew, 62 Mo. 460 526 Williams v. Robinson, 16 Conn. 517 3V9 392 Williams v. Tolbert, 66 Ga. 127 ] '. 45' 243 Williams V. Vreeland, 29 N. J. Bq. 417 '462 Williams v. Whittle, 50 Ga. 523 .[.'. 336 Williams v. Williams, 73 Cal. 99, 14 Pac. 301 '. !283,' 365, 403 Williams v. WUliams, 142 Mass. 515, 8 N. B. 424 Qg' 101 Williams v. Williams, 145 Mo. App. 382, 129 S. W. 454. ..'.".'. 502*, 556 Williams v. Way, 135 Ga. 103, 68 S. E. 1023 67 Williams v. Wells (D. O.) Hayw. & H. 116, Fed. Cas. 17,746*. ... 69 Williams' Estate, 112 Cal. 521, 44 Pac. 808, 53 Am. St. Rep. 224. . 336, 536 Williams' Estate, 62 Mo. App. 339 553 WiUiamson, In re, 75 Cal. 317, 17 Pac. 221 384 Williamson v. Berry, 8 How. 495, 12 L. Ed. 1170 399 Williamson v. Daniel, 12 Wheat. 568, 6 L. Ed. 731 440 Williamson v. Grider, 97 Ark. 588, 135 S. W. 361 284, 470 Williamson v. Mason, 18 Ala. 87 528 Williamson v. Nabers, 14 Ga. 286 .232, 233, 238 WlUier v. Oummings, 91 Neb. 571, 136 N. W. 559, Ann. Cas. 1913D, 287 426, 530 Willlngham v. Bentley, 20 Ga. 783 468 Willis V. Alvey, 30 Tex. Civ. App. 96, 69 S. W. 1035 456 Willis V. Jenkins, 30 Ga. 167 .305, 314 Willis V. Smith, 66 Tex. 31, 17 S. W. 247 503 Willms V. Plambeck, 76 Neb. 195, 107 N. W. 248 208, 215, 220 Wills V. Herndon, 60 Tex. 353 511 Wilmer v. Borer, 4 Kan. App. 109, 46 Pac. 181 29 WUmerding's Estate, 117 Cal. 284, 49 Pac. 181 16 Wilmerton v. Wilmerton, 176 Fed. 896, 100 C. C. A. 366, 28 U R. A. (N. S.) 401 351 Wilson V. Bostick, 151 Ala. 536, 44 South. 389 87, 91 Wilson V. Denig, 166 Pa. 29, 30 Atl. 1025 398 Wilson V. Fosket, 6 Mete. (Mass.) 400, 39 Am. Dec. 736 22 Wilson V. Gregory, 61 Mo. 421 524 Wilson V. Hall, 67 Ga. 53 40, 498 682 CASES CITED Page WUson V. Jackson, 167 Mo. 154, 66 S. W. 972 124, 140, 230 Wilson V. Johnson, 4 Kan. App. 747, 46 Pac. 833 383 Wilson V. Meyer, 23 Utah, 529, 65 Pac. 488 558 Wilson V. Smith, 117 Fed. 707 350 Wilson V. Snow, 35 App. D. C. 562 467 Wilson y. Snow, 228 U. S. 217, 33 Sup. Ct. 487, 57 L. Ed. 807 468 Wilson V. Wilson, 54 Mo. 215. . ^ 153 Wilson's Estate, 117 Calu 262, 49 Pac. 172 126, 144, 216, 222, 225, 234, 239, 259 Wilson's Estate, 78 Neb. 758, 111 N. W. 788 116, 229 Wilt V. Cutler, 88 Mich. 189 182 Wimberly v. Barley, 58 Tex. 222 409 Winch's Estate, 84 Neb. 251, 121 N. W. 116, 18 Ann. Cas. 903. .122, 235 Windsor v. Bell, 61 Ga. 671 544 Wingrove v. Wingrove, 11 Prob. & Div. 81 255 Winn V. Grier, 217 Mo. 420, 117 S. W. 48. .124, 140, 231, 240, 254, 259 Winn V. Tabernacle Inf., 135 Ga. 380, 69 S. E. 557, 23 L. R. A. (N. S.) 512 358 Winne v. Winne, 166 N. X. 263, 59 N. E. 832, 82 Am. St. Rep. 647 27 Winslow's Estate, Myr. Prob. (Cal.) 124 65 Winston v. Elliott, 169 Ala. 416, 53 South. 750 280 Winters v. Winters, 102 Iowa, 53, 71 N. W. 184, 63 Am. St. Rep. 428 236 Winter's Estate, 114 Cal. 186, 45 Pac. 1063 846 Wisdom V. Reeves, 110 Ala. 431, 18 South. 13 173 Wisker v. Rische, 167 Mo. 522, 67 S. W. 218 423 Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643 163 Witherspoon v. Brokaw, 85 Mo. App. 169 858 Within ton v. Withinton, 7 Mo. 589 48, 61, 172, 226 Witter V. Mott, 2 Conn. 68 95, 96, 100 Wolf V. Brown, 142 Mo. 612, 44 S. W. 733 185, 186 Wolfe V. Ha the way, 81 Conn. 181, 70 Atl. 645 301, 804, 307, 852 Wolfe V. Hlnes, 93 Ga. 329, 20 S. E. 322 508 Wolfe V. Mueller, 46 Colo. 835, 104 Pac. 487 885 Wolfe V. Whitworth, 170 Mo. App. 872, 156 S. W. 715 121, 124 Wolffe V. Loeb, 98 Ala. 432, 13 South. 744. .. .104, 297, 323, 828, 499 Woller V. NofEsinger, 57 Neb. 455, 77 N. W. 1075 366 Women's Ch. Ass'n v. K. C, 147 Mo. 103, 48 S. W. 960 477, 483 Womersley's Estate, 164 Cal. 85, 127 Pac. 645 308 Wood, In re, 98 Fed. 972 395 Wood V. Amidon, 2 MacArthur (D. C.) 224 409 Wood V. Carpenter, 166 Mo. 477, 66 S. W. 172 121, 137, 230, 238, 238, 240, 259, 267, 277 Wood V. Lane, 102 Ga. 199, 29 S. E. 180 122 Wood V. McGuire, 15 Ga. 202 348 Wood V. Mathews, 53 Ala. 1 194 CASES CITED 683 Wood V. Matthews, 73 Mo. 483 ^511 Wood V. Ogden, 121 Mo. App. 668, 97 S. W. 61o!".! 371 Wood V. Owen, 133 Ga. 751, 66 S. E 951. .. . " ' 406 Wood V. Paine (C. C.) 66 Fed. 807 (R. I.) '. 293 Wood V. Eoberlson, 113 Ind. 323, 15 N. E. 4.57 ..".'. 411 Wood V. Wood, 63 Conn. 324, 28 Atl. 520 '.".'.'.' .308 310 Woodall V. MeLendon, 137 Ala. 486, 34 South. 406 ' 218 Woodall V. Rudd, 41 Tex. 375 39O Woodcock V. McDonald, 30 Ala. 4li ..".."..'.'.".'. .62, 213 Woodman v. Davison, 85 Kan. 713, 118 Pac. 1066 "..".'.*......' 558 Woodroof V. Hundley, 147 Ala. 287, 39 So. 907 480, 483 Woodruff V. Hinson, 68 Ala. 368 393' 537 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St Rep! 145, s. c, 133 Ala. 395, 32 South. 570 57, 62, 64, 92, 93, 170, 171, 223, 242 Woodruff y. