mu of Professor Herbert David Laube Cornell Law School KF 755.G22""'""'™"">"-"'"'^ ..handbook of the law of wills ^'^ 3 1924 018 802 383 4.^ \\' Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018802383 of Elementary Treatises on all the Principal Subjects of the Law The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published In regular octavo form, and bound In buckram. Black on Construction and Interpretation of Laws (2d Sd.). Black on Constitutional Law (3d Bd.). Black on Judicial Precedents. Bogert on Trusts. Burdlck on Real Property. Chapin on Torts. Childs on Suretyship and Guaranty. Clark on Contracts -(Sd Ed.). Clark on Criminal Law (3d £M.). Clark on Criminal Procedure (2d Ed.). Clark on Private Corporations (3d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity Jurisprudence (2d Ed.). Gardner on Wills (2d Ed. J. Gllmore on Partnership. Hale on Damages (2d Ed.). Hughes on Admiralty (2d Ed.). Hughes on Federal Jurisdiction and Procedure (2d Ed.). McKelvey on Evidence (3d Ed.). Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (3d Ed.). Shlpman on Equity Pleading. Smith's Elementary Law. Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (3d Ed.). Tiffany on Sales (2d Ed.). . Vance on Insurance. Wilson on International Law. Hornbooks on the law of other subjects will be published from time to time. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C11517— j HANDBOOK OF THE LAW OF WILLS By GEORGE E. G^ARDNER PKOFSSSOR OF LAW IN THE BOSTON UNIVERSITY SCHOOL OP LAW SECOND EDITION By WALTER T. DUNMORE PROFESSOR OF LAW IK THE WESTERN RESERVE UNIVERSITY LAW SCHOOL ST. PAUL WEST PUBLISHING CO. 1916 c ^ COPTBIQHT, 1903 ■an WEST PUBLISHING CO. COPTBIGHT, 1916 BT WEST PUBLISHING CO. (6AKD.Wiixs,2d Ed.) The Author takes great pleasure in dedicating this book to the Honorable LOUIS CARVER SOUTHARD of the Boston Bar (v)« PREFACE TO SECOND EDITION The first edition was so broad in scope that it has seemed unwise to deal with entirely new topics. In connection with the topics dealt with in the first edition, the editor has sought primarily to consider those cases which have been decided in the twelve years which have elapsed since the publication of that edition. Some changes and a large number of additions have been made, especially in the notes. Many cases in support of new text have been referred to, and a con-, siderable number of recent cases have been cited, because they con- tain valuable discussions or deal with matters which are still in dis- pute. Although realizing that defects in general statements are un- avoidable, the statements in the black-letter text have usually been re- tained, but the fact that the authorities are in conflict has been made clear in many instances where this did not appear in the former edition. W. T. D. Clbveland, February 8, 1916. ' (vU) PREFACE TO FIRST EDITION This book embodies an attempt to express clearly and concisely the law of wills, together with a general discussion of their probate. It is hoped that its statements are sufficiently clear to commend the work to students, and that the full citation of authorities — for it is believed that no case decided in the last fifteen years in any court of last resort in the United States genuinely illustrative of a principle has been over- looked — ^may render the book serviceable to practitioners. The work is the result of the study of the leading decisions of whatever time and all the modem cases. Professor Bigelow's little book on Wills displays the usual acumen and insight of that learned author, and has been read much to my profit. Whatever direct indebtedness I am under to this and other works has been carefully indicated in the notes. When the discussion of legal theory has promised profit, I have at- tempted it. A clear statement of the law of wills, however, reveals in most instances its ultimate foundation. While -the general plan of the work is mine, the minuter subdivisions are largely those of the American Digest. G. E. G. Boston, October 28, 1903. (viU) TABLE OF CONTENTS CHAPTER I INTRODUCTION— HISTORY OF WILLS Section Page 1. Definitions 1-4 2. History ■ 4r-10 3. Gifts Causa Mortis and Gifts by Will Distinguished 10-13 4-5. Tests to Determine the Character of the Instrument 13-25 CHAPTER II FORM OF WILLS 6-7. No Particular Form Required 26-35 8-9. Duplicate and Partial Wills 36 10-11. Incorporation by Reference. . .• 37-43 CHAPTER III FORM OF WILLS (Continued)— NUNCUPATIVE— HOLOGRAPHIC— CON- DITIONAL WILLS 12—13. Nuncupative Wills — Definition — History 44-51 14. Nuncupative Wills of Soldiers and Sailors. 51-54 15. Nuncupative Wills Pass Title to Personalty Only 54-55 16. Nuncupative Wills in Louisiana 55-57 17. Holographic WiUs 57-59 la Conditional Wills 59-62 CHAPTER IV AGREEMENTS TO MAKE WILLS, AND WILLS RESULTING FROM AGREEMENT 19. The Contract to Make a WUl 63-70 20. The Remedy 71-75 21. Joint, Mutual, or Reciprocal Wills 75-77 CHAPTER V WHO MAT BE A TESTATOR 22-24. General Rule 78-80 25. Wills of Married Women at Common Law 80-83 26. Wills of Married Women under Statutes 83-84 27-29. Wills of Aliens and Criminals 85 Gabd.Wilm (2d Ed.) (Ix) X. TABLE OF CONTKNTS Section P*e« 30. Natural Incapacity •••• 86-87 31. Nature of Testamentary Capacity • 87-91 32-33. Capacity to Do Business as a Test 91-94 34. Old Age and Sickness as Bearing upon Testamentary Capacity 94-96 36-37. Insanity as Affecting Testamentary Capacity— Insane Delu- sions 97-100 38. Eccentricity or Mistake Not Insane Delusions 100-102 39. Jealousy and Prejudice Not Insane Delusions 103 40-41. Monomania as Affecting Testamentary Capacity 104-106 42. Peculiar Religions Beliefs Not Insane Delusions 106-108 43. Senile Dementia 108-109 44r-45. WiU Made in a Lucid Interval i 109-110 46. Guardianship as Affecting Testamentary Capacity Ill 47. Drunkenness as Affecting Testamentary Capacity 112-113 48. Burden of Proof 113-110 49. Evidence Belating to Testamentary Capacity 117-126 50. Opinion Evidence 12&-132 CHAPTER VI RESTRAINT UPON POWER OF TESTAMENTARY DISPOSlTION—WHO MAY BE BENEFICIARIES— WHAT MAY BE DIS- POSED OF BY WIIiL 51. The Rule Against Perpetuities 133-139 52. Statutes Against .Suspension of Power of Alienation 139-140 53-54. Who may be Beneficiaries 141-146 55. What may be Disposed of by Will 146-148 56-57. 58. 59-60. 61. 62. 63. CHAPTER VII MISTAKE, FRAUD, AND UNDUE INFIiUBNCH Mistakes may be Either External or Internal 149-152 Fraud Defined— Effect of 152-154 Undue Influence Defined— Effect of 154-158 Burden of Proof 158-159 Confidential Relations as Affecting Undue Influence 159-169 Evidence of Undue Influence < 170-179 CHAPTER VIII EXECUTION OF WILLS 64. Essential 180-181 65-66. Signing 182-191 67. Making or Acknowledging Signature before Witnesses 191-193 68. Publication 193-196 69. Request by Testator That Witnesses Sign 196-198 70-71. Attestation . . . ; 199^200 72. What Constitutes a Competent Witness 200-206 73-74. Signing by Witnesses 207-212 75. Attestation in the Presence of the Testator 212-217 76. Evidence of Execution 217-220 77. The Significance of the Attestation Clause 220^222 78. Declarations of the Testator as Evidence of Execution 222-223 TABLE OF CONTENTS XI CHAPTER IX REVOCATION AND REPUBLICATION OF WILLS Section J Pag, 79-80. Revocation Defined— How Effected 224-226 81. Mutilation as Effecting Revocation 226-231 82. Intent to Revoke Essential 231-233 83-85. Effect of Alterations and Interlineations 233-236 86. Revocation by a Subsequent Writing '. 236-249 87-88. Revocation by Change of Circumstances 249-258 89. Evidence of Revocation — Burden of Proof 258-261 90-92. Republication Defined— How Effected 261-266 CHAPTER X CONFLICT OF LAWS 03-94. Real Property Controlled by Law of Place— Personal Property by Law of Domicile 267-275 CHAPTER XI PROBATE OF WILLS 95. Probate Defined 276-286 96. Procedure in Probate Proceedings 287-296 97. Effect of Probate 296-303 98. Probate as Affected by Agreements Not to Contest 303-304 99. Probate of Lost or Destroyed Wills L . 304-309 100. Probate or Record of Foreign Wills 309-313 CHAPTER XII ACTIONS FOR THE CONSTRUCTION OF WILLS 101. Actions to Construe — Who may Bring 314-321 CHAPTER XIII CONSTRUCTION OF WILLS— CONTROLLING PRINCIPLES 102-103. Construction Defined ' 322-323 104. General Rules of Construction 324r-338 105. Extrinsic Evidence as Affecting Construction— General Rule. . . 339-340 106. Extrinsic Evidence Admissible, When 340-341 107. Equivocations — Extrinsic Evidence of Intention 342-345 108. Imperfect Description — Extrinsic Evidence 345-348 109. Extrinsic Evidence Inadmissible, When 349-350 CHAPTER XIV CONSTRUCTION (Contiinied)— DESCRIPTION OF SUBJECT-MATTER 110. General Rule— Words Operative to Pass the Entire Estate 351-354 111. Words Operative upon Real Property— General Rule ,. 354-362 112. Words Operative to Pass Personal Property 363-368 113-114. The Residuary Clause as an Instrument of Description 369-373 Xll TABLE OF CONTENTS CHAPTER XV CONSTRUCTION (Continued)— DESCRIPTION OF BBNEFICIABT Section Page 115. General Rule— Technical and Non-Technical Terms 374-390 116. Beneficiaries Described as a Class 390-394 117-118. Conunon-Law Rule in Event of Lapse— As Modified by Statute 394-396 119-120. Time of Ascei;taining the Members of a Class 396-403 121. Taking Per Capita or Per Stirpes 403-406 CHAPTER XVI CONSTRUCTION (Continued)— NATURE AND DURATION OF INTERESTS 122-123. Estates in Fee 407-418 124. Estates for Life 418-426 125-126. Joint Tenancy- and Tenancy in Common 426-427 127. Interests in Personal Property 428-^35 CHAPTER XVII CONSTRUCTION (Continued)— VESTED AND CONTINGENT INTERESTS —REMAINDERS— EXECUTORY DEVISES 128-130. Vested and Contingent Interests 436-443 131-132. Vested Remainders 443-451 133-134. Contingent Remainders 451-454 135. Executory Devises 454r^56 CHAPTER XVIII CONSTRUCTION (Continued)— CONDITIONS 136-138. Conditions in General 457-464 139. Particular Conditions 464-473 CHAPTER XIX CONSTRUCTION (Continued)— TESTAMENTARY TRUSTS AND POWERS 140. Testamentary Trusts— General Rule 474-483 141-142. The Trustee 484-486 143. The Beneficiary 486-488 144. Powers 48&-494 CHAPTER XX LEGACIES— GENERAI^-SPECIFIC— DEMONSTRATIVE-CUMULA- TIVE— LAPSED AND VOID— ABATEMENT— ADEMPTION— ADVANCEMENTS 145-150. General, Specific, Demonstrative, and Cumulative Legacies.... 495-501 151. Abatement of Legacies 501-504 152. Ademption and Satisfaction of Gifts 504-511 TABLE OF CONTENTS XIU Section Page 153. Advancements Bll-513 154r-155. Lapsed Gifts 51^-517 156-157. Void Gifts, and Property Undisposed of by Will - 517-519 CHAPTER XXI LEGACIES CHARGED UPON LAND OR OTHER PROPERTY 158. Legacies as Charged upon the Realty 520-526 159. Legacies Charged upon Specific Personalty 526 160-161. Enforcement of Charge , 526-528 CHAPTER XXn PAYMENT OF THE TESTATOR'S DEBTS 162-164. Debts Charged upon the Realty and Other Specific Property.. 52^-531 165. Exoneration of Realty and Other Property from Liens Thereon 532-533 166. Remedies of Creditors against Beneficiaries 534 167. Contribution among Beneficiaries for Debts Paid by Them 534-535 CHAPTER XXIII ELECTION 168. Election Defined 5.36 169. Necessity of Election 537-539 170. Election— How Effected 539-540 171-172. Time for Making Election 541 173. Effect of Election 541-542 174. Election by Persons under Disabilities 542-543 175-177. Election by Surviving Spouse ' 543-549 CHAPTER XXIV RIGHTS OF BENEFICIARIES NOT PREVIOUSLY DISCUSSED 178-179. Title to Subject-Matter of Devise or Bequest 550-551 180. Right of Devisee or Legatee to Possession 551-552 181-182. Time for Payment of Legacies 552-554 183-184. Interest on Legacies 554-557 185. Transfers by Legatees and Devisees 557-558 186. Effect of a Legacy Given by Creditor to Debtor 558-559 187-188. Estoppel of Beneficiaries to Contest the Will 559-560 TABLE OF CASES CITED (Page 561) INDEX (Page 623) t HANDBOOK OF THE LAW OF WILLS SECOND EDITION CHAPTER I INTRODUCTION— HISTORY OF WILLS 1. Definitions. 2. History. 3. Gifts Causa Mortis and Gifts by Will Distinguished. 4-5. Testa to Determine the Character of the Instrument. DEFINITIONS 1. A will is the expression, in the manner required by law, and operative for no purpose until death, of that which one may lawfully require to be done after his death. It is a matter of some difficulty to frame a definition which shall be broad enough to include every species of will, and which shall yet possess sufficient definiteness to make it of much practical signifi- cance and value. Still a definition which purports to be anything more than a partial definition or an enumeration of particulars should effect at least this much : It should cover the ground which the term undertaken to be defined covers in its concrete applica- tion, and it should yield, aftter reasonable consideration, some fairly definite notion as to the scope of the term. In other words, a really adequate definition of any legal term will at once commend itself to the lawyer as comprehending neither too much nor too i little, while to the student it will convey some definite conception of its reach. Since nearly all wills dispose of property, the above definition is in a measure open to the criticism that it does not place sufficient emphasis upon the dispositive function of a will. Gabd. Wills (2d Ed.) — 1 2 INTEODUCTION HISTORY OF WILLS (Ch. 1 A more generally received definition is as follows : "A will is an instrument by which a person makes a** disposition of his property to take effect after his decease, and which is, in its own nature, am- bulatory and revocable during hi? Hie." ^ This definition is inade- quate. It describes some wills, and wills with which books on that subject commonly deal. But it does not describe all wills. A will is not always an instrument; it may be oral or nuncupative. A will may make no disposition of property. An instrument, duly executed, and which merely appoints an executor, withotit direc- tions as to what he shall do, is a valid will,* as is also an instrument by which a father appoints a guardian for his minor child, the ap- pointment to take effect upon the death of the father.' Some other much used definitions are open to the same objec- tions : "A will is a disposition, made by a competent testator, in the form prescribed by law, of property over which he has legal power of disposition, which disposition is of such a nature as to take effect at the death of the testator." * "A last will and testament may be defined as the disposition of one's property to take effect after death." ° "An instrument by which a person makes a disposition of his property to take effect after his decease." * "The term 'will' in- cludes every kind of testamentary act, taking effect from the mind of the testator, and manifested by an insti'ument in writing." ^ But there are approved definitions which approximate to and support, the definition given in the black-letter text. "The legal declaration of a man's intention, which he wills to be performed after his death." ' "A just sentence of our will touching that we would have done after our death." ' Perhaps, after all, it is needless, if not impossible, to undertake to improve upon the definition of 1 1 Jarman on Wills, p. *18. 2 In re Hickman's Estate, 101 Cal. 609, 36 Pac. 118; In re John's Will, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242; Brownrigg v. Pike, L. R. 7 P. D. 61 ; In re Lancaster, 1 Sw. & Tr. 464 ; 1 Williams on Executors, 267, 204. 3 Schoul. Dom. Eel. § 287; Wardwell v. Wardwell, 9 Allen (Mass.) 518; Stringfellow v. Somerville, 95 Va. 701, 29 S. E. 685, 40 L. R. A. 623. * Bouvier's Law Diet sub. "Will." B 1 Redf. Wills, 5. 6 Cover V. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. Rep. 406; Wilks t. Bums, 60 Md. 68 ; Younger v. Duffie, 94 N. Y. 539, 46 Am. Rep. 156. ^ Bayley v. Bailey, 5 Cush. (Mass.) 245; Kelleher v. Keman, 60 Md. 440. This definition is faulty in two particulars: It calls for a writing, which is not always an essential, while it is necessary to know what a will is in order to know what a "testamentary" act is. 8 2 Bl. Comm. *499 (taken from the civil law). See, also, Frew v. Clarke, 80 Pa. 170; Colton v. Colton, 127 U. S. 309, 8 Sup. Ct 1164, 32 L. Ed. 138; Smith V. Bell, 6 Pet 75, 8 L. Ed. 322. » 1 Redf. Wills, 5. Aside from the use of the word undertaken to be de- § 1) DEI'INITIONS 3 Swinburne, for which he was indebted to the Civil Law: "A last will is a lawful disposing of that which any one would have done after death." ^' There is now no legal distinction between the words "will" and "testament." Until recent times, however, the term testament was applied particularly to wills of personal prop- erty, requiring an executor. Testament was the broader term, in- cluding wills of both realty and personalty, the term "will" being more strictly applicable to the former,^^ by which no executor need be appointed, while the naming of an executor came to be regarded as requisite to the validity of a testament of personal property.^" This distinction has, however, long since disappeared.^' The com- monly used expression, "last will and testament," is therefore pleo- nastic. Other Terms Defined It seems desirable, at the outset, to define the other common terms used in connection with the law of wills. A "testator" is a man who has made a will or testament. When disposing of real property by will, he is sometimes called the "de- visor." A "testatrix" is a woman who has made a will or testament. A "codicil" is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of, a will, by which its dispositions are explained, added to, or altered. "Devisee" is one who takes real property under a will. "Legatee" is one who takes personal property under a will. So far, however, as the legal effect is concerned, these words may be used by testators interchangeably. A "devise" is real property passing under a will. A "legacy" is money passing under a will. A "bequest" is any form of personal property passing under a will. ' So far, however, as the legal effect is concerned, these terms may be used interchangeably.^* fined in the definition itself, and giving to the word "just" its full effect, this definition would appear to be adequate. 10 Swinburne, Wills, p. 11. 11 4 Bum, Bcc. Law, 53; 1 Swinb. 3, 4. • 12 2 Bl. Comm. *500; Swinburne, Wills, pt. 1, c. 1, pi. 19; Woodward v. liord Darcy, Plow. 185. 13 Smith v. Smitti, 168 111. 488, 48 N. E. 96; Wyrall v. Hall, L. R. 2 Ch. 112; UndorhUl, Wills, § 6. 1* Evans t. Price, 118 111. 593, 8 N. E. 854 ; White v. Mass. Institute Tech- nology, 171 Mass. 84, 50 N. E. 512; Allen v. White, 97 Mass. 504; Lamb v. Lamb, 131 N. Y. 227, 30 N. E. 133; In re White, 125 N. Y. 544, 26 N. E. 909; Clarke t. Clarke, 46 S. C. 230, 24 S. E. 202, 57 Am. St. Kep. 675. 4 INTRODUCTION ^HISTOKT OF WILLS (Ch. 1 A "holographic" or "olographic" will is one which is written en- tirely by the testator and signed by him.^* A "mystic will" is a will signed by the testator himself, sealed, and delivered to a notary in the presence 'of three witnesses, ac- companied by the testator's declaration that it is his la'st will. The notary is then required to indorse upon the envelope containing the will a statement of all the facts attending the transaction, and this is to be signed by him and the witnesses.^' A "nuncupative will" is an oral .will, which is valid under certain circumstances.^* HISTORY 2. The history of wills in England is naturally divided into three periods : (a) The period preceding the Norman Conquest. (b) The period succeeding that Conquest. (c) The period under modern statutes, beginning with the statute of wills. The development of wills in England has directly determined their history in the United States. Among all nations which have attained to any degree of civiliza- tion, the power of the owner of property to exercise some control over its disposition after his death has apparently been recognized, or, it might be better said, granted, either by legislation or usage. With the civilized man's appreciation of the value and significance of property, there comes a natural concern as to its disposition aft- er his death. The state, as such, is also concerned in its peaceable and orderly disposition ; for if this disposition were not determined or if the power to determine it were not lodged somdwhere, a man's deathbed would be the scene of an unseejnly and riotous scramble for the possession of his effects — or, at least, the struggle would barely be postponed until after the funeral. Hence the state has either of itself determined the disposal of the property of the de- ceased, or has, with various and varying limitations and restrictions, empowered the owner of property to determine its disposal. In other words, we have statutes for cases of intestacy, and statutes or usage conferring a more or less limited testamentary power up- on the owner of property, IB In re Pearsons' Estate, 99 Cal. 30, 33 Pac. 751; Succession of Robert- son, 49 La. Ann. 868, 21 Soutli. 586, 62 Am. St Rep. 672. i« Civ. Code La. arts. 1584, 1587. TMs form of will is apparently recog- nized only in Louisiana, whose legislation in this as well as in other par- ticulars"is based upon the Code Napoleon. ii See post, p. 44. § 2) HISTOKT 5 It being now well settled that inte^ate inheritance is a more an- cient institution than testan\entary succession,^* the question as to how testamentary power came to be conferred upon the possessor of property is at once suggested. No certain answer can be given, because evidence of the existence or at least of the nature of tes- tamentary power in archaic communities is almost wholly lacking., Indeed, in the opinion of Sir Henry Maine, it is doubtful whether a true power of testation was known to any ancient society except the Roman.^* The reason for this is obviously twofold. In all primitive communities the family is the social unit. The modern relation of man to man has very gradually replaced the primitive relations of the individual to his family and of families to each other.^" Indeed, it may be doubted if the archaic man ever con- sciously disassociated himself from the family of which he was a part. If this be so, the conception of a testamentary power which might serve to transfer the property of an individual from his fami- ly to a stranger would be slow to develop. Moreover, the idea of a power by which the will of a person may direct and control the dis- position of his property after death would be far beyond the com- prehension of archaic man. But, with the failure of persons who were entitled to inherit by right of blood, a concrete problem was presented : What was to become of the dead man's property ? The whole social instinct forbade that it should become vacant, and thus fall to the lot of him who could fight most strenuously for its possession.*^ The power of lawful disposition must be reposed somewhere. And thereupon, it seems, testanients were first al- lowed when there was failyre of inheritable blood on the part of the persons making them."* Hence the development was easy to a complete scheme for the disposal of the goods of the deceased, when there was neither testament nor persons entitled to the inheritance by right of blood. Wills of Real Property in England Prior to the Norman Conquest, book land, i. e., land the grant of which was evidenced by a book or charter,*' was apparently always 18 Maine, Ancient Iaw, c 6, p. 189. «i Bigelow on WiUs, pp. 10, 11. II Id. \ 22 Maine, Anc. Law, c. 6, p. 191. 20 Id. c. 6, p. 179. 2a It is generally expressed in tlie charter that the grantee may grant the land away to whomsoever he pleases in his lifetime, or leave it by his last will, and, if not so disposed of, it is to descend to his representatives. These powers, however, appear to have depended upon the form of the gift as ex- pressed in the charter. The power of alienation might have been riestricted so that the land could not be granted away from the kindred, or the descent of the land might be confined to lineal descendants, or to heirs male or female. In these respects it was a principle of Anglo-Saxon customary law that the 6 INTRODUCTION HISTORY OF WILLS (Ch. 1 alienable by will, unless forbidden by the terms of the grant," though it is doubtful whether a man who had no heir land ^° to leave to his relatives could dispose of all his book land so as to dis- inherit them entirely.^" In process of time, too, wills of heir land appear to have become established, though it is not likely that a tes- tator could entirely disinherit his near relatives.^^ Apparently, then, during the Anglo-Saxon period, freedom of tes- tamentary disposition over land had been established,^' except so far as it was limited by the terms of the grant to the testator and by the claims of his family, though to what extent the latter operat- ed is unknown."' It has been thought that wills were in common use during this period,^" but the most careful modern scholars in- cline to the view that they were generally resorted to only by the nobles, and that the middle and lower, classes seldom availed them- selves of the right.^^ '' W'ills of Land under the Feudal System With the introduction of the feudal system into "England, as a result of the Norman Conquest, the power of disposing of lands by will rapidly disappeared, with the exception of a few localities in which the feudal tenures did not prevail.^^ Aside from these locali- ties, the right had completely disappeared by the middle of the thirteenth century.'^ There was a twofold reason for this. The nature and extent of the rights of the grantee depended upon the form of the gift." Digby, Real Prop. (3d Ed.) 14. 2* Laws of Alfred, c. 41, quoted In Stubbs, Select Charters, 62. 25 Land received by Inheritance, and possibly all land, aside from bool£ land. 28 GlanvIUe, lib. 7, c. 1; Potts on Law of Succession, 10. 2T Glanville, supra. 28 2 Bl. Oomm. *491. 2» Potts, Law of Succession, 11. 80 Blackstone, supra. Bl Pollock & Maitland, Hist, of Bng. Law, vol. 2, pp. 318, 320. The same authors are inclined to doubt the revocabillty of a will during this period. They also think that in many oases the consent of the king was essential to the validity of the will. Id. 318, 319. 32 Such was the case with lands held by gavelkind tenure In the county of Kent. The peculiarities of this tenure, if, indeed, it may fairly be called a tenure at all, show it to have been an ancient method of land holding which had withstood the radical changes resulting from the Conquest. It will be recalled that lands thus held descended to all the sons equally, that they oould be alienated by the owner at the age of fifteen, that they did not escheat by reason of attainder for felony, sind that they could be devised. 2 Bl. Comm. *84. 8 8 Pollock & Maitland, Hist, of Eng. Law, vol. 2, p. 27. The survival of the power to devise to this period was influenced by the potency of the forma doni. Emphasis was given to the fact that feofCee had been granted a testa- mentary power denied by the common law. Id. pp. 26, 27. § 2) HISTORY 7 right of the tenant in fee to alienate by a conveyance had been es- tablished with difficulty, and, when recognized, could be exercised, in the case of lands held in knight service, only upon the payment of a fine.'* There was no disposition to extend this power of aliena- tion. Moreover, the power to devise would have militated against the lord's right of escheat in event of failure of the blood of the tenant, of wardship in event of the heir's minority, with its attend- ant right to the rents and profits of the estate, and against his pow- er to dispose of such ward in marriage.'" In a word, testamentary power meant the possibility of defeat of all those rights pertaining to the lord as against the heir of his deceased tenant. Naturally it was therefore denied. Again, there was a techriical, but none the less conclusive, reason, why a freehold could not be disposed of by will under the system of conveyancing that came with the feudal system. The will, as affecting real property, was regarded as a con- veyance, and such was indeed its nature. It operated to pass the title of the devisor, immediately upon his death, to the devisee. The legal title to no freehold could pass, save by livery of seisin. But this was an open and public act, by the grantor, amounting in substance to a delivery of land to the grantee.'