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St. Rep. 346 301, 309, 480, 483 Woodruff V. Migeon, 46 Conn. 237 '. 316 Woodruff V. Taylor, 20 Vt. 65 167, 188 Woodruff V. Williams, 35 Colo. 28, 85 Pac. 90, 5 L. R. A. (N. S.) 986 469 Woodruff V. Woodruff, 32 Ga. 358 408 Woods V. Drake, 135 Mo. 393, 37 S. W. 109 24 Woods' Estate, 36 Cal, 75 17, 295, 309, 310 Woodson V. Holmes, 117 Ga. 19, 43 S. E. 467 266 Woodward v. Goulstone, 11 App. Cas. (Eng.) 469 179 Woodward v. Stubbs, 102 Ga. 187, 29 S. E. 119 472 Woodward v. Woodward, 11 D. C. 260 107 Woodworth's Estate, 31 Cal. 595 333, 528, 529, 547 Wool V. Fleetwood, 136 N. C. 460, 48 S. E. 785, 67 L. R. A. 444. . 365 Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818 78 WooUey v. Sullivan, 92 Tex. 28, 45 S. W. 377, 46 S. W. 629 390 Woolverton v. Johnson, 69 Kan. 708, 77 Pac. 559 313, 402, 453 Word V. Mitchell, 32 Ga. 623 336 Worden v. Perry, 197 Mo. 569, 95 S. W. 880 409 Wordins' Appeal, 64 Conn. 40, 29 Atl. 238 562 Workman v. Cannon's Lessee, 5 Har. (Del.) 91 ; 303 Worley v. Daniel, 90 Ga. 650, 16 S. E. 938 45 Worrill v. Gill, 46 Ga. 482 175 Worrill v. Wright, 25 Ga. 657 301 Wright v. Denn, 10 Wheat. 204, 6 L. Ed. 303 373 Wright V. Dunn, 73 Tex. 293, 11 S. W. .330 508 Wright V. Gooden, 6 Houst. (Del.) 397 396 Wright V. Hicks, 12 Ga. 155, 56 Am. Dec. 451 323 Wright V. Page, 10 Wheat. 203, 6 L. Ed. 303 404 Wright V. Tinsley, 30 Mo. 389 26, 28 684 CASES CITED Page Wright V. West's Ex'r, 1 Cranch C. C, 303, Fed. Cas. No. 18102 529 Wriglat V. Young, 75 Kan. 28T, 89 Pac. 694 164, 169, 170 Wyclie V. Clapp, 43 Tex. 543 31, 32 Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250 403 Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378 45 Wynne v. Harrell, 133 Ga. 616, 66 S. E. 921 142, 226 Y Yale College, Appeal of, 67 Conn. 237, 34 Atl. 10,36 482 Yarbrough v. De Martin, 28 Tex. Civ. App. 276, 67 S. W. 177... 194 Yates V. Burt, 161 Mo. App. 267, 143 S. W. 73 553 Yeakle v. Priest, 61 Mo. App. 47 526 Yeatman v. Haney, 79 Tex. 67, 14 S. W. 1045 298 Ynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619 90 Yocum V. Parker, 13*-Fed. 205, 67 C. C. A. 227... 294, 438, 443, 444 Yocum V. Slier, 160 Mo. 281, 61 S. W. 208 296, 406, 415, 438, 443, 444, 445 Yoe V. McCord, 74 111. 33 59 Yoesel v. Rieger, 75 Neb. 180, 106 N. W. 428 443, 444 Youmans v. Ferguson, 122 Ga. 331, 50 S. E. 141 183 Young V. Boardman, 97 Mo. 181, 10 S. W. 48 380 Young V. McKinnie, 5 Fla. 542 332, 375, 393, 402 Young V. Mallory, 110 Ga. 10, 35 S. E. 278 249 Young V. Norris Peters Co., 27 App. D. C. 140,... 151, 311, 328, 404 Young V. Ridenbaugh, 67 Mo. 574 136, 217, 239, 259, 261 Young V. Robinson, 122 Mo. App. 194, 99 S. W. 20 447 Young's Estate, 123 Cal. 337, 55 Pac. 1011 48, 51, 52, 311, 312, 315, 326, 401, 403 Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Cas. 596 237, 262, 269, 277 Young W. Ch. Home v. French, 187 XJ. S. 401, 23 Sup. Ct. 184, 47 L. Ed. 233 322 Youngblood v. Youngblood, 74 Ga. 614 45 Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, 5 Ann. Cas. 191 280, 283, 286 z Zeile, In re, 74 Cal. 125, 15 Pac. 455 17, 299, 332, 337, 351 Zeller v. Eckert, 4 How. 289, 11 L,. Ed. 979 338 Ziegler v. Carter, 94 Ala. 291, 10 South. 260 46 Zimmerman v. Mechanics' Sav. Bank, 75 Conn. 645, 54 Atl. 1120 309 Zinc Co. V. Freeman, 68 Kan. 691, 75 Pac. 995 526 Zirkle v. Leonard, 61 Kan. 636, 60 Pac. 318 230, 314 Zook V. Welty, 156 Mo. App. 703, 137 S. W. 989 382 INDEX [THE FIGURES REFBB TO PAGES] A ADJUDICATION, Of insanity, 134. ADMINISTRATION, 486. "Independent," 505, 509. Primary and ancillary, 509, 513. Collection and preservation of estate, 514. When not necessary, 517. ADMINISTRATOR, 495. Right to be heard on probate, 167. Right to costs, 243. Pendente lite, 245, 500. General, 500. With will annexed, 500. Collection and preservation of estate, 515. No interest in land, 516. Inventory and appraisement, 515. File settlements, 517. Duty to list claims, 521. Establishing own claim, 522. Power to contract debts, 526. Final settlement, 563. ADMISSIONS, Of devisees, 238. As to undue influence, 277. BoRL. Wills (685) 686 INDEX [The figures refer to pages] ADv^ANCEMENTS, 552. Charged to pretermitted child, 25. AFFECTION, Distinguished from undue influence, 25'7, 258. AFTER-ACQUIRED PROPERTY, 324. AGE, In connection with undue influence, 261. AGREEMENTS, To make will, 26. Remedy, 28. Between heirs and legatees, 212. Not to contest will, 213. Distribution by, 538. ALIENATION, Restraints upon, 365. ALIENS, 108. ALLOWANCE, Of demands, 518. Creditors should seek probate court, 522. Statutes of non-claim, 523. ALTERATIONS, 71. AMBIGUITIES, Latent and patent, 311. AMBULATORY, 81, 82. AMERICAN COURTS OF PROBATE, 491. AMERICAN LAW, Of