* Obviously, a dead man could make no livery of seisin. But no rapidly developing community would long dispense with testamentary power, particularly when the demand therefor was accentuated by the development of the principle of primogeniture, and the conseqiient desire on the part of the father to be able to make some provision for the younger children. From the reign of Henry V (1413-1422) to the enactment of the statute of uses, in 1535, lands were freely disposed of by will through the medium of a use. In the reign of this king, the court of chancery intervened to protect the beneficial interest of a person to whose use land was con- veyed to another. These uses, being thus the creatures of chancery, were neither fettered by nor subject to the feudal rules which gov- erned legal estates in land. No livery of seisin was necessary to «* 2 Bl. Comm. *71. »= Id. *66 et seq. 88 "Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold, whether of inheritance or for life. * * * Livery of seisin Is either in deed or in law. Livery in deed is thus performed: The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, come to the land, and then, in the presence of wit- nesses, declare the contents of the feoffment or lease on which livery is to be made, and then the feoffor doth deliver to the feoffee * * * ^ clod, or turf, or a twig, or bough there growing, with words to this effect: 'I deliver these to you in the name of seisin of all the lands and tenements contained in this deed.' "Livery in law is where the same is not made on the land, but in sight S INTRODUCTION HISTORY OF WILLS (Ch. 1 transfer the title to a use. In fact, no livery, was possible from the very nature of the subject-matter. Hence the interest in a use could be transferred by will, and a devisor could determine by will the uses to which land should be held, the rights of the parties thus beneficially interested being protected by the court of chancery. If A. wished to devise land which he held in fee, and yet to retain the advantage of it during his own life, he had merely to convey the land to B., "to hold to the use" of himself (A.) during his life, and then to such uses as he should declare by his last will and testament. B. thus had the legal title, but A.'s beneficial interest would be en- forced during his life. He could make his will at his leisure, alter it as frequently as he might wish, and upon his death B. would hold the land to such uses as A.'s will might set forth. Or the possessor of a use might dispose of it directly by will. Thus, to continue the illustration, if A. should, by will, direct that B. hold the lands con- veyed to him by A., to the use of C. and his heirs, C, upon the vest- ing of his interest in the use, could, by will, directly transfer his beneficial interest to such person as he might choose to designate.^^ Thus men could freely devise their lands by resorting to the use, until the temporary destruction of uses by the statute of uses.'* Owing to the various abuses to which uses had been put,*® this statute' was carefully framed, with a view to the utter destruction of uses by uniting the legal and beneficial estates, i. e., the estates ,of the feoffee to uses and of the cestui que use, in the latter. The use was thus, by force of the statute, converted into the legal estate, with all its feudal incidents and restrictions. The history of how the statute ultimately was thwarted and al- most wholly failed of its object does not belong here. For a time, however, it was effective, and testamentary dispositions of la^d were no longer possible. But the demand for this right was too strong to be resisted, and in 1540, five years after the passage of the statute of uses, the statute of wills was enacted,*" by which power was given to tenants in fee simple to dispose by will of all their Iknds held by socage tenure, and two-thirds of those held by knight service; but the rights to primer seisin, relief, and fines on aliena- tion, in the case of socage lands, and of wardship over the third part of knight service lands, were preserved in favor of the King of It only, the feoffor saying to the feofCee: 'I give you yonder land; enter and take possession.' " 2 Bl. Comm. *315, *316.' s7 In cases illustrating this method of devising, see Royal Wills, 234, 236 (reported in fuU In Big. Wills, 25, 26). See, also, Digby, Hist Eeal Property, 261. 8 8 27 Hen. VIII, c. 10 (1535). 8» See 2 Bl. Comm. *331, for an enumeration of them. *o 32 Hen. VIII, c. 1; interpreted by 34 & 35 Hen. VIII, c. 5, § 3. § 2) HISTORY 9 or other lord. Finally, by the act for the abolition of military ten- ures,*^ tenure by knight service was turned into free and common socage, and from this time free power of testamentary disposition over land was established in England. Wills of Personal Property The history of wills of personal property is less complicated. Power to dispose of such property, to an extent at least, appears to have existed from the earliest Anglo-Saxon period in English his- tory.*^ Under the description of property so disposable were in- cluded not only goods and chattels, but also terms of years and all chattel interests in land.** Whether this power extended to the disposal of the whole of the personal property, prior to the Norman Conquest, is uncertain. At all events, in Glanville's time, during the reign of Henry II,** considerable restraint was imposed. If a man had a wife and children, he could dispose by will of one-third of his personal property. At his death his widow took one of the remaining thirds, his children the other. If, he had children, but no wife, or a wife and no children, he could dispose of one half of his personal property, the widow or children taking the other half. Without wife and children, he could dispose of the whole.*^ The shares of the wife and children were called their reasonable parts, and the writ de rationabili parte'bonorum lay to recover them,*" it being maintainable against the executors, founded upon a complaint that they unjustly detained from the plaintiff the reasonable part of the goods and chattels which were of the deceased, and refused to render the same.*' This limitation was recognized by Glanville as a general rule of the common law,*' and seems to have been usually so regarded as late as the reign of Charles I,*° although Coke view- ed it as nothing but a local custom."" At all events, after this reign the limitation disappeared, though the process cannot be traced,"^ a fapt which rather tends to support Coke's view of the matter. The testator was also bound to give his best and principal chattel to his lord, and to bequeath something to the church."^ The former, as a heriot, may perhaps have been claimed by the lord prior to the *i 12 Charles II, c 24 (1660, A. !>.). 42 1 Williams, Executors, 1; Croswell, Executors & Administrators, 4; 2 Bl. Comm. *491. 48 Co. Ldtt 111b. *4 1187, A. D. *B Glanville, lib. 2, c. 5. See, also, 2 Bl. Comm. *491. 48 2 Saund. 66, note (9). 4T F. N. B. 122 L. (9tli Ed.); Co. Lit 176b, note (3), by Hargrave, 48 Glanville, lib. 7, c. 5. 4 » Finch, 175. ^^^ 2 Bl. Comm. *492. 00 2 Inst 33 ; Co. Lit 176b. o^ Glanville, Ub. 7, c. 5. 10 INTRODUCTION HISTOEY OF WILLS ' (Ch. 1 Conquest,"' and in some manors the custom is said still to exist."* Bequests to the church have, of course, long since ceased to be ob- ligatory. ^^ Wills in the United States The feudal system was never recognized as part of the common law in the United States, and it has therefore had no effect upon questions of testamentary power in this country. With limitations, to be discussed in the course of this work, the power to dispose of both real and personal property is conferred by statute upon per- sons of age and having sufficient capacity for that purpose. These statutes have been largely based upon English legislation, and, in general, our law of wills rests upon that of England, except in those few jurisdictions which have come under the influence of the civil law. GIFTS CAUSA MORTIS AND GIFTS BY WILL DISTINGUISHED 3. A gift causa mortis is distinguished from a gift by will in the fol- lowing particulars : (a) A gift causa mortis may be made orally; an instrument in writing is ordinarily required in the case of a will. (b) A gift causa mortis must be made under apprehension of im- pending death; a will is commonly made in view of the fact of death, but not because of its immediate proximity. (c) Delivery is essential to the validity of a gift causa mortis, and the donee acquires title directly from the donor. No de- livery is ever had of property which is the subject of gift by will until after the death of the testator, and the legatee's title is derived from the executor. (d) Real estate cannot be the subject of a gift causa mortis. A will may of course dispose either of realty or of personalty. A gift causa mortis has been described as a gift, either direct or in trust, of something the property in which can and actually does pass by mere delivery, made by a person in his last sickness,, or ap- prehensive of approaching death, but to take effect only on that event happening at or about the time anticipated, or within a rea- sonable time afterwards, and provided there be no revocation of the gift by the donor's recovery and his subsequent resumption there- of."* More briefly, a gift causa mortis is a gift of personal property, 08 Canute, cc. 71, 72; Stubbs, Select Charters, 74. 04 Williams, Heal Prop. (16tli Ed.) 420. 05 Potts on Succession, 20. e« Flood, Wills Per. Prop. 2, cited in Thornton on Gifts, § 19. § 3) GIFTS CAUSA MORTIS AND GIFTS BY WILL DISTINGUISHED 11 made by the donor under apprehension of impending death, effec- tuated by deliver)'', and defeasible by resumption thereof by the donor, his recovery from that which occasioned his apprehension, or by the prior death of the donee."^ The gift may be revoked by a resumption of possession by the donor, though this be done with- out the knowledge or consent of the donee."* It is not, however, es- sential to the revocation, that the donor again acquire the actual possession of the property.^* Gift may be Made Orally While a gift causa mortis may be accompanied by a writing, and may be made effectual in some jurisdictions by the delivery of the writing alone,'" yet no writing is necessary to its validity/^ While originally it is likely that oral wills of personalty were valid, yet, in consequence of legislation, all wills, with the exception of nun- cupative wills, must be contained in a writing, executed in a pre- scribed manner."'' Apprehension of Death It is essential to the validity of a gift causa mortis that the donor be, at the time of making it, under the belief that he is in peril of death, or surrounded by threatened dangers which give rise to an 6 7 This definition, it will be observed, makes the gift defeasible upon a condition subsequent. The view of the civil law was that one species of gift was of the nature of a legacy to the extent that the title did not pass until the death of the donor, i. e., that the vesting of the title was dependent upon the i^ondition precedent of the donor's death. See Smith's Equity, 528. And the English courts have apparently taken this view of all gifts causa mortis. Edwards v. Jones, 1 Myl. & Cr. 226; Duffield v. Elwes, 1 Bligh (N. S.) 497, 534. But the definition is based upon the more generally recognized American doctrine. See Daniel v. Smith, 64 Cal. 346, 80 Pac. 575; Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439; Marshall v. Berry, 13 Allen (Mass.)' 43, 46 ; Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am. Dec. 378; EMERY v. CLOUGH, 63 N. H. 552, 4 Atl. 796, 56 Am. Rep. 543, Dunmore Cas. Wills, 1 ; Nidiolas v. Adams, 2 Whart (Pa.) 17. 88 Merchant v. Merchant, 2 Bradf, Sur. 432. BO Doran v. Doran, 99 Cal. 311, 33 Pac. 929; Adams v. Atherton, 132 Cal. 164, 64 Pac. 283. 60 Gaunt v. Tucker's Ex'rs, 18 Ala. 27; Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178; Kenistons v. Sceva, 54 N. H. 24; Ward v. Turner, 2 Ves. Sr. 431, 439. In early times, however, a gift could not be made by writing, where the lat- ter took the place of the manual tradition of the thing itself, Tate v. Hilbert, 2 Ves. Jr. 120. And there is modem authority for the view that, in addition to the writing, there must be a delivery of the thing given. See McGrath v. Reynolds, 116 Mass. 566; Smith v. Downey, 38 N. C. 268. 81 Fite V. Perry, 8 Cal. App. 85, 96 Pac. 102; Vosburg v. Mallory, 155 Iowa, 165, ]35 N. W. 577, Ann. Cas. 1914C, 880. •2 See post, p. 30. 12 INTRODUCTION ^HISTORY OF WILLS (Ch. 1 immediately existing apprehension of death." Otherwise, we have an ineffectual attempt to make a will or an abortive gift inter vivos." It is not, however, essential- to the validity of a gift causa mortis that the donor be in extremis.*"* While wills are frequently made in extremis, they derive no additional validity from that fact ; it is immaterial whether or no' there is apprehension of impending death on, the part of the testator. Delivery Essential to Validity of Gift In the case of all gifts, a delivery of the thing given is essential to their validity.'^ "From the nature of the donatio, it is apparent that the infallible test; which must distinguish it from a testamentary gift, is delivery — change of dominion in praesenti. Without this, there is really nothing to distinguish it from an ordinary testamen- tary bequest." *' But, in the case of a legacy, there is no delivery by the testator, and no, title passes to the legatee directly from him. The legatee obtains possession of the subject-matter of the legacy, as well as the title, from the executor, but the latter has nothing to do with a gift. The gift is claimed against the executor ; the legacy is claimed from him.'* It is commonly said that a gift causa mortis cannot be revoked by a subsequent will of the donor, for the reason that it is only per- fected by the donor's death, and that this event cannot both ef- fectuate and nullify the gift at the same time."' 8 8 Thornton on Gifts, citing Gass v. Simpson, 4 Cold. (Tenn.) 288, 298; Parthrlqk v. Freind, 2 Colly. 362, note 6. 64 Parcher v. Institution, 78 Me. 470, 7 Atl. 266; Craig v. Kittredge, 46 N. H. 57 ; Kenistons v. Sceva, 54 N. H. 24 ; Gourley v. LinsenMgler, 51 Pa. 345. 85 Larrabee v. Hascall, 88 Me. 511, 34 Atl. 408, 51 Am. St. Kep. 440; Rid- den V. Thrall, 125 N. Y. 572, 26 N. B. 627, 11 L. K. A. 684, 21 Am. St. Rep. 758. ' 86 Thornton on Gifts, § 131. In some jurisdictions the delivery must be for the express purpose of con- summating the gift, and a previous possession by the^donee vpill not suffice. Drew V. Hagerty, 81 Me. 231, 17 Atl. 63, 3 L. R. A. 230, 10 Am. St. Rep. 255. But there seems to be no good reason why the law should require the idle ceremony of a surrender by the donee, so that it may be redelivered to him by the donor. Davis v. Kuck, 93 Minn. 262, 101 N. W. 165. «■? Trenhohn v. Morgan, 28 S. C. 268, 5 S. E. 721. So merely saying, "I give you my money in the' savings bank," without a delivery of the deposit book, does not effect a gift French v. Raymond, 39 Vt. 623. See, also, on general question of necessity of delivery, Meach v. Meach, 24 Vt 591; Wa£rd v. Turner, 2 Ves. Sr. 431. As the subject of gifts does not belong properly to a treatise on wUls, it is only touched upon incidentally here, for the purpose of pointing out the dis- tinction between a gift and a legacy. 68 Flood on Wills of Personal Property, 21; EMERY v. CLOTJGH, 63 N. H. S52, 4 Atl. 796, 56 Am. Rep. 543, Dunmore Cas. Wills, 1. #» EMERY y. CLOUGH, 63 N. H. 552, 4 Atl. 796, 56 Am. Rep. 543, Dunmore §§ 4-5) TESTS TO DETEEMINE CHAEACTEE OP INSTEUMENT 13 The most striking resemblance between a gift causa mortis and a legacy is in their common ambulatory character. Neither takes en- tire effect until the death of the giver, and each may be revoked be- fore his death. , Realty Not Subject of Gift "The law of gifts causa mortis, which recognizes a transfer of personal property by a title conditional upon the death of the donor, is, in the nature of things, inapplicable to the transfer of title to real property." '" , TESTS TO DETERMINE THE CHARACTER OF THE INSTRUMENT 4. Leaving aside questions regarding execution, the test to deter- mine whether an instrument is a will is the presence of tes- tamentary intent — the animus testandi. This consists of an intention to appoint an executor, or a guardian for minor children, or to make some positive disposition of, property, this appointment or disposition to take effect, in no way, until the testator's death. 5. To determine whether the instrument discloses an animus tes- tandi, two tests are resorted to: (a) Whether it operates to create any interest prior to the death of the maker. (b) Whether it is revocable by the maker. Every expression of intent, although the intent thus expressed is not to operate until the death of the person entertaining it, is not the expression of a testamentary intent.^^ A testament, aside from the appointment of an executor or guardian, must make some posi- tive disposition of the maker's property. If it fails to do this, it fails of being a testament. Thus, where a paper in the form of and pur- porting to be a will, and revoking all former wills, provided that one oiE the maker's sons should have no part of his estate at his death, giving as a reason that this son had inherited from his mother a sum equal to that which the maker's estate would probably pay to his other legal heirs, but named no executors and contained no other Cas. "Wills, 1 ; Jones v. Selby, Finch, 300 (quaere) ; Hambrooke v. Simmons, 4 Russ. 25 (quaere); Johnson v. Smith, 1 Ves. Sr. 314. 7,0 Reeves v. Howard, 118 Iowa, 121, 91 N. W. 896. Accord: Wentworth V. Shibles, 89 Me. 167, 36 Atl. 108; Meach v. Meach, 24 Vt. 591. 71 An assignment of a life insurance policy is not testamentary merely be- cause payment is not to be received by the assignee until after the death of insured. Southern Mut life Ins. Ass'n v. Durdin, 132 Ga. 495, 64 S. E. 261, 131 Am. St Rep. 210. 14 INTRODUCTION HISTORY OF WILLS (Ch. 1 provisions, it was held not to be a will, and the property was dis- tributed according to the statute of distributions, the son referred to taking his share along with the others/" So a paper merely ex- pressing the wish of the signer that after her death certain per- sons "raise" her children is not a will/" And the same rule deter- mines that an instrument expressing a wish for cremation is not testamentary in its character/* The intention to ^create a testamentary disposition of property must exist at the time the writing is made. For this reason it has been held that where the maker, after properly executing an instru- ment as a will, had placed at the top the words, "This is not meant as a legal will, but as a guide," the instrument was not entitled to probate/" In brief, such an instrument discloses no final testamen- tary intent. Hence, in general, all memoranda containing mere ad- vice regarding the disposition of property, or indicating that they were made simply as preliminary to the drawing of a will, are not, of themselves, valid wills. ''° Testamentary Phenomena Without Testamentary Intent Although an instrument be drawn up in regular form as a will, and appear to have been executed as such, i. e., though all the tes- tamentary phenomena be present, yet the instrument is a nullity in the absence of a testamentary intent. Leaving aside questions of testamentary capacity and undue influence, testamentary phe- nomena without testamentary intent may exist when the party exe- cuting the instrument does not know its true character, or, knowing its true character, executes it with no actual testamentary purpose. While there is a presumption that an instrument executed by a com- petent person was executed with knowledge of its contents, assum- ing him to have had opportunity to inform himself with reference thereto,''' yet such presumption may be rebutted, and, if it be made 72 Cofifman v. Cofeman, 85 Va. 459, 8 S. E. 672, 2 L. R. A. 848, 17 Am. St. Rep. 69. 7 8 Williams v. Noland, 10 ,Tex. Oiv. App. 629, 32 S. W. 328. T 4 In re Meade's Estate, 118 Cal. 428, 50 Pac. 541, 62 Am. St. Rep. 244. 78 Ferguson-Davie v. Ferguson-Davle, L. R. 15 P. D. 109. The fact that a writing was merely the beginning of a draft of a will, if adopted as the final expression of testator's testamentary purpose, is not sufHeient to require its rejection. In re Plate's Estate, 9^ Pa. Co. Ct. R. 644. 76 Trustees of Western Maryland College v. McKinstry, 75 Md. 188, 23 Atl. 471 ; In re Barber's Will, 92 Hun, 489, 37 N. Y. Supp. 235. Failure to fill in blanks left for the names of the residuary legatees will not invalidate will, where otherwise it is complete and properly executed animo testandi. Kultz v. Jaeger, 29 App. D. C. 300. 7 7 Fawcett V. Jones, 3 Phil. 476; Wheeler v. Alderson, 3 Hagg. 587; Brown- ing V. Budd, 6 Moore, P. C. 435; Smith v. Dalby, 4 Harr. 350 ; BeaU v. Mann, 5 Ga. 456; Weigel v. Weigel, 5 Watts (Pa.) 486; Hoshauer v. Hoshauer, 26 §§ 4-5) TESTS TO DETEBMINE CHAEAOTEE OF INSTRUMENT 15 to appear that he who was apparently a testator was not in reality such because unaware of the character of the instrument, there is then no will.'" ^ Where the alleged testator was illiterate, it must be shown that the contents of the will were communicated to him,^° and the same rule applies where the testator is blind ''' or incapable for any physical reason of reading the will,*^ or where the will is in a language not understood by the testator.'^ Will Made in Jest While the evidence for this purpose must be clear and convincing yet, with this requirement met, it may be shown that an instrument purporting to be a will was executed in jest or by way of effecting a nontestamentary purpose, in which case it is inoperative. Thus, in Lister v. Smith,** the question involved was whether a certain codicil, executed in due form, was entitled to probate. It being es- tablished that the testator wished one of his family to give up a house which she then occupied, and that, for the purpose of compel- ling her to do so, be made a pretense of revoking by the codicil in question a bequest which he had made in a will in favor of this woman's daughter, and that this was the sole purpose of executing the codicil, the codicil was denied probate. There was here no in- tention that the codicil should operate to revoke anything in the Pa. 404; Worthington v. Klemm, 144 Mass. 167, 10 N. E. 522; Brick v. Brick, 44 N. J. Eq. 282, 18 Atl. 58 ; Pettes v. Bingham, 10 N. H. 514; In re Crumb, 6 Dem. Sur. (N. Y.) 478, 2 N. Y. Supp.'744; Cox y. Cox, 4 Sneed (Tenn.) 87; Bartee v. Thompson, 8 Baxt. (Tenn.) 513; Maxwell v. Hill, 89 Tenn. 584, 15 S. W. 253. T 8 Meyer v. Swygart, 125 111. 262, 17 N. E. 450; Jenness v. Hazelton, 58 N. H. 423 ; Hildreth v. Marshall, 61 N. J. Eq. 241, 27 Atl. 465 ; Baker v. Baker, 102 Wis. 226, 78 N. W. 453; Goods of Hunt, L. R. 3 P. & D. 250. 7 8 Day V. Day, 3 N. J. Eq. 549; Lyons v. Van Riper, 26 N. J. Eq. 337; Roll- wagen v. RoUwagen, 63 N. Y. 504 ; Patton v. Allison, 7 Humph. (Tenn.) 332 ; Rutland v. Gleaves, 1 Swan (Tenn.) 200; Key v. HoUoway, 7 Baxt. (Tenn.) 575; Watterson v. Watterson, 1 Head (Tenn.) 2; Maxwell v. Hill, 89 Tenn, 584, 15 S. W. 253. See, however, Patton v. Hope, 37 N. J. Eq. 522. 80 Barton v. Robins, 3 PhU. 455, note (1); Day v. Day, 3 N. J. Eq. 549. 81 Day v. Day, 3 N. J. Eq. 549; Harwood v.' Baker, 3 Moore, P. C. C. 228; Croft V. Day, 1 Curt. 784. 82 Miltenberger v. MUtenberger, 78 Mo. 27. See, however, Dickinson v. Dickinson, 61 Pa. 401. It is believed that the rule followed in the case first cited is the better one. When the testator, by reason of his ignorance or physical condition, can- not apprise himself of the contents of the instrument, positive evidence should be required to show that knowledge of its actual contents was brought home to him. For testamentary intent must be made to appear. And the pre- sumption which aids to effect this proof disappears when, on the facts, the testator was not, of himself, able to learn the contents of the instrument 88 3 Sw. & Tr. 282. 16 INTRODUCTION HISTOKY OF WILLS (Ch. 1 will. He merely wished the mother to believe that an intent exi&ted which did not in reality exist. So, where that which was, in form, a will was shown to have been made merely as a specimen of what might be done in the way of brevity, in case one should wish to make a very short will, the irlstrument was refused probate.** Influenced, however, by the possibility of overthrowing a genuine will by parol evidence, some American courts have treated the due execution and attestation by a competent testator of a will, with the formalities required by statute, as raising a conclusive presumption of animus testandi.'" Testamentary Intention Incomplete When an instrument is begun with a view to embody therein the maker's testamentary wishes, but manifestly fails to do so com- pletely, it is not a will, because it is not a complete expression of full testamentary intent. Thus, an instrument which began as a will, and was signed, directed the sale of a house and a division of the proceeds among certain persons, some of whose names were erased, and referred to certain stocks, with a memorandum: "To be ar- ranged later. Should anything happen to me before this will is finished, it must not go into litigation." There were also numerous blanks throughout the instrument. This was clearly not a will.*" So where a party gave instructions for drawing his will, but became unconscious before it was completed, the draft was not his will, be- cause with regard to it, he had no testamentary intent.*^ Tests of the Presence of Testamentary Intent To determine whether the document itself discloses a testamen- tary intent, two tests are commonly resorted to, viz., whether the instrument operates to create any interest prior, to the death of the maker,*' and whether it is revocable during the life of the maker.** If, under the instrument, any interest vests, or if such interest, fails to vest merely because of lack of delivery of the instrument, ihen 8* Nichols V. Nichols, 2 Phil. ISO. See, also, In re Barber's Will, 92 Hun, 489, 37 N. Y. S^pp. 235. sBBamewall v. Murrell, 108 Ala. 366, 18 South. 831; In re Kennedy's Will, 159 Mich. 548, 124 N. W. 516, 28 L. R. A. (N. S.) 417, 134 Am. St. Itep. 743, 18 Ann. Cas. 892, where verdict directed for proponent, although con- testant introduced evidence tending to show that testator executed the alleged will solely to induce certain relatives to believe that he had made a will in their favor, and without intending that it should operate as a will. 88 In re Barber's WUl, 92 Hun, 489, 37 N. Y. Supp. 235. sr Aurand v. Wilt, 9 Pa. 54. ssHearn v. Pumell, 110 Md. 458, 72 Atl. 906; IN RE McINTYRE'S ES- TATE, 156 Mich. 240, 120 N. W. 587, Dunmore Cas. Wills, 5: Givens v. Ott, 223 Mo. 395, 121 S. W. 23. »8 Williams v. Schatz, 42 Ohio St 47. §§ 4r-5) TESTS TO DETERMINE CHAEACTEE OF INSTRUMENT 17 it is not a will. In other words, if any interest either vests or is capable of vesting prior to the death of the maker, the instrument is not a will. Revocability is of the very essence of a will, and or- dinarily revocability exists because no estate or interest vests dur- ing the lifetime of the testator. In short, the two tests substantially reduce themselves to the single test, viz., whether any present in- terest is created or is capable of being created by the instrument. The difference between a will and a dqed, executed but not deliver- ed, is this: The will, if unrevoked, will operate upon the death of the testator. The deed will never operate unless delivered before that time; while, in event of such delivery, the interests therein created vest and cannot be revoked by the grantor.*" The differ- ence between a will and a deed, delivered, but reserving a power of revocation to the grantor, is this : The will is revocable by its very nature; the estates created by the deed may be revoked by virtue of the express reservation of the power. By the one, no estates or interests are created until death ; by the other, estates or interests are created, immediately upon delivery, defeasible upon a condi- tion subsequent, viz., the exercise of the power of revocation."^ Hence, revocability is merely the incident, resulting from the fact that, in the case of a will, nothing vests prior to the testator's death. In a sense, a will is revocable merely because there is nothing to revoke, or, rather, betause its revocation will affect nothing except the instrument itself, i. e., its power to operate upon the testator's death. If an instrument in writing concerning real estate passes a present interest, although the right to its possession and enjoyment may not accrue until some future time, the instrument is a convey- ance or a contract to convey; but jj it passes ^ an interest or right only upon the death of the maker, it is testamentary in its nature.*^ Illustrations The cases abound in illustration of the application of the princi- ples as above set forth. An instrument purporting to be a deed of 80 A. may deliver a deed .to B. to be delivered to C. only upon A.'s death. Thurston v. Tnbbs, 257 111. 465, 100 N. E. 947; Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66. If A. reserves the power of recall, he is at- tempting to make a testamentary disposition, and his deed is inoperative. Williams v. Schatz, 42 Ohio St. 47; Phillips v. Henry (Tex. Civ. App.) 135 S. W. 382. But A. may reserve the right to make a will of the property conveyed without rendering the deed inoperative. Ruggles v. Lawson, 13 Johns. (N. X.> 285, 7 Am. Dec. 375. 81 Jordan v. Jordan's Adm'r, 65 Ala. 301. »2 Perry v. Perry, 66 Hun, 629, 21 N. X. Supp. 133 ; Eeed v. Hazleton, 37 Kan. 321, 15 Pac. 177; Poore v. Poore, 55 Kan. 687, 41 Pac. 973; Swann v. Housman, 90 Va. 816, 20 S. E. 830; In re Slinn's Goods, 15 Prob. Div. 156. One instrument may consist of several parts, some of which are to taka Gabd.Wills (2d Ed.)