excluding heirs, 20. Of executors, 496. INDEX 687 [The figures refer to pages] AMERICAN STATUTES, Effect of probate, 186. ■ Time for probate, 204. For allowance of d'cmands, 520. For final settlement, 564. ANCILLARY ADMINISTRATION, 509. ANIMO REVOCANDI, 97. ANIMO TESTANDI, 43, 50, 79. ANNUITIES, 339, 374. ANTENUPTIAL SETTLEMENT, Effect on revocation, 103. APPEAL, From probate court, 281. APPELLATE COURTS, Contest, 244. APPRAISEMENT, Of estate, 515. ARBITRATION, Submission of will contest, 218. ASSENT OF EXECUTOR, 539. Proceedings to compel, 542. ASSETS, How marshalled for payment of demands, 528. How marshalled for payment of legacies, 547. ATTAINDER, BILLS OF, 110. ATTESTATION, 60. Clause, 54, 64. Meaning, 61. Witnesses, 66, 70. 688 INDEX [The figures refer to pages] ATTESTING WITNESSES, On probate, 170, 172. On contest, 226. ATTORNEYS, Privilege of, 236. B BAD TEMPER, 140. BENOIST V. MURRIN, 143. BIIvLS, Of attainder, 110. BIRTH OF ISSUE, Revocation of will by, 102-103. BUND PERSONS, Presence of, 56. Knowledge of contents of will, 59, 239. Testamentary capacity, 119. BURDEN OF PROOF, On omitted child, 23. In will contests, 219. Of undue influence, 253. In case of confidential relations, 263. BURNING, Revocation by, 90. BUSINESS, Capacity to engage in, not test, 124. c CANCEELING, As method of revoking, 90, 95. CHARITABLE TRUSTS, 476. Purposes, 478. Statute 43 Elizabeth, 478. INDEX 689 IThe figures refer to pages] CHARITABLE TRUSTS-Continued, Designation of institution or association, 481. Doctrine of cy pres, 483. Void charitable uses, 484. Limitation on, 485. CHATTELS, See Personal Property. CHILDREN, Pretermitted, 2L Posthumous, 104. Advancements, 552, 553. Minor, allowance to, 517. Legacies for support, when bear interest, 538. CIVIL LAW, Of forced heirs, 22. Of wills, 34. Of confidential relations, 264. Prevailed in ecclesiastical courts, 489. CLAIMS AGAINST ESTATE, 518, 520, 522, 523. Jurisdiction of federal courts over, 524. Statutory classification, 525. CLASS, Gifts to, 346, 347. Remainders to, 399. ' CLASSIFICATION OF DEMANDS, 518, 520. Statutory, 525. CODICIL, Definition of, 17. Included in term "will," 18. Incorporating prior will, 52. Subsequent revocation by, 86. Revocation by, 88. BoBL. Wills — 44 690 INDEX tTIhe figures refer to pages] CODICII^Continued, Will and, construed together, 299. Is republication of will, 321. COLLATERAL ATTACK, On decree of probate, 192. COLLECTION AND PRESERVATION OF ESTATE, 514. COMMON FORM OF PROBATE, 197. COMMON LAW, Revocation of will from marriage and birth of issue, 102 Rule of majority. 111. Capacity of married women, 112. Method of probate, 149, 151. Proving lost will, 176. Conclusiveness of probate, 204. Time for probating will, 206. Privilege of physicians and attorneys, 236. Rules as to confidential relations, 264. Dower and curtesy, 378. Devise of fee, 404. Rule in Shelley's Case, 414. Manner of executing powers, 425. Did not permit future estates in personal property, 427. Favored freedom of property, 433. Theory of executors, 495. ■ Executor de son tort, 497. Executor of executor, 499. Provision for allowance of demands, 518. Right of retainer, 522. Of lineal and collateral warranties, 53 L Assent of executor, 539. No provision for final settlement, 563. COMMON RECOVERY, 434. INDEX 691 [The figures refer to pages] COMMUNITY THEORY, Of property of spouses, 383. COMPETENCY, Of attesting witness, 70. CONDITIONS, Affecting entire will, 355. Affecting particular gifts, 357. Most frequent, 360. Non contest clauses, 361. Restraints upon marriage, 363. Restraints upon alienation, 365. To pay legacies or charges, 370. CONFIDENTIAL RELATIONS, In connection with undue influence, 262, 263. CONSTITUTION, Prohibits bills of attainder, 110. Prevents probate of will of living person, 163. CONSTRUCTION OF WILLS, 279. Of holographic wills, 75. By probate court, 279. By executor, 281. By courts of equity, 282. At instance of testamentary trustees and executors, 283. At instance of heirs, devisees, etc., 285. Proper and necessary parties, 287. Various principles, 288. In action at law, 291. By federal courts, 292. Canons of, 294. Extrinsic evidence, 311. As affected by law of descents and distributions, 322. After-acquired property, 324. 692 INDEX [The figures refer to pages] CONTEMPLATION OF MARRIAGE, Will made in, 103, 104. CONTEST, 192, 197. Nature of, 199. Jurisdiction of U. S. courts, 200. Time for bringing, 204. Form of action, 207. Parties, 209. Estoppel, 212. Procedure, 215. Grounds, 217. Is action at law, 217. Burden of proof, 219. The issue, 223. Trial by jury, 224. Evidence, 226. Directing a verdict, 240. Judgment, costs, 242. Appellate courts, 244. Administrator pendente lite, 245. CONTEXT, As aid to construction, 304. CONTINUING BUSINESS, 558. Incorporation, 559. CONTRACT, To make will, 26. Remedy, 28. Arising from joint or mutual wills, 31. Wills in form of, 82. To sell land, effect as revocation, 107. CONTRIBUTION, From legatees and devisees for payment of demands, 530. INDEX 693 [The figures refer to pages] CONVEYANCE, Will must be recorded as, 185. Probated will becomes, 194. CONVICTS, 110. COPY, Of will, probate, 177, 178. CORPORATION, As legatee or devisee, 343. Religious, 345. As trustee of charity, 481. As executor, 498. CORRECTIONS, 71. CORRUPTION OF BLOOD, 110. COSTS, Of probate, 168. Of contest, 242. COURTS, Ecclesiastical, 154, 248, 489. Control over executor, 495. Probate, 154. Construction of wills, 279. American, 491. Chancery, Statutory jurisdiction of contest, 209, 217. Appellate, Contest, 244. Federal, 200. Receivers in will contests, 245. Construction of wills, 292. No original probate jurisdiction, 516. 694 INDEX [The figures refer to pages] CREDITOR, Legacy to, 532. Rights protected before distribution, 536. CUMULATIVE GIFTS, Presumption, 378. CURTESY, Affecting testamentary power, 378. CUSTOM, Of reasonable parts, 6. D DEAF PERSONS, Testamentary capacity, 119. DEATH, Preliminary fact, 162. DEBTS, Ante mortem and post mortem, 525. DECLARATIONS, Of testator as to intention of revoking, 92. Of testator as to execution, 231. Of testator and devisees as to undue influence, 275. Of testator as to intentions, 314. DECREE, Of probate, 192. Of distribution, 561. DEED, Difference from will, 45, 148. Wills in form of, 82. DEFACED WILL, Presumption, 96. INDEX 695 [The figures refer to pages] DEFINITION, Will, 17. Codicil, 17. Gifts causa mortis, 32. Publication, 57. Holographic will, 72. Nuncupative will, 76. Insane delusion, 142. Foreign will, 180. Undue influence, 252, 253. Vesting, 391. Executory devise, 416. Powers, 423. DELAFIELD v. PARISH, 117. DELIRIUM FROM FEVER OR DISEASE, 135. DELIVERY, Necessary to gift causa mortis, 33. Necessary to a deed, 48. DELUSION, 138. DEMANDS, Exhibit and listing of, 521. Allowance of, 518. Classification of, 518, 520. Creditors should seek probate court, 522. Jurisdiction of federal court, 524. Statutory classification, 525. Payment of, 527. Marshalling assets, 528. DEMONSTRATIVE LEGACIES, 334. DEPENDENT RELATIVE REVOCATION, 97. DESCENTS AND DISTRIBUTIONS, Early Saxon law, 5. Affecting construction, 322. 696 INDEX [The figures refer to pages] DESIGNATION, Of institution or association in charitable gift, 481. DESTROYED WILES, 176. DESTRUCTION, Of will, to revoke, 90, 93. Under Statute 1 Vict., 96. DEVISAVIT VEL NON, 175, 223. DEVISEE, As witness, 68. DEVISEES, 343. Contribution for payment of demands, 530. DEVISES, 330. Specific, revocation of, 106. Specific, 332. General, 335. Residuary, 336. Executory, 415. DISABILITIES OF MARRIED WOMEN, Effect of, 105. DISEASE, Delirium from, 135. DISTRIBUTION, Of statutory origin, 534. When made, 536. By agreement, 538. Proceedings to compel, 542. In probate court, 542. Advancements, hotchpot, 552. Equitable conversion, 555. Decree, 561. INDEX 697 [The figures refer to pages] DOMICILE, Determining place of probate, 161, 162. Decision of, 195. Controls distribution of personal estate, 535. DOWER, Affecting testamentary power, 378. DRINK, Effect on capacity, 126. DRUGS, Effect on capacity, 126. Administered for fever or pain, 137. No presumption, 138. DUKE OF NORFOLK'S CASE, 436. DUMB PERSONS, Testamentary capacity, 119. "DYING WITHOUT ISSUE," History of phrase, 432. Three theories, 439. E EARLY TRACES OF WILLS, 4. ECCENTRICITY, 140. ECCLESIASTICAL COURTS, Superseded by probate courts, 154. Rule as to correcting mistake, 248. Probate jurisdiction of, 489. Control over executor, 495. EFFECT OF PROBATE, 186, 190, 19L Of decree of distribution, 561. 698 INDEX [Tbe figures refer to pages] EIvECTION, 374. Widow's, 380, 382. How exercised, 385. Effect of, 388. EMINENT DOMAIN, Effect as revocation, 107. ENCUMBRANCES, Effect as revocation, 107. ENGLISH LAW, Of excluding heirs, 20. EQUITABLE CONVERSION, 555. Reconversion, 556. EQUITABLE DEFENCES, In will contest, 212. EQUITABLE TITLES, Origin and nature, 10. EQUITY, Bill for contributions for pretermitted child, 25. Contract to make will, 28. No jurisdiction to probate or cancel will, 156, 160. Proof of lost wills, 176. Jurisdiction by statute of will contests, 209. Receiver in contest, 245. Construction of wills, 282. Construction at instance of testamentary trustees and ex- ecutors, 283. Construction at instance of heirs, devisees and others, 285. Proper and necessary parties to construction, 28i7. Various principles of construction, 288. Trusts ex