— 2 18 INTRODUCTION HISTORY OF WILLS (Ch. 1 gift, but unsigned, was shown to have been -written to take effect, not at the maker's death, but at once, provided the maker saw fit to execute and deliver it. Such a paper was obviously not a will.'' But a writing providing, "This is good to Miss Ruble Ferris for $800, as payment for care and attendance rendered by her to me in my last sickness ; this $800 is to be collected out of my estate,' pro- viding, however, I die a bachelor" — was construed to be a will, and not a mere admission of indebtedness, since it was conditional on his dying a bachelor, and was not to take effect until his death.** But a paper executed under seal, directing the maker's executor or administrator to pay after her death, in consideration of moneys ad- vanced, a sum of money to the executor of C, is not testamentary.® ° A provision in a lease, however, that, in event of the lessor's death before its expiration, the rent for the unexpired term shall be paid to his wife, is an attempt to make a testamentary disposition of property, inoperative through lack of proper execution.'* When a grantor conveyed land to his son, reserving a life estate effect at once, wMle others operate as a testamentary disposition. Gomez v. Higgins, 130 Ala. 493, 30 South. 417. 63 Johnson v. Johnson, 103 Tenh. 32, 52 S. W. 814. 94 Ferris v. NeyiUe, 12T Mich. 444, 86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480. But where an instrument read thus: "Due F. the sum of $204.68, with in- terest; and said sum of money is not to be paid during my lifetime, but to be paid by my executor out of my estate within a year after my death, and said sum is due and owing by my son E. F. to the said F. I bind my executor to pay the same out of my estate, and then to be deducted of the distributive share coming to my said son E. P. out of my estate. Witness my hand and seal," etc. — it was held to be an acknowledgment of a present indebtedness, and a binding obligation on the maker's executor. Feeser v. Feeser, 93 Md. 716, 50 Atl. 406. An instrument reading thus: "At my death, my estate or my executor pay to July Ann Cover three thousand dollars. David Engel. [Seal.]" — was delivered by the maker to Cover. She sued the executor to recover on the in- strument as an obligation for the payment of money. Held, that it was testa- mentary in its character, and could not be made the foundation of an ac- tion. Cover V. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. Rep. 406. See, also, Pelley's Adm'r v. Earles, 107 Ky. 640, 55 S. W. 550. 8 6 In re Holt's Estate, 22 Pittsb. Leg. J. (N. S.) 335. Clearly, had this in- strument been delivered, it might have been made the foundation of an ac- tion. It was a chose in action, title to which would have passed on delivery. At the very least, it was an evidence of indebtedness; hence not a wUl. 96 Prlester v. Hohloch, 70 App. Div. 256, 75 N. Y. Supp. 405. An instrument whereby a married woman leases premises to her husband during his natural life, rent free, such lease to take effect from its date, can- not, on the lessor's death, be probated as a will. ,In re Ogle's Estate, 97 Wis. 56, 72 N. W. 389. Clearly, all that prevents its immediate operation is lack of delivery. See, also, WUUams v. Noland, 10 Tex. Civ. App. 629, 32 S. W. 328. §§ 4^5) TESTS TO DETERMINE CHARACTER OF INSTRUMENT 19 in and power of disposition and management over it, and the pro- ceeds of the sale of it to his own use, and upon his death, if the land remained unsold, it was to go to his children, the instrument was held to operate as a will, such being the manifest intention of the , testator.*' This instrument clearly operates both as a conveyance and as a will — as a conveyance, to transfer the legal title to the grantee ; as a will, to make testamentary disposition of the benefi- cial interest created for the grantor. An instrument read thus : "I this day * * * give all my property [to two beneficiaries], but I am to have the use of all so long as I live, * * * and after my death [the beneficiaries] are to have full and free use of all my property, for value received." It was executed ten years before the maker's death, and kept by her in her Bible. It was without attesting witnesses, but a few days be- fore her death she had it read over to her, and then directed that it be put away in a safe place. The testamentary intent is apparent, and the instrument was held to be a will."' Without attesting wit- nesses, and apparently without a seal, it could have had' no effect as a conveyance, if delivered during the life of the maker. It must operate as a will or not at all. So any instrument which, upon delivery, becomes a chose in ac- tion or an evidence of indebtedness is not testamentary in character, because it operates otherwise than as a testament, as in the case of a note payable at a certain time after the death of the maker." Questions involving the application of the general principle have occasionally arisen from partnership agreements. Thus, where a copartnership was formed between a father and son, under an agree- ment whereby the former contributed all his capital, the agreement reciting that the father conveyed his half interest to the son, and that in event of the father's death the entire business was to be- come the property of the son for life, and at his death the assets were to be divided in a certain manner, a testamentary disposition of the property owned by the father was held to result.^ While this »i Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 h. K. A. 523. See, also, Ellis V. Pearson, 104 Tenn. 591, 58 S. W. 318 ; Comer v. Comer, 120 111. 420, 11 N. E. 848; Roberts v. Coleman, 37 W. Va. 143, 16 S. E. 482; In re Prit- cliett's Estate, 9 Pa. Co. Ct. R. 600. 8 8 In re Kisecker's Estate, 190 Pa. 476, 42 Atl. 886. 89 Kirkpatrick v. Pyle, 6 Houst. (Del.) 569; Beatty's Estate t. Western College of Toledo, 177 lU. 280, 52 N. E. 432, 42 L. R. A. 797, 69 Am. St. Rep. 242, affirming Miller v. Same, 71 111. App. 587; In re Sunday's Estate, 167 Pa. 30, 31 Atl. 353. See, also, Krell v. Codman, 154 Mass. 454, 28 N. E. 578, 14 L. B. A. 860, 26 Am. St Rep. 260. 1 Gomez v. Higgins, 130 Ala. 493, 30 South. 417. But where an uncle and nephew entered into partnership for the practice of 20 INTKODDCTION HISTORY OF WILLS (Ch^l agreement may have operated, to an extent, as a conveyance, it also clearly affected a disposal, by will, of the father's interest in the partnership business. Deposits of money have occasionally involved the application of the same principle. Thus, where a mother deposited funds with a bank, taking a pass book reciting that the account was with the mother and a designated daughter, the bank officials being informed that she wished to retain control of the money until her death, ,when it was to go to the daughter, there being no intention on the part of the mother to make a present gift, it was held to be an attempt- ed and void testamentary disposition.* A Deed or a Will Doubt frequently arises whether a given instrument operates as a deed or a will. But the same principle steadily controls. "The essential difference between a deed and a will is that a deed must pass a present interest in the property, although the right to pos- session and enjoyment»may not accrue until some future time, while an instrument which passes no interest until after the maker's death is a will." * If the instrument takes e^ect in prsesenti, or is capable of then taking effect, read in the light of the maker's in- medicine, agreeing that In event of the death of the senior member of the firm all- his property, personal and otherwise, which he held in partnership at the time of his death, should go to the junior partner, it was held that this was not a testamentary disposition of the property, and hence it was capable of enforcement in equity as a contract McKinnon v. McKinnon, 56 Fed. 409, 5 C. C. A. 530, reversing Id. (O. C.) 46 Fed. 713. The distinction between the two cases is reasonably clear. In the latter the agreement that the junior partner should have the entire partnership effects upon the death of his senior was a part of the consideration which led him to enter into the partnership." It was a contract, supported by a suffi- cient consideration, and therefore capable of enforcement in equity. In the Alabama case the element of contract, so far as the disposal of the father's Interest in the property was concerned, was wholly lacking. 2 Appeal of Main, 73 Conn. 638, 48 Atl. 965. See, also, Metropolitan Sav. Bank v. Murphy, 82 Md. 314, 33 Atl. 640, 31 L. R. A. 454, 51 Am. St Rep. 473; Stevenson v. Earl, 65 N. J. Eq. 721, 55 Aa 1091, 103 Am. St Rep. 790, 1 Ann. Cas. 49. s Harper v. Reaves, 132 Ala. 625, 32 South. 721; President, etc., of Bowdoln College V. Merritt (C. C.) 75 Fed. 480; McINTYRE'S ESTATE, 156 Mich. 240, 120 N. W. 587, Dunmore Cas. Wills, 5 ; In re Lautenshlager, 80 Mich. 285, 45 N. W. 147; Dye v. Dye, 108 Ga. 741, 33 S. E. 848; Blackman v. Schier- man, 21 Tex. Civ. App. 517, 51 S. W. 886; Powers v. Scharling, 64 Kan. 339, 67 Pac. 820; Pennington v. Lawsoh (Ky.) 65 S. W. 120; Sibley v. Somers, 62 N. J. Eq. 595, 50 Atl. 321; Smith v. Baxter, 62 N. J. Eq. 209, 49 Atl. 1130; Goad T. Lawrence (Ky.) 68 S. W. 411; Dexter v. Witte, 138 Wis. 74, 119 N. W. 591. f § 4-5) TESTS TO DETERMINE OHARAOTEE OF INSTRUMENT 21 tention, it is a deed, though the enjoyment of the interests created be postponed until the grantor's death.* ' In determining whether an instrument is capable of thus acting, regard must be had to the intention of the maker, viewed in the light of the language of the instrument and the circumstances sur- -rounding the parties and attendant upon its execution. If these re- veal an intention that the instrument shall have a post mortem •operation only, it is then a will," though the, instrument itself be sealed, delivered, and capable of operating as a deed, so far as its language alone is concerned.' The name applied to the instrument, its language, or the belief of the maker as to its character, do nbt, of themselves, control, but must be weighed with all the other cir- cumstances for the purpose of ascertaining the maker's intent.' He need not call the instrument a will; indeed, save in those jurisdic- tions where a declaration to that effect is required by statute, he need not be aware that he has made a will ; he may think that some other word may more properly describe the instrument. In a word, his conception of a will need not tally with the legal conception of a will. His own notion as to the legal status of the instrument is immaterial. The law determines that, when once its essential char- acteristic is ascertained.* * Boling's Heirs v. Boling's Ex'r, 22 Ala. 826 ; West v. Wright, 115 Ga. 277, 41 S. E. 602; Owen t. Smith, 91 Ga. 564, 18 S. E. 527; Ackman v. Potter, 239 111. 578, 88 N. E. 231; Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329; Lauck V. Logan, 45 W. Va. 251, 31 S. .E. 986 ; Burlington University v. Bar- rett, 22 Iowa, 60, 92 Am. Dee. 376; Craven v. Winter, 38 Iowa, 471; Phifer v. MuUis, 167 N. C. 405, 83 S. E. 582, citing Gardner on Wills; Knowlson v. Fleming, 165 Pa. 10, 30 Atl. 519 ; Wilson v. Anderson, 186 Pa. 531, 40 Atl. 1096, 44 L. B. A. 542. See, however, Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523. - 6 Kelly V. Richardson, 100 Ala. 584, 13 South. 785 ; Clarke v. Ransom, 50 Cal. 595, 600; Goff v. Davenport, 96 Ga. 423, 23 S. E. 395; Comer v. Comer, 120 111. 420, 11 N. E. 848; IN RE LONGER' S ESTATE, .108 Iowa, 34, 78 N. W. 834, 75 Am. St. Rep. 206, Dunmore Cas. Wills, 7; Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024; Carey v. Dennis, 13 Md. 1, 19; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; In re Lautenshlager, 80 Mich. 285, 45 N. W. 147; Conrad v. Douglas, 59 Minn. 498, 61 N. W. 673; Robnett v. Ashlock, 49 Mo. 171 ; Gage v. Gage, 12 N. H. 371 ; Boon v. Castle, 61 Misc. Rep. 474, 115 N. Y. Supp. 583; Patterson v. English, 71 Pa. 458; Carpenter v. Hannig (Tex. Civ. App.) 34 S. W. 774; Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986; In re Slinn's Goods, 15 P. R. 156. « Moody V. Macomber, 159 Mich. 657, 124 N. W. 549, 134 Am. St. Rep. 755; Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. R. A. 576; Townsend v. Rackham, 143 N. Y. 516, 38 N. E. 731; Hannig v. Hannig (Tex. Civ. App.) 24 S. W. 695. J Lauck V. Logan, 45 W. Va. 251, 31 S. E. 986. » Nichols V. Emery, 109 Cal. 323, 41 Pac. 1089, 50 Am. St. Rep. 43 ; In re 22 INTRODUCTION HISTORY OF WILLS (Ch. 1 Parol Evidence to Remove Doubt Where there is nothing upon the face of the instrument to raise doubt as to its character, and it is executed with the formalities re- quired in the case of wills, no parol evidence can be received to con- trol the plain scope and character of the instrument." Where, how- ever, the instrument itself suggests uncertainty as to its character, parol evidence may be received of all facts and circumstances which are calculated to shed light upon the incentive by which the maker was actuated, and which he intended to express, in making the in- strument in question.^" These include the family relations of the decedent, the extent, character, and situation of his property, his age and mental condition at the time of executing the writing in question,^^ instructions given to the draughtsman as to the nature of the paper he was to prepare,^ ^ conversations of the deceased at the time of executing the instrument, and failure to dispose of all his property.^* Stnmpenliousen's Estate, 108 Iowa, 555, 79 N. W. 376 ; Smith v. Holden, 58 Kan. 535, 50 Pac. 447; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; In re Oaw- ley's Estate, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93; Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986. "Whether the maker would have called this a deed or a will is one ques- tion; whether it shall operate as a deed or will is a distinct question, that is to be governed by the provisions of the instrument." BuUer, J., in Haberg- ham V. Vincent, 2 Yes., Jr., 231. » Whyte V. Pollok, 7 App. Cas. 400 ; Brown v. Ayery, 63 Fla. 355, 376, 58 South. 34, Ann. Cas. 1914A, 90; Noble v. Flckes, 230 111. 594, 82 N. E. 950, IS L. R. A. (N. S.) 1203, 12 Ann. Cas. 282 ; Sewell vj Slingluff, 57 Md. 537; El- liott V. Cheney, 183 Mich. 561, 150 N. W. 163 ; Clay v. Layton, 134 Mich. 317, 96 N. W. 458 ; Schoul. Wills, § 277. Thefenglish courts, even where the words are unequivocally those of a .deed, have admitted parol evidence to prove an animus testandt Goods of Slinn, L. R. 15, P. D. 156. 10 Lee V. Shivers, 70 Ala. 288; Rice's Adm'r v. Rice, 68 Ala. 216; Jordan v. Jordan's Adm'r, 65 Ala. 301; Campbell v. Gilbert, 57 Ala. 569; Daniel v. HUl, 52 Ala. 430; Gillham v. Mustin, 42 Ala. 365; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28; Mealing v. Pace, 14 6a. 596, 630; Symmes v. Arnold, 10 Ga. 506 ; Tuttle v. Ralsh, 116 Iowa, 331, 90 N. W. 66 ; Jackson v. Jackson's Adm'r, 6 Dana (Ky.) 257 ; Succession of Morvant, 45 La. Ann. 207, 12 South. 