maleficio, 462. Control of executor as trustee, 469. Administration of testamentary trusts, 470. INDEX 699 [The figures refer to pages] EQUITY— Continued, Doctrine of cy pres, 483. Allowance of demands, 519, 523. Proceedings to compel distribution, 544. Marshalling assets for payment of legacies, 547. Equitable conversion, 555. ESTOPPEL, In contest suit, 212. Affecting right of election, 385. EVIDENCE, Extrinsic, 24. Attesting witnesses, 226. Of sanity, 227, 231, 234. Declaration of testator, 231, 314. Admissibility of various matters, 238. Of financial condition, 239. Of undue influence, 270. * Inadmissible evidence on undue influence, 273. Declarations of testator and devisees as to undue influence, 275. Parol, on construction of will, 314. Extrinsic, on construction, 317. Parol, of trust ex maleficio, 462. EXECUTION OF WILLS, 36. Purpose of formalities of, 36. By what law governed, 39. Formalities of, 42. Consists of three parts, 53. EXECUTOR, As attesting witness, 69. No authority until probate, 167. Awarded costs of probate, 168. Necessary party to contest, 210. Right to costs, 243. 700 INDEX [Tbe figures refer to pages] EXECUTOR— Continued, Construction of will by, 281. Right to ask construction of will, 282, 283. Necessary party to suit to construe will, 287. Should be impartial, 288. Personal estate vests in, 393. As testamentary trustee, 283, 466, 467, 468. Common law theory, 495. De son tort, 497. Appointment and qualification, 498. Standard of responsibility, 499. Title to real estate, 502. Special powers, 503. Discretion of, 505. "Independent," 508. Extra-territorial authority, 511. Collection and preservation of estate, 514. No interest in land, 515. File settlements, 517. Duty to list claims, 521. Establishing own claim, 522. Power to contract debts, 526. Assent of, 539. Power over real estate by statute, 541. Proceedings to compel assent, 542, 543, 544. Final settlement, 563. EXECUTORY DEVISES, 415. Rule against perpetuities, 419. Obsolete as to personal estate, 428. Invented, 435. EXHIBIT, Of claim for allowance, 521. EX PARTE PROCEEDINGS, Of probate, 164, 198. INDEX 70 1 [The figures refer to pages] :EXTRA-TERRITORIAt FORCE, Of probate, 181. Of letters testamentary, 510. F FACTS, Question of, 83, 184. Within knowledge of testator, 317. FEDERAL COURTS, Jurisdiction of, 200. Receivers in will contest, 245. Construction by, 292, 293. No original probate jurisdiction, 516. Jurisdiction over claims, 524. . Proceedings to compel distribution, 545. PEE, Words to devise, 404. Not cut down by inference, 406. FEE TAIL, 434. Generally abolished, 438. Indefinite failure of issue, 440. FEUDAL SYSTEM, Effect on Saxon customs, 6. Landed property, 7. Effect on lands, 433. FEVER, Delirium from, 135. FINAL SETTLEMENT, 563. FINANCIAL CONDITION, Evidence of, 239. EOREIGN WILLS, 180. Contest of, 209. 702 INDEX [The figures refer to pages] FORM, Of will, 44. FORMALITIES OF EXECUTION, 42. FRAUD, 247. Preventing revocation, 94. As defense to will, 221. In procuring will, 250. Distinguished from undue influence, 254. In one legacy only, 260. Trusts ex maleficio, 460. FUTURE ESTATES, In remainder, 396. Postponement of possession, 400. In personal property, 426. Protection of remainderman, 429. G GIFTS CAUSA MORTIS, 32, 80. GIRARD WILL CASE, 479. GUARDIANS, Testamentary, 560. H HABITS, Effect on capacity, 126. HEIRS, Natural favorites of law, 322. Take as heirs, not as purchasers, 323. Roman law of excluding, 19. English and American law of excluding, 20. Justinian quoted, 2L Forced, 22. INDEX 703 [The flgTires refer to pages] HISTORY OF WILLS, 1. HOLOGRAPHIC WILLS, 72. Revocation by, 87. HOMESTEAD, Affected by will, 389. HOTCHPOT, 552. HUSBAND, Undue influence, 267. See Widower. I IDIOTS, Testamentary capacity, 115. ILLEGALITY, Construction of, 300, 302. ILLITERATE MAN, Signing, 56. Understanding of contents, 59. INCORPORATING OTHER PAPERS, 51. INCORPORATION, Of estate, 559. INEQUALITIES, As evidence of undue influence, 259. INFANTS, Testamentary capacity, 111. Majority of. 111. Parties to will contest, 212. INJUSTICE, As evidence of undue influence, 259. 704 INDEX [The figures refer to pages] INSANE DELUSION, 138, 142. Defined, 142. Spiritualism and other religious beliefs, 145. INSANITY, 128. Adjudication of, 134. Partial, 139. INSURANCE, Proceeds of, 340. INTENT, To revoke, 82, 91, 93. INTENTION, 295, 296, 297. Must be gathered from whole will, 298. General, 302. Must be expressed, 311. INTEREST, When legacies bear, 537. INTESTACY, Presumption against, 326. INTESTATE'S EFFECTS, Right of bishop to administer, 7. INTOXICATION, Effect on capacity, 126. INVENTORY, Of estate, 515. ISSUE, On probate, 175. On contest, 223. Birth of, revocation of will, 102. INDEX 705 [Tie figures refer to pages] JOINT WILLS, 30. How probated, 32. JURISDICTION, Of U. S. courts in contest, 200. JURY, Question for on issue of testamentary capacity, 114. Trial by, of contests, 224. Directing a verdict, 240. K KANSAS, Statute of revocation, 90, 91. Revival of prior will by revocation of subsequent, 101. Notice of foreign will, 186. Dower and curtesy abolished, 383. KNOWLEDGE, By witnesses of contents of will, 59. L LAND, Governed by local law, 39, 181. Recording will of, 185. See Real Property. LANGUAGE, Foreign, 49. LAPSE, 352. LATENT AMBIGUITY, 311; 314, 315, 316. LAW, Question of, 83, 148, 272, 290, 321. Of forum governs proof of wills, 173. BoRL. WiTxs — 45 706 INDEX [Tie figures refer to pages] LEGACIES, 330. Specific, 332, 333. Demonstrative, 334. General, 335. Residuary, 336. To creditor, 532. Distribution, 534. When made, 536. When bear interest, 537, 538. To wife, 548. Not chargeable upon land, 549. LEGATEES, 343. As witness, 68. Contribution for payment of demands, 530. LIENS, Effect as revocation, 107. Equitable, 371, 373. LIFE ESTATE, Words to devise, 407. Powers of life tenant, 409. With power of disposition, 411. Rule in Shelley's Case, 413. In personal property, 426. Legacies, when bear interest, 538. LIS PENDENS, 218. LORD THELUSSON'S ACT, 475. LOST WILLS, 176. LUCID INTERVALS, 130. LUNACY, Its nature, 128. Lucid intervals, 130. Restoration to reason, 134. Suicide, 135. INDEX 707 [The figures reter to pages] M MAJORITY, Common-law rule, 111. MANIAC, Capacity of, 128. MARK, Signing by, 55. Witness signing by, 65. MARINERS, Verbal wills of, 79. MARRIAGE, Revocation of will by, 102-103, 104. Subsequent, 104. Restraints upon, 363. Limitation on testamentary power, 377. MARRIED WOMAN, Revocation of will by subsequent marriage, 104. Disabilities of, 105. Testamentary capacity. 111. As executrix, 499. MARSHALLING ASSETS, For payment of demands, 528. For payment of legacies, 547. MEMORY, Loss of, 122. MENTAL CAPACITY, To revoke, 82, 86. 92. To make will, 113. MERGER, Terminating trust, 474. 708 INDEX [The figures refer to pages] MEXICAN LAW, Of wills, 35. MILES' WILL CASE, 88. MISSOURI, Statute of, revival of prior will by revocation of subse- quent, 101. Dower and curtesy, 378. Discretion in trustee as to charity, 481. Final settlement, 564. MISTAKE, 247. Destruction of will by, 92. Of fact, not insane delusion, 141. As defense to will contest, 221. MONOMANIA, 138, 140. MORAL PERVERSION, 140. MORTGAGES, Effect as revocation, 107. MUTE, Request by, 56. Testamentary capacity, 119. MUTILATED WILL, Presumption, 96. Proof of, 177. MUTUAL WILLS, 30. N NAME, Of institution or association, 481. NATURAL RIGHT, None to make will, 15. Or to succeed to estate, 15. INDEX 709 [The figures refer to pages] NATURE, Of contest, 199. Of will, 15. NON-CLAIM, Statutes of, 520, 523. NON-CONTEST CLAUSES, 361. NON-RESIDENT, Will of, 183. NORMAN CONQUEST, Effect on devolution of property, 6. NOTICE, Constructive, of will of land, 185, 186. NUNCUPATIVE WILLS, 76. Abolished by statute in England, 80. Differ from gifts causa mortis, 80. o OFFICIAL, Title or certificate, 65. OLD AGE, Testamentary capacity, 120. OPERATION OF LAW, Revocation by, 105. P PARANOIA, 138. PAROL EVIDENCE, To establish lost or destroyed will, 178. Of trust ex maleficio, 462. See Evidence. 710 INDEX [The figures refer to pages] PARTIAL INSANITY, 139, 140. PARTIES, In interest as witnesses, 66, 68. To contest, 209. To construction, 287. PATENT AMBIGUITY, 311, 314. PELLS V. BROWN, 436. PER CAPITA, 349. PERPETUITIES, Rule against, 418. What are, 420. Invented, 437. Care of burial lots, 484. PERSONAL ESTATE, Vests in executor, 393. Life estates and future interests, 426. Protection of remainderman, 429. First applied to payment of demands, 529. PERSONAL PROPERTY, Effect of feudal system, 6. Natural distinction from real, 14. Governed by law of domicile, 40. Execution of wills of, 53. Verbal wills of, 76. Life estates and future interests, 426. Protection of remainderman, 429. PER STIRPES, 349. PHYSICAL WEAKNESS, Aid in signing, 56. In connection with undue influence, 261. INDEX 711 [The figures refer to pages] PHYSICIANS, Privilege of, 236. POLICY OF REQUIRING FORMALITIES, 38. POSSESSION, Of will, found torn, etc., 96. POSTHUMOUS CHILD, 104. POSTPONEMENT, Of possession, 400. POWERS, Of attorney, effect on revocation, 106. Defined, 422, 423. Limitation of, 423. Manner of executing, 425. Trust, limitation of, 457. Special, of executors, 503. PRECATORY WORDS, 463. PRESENCE, Signing by witnesses, 62. What is, 63. Destruction in, revoking by, 90, 9L PRESERVATION OF ESTATE, 514. PRESUMPTION, In case of omitted child, 23. From attestation clause, 64. From holographic will, 75. Arising from torn, mutilated, or defaced will, 97, 177. Of revocation from marriage and birth of issue, 102. Of continuance of insanity, 134. In case of administration of drugs, 138. In absence of a will, 153. Of sanity, 222. 