349; Gage v. Gage, 12 N. H. 371; Chichester v. Quatrefagas, Prob. 186, 11 Reports, 605; 1 Jarm. Wills (Big. Ed.) 25. 11 Clarke v. Ransom, 50 Gal. 595; Ehrenberg's Succession, 21 La. Ann. 280, 99 Am. Dec. 729; Barker v. Comins, 110 Mass. 477; Osborn v. Cook, 11 Cush. (Mass.); 532, 59 Am. Dec. 155; In re EngUsh, 3 Sw. & Tr. 586; In re Cawley's Estate, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93. 12 Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28 ; Green v. Proude, 1 Mod. 117. 13 Sharp V. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St Rep. 28; Wareham V. Sellers, 9 Gill & J. (Md.) 98; Witherspoon's Heirs v. Witherspoon's Ex'rs, 2 McCord (S. C.) 520; Smith v. Smith, 112 Va. 205, 70 S. E. 491, 33 L. R. A. (N. S.) 1018. §§ ^5) TESTS TO DETERMINE OHAEACTER OF INSTRUMENT 23 Instruments Held to be Deeds As a result of the application of the principles just discussed, the following instruments have been held to be deeds: An instrument reciting in the habendum clause that the maker relinquishes all right, title, and interest in certain land to a person named, his heirs and assigns, to have and to hold in fee simple, and this although the granting clause used the words, "have given and bequeathed." ^* An instrument in form a warranty deed, but containing these words : "Conditions of this deed are such * * * that this land shall not be incumbered in,any way or this deed shall be void. The party of the first part is to hold said property in his lifetime." ^^ An instrument purporting to be a deed, acknowledged as such, and delivered to the grantee, reciting a nominal consideration, and continuing, "It is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said [grantor] shall depart this life, and not sooner." ^« An instrument executed and acknowledged as a deed by a hus- band and wife, conveying certain property to their son, reserving a homestead in themselves during their lives and the life of the sur- vivor, and providing that it shall not take effect until the death of the grantors.^' An instrument purporting to be a deed of certain land, and re- citing that the grantor and his wife were to keep possession dur- ing their lives, and at their death the absolute title and possession were to be vested in the grantees, and if the grantor should sell the land the grantees were to have the proceeds in the same manner that they were to have the lands ; that is, after the deat|;i of the gran- 14 Parker v. Stephens (Tex. Civ. App.) 39 S. W. 164. IB Bevins v. Phillips, 6 Kan. App. 324, 51 Pae. 59. An instrument purporting to convey to the grantee certain lands, and re- serving to the grantor the use of the premises during his life, is a deed, pass- ing to the grantee the legal title in prsesent;i, with the right of possession postponed to the death of the grantor. Guthrie v. Guthrie, 105 Ga. 86, 31 S. E. 40; Lattmer v. Latimer, 174 111. 418, 51 N. E. 548. See, also, Bowler V. Bowler, 176 111. 541, 52 N. E. 437. iBLauck V. Logan, 45 W. Va. 251, 31 S. E. 986; Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St Rep. 334 ; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378. IT Martin v. Paries, 22 Tex. Civ. App. 539, 55 S. W. 601. See Barnes v. Stephens, 107 Ga. 436, 33 S. E. 399; Blackman v. Schierman, 21 Tex. Civ. App. 517, 51 S. W. 886'; Guthrie v. Guthrie, 105 Ga. 86, 31 S. E, 40; Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986; Robinson v. Ingram, 126 N. C. 327, 35 S. E. 612 (a conveyance from father to children, the latter to support their parents and divide the property upon their death, the conveyance to he void should they violate any of the trusts embraced in the deed). 24 INTRODUCTION HISTORY OF WILLS (Ch. 1 tor and his wife.^' An instrument, in form a dfeed, reserving a life estate and delivered to a depositary with directions to hold it until the grantor's death and then deliver to the grantee, is not testa- mentary in character.^" Instruments Held toi be Wills The application of the same principles has led to the conclusion: that wills existed in the following instances : Testatrix, after mak- ing her will, wrote on a sheet of note paper : "I give to my daughter W. my residence on Broadway and all pertaining thereto, to have and hold forever in her own right." She signed, and afterwards ac- knowledged, this before a notary, as she would a deed, and it was attested by two' witnesses. The document was found among her valuable papers after her death, in an envelope, upon which were indorsed, in her own handwriting, the words : "For W., at or after my death." The instrument was held to be a codicil, and not a deed of gift, since the disposition of the property referred to was to take effect after the death of the testatrix.^" An instrument, although in form a deed, which, by its terms, was to operate only after the death of the maker, was held to be tes- tamentary in its character."^ So where in pursuance to a statement by a husband that he wished to will his land to his wife, so that she might have it after he was dead, if she was a good wife, but that,, if she was not, he did not want her to have it, an attorney drew up a deed to the land, reciting therein that it was not to take effect un- til after the grantor's death, the deed was regarded as a will, and revocable at the pleasure of the grantor.'^ A deed of conveyance, in ordinary form, containing a clause that "the intention of this instrument is that the grantor relinquishes her right at her death, then this deed is to come immediately into- effect, but not till then," is testamentary in its character, and in- 18 Horn V. Broyles (Tenn. Ch. App.) 62 S. W. 297. For further illustrations,, see Ward v. Ward, 104 Ky. 857, 48 S. W. 411 ; In re Young's Estate, 123 Cal. 337, 55 Pac. 1011; Watson v. Watson, 24 S. C. 228, 58 Am. Rep. 247; Presi- dent, etc., of Bowdoin College v. Merritt (C. C.) 75 Fed. 480; Rawllngs v. McEoberts, 95 Ky. 346, 25 S. W. 601; Worley v. Daniel, 90 Ga. 650, 16 S. E. 938 ; Beebe v. McKenzie, 19 Or. 296, 24 Pac. 236 ; McOnie v. Whyte, L. R. 15- App. Cas. 156; Majoribanks v. Hovenden, 1 Den. 11; Hall v. Hall, 109 Va. 117, 63 S. E. 420, 21 L. R. A. (N. S.) 533. i» Dickson v. MUler, 124 Minn. 346, 145 N. W. 112. 2 Grigsby's Legatees v. Willis' Estate, 25 Tex. Civ. App. 1, 59 S. W. 574. See, also. In re Skerrett's Estate, 67 Cal. 585, 8 Pac. 181; Fosselman v. Elder, 98 Pa. 159 ; Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 759. 21 Plnkham v. Pinkham, 55 Neb. 729, 76 N. W. 411. 22 De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95. §§ 4r-5) TESTS TO DETERMINE CHARAOTEE OF INSTKUMENT 25 operative as a deed.*' So an apparent conveyance in trust to sup- port grantor, and pay the residue of the fund to the grantor's chil- dren one year after his death, has been held to be a will,"* as was also a trust deed to grantor's use for life, reserving a power of rev- ocation and sale to the grantor.*" Deeds by husband and wife, conveying the lands of each to the ■other, delivered in escrow, the deed of the one first dying then to be recorded, have been held to be testamentary instruments and revoca- ble.*' 23 Murphy v. Gabbert, 166 Mo. 596, 66 S. W. 536, 89 Am. St Rep. 733. For further illustrations, see Barnes v. Stephens, 107 Ga. 436, 33 S. B. 399; Jen- nings V. NeviUe, 180 111. 270, 54 N. E. 202; Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 li. R. A. 576; Williams v. Tolbert, 66 Ga. 127; Dye v. Dye, 108 Ga. 741, 33 S. E. 848 ; Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367 ; Kelly v. Richardson, 100 Ala. 584, 13 Sduth. 785 ; Poore v. Poore, 55 Kan. 687, 41 Pad •973; Atty. Gen. v. Jones, 3 Price, 368. 2* Frederick's Appeal, 52 Pa. 338, 91 Am. Dec. 159. 2iiStroup V. Stroup, 140 Ind. 179, 39 N. B. 864, 27 L. R. A. 523. This deci- sion is, however, opposed to the weight of authority. See ante, p. 17. 28 In re Edwall's Estate (1913) 75 Wash. 391, 134 P. 1041. See, however, Kenney v. Parks (Cal.) 54 Pac. 251. 26 FORM OF WILLS (Ch. 2 CHAPTER II FORM OF WILLS 6-7. No Particular Form Required. 8-9. Duplicate and Partial Wills. 10-11. Incorporation by Reference. NO PARTICULAR FORM REQUIRED e. No formality is reqmred in the preparation of a will up to the point of execution. Any writing materials capable of giv- ing and receiving reasonably permanent impressions may be used for this purpose. The will may be written or printed in any language, understood by or translated to the testator, and the expressions may be wholly informal, pro- vided that they clearly indicate a testamentary intent. 7. Under modern statutes, all wills, save nuncupative wills, must be in writing, but the writing may take any form. The law has not made it necessary to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character.^ It is suffi- cient that the instrument, however irregular in form or inartificial in its expression, discloses the intention of the maker respecting the posthumous destination of his property ; and, if this appear to be the nature of its contents, any contrary title or designation which he may have given it will be disregarded.^ But this testamentary 11 Jar. Wills (Big. Ed.) 21; Loring v. Sumner, 23 Pic. (Mass.) 98, 101; Keith V. Scales, 124 N. C. 497, 32 S. E. 809; In re Stumpenhousen's Estate, 108 Iowa, 555, 79 N. W. 3T6; In re Noyes' Estate, 40 Mont. 231, 106 Pac. 355. 2 1 Jar. Wills (Big. Ed.) 21; Whyte v. PoUok, 7 App. Gas. 409. Thus an instrument reading, "I have given six hundred dollars or more, if necessary, to put a, good iron fence around the graveyard near the Luther- an Church in this place," etc., signed by decedent and witnessed, may be probated as a wiU. In re Diehl's Estate, 11 Pa. Super. Ct. 293. See, also, Goods of Coles, L. R. 2 P. & D. 362, and IN RE LONGER'S ESTATE, 108 Iowa, 34, 78 N. W. 834, 75 Am. St. Rep. 206, Dunmore Cas. Wills, 7. An instrument read thus: "This is to serefey that ie levet to mey wife Real and personal and she to dispose for them as she wis." Being dated and signed, it was held to be neither vague nor uncertain, and that it devised to the wife all the real and personal property of the husband. Mitchell v. Don- ohue, 100 Oal. 202, 34 Pac. 614, 38 Am. St Rep. 279. The following instrument was held to have a similar effect: "New Orleans, June 29, 1896. I want my nese Jenny Donan to have muy t)ortby and perionn when I die. I point sole execytrix of muy estate Rebecca Arbuckle." Suc- cession of Stewart, 51 La. Ann. 1553, 26 South. 460. See, also, Sullivan's Es- §§ 6-7) NO PARTICULAR FOEM REQUIRED 27 intention must clearly appear; otherwise the instrument cannot operate as a will.' The testator may put the will in any language which he chooses, even though it be a language with which he is not acquainted.* Thus a will written in English, at the request of the maker, who was a German, and did not understand English, and which was in- terpreted to her, was admitted to probate," the court declining to follow the suggestion of Judge Redfield to the contrary in this con- nection.^ But the fact that the will was in a language unknown to the tes- tator would doubtless require accounting for and would bear on the question of testamentary intent.'' It would perhaps be necessary also to show that the contents of the will were communicated to the testatoj,* though it would seem that proof that the instructions given in the testator's native tongue were correctly rendered into the language in which the will was written ought to be sufHcient. Such proof would undoubtedly need to be established by clear and convincing evidence. Precatory Words The testator may use such language as he chooses to express his testamentary intentions, provided his choice results in the use of language sufficient for that purpose, viewed from the standpoint of the court. If the wish, desire, or recommendation contained in the precatory language is ineant to govern the conduct of the party to whom it is addressed or to determine the disposition of property, it is then an expression of testamentary determination, i. e., a will, and will be given effect, if properly executed. But if the wish, de- tate, 130 Pa. 342, 18 Atl. 1120; Byers v. Hoppe, 61 Md. 206, 48 Am. Rep. 89; Cover V. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. Rep. 406. , The addition of a seal to an instrument Intended for a will does not make It a deed. WuesthofE v. Insurance Co., 107 N. Y. 580, 14 N. E. 811. 8 In re Scott's EJstate, 128 Cal, 57, 60 Pac. 527 ; In re Jacoby's Estate, 190 Pa. 382, 42 Atl. 1026 (where, on a box containing most of the decedent's prop- erty there was the direction, "In case of my death, I want this box to go to my attorney," the decedent having also left a formally prepared will); Toung V. Wark, 76 Miss. 829, 25 South. 660; Hinkle v. Landis, 131 Pa. 573, 18 Atl. 941. See, also, White v. Grossman (N. J. Ch.) 64 Atl. 168. « Dickinson v. Dickinson, 61 Pa. 401 ; Hoshauer v. Hoshauer, 26 Pa. 404; In re Cliff's Trusts, 2 Oh. Div. (1892) 229 ; Green v. Skipworth, 1 Phil. 58. If the writing is blind or obscure, the court may send it to a master to have it deciphered. Masters v. Masters, 1 P. Wms. 421. 5 In re Walter's Wijl, 64 Wis. 487, 25 N. W. 538, 54 Am. Rep. 640. e 1 Kedf. Wills, *166, note. T MUtenberger v. Miltenberger, 78 Mo. 28. 8 In re Walter's Will, 64 Wis. 487, 25 N. W. 538, 54 Am. Rep. 640; Goerke T. Goerke, 80 Wis. 516, 50 N. W. 345. 28 FORM OF WILLS (Ch. Z sire, or recommendation is to be interpreted as a mere expression, of opinion or the offering of advice, which the person taking the legal title to the property is at liberty to disregard if he so pleases,, it can have only the effect that it was meant to have, and nothing- more.* Thus, an instrument reading, "I wish Mym Sister, Louisa Cock, to have my Charing Cross bankbook, for her own use," and signed, was held to be a will,^" while a document headed, "This is- not meant as a legal will, but as a guide," was refused probate. ^^ This topic will be discussed more at length in connection with, trusts.