712 INDEX [The figures refer to pages] PRESUMPTION— Continued, Of undue influence, 266. Against intestacy, 326. No, as to spendthrift trust, 368. Of cumulative gifts, 378, 381. Against disposition of rights of surviving spouse, 383, 384. In favor of vesting, 402. Definite failure of issue, 436. Of indefinite failure of issue, 441. Of payment by legacy to creditor, 532, 533. When legacies are payable, 537. That estate is fully administered, 565. PRETERMITTED CHILDREN, 21. Remedy of, 25. Revocation not necessary, 104. PREVIOUS WILLS, As evidence of capacity, 123. PRIMA FACIE CASE, On probate, 170. On contest, 215, 220. PRIMARY ADMINISTRATION, 509. PRINTED BLANKS, 49. PRIVILEGE, Of physicians and attorneys, 236. PROBATE, 147. Common-law method, 149. Equity has no jurisdiction, 156. Place of, 161. Manner of, 164, 166. Procedure, 168. Time for, 174. Effect of, 186, 190, 191. INDEX 71i5 [The figures refer to pages] PROBATE— Continued, Not subject to collateral attack, 192. Common and solemn form, 197. Time for, 206. PROBATE COURT, 154. Construction of wills, 279. Creditors should seek, 522. PROBATE JURISDICTION, History of, 487. In ecclesiastical courts, 489. Of American courts, 492. PROBATE LAW, English, borrowed from Roman, 4. PROCEEDING, In rem, 191, 199. In personam, 191. For distribution, 561. PRODUCTION OF WILL, 169. PROMISE, To make testamentary disposition, 26, 29. PROOF, Of oral contract to make will, 29, Of verbal will, 78. Necessary for probate, 169. Of lost or destroyed wills, 177, 178. Burden of, 219, 253. See Evidence. PUBLICATION, 57. PUBLIC POLICY, 41. PUBLIC TRUSTS, 476. Purposes, 478. Statute 43 Elizabeth, 478. 714 INDEX [The figures refer to pages] PUBLIC TRUSTS— Continued, Designation of institution or association, 481. Doctrine of cy pres, 483. , Void charitable uses, 484. Limitation on, 485. PURPOSE, Of formalities of execution, 36. Q QUANTITY OF ESTATE, 391. QUESTION, Of law, 83, 148, 272. Construction of will, 290, 321. Of fact, 83, 148, 185, 272. On construction of will, 321. R READING, Of will to witnesses, 60. To testator, 120. REAL PROPERTY, Effect of feudal system, 7. Natural distinction from personal property, 14. Not affected by verbal will, 78. Title to, does not vest in executor, 502. Executor's interest in, 515. Resort to, for payment of demands, 530. Power of executor over, by statute, 541. Legacies not chargeable upon, 549. When chargeable, 550. "REASONABLE PARTS," 6, 19. INDEX 712 [The figures refer to pages] RECITALS IN WILL, As to domicile, 162. Construction of, 329. RECORDING WILL, As conveyance, 185. REFUNDING, By devisees to pretermitted child, 25. RELIGIOUS BELIEFS, 145. RELIGIOUS GIFTS, 345. Limitation on, 485. REMAINDER, Estates in, 396. Contingent, 396. To a class, 399. Under provision "what remains," 450. REMAINDERMAN, Protection of, 429. REMEDY, Of pretermitted child, 25. On contract to make will, 28. During life of promisor, 30. REPUBLICATION, Of will, 87. By codicil, 88. After revocation, 105. RES GEST.ZE, Declarations of testator at time of revoking, 92. Declarations of testator, 232. Declarations of testator and devisees as to undue influ- ence, 276. 716 INDEX [TIhe figures refer to pages] RESIDUARY CLAUSE, Construction, 328. RESIDUARY LEGACIES, When bear interest, 538. RESTRAINTS, Upon marriage, 363. REVOCATION, Of wills, 81. What constitutes, 83. Manner, 85. By subsequent will, 86, 98. Pro tanto, 88, 106, 107. By burning, tearing, etc., 90. Consists of act and intent, 93. Dependent relative, 97. Of subsequent will, effect on prior, 100. By marriage and birth of issue, 102. By sale of property, 106. RIGHT, No natural right to make will, 15. Or to succeed to estate, 15. To exclude heirs, 19. Of pretermitted children, 21. Under unprobated will, 152. RIGHT OF STATE, To regulate descent, 16. ROMAN LAW, Borrowed by English, 4. Of excluding heirs, 19. Of wills, 35. Of confidential relations, 264. Of probate, 487. RUEGGESICK CASE, 117. INDEX 717 [The figures refer to pages] s SALE OF PROPERTY, Revocation by, 106, 107. SAXON LAW OF REAL PROPERTY, 5. SAXON CUSTOM OF REASONABLE PARTS, 6. SCRIVENER, Of will, 60. Instructions to, 249. SENILE DEMENTIA, 120. SETTLEMENT, Final, 563. SEXUAL RELATIONS, Undue influence, 269. SHELLEY'S CASE, Rule in, 413. SIGNATURE, Witnesses should see, 57. SIGNING, 53. By mark, 55. By another, 55. By witnesses, 61. SOLDIERS, Verbal wills of, 79. SOLEMN FORM OF PROBATE, 197. SPANISH LAW, Of forced heirs, 22. Of wills, 34. 718 INDEX [The figures refer to pages] SPECIFIC LEGACIES AND DEVISES, 332. When bear interest, 538. Exoneration from debts, 547. How marshalled, 548. SPECIFIC PERFORMANCE, Of contract to make will, 28. SPENDTHRIFT TRUSTS, 365. SPIRITUALISM, 145. SPOUSE, Right in property of the other, 112. STATEMENTS, Of testator as to intention of revoking, 92. STATES, Are sovereign in probate matters, 495. STATUTES, "De donis," 434. Uses, 12, 76, 106, 435, 472. Wills, 12, 38, 53, 73, 76, 173, 435. Frauds, 13, 26, 38, 42, 53, 66, 73, 76, 83, 84, 86, 90, 95. 1 Victoria, 38, 54, 80, 90, 96. 25 Geo. II, c. 6, page 67. 12 Car. II, c. 24, § 8, page 560. 43 Elizabeth, 478, 479. 21 Hen. VIII, c. 4, page 469. Wm. IV, 381. STATUTORY RIGHTS, Affected by will, 389. STATUTORY RIGHTS OF CHILDREN, 22. STEWART V. LISPENARD, 117. INDEX 719 [The figures refer to pages] SUBSEQUENT, Will, revocation by, 86, 100. Miles' Case, 89. SUICIDE, 135. SUPPLEMENTARY WILL, 80. SUPPORT, Provisions for, 339, 367. Power of sale for, 412. Constituting precatory trust, 465. Legacies for, when bear interest, 538. SURVIVORSHIP, Words of, 398. T TEARING, Revocation by, 90. TERM OF YEARS, Legacies for, when bear interest, 538. TESTAMENT, Definition of, 17. TESTAMENTARY CAPACITY, 108. TESTAMENTARY GIFTS, Various forms, 337. TESTAMENTARY POWER, Extent of, 331. Of married persons, 377. THELUSSON v. WOODFORD, 475. TILDEN'S WILL, 481. TORN WILL, Presumption, 96. 720 INDEX [The figures refer to pages] TRUSTEES, TESTAMENTARY, As attesting witnesses, 69. Right to ask construction of will, 283. Discretion of, 369, 458. Are devisees or legatees under will, 459. Executors as, 466, 467, 468. Discretion in, 480. TRUSTS, Power of equity to construe wills, 282. Spendthrift, 365. From provision "what remains," 450. Estates, their purpose, 452. Classification, 454. What necessary to creation of, 454. ■ To a class, 456. Limitation of powers, 457. Testamentary trusts distinguished from trust deed, 459. Ex maleficio, 460. Precatory, 463. Administration of, 470. Active or passive, 472. When terminate, 473. Continuing a business, 558. For accumulation, 475. Charitable or public, 476. Purposes, 478. Statute, 43 Elizabeth, 478. Designation of institution or association, 481. Doctrine of cy pres, 483. Void charitable uses, 484. u UNDUE INFLUENCE, 247. Revoking will under, 92. As defense to will contest. 221. INDEX 721 [The figures refer to pages] UNDUE INFLUENCE— Continued, General theory, 252. Distinguished from fraud, 254. Defined, 252, 253, 255. Distinguished from affection, 257. Inequality or injustice, 259. , Confined to one legacy, 260. In connection with physical or mental weakness, 261. Confidential relations, 262. Wife or husband, 267. Unlawful sexual relations, 269. ' Evidence, 270. Mixed question of law and fact, 272. Inadmissible evidence, 273. Declarations of testator and devisees, 275. UNFINISHED PAPER, 50. UNITED STATES COURTS, 200. USES, Origin of doctrine, 9. Purposes, 11. Statute of, 12. V VERBAL CONTRACT, To make will, 26. VERBAL WILLS, '76. VERDICT, Directing, 240. VESTED INTEREST, Of pretermitted heir, 26. VESTING, Of estates, 391. Difficulty of determining, 394. Rules for determining, 396. BoKL. Wills — 46 "22 INDEX [Tie figures refer to pages] w WEAKNESS, PHYSICAL OR MENTAL, In connection with undue influence, 26L "WHAT REMAINS," 445. Necessity for clearness of expression, Analysis of the estate given, 449. WIDOW, Limitation on remarriage, 364. Provision for, 2)77, 380. Right of election, 380, 382, 385. Allowance to, out of estate, 517. « WIDOWER, Provision for, 377. Share under statute, 384. WIFE, Undu6 influence, 267. Legacy to, privileged, 548. WILLS, As separate legal conception, 3. Efl^ect of feudal system, 8. Under doctrine of uses, IL Statute of, 12. Nature of, 15. Definition of, 17. Joint and mutual, 30. Execution of, 36. Form of, 44. Difference from deed, 45, 148. Consisting of several sheets, 54. Holographic, 72. Nuncupative, 76. Revocation of, 81. INDEX 723 [The figures refer to pages] WILLS— Continued, Subsequent, revocation by, 86. Supplementary, 88. Unprobated, rights under, 152. Lost or destroyed, 176. Mutilated, 177. Foreign, 180. Construction, 279. Conditional, 355. WITNESSES, Subscribe, 61. Signing by mark, 65. Official title or certificate, 65. Parties in interest, 66. Not required to holographic wills, 73, 75. Not needed to revocation, 96. Attesting, on probate, 170. On contest, 226. Opinion of, 228. IMedical, 231. WOMAN, Will of, revocation by marriage, 104. WORDS AND PHRASES, 294. Construed in primary sense, 304. Supplied, altered, etc., 308. General, 310. Occurring more than once, 310. [End of Volume]