^'' Materials Used A will may be written upon any material capable of receiving and' retaining a legible and reasonably permanent impression. While,. of course, paper is the usual material used, it is believed that any material which will meet the test above stated may be employed. ^^ Although it has been held that a will written on a slate cannot be- probated because of its susceptibility to erasures and substitu- tions,^* it may be seriously doubted if this holding is correct. Un- doubtedly the use of such a medium sljould be viewed with great, suspicion, and proof accounting for' its use and establishing its gen- uineness should be required; but these requirements once met;, there seems to be no valid legal reason for refusing probate to such an instrument. A will is "in writing'' when letters or characters are used upon substances calculated to retain them for the purpose of expressing a testamentary intent. Hence, though pen and ink are commonly employed, a form either wholly or partially printed' or engraved is sufficient,^" and a will may be written and signed » Williams V. Williams, 1 Sim. (N. S.) 58 ; Bernard v. MinshuU, Johnson, 276 ; Bouser v. Kinnear, 6 Jur. (N. S.) 882 ; Howarth v. Dewell, 6 Jur. (N. S.> 1360; In re Williams (1897) 2 Ch. Div. 12; Coulson v. Alpaugh, 163 111. 298, 45 N. B. 216; MitoheU v. Mitchell, 143 Ind. 113, 42 N. B. 465; Halsey v. Caiurch, 75 Md. 275, 23 Atl. 781; Aldrich v. Aldrich, 172 Mass. 101, 51 N. B. 449; Falrchlld v. Edson, 154 N. Y. 199, 48 N. B. 541, 61 Am. St. Rep. 609 ^ Whelen's Estate, 175 Pa. 23, 34 Atl. 329. 10 Cock V. Cooke, L. R. 1 P. & D. 241. 11 Ferguson-Davie v. Ferguson-Da vie, 15 P. D. 109. 12 See post, p. 477. IS See 1 Wma. Executors, 146; 1 Eedf. Wills, 166. 1* Reed v. Woodward, 11 Phil. 541. IB Goods of Adams, L. R. 2 P. & D. 367; In re Murphy's WUl, 48 App. Div.. 211, 62 N. Y. Supp. 785 (holding that a will on a printed form is valid, al- though a large blank space is left in the middle without being ruled off) ; Roush V. Wensel, 15 Ohio Cir. Ct. R. 133. See, also, In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294, 30 Oiv. Proc. R. 377; ' Sears v. Sears, 77 Ohio St 104,. 82 N. E. 1067, 17 L. E. A. (N. S.) 353, U Ann. Cas. 1008. §§ 6-7) NO PARTICULAR FORM REQUIRED 2& with lead pencil as well as with a pen.^' But, as bearing on the fundamental question whether the instrument was executed with final testamentary intent, the materials used in its preparation are significant.^' And it has been held that the general presumption, and probability are that, where alterations only in pencil are made, they are deliberative; when in ink, they are final and absolute.^* It seems, however, that no true presumption is here involved. Separate Sheets A will may be written on separate sheets of paper,^' which need not be attached physically, if the real connection is established by the sense of the language employed.'"' The, fact that a will is writ- ten on several separate sheets of paper, or that ; there are blank spaces left between the paragraphs, will not invalidate it."^ Defi- niteness of language and a clear internal connection of the various parts of the will, making up a coherent and intelligible whole, are more significant than physical attachment. Thus, where one side of a. broken envelope contained a list of notes belonging to the writer, and the other side a memorandum stating that, in case of his death, "these notes" should go to his wife, the memorandum being dated and signed, the writings were regarded as too indefinite and disconnected to constitute a will.''^ When a will is written upon dififerent sheets, a signature and attestation upon the last sheet are 16 Myers v. Vanderbelt, 84 Pa. 510, 24 Am. Kep. 227; Goods of Dyer, 1 Hagg. 219. 17 Parkin v. Bainbridge, 3 Phil. 321; Lavender v. Adams, 1 Add. 406. See, also, Patterson v. English, 71 Pa. 454. 18 1 Wms. Executors, 111, citing Hawkes v. Hawkes, 1 Hagg. 322 ; Edward v. Astley, 1 Hagg. 490; Ravenscroft v. Hunter, 2 Hagg. 68; Bateman v. Pen- nington, 3 Moore, P. O. C. 223; Francis v. Grover, 5 Hare, 39; Goods of Hall, L. R. 2 P. & D. 256; Goods of "Adams, L. R. 2 P. & D. 367. isBamewall v. Murrell, 108 Ala. 366, 18 South. 831; Whitney v. Haning- ton, 36 Colo. 407, 85 Pac. 84; Jones v. Habersham, 63 Ga. 146; Harp v. Parr, 168 111. 459, 48 N. B. 113 ; Palmer v. Owen, 229 lU. 115, 82 N. E. 275; Ela v. Edwards, 16 Gray (Mass.) 91; Burnham v. Porter, 24 N. H. 570; Grubb's Estate, 174 Pa. 187, 34 Atl. 573 ; Gass' Heirs v. Gass' Ex'rs, 3 Humph. (Tenn.) 278 ; Bond v. Seawell, 3 Burr. 1773. 20 MERRYFIELD'S ESTATE, 167 Cal. 729, 141 Pac. 259, Dunmore Gas. Wills, 9 ; Swalm's Will, 162 N. O. 213, 78 S. Ei. 72, Ann. Gas. 1915A, 1207 ; Wikofl's Appeal, 15 Pa. 281, 53 Api. Dec. 597; Martin v. Hamlin's Ex'rs, 4 Strob. (S. C.) 188, 53 Am. Dec. 673. Where a letter executed as a will provided for the cancellation of the writ- er's former will and that her property should go in the same way as a cer- tain other person had arranged for hers to go, the letter and the other per- son's wiU constituted the wiU of the writer. NJghtingale v. Phillips, 29 R. 1. 175, 72 AtL 220. 21 Barnewall v. Murrell, 108 Ala. 366, 18 South. 831. 2 2 Succession of Shaffer, 50 La. Ann. 601, 23 South. 739. 30 FORM OF WILLS (Ch. 2 sufficient to cover the whole, provided that they were made for that purpose.^' When papers are found fastened together after the death of the testator, coherent and in the natural order, and containing a will, there is a presumption that they were in this condition when the will was executed.^* Such presumption may be rebutted, and the transposition, destruction, or substitution of sheets shown. ^° Where a will and various codicils are executed at different times, each relating to separate matters and containing no clause of revo- cation, all are taken together as constituting the will of the de- cedent."' Two or more wills may be taken together as constituting the last will of a decedent, where each instrument may be given some effect without denying effect to all of the provisions of the others.'^ Writing Necessary The history of the law of wills with reference to land during the Anglo-Saxon period is so obscure that it is hardly possible to speak with certainty as to whether a writing was requisite for that pur- pose. Such a requirement, in view of the primitive character of the epoch, is very unlikely. As has been seen, the power of disposing of the legal title to lands disappeared with the establishment of the feudal tenures in England. Lands were, however, substantially disposed of by will by a resort to uses, and as no prescribed form for raising or declaring a use was required, an oral declaration being sufficient for this purpose,"* it is likely that an oral declaration by the cestui que use as to the uses to which the feoffee to uses should hold the land upon the death of the former would be sufficient to establish a use in favor of the beneficiary, if satisfactorily proved. A written declaration would, however, ordinarily be used. The temporary destruction of uses by the statute of uses " re- us Jones V. Habersham, 63 Ga. 146; Marsh v. Marsh', 1 Sw. & Tr. 528. It is always the part of prudence, however, to have the testator sign each sheet of the will, and to have the fact set forth in the attestation clause. 24 Bamewall v. Murrell, 108 Ala. 366, 18 South'. 831; Rees v. Eees, L. R. 3 P. & D. 84; Marsh v. Marsh, 1 S. & T. 528. 2 6 Varnon v. Vamon, 67 Mo. App. 534. 28 Stewart v. Stewart, 177 Mass. 493, 59 N. B. 116; Vestry of St. John's Parish v. Bostwick, 8 App. D. C. 452 ; Gordon v. Whitlock, 92 Va. 723, 24 S. B. 342; Fletcher v. Gates (Tex. dv. App.) 63 S. W. 937. 2 7 Whitney v. Hanlngton, 36 Colo. 407, 85 Pac. 84; Smith v. Gorham, 152 111. App. 125. Both of two distinct wills relating to property in difiCerent ju- risdictions are valid. Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502, 33 L. R. A. (N. S.) 658. 28 2 Wash. Real Prop. 362. 2 9 See ante, p. 8. §§ 6-7) NO PARTICULAK FORM EEQUIEED 31 suited in the statute of wills " which made possible the disposition of lands by a will, in writing, but neither attesting witnesses nor signature were necessary. Important alterations were made by the statute of frauds,*^ which provided that wills of real property should be utterly void and of no effect unless they were in writing, signed by the testator or by some other person in his presence and by his express direction, and attested and subscribed in the pres- ence of the testator by three or four credible witnesses. This stat- ute has formed the basis of similar legislation throughout the United States. With regard to testaments of personal property, the common law never seems to have required that wills should be made in any particular form. If by word of mouth, i. e., nuncupative testaments, they must necessarily be made in the presence of witnesses ; other- wise there would be no evidence of the fact that a will had been made. If made in writing, no witnesses were necessary, nor need the testator sign the writing, provided it could be shown that he intended it to take effect as his will.^^ The statute of frauds, how- ever, required all wills to be in writing, except nuncupative wills under certain circumstances, to be considered hereafter.^' Similar legislation has been enacted in the United States, so that, with the exception of nuncupative wills, it may be said that no will of either real or personal property is valid unless contained in a writing either wholly written by the testator himself, or signed by him or by some person in his presence and at his request, and properly attested. Form of Writing But while a will must be contained in a writing, no formal testa- mentary instrument is required. If it adequately sets forth a testa- mentary intent it is enough. In many instances wills have taken the form of other instruments, while in others they have been wholly informal. Form of Assignment A will may take the form of an assignment, as where the testator, in the presence of two attesting witnesses, signed the following instrument : "Know all men by these presents, that I, Joseph Robinson, for the consideration of one dollar to me in hand paid, as well as my affection, do hereby assign and set over to my daughter, Eliza Jane »o 32 Hen. VIH, c 1. «i 29 Car. II, c. 3, which came into force on June 20, 1677. > 82 Potts, Law of Succession, 156. »s See post, p. 44. 32 FORM OF WILLS (Ch. 2 Brewster, all of my property, both real and personal, to have the same after my death. Witness my hand and seal this 7th day of Mav 1877 ^^^ ^' ' "Joseph X Robinson. [Seal.] "Attest: J. S. Post, '"»••'' "E. McClellan." This document was admitted to probate, its testamentary char- acter being obvious.** Form of Deed A will may take the form of a deed." Thus an instrument in the form of a warranty deed, providing that upon the death of the maker "this conveyance to be delivered to said Elizabeth Kelley," and retained by the maker until his death, was held to be a will.^* Form of Power of Attorney or Contract A will may be contained in the, same instrument with a power of attorney,*' or may constitute one portion of a contract." .Thus an instrument appointed the maker's mo'ther, Elizabeth Cross, attor- ney to take and receive certain rents, and then continued : "Or, in event of my death, I do hereby, in my name, assign and deliver to the said E. C. the sole claim to the aforementioned property, to be held by her during her life, and disposed of by her as she shall deem proper at the time of her death. At the same time I wish it to be understood that I claim all right and title to said property on my arrival in Great Britain, when the term of said E. C.'s occupancy shall be considered as at an end." The instrument, being executed «* Robinson v. Brewster, 140 111. 649, 30 N. E. 683, 33 Am. St. Rep. 265; Smith V. Smith, 54 N. J. Eq. 1, 32 Atl. 1069. Here testator devised property to trustees to "establish a school for apprentices and young mechanics, on plans to be hereafter described by me, or, in case of my death before perfect- ing said plans, the school above named is to be conducted on plans which I have from time to time described to most of the board of trustees herein named, and who shall approve of final practical plans in keeping therewith." Testator never perfected any plans, but prior to his death communicated to the trustees, at various times, in conversation, crude and general ideas with reference to the school. The trust was held invalid under a statute requiring wills to be signed and attested. so Ante, p. 21. 86 Kelly V. Richardson-, 100 Ala. 584, 13 South. 785. Accord: In re Lautenshlager, 80 Mich. 285, 45 N. W. 147; Smith v. Hol- den, 58 ICan. 585, 50 Pae. 447. See, also, Frederick's Appeal, 52 Pa. 338, 91 Am. Dec. 159 ; MUnes v. Foden, L. R. 15 P. D. 156. 87 Doe dem. Cross v. Cross, 8 Q. B. 714; Rose v. Quick, 30 Pa. 225; Stewart ▼. Stewart, 177 Mass. 493, 59 N. B. 116. 8 8 Reed v. Hazleton, 37 Kan. 321, 15 Pac. 177. §§ 6-7) NO PABTICULAR FOEM REQUIRED 33 in compliance with the statute of wills, was admitted to probate as such.'° Form of a Letter A will may take the form of a letter/* as where a testator^ when about to make a sea voyage, wrote to a friend thus : "A thousand accidents may occur to me which might deprive my sisters of that protection which it would be my study to afford ; and in that event I must beg that you will attend to putting them in possession of two-thirds of what I may be worth, appropriating one-third to Miss C. and her child, in any manner that may appear most proper." *^ So a letter written by a testator to a friend, authorizing him to take charge and dispose of the testator's property, and to sell and con- vey the same as his executor, properly attested, sufficiently evi- dences the testator's intention to dispose of his property, and may be probated as a will.*^ But a letter, like any other instrument, to take effect as a will, must be executed in compliance with the re- quirements of the statute, and must express a genuine present and not merely an anticipated testamentary intent. Where deceased wrote as follows : "Nina : I wrote you yesterday hastily. Answer my letter at once. I want to know everything about mother and all about you, — your children. I have reached the point, of perfect independence, pecuniarily. My health is probably ruined, and I want to anticipate possibilities. You and your children get every- thing. Your boy I want given the best of educations. I would like him to go to Harvard. * * * Write me. As soon as I pos- sibly can, I will be in Savannah" — the letter was held not to be testamentary in its character.*' Form of Promissory Notes Instruments are occasionally executed in the form of promissory notes with the intention that they shall operate as wills, and, if 8» Doe dem. Cross v. Cross, 8 Q. B. 714. *i> Barney v. Hayes, 11 Mont. 571, 29 Pac. 282, 28 Am. St. Eep. 495; Orth T. Orth, 145 Ind. 184, 42 N. B. 277, 44 N. E. 17, 32 L. K. A. 298, 57 Am. St. Eep. 185; In re Billls' WUl, 122 La. 539, 47 South. 884, 129 Am. St. Eep. 355; Boyd V. Boyd, 6 Gill & J. (Md.) 25; Cowley v. Knapp, 42 N. J. Law, 297; Tozer v. Jackson, 164 Pa. 373, 30 AU. 400; Estate of IfCnox, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798; Appeal of Scott, 147 Pa. 89, 23 Atl. 212, 30 Am. St. Rep. 713. *i Morrell v. Dickey, 1 Johns. Oh. (N. X.) 153. See, also, Ehrenberg's Succession, 21 La. Ann. 280, 99 Am. Dec. 729 ; Clarke V. Ransom, 50 Cal. 595 ; Prather v. Prather, 97 Miss. 311, 52 South. 449 ; Cock V. Oooke, L. R. 1 P. & D. 241; Fosselman v. Elder, 98 Pa. 159 ; Towers v. Ho- gan, 23 L. R. (Ir.) 53. 42 In re Knowles' Estate, 8 Pa. Dist. R. 153, 22 Pa. Co. Ct. R. 302. *a In re Richardson's Estate, 94 Cal. 63, 29 Pac. 484, 15 L. R. A. 635. Gaed.Wills (2d Ed.)— ^ 34 FORM OF WILLS (Ch. 2 properly executed, they will have this effect. Ordinarily they fail of this result because of defective execution.** Form of an Order An instrument in the form of an order may operate as a will, if properly executed, if the interest created thereby is not to arise until after the maker's death. Thus an indorsement on the back of a note, written and signed by the payee, "If I am not living at the time this note is paid, I order the contents to be paid to Arad Hunt 2nd," was held to be a testamentary writing, and entitled to pro- bate, under the statute.*' Miscellaneous Forms So instruments in the form of marriage settlements,*' drafts on bankers,*^ receipts for stock and bills, indorsed "For A. B.," *' checks and stubs in a check book,*° have been held to be testamen- tary. ** Cover V. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. Rep. 406: In re Sun- day's Estate, 167 Pa. 30, 31 Atl. 353; Woodbridge v. Spooner, 3 B. & Adolph. 233. An indorsement by payee of a note transferring it to another, but reserving to indorser sole power to collect during his life, being 'witnessed by two, is a will. Morrison v. Bartlett, 148 Ky. 833, 147 S. W. 761, 41 L. R. A. (N. S.) 39. *5 Hunt V. Hunt, 4 N. H. 434, 17 Am. Dec. 434; Cudworth v. Beech, 4 Ves. 565 (semble). So the following writing, addressed by the owner of certain bonds to the bankers having them in custody, was held to be testamentary in its character: "Gents, of the 730 government bonds of mine in your hands, hereby assign to my wife H. O. $6000, she to draw the interest of the same, you keeping possession of the same. * * • My wife to draw the interest till her death, to have no control of the principal so far as disposing of them is concerned — the bonds, at her death to revert to my heirs. The above assignment to take effect at my death, I controlling them in the meantime." Comer v. Corner, 120 111. 420, 11 N. B. 848 ; Grand Fountain U. O. T. R. v. Wilson, 96 Va. 594, 32 S. E. 48 (semble) ; Remington v. Bank, 76 Md. 546, 25 Atl. 666 (semble). See, also. Knight v. Tripp, 121 Gal. 674, 54 Pac. 267; Murdock v. Bridges, 91 Me. 124, 39 Atl. 475 ; Flanagan v. Nash, 185 Pa. 41, 39 Atl. 818. *8 Passmore v. Passmore, 1 Phil. 218. See, also, Qoods of Knight, 2 Hagg. 554. 4T Bartholomew v. Henley, 3 Phil. 317; Gladstone v. Tempest, 2 Curt 650; Jones V. Nicholay, 2 Robert. 288; Goods of Marsden, 1 Sw. & Tr. 542. *8 Sabine v. Goate, cited in 2 Hagg. 247. 48 In re Lambaert's Estate, 10 Pa. Co. Ot. R. 10. Here the testatrix, after executing a will and codicil, drew three checks payable to the order of her daughters, and signed them, but left them undetached from her checkbook, which she kept until her death. On the stub of one of the checks were writ- ten these words: "Drawn to the order of Sallie EJ. Lambaert — ^being exceeding ill at the time these checks were drawn. If I get well, they must not get the money ; if I do not, I will be most glad it wUl come into their possession." Held, that the checks and stub should be probated as a codicil to the will. §§ 6-7) NO PARTICULAR FORM REQUIRED 85 Informal Wills So a will may assume the form of any instrument, or be abso- lutely informal ; all that is required is the disclosure of testamen- tary, intent and proper execution. Thus a writing, not in the form of a will, but reciting, "A few little things I would love to have done," and addressed to no one by name, is the will of the maker; °' as is also a signed writing on the back of a gas receipt, in the hand- writing of the deceased, saying, "It is my wish," followed by a schedule of property to be distributed among specified persons."^ So, where there was found pasted upon a tin box a paper containing the words: "In case of my death I want this box given to my attorney, A. K. Stevenson, 439 Grant St., Pittsburg, Pa. G. T. Jacoby ;" and the box contained envelopes inclosing securities upon which were indorsements of this character, "This is to go to Mrs. Mary Downs and her family" — the inscription on the box and its contents were admitted to probate as a will ; '"' as was alsd a paper reading, "This writing is instead of a formal will which I intend to make. After my mother's death, my cousin, S., is my heir" — signed by decedent and two attesting witnesses."' On the back of a business lettier was the following : "Ann : After my death you are to have forty thousand dollars ; this you are to have, will or no will, take care of this until my death" — directed to Eliza Ann Byers. This was held to be a will.'* Instances might be multiplied, but these are sufficient to show the entire lack of restraint imposed upon a testator with regard to the form in which he shall express his testamentary intention.""* there being a sufficient compliance with the statutory requirement of signa- ture at the end of thte will. BO In re Knox's Estate, 131 Pa. 220, 18 Atl. 1021, 6 L. B. A. 353, 17 Am. St. Kep. 798. SI In re Gaston's Efetate, 188 Pa. 374, 41 Atl. 529, 68 Am. St. Bep. 874. See, also, Tozer v. Jackson, 164 Pa. 373, 30 Atl. 400. 02 In re Jacoby's Estate (Pa.) 28 Pittsb. Leg. J. (N. S.) 17. 5 8 In re Beebe, 6 Dem. Sur. (N. Y.) 43. s* Byers v. Hoppe, 61 Md.-206, 48 Am. Bep. 89. B5 See ante, p. 17. . See, also, Fosselman v. Elder, 98 Pa. 159 ; Tozer v. Jackson, 164 Pa. 373, 30 Atl. 400; In re SulUvan's Estate, 130 Pa. 342, 18 Atl. 1120; Beagan v. Stan- ley, 11 Lea (Tenn.) 316; Webster v. Lowe, 107 Ky. 293, 53 S. W. 1030. 36 FORM OF WILLS (Ch. 2 DUPLICATE AND PARTIAL WILLS 8. Sometimes, for greater security, a testator executes his will in duplicate, retaining one copy and committing the other to the custody of another person. In such case only one of the duplicates is admitted to probate. 9. Wills may be so framed as to operate only on property located in particular jurisdictions. Each will must then be pro- bated in the proper jurisdiction. ' The custom of executing wills in duplicate is much more common in England than in this country. Its desirability, however, is obvious, as it lessens greatly the risk of loss. As there is but one will, one copy only is probated." Questions regarding duplicate wills arise most frequently in connection with the revocation of wills."* Reference is made to them here, as bearing upon the gen- eral subject of form. \ Separate or Partial Wills A testator sometimes executes separate wills of property located in various jurisdictions. This might be very convenient when the law of the, different jurisdictions varies with regard to the formali- ties attendant upon the proper execution of wills. Where the in- tent clearly appears to keep the two or more classes of property dis- tinct, each will should be probated in the proper jurisdiction, and neither jurisdiction should admit to probate the will operating upon real property in the other jurisdiction. But a memorandum or attested copy of the foreign will should be appended to the will offered for probate, that persons interested may have notice of the existence of the foreign will."* If, however, one will ratifies and confirms the other, both wills should be included in the probate.'* Where there are separate instruments, operating as wills upon property, without regard to its location, and disposing of a portion to one party and a portion to another, they are all properly admit- ted to probate as the will of the testator."" 5 8 OROSSMAN V. GROSSMAN, 95 N. Y. 145, Dunmore Gas. Wills, 12. 67 Post, p. 229. Bs Goods of Callaway, 15 P. D. 147. See, also. In re Astor, L. R. 1 P. Di. 150; In re Murray (1896) Prob. 65; Goods of Tamplin, 6 Reports, 533; Id., [1894] Prob. 39. 5 8 In re Lockbart, 1 Rep. 481, 60 Law T. 21, 57 J. P. 313; In re Harris, L. R. 2 P. & D. 83 ; In re Howden, 43 L. J. Prob. 26 ; Goods of Crawford, P. D. (1890) 185. 6 In re Grubb's Estate, 174 Pa. 187, 34 Atl. 573. See, also, In re Murphy's Estate, 104 Gal. 554, 38 Pac. 543; Fletcher v. Gates (Tex. Giv, App.) 63 S. W. 937. §§ 10-11) INCOKPOKATION BY EEFERENOH 87 INCORPORATION BY REFERENCE 10. If a will executed as required by statute incorporates in itself by reference any document or paper not so executed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in exist- ence at the time of the execution of the will, and is identi- fied by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and is admitted to probate as such. 11. In order that a separate document may thus be incorporated by reference in a will, three things are necessary : (a) The will must refer to some document as being then in exist- ence in such a way as' reasonably to identify said document and to show testator's intention to incorporate it. (b) Proof must be made that the document thus referred to was actually in existence before the will was written. (c) Proof must be made that the docxunent thus sought to be incorporated is identical with that referred to in the will. All the conditions above stated must be complied with; other- wise the paper referred to cannot take effect as part of the will.*^ Although the doctrine stated in the text is generally accepted, the whole doctrine of incorporation by reference has been rejected in some cases in New York *" and has been seriously questioned in Connecticut." It is to be observed at the outset, however, that the principles governing the incorporation of extrinsic documents by reference in a will apply only to such supplementary acts, evidenced by the 81 Keeler v. Merchants' Loan & Trust Co., 253 111. 528, 97 N. E. 1061 ; Schil- llnger v. Bawek,, 135 Iowa, 131, 112 N. W. 210; NKWTON v. SEAMAN'S FRIEND SOCIETY, 130 Mass. 91, 39 Am. Rep. 433, Dunmore Cas. Wills, 14; Parrott v. Avery, 159 Mass. 594, 35 N. E. 94, 22 L. R. A. 153, 38 Am. St. Rep. 465; Holmes v. Coates, 159 Mass. 226, 34 N. B. 190; Wells v. Hawes, 122 Mass. 97; Thayer v. Wellington, 9 Allen (Mass.) 283, 292, 85 Am. Dec. 753. See Molinenx v. Molineux, Cro. Jac. 144; Dexter v. Harvard College, 176 Mass. 192, 57 N. EL 371. 62 Kell V. Hoehn, 72 Misc. Rep. 255, 131 N. T. Supp. 89; In re Emmons' Will, 110 App. Div. 701, 96 N. Y. Supp. 506; Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 238. Compare: Re Field, 204 N. Y. 448, 97 N. E. 881, 39 L. E. A. (N. S.) 1060, Ann. Oas. 1913C, 842. 63 BRYAN'S APPEAL, 77 Conn. 240, 58 Atl. 748, 68 L. R. A. 353, 107 Am. St. Rep. 34, 1 Ann. Cas. 393, Dunmore Cas. Wills, 15; Phelps v. Robbins, 40 Conn. 250. 38 FOEM OF WILLS (Ch. 2 documents, as are testamentary in their character. If non-testa- mentary in their character, they may be done, and the written evi- dence of them prepared, as well after the making of the will as be- fore. In such cases, there is no genuine incorporation by reference, but the subsequent non-testamentary act may be proved for the purpose of rendering certain, provisions of the will which at the time of its execution were uncertain. Thus where a testatrix de- vised realty to trustees, to be divided by them, after the death of a beneficiary for life, among the partners of the testatrix who should be in. copartnership with her at the time of her decease, or to whom she might have disposed of her business, in such proportions as the trustees should deem fit, the devise was held to be unobjectionable, and the partners to whom she disposed of the business subsequent to the execution of the will were beneficiaries under the clause in the will above referred to. Her act in disposing of the business to her partners was in no' sense testamentary; it merely rendered certain a previous complete testamentary disposition. °* But if, in a will, a testator undertakes to reserve to himself the power to make a subsequent testamentary disposition ,of property by an instrument not to be executed as a will, &uch power must either be executed in compliance with the requirements of the statute re- specting the execution of wills or must fail. Thus where a testa- tor, by a duly executed will, devised to trustees alLhis property in the island of Grenada, in trust to discharge all legacies \vhich he might thereafter make chargeable upon said property by any writ- ings signed by him, whether witnessed or not, a subsequent un- attested codicil giving to his wife an additional annuity chargeable upon his property in Grenada was held to be inoperative.^" With this explanation, the requirements for incorporation by reference may be taken up in detail. Document Must be Referred to as Existing Since wills are ordinarily required by statute to be in writing, the document sought to be incorporated must be referred to either ex- pressly or by necessary implication as in existence ; otherwise the entire will would not, in terms, appear to meet the requirements of the statute.^* References in a codicil "to my last will and testa- si Stubbs V. I/argon, 3 Myl. & C. 507. 5 Eose V. Cunynghame, 12 Ves. 29. Accord: Habergham v. Vincent, 2 Ves. Jr. 204 ; Wilkinson v. Adam, I V. & B. 422 ; Whytall v. Kay, 2 My. & K 765. 6 6 In re Sober, 78 Oal. 477, 21 Pac. 8; Crosby v. Mason, 32 Oonn. 482; Fes- ler V. Simpson, 58 Ind. 83 ; Newton v. Society, 180 Mass. 91, 39 Am. Eep. 433 ; Booth V. Baptist Church, 126 N. T. 215, 247, 28 N. E. 238 ; In re Baker's Ap- peal, 107 Pa. 381, 52 Am. Rep. 478 ; Allen v. Boomer, 82 Wis. 364, 370, 52 N. §§ 10-11) INCORPORATION BY EEFERBNOB 39 ment," the latter being invalid for want of proper attestation,"' in a will to lands conveyed to the testator by a certain indenture, speci- fying the deed,'* or to a deed as dated and made," or to a schedule as annexed to the will,'" are sufficiently definite with regard to the existence of the document to incorporate it with the instrument in which the reference thereto is made. But a bequest in a will referring to such personal property "as shall be ticketed or may be described in a paper in my own hand- writing," '^ or to such articles "as are contained in the inventory signed by me and deposited herewith," '^ or to residuary legatees "to be appropriated by them as specified in my letter," '^ does not necessarily refer to an existing document, and hence the document referred to cannot be regarded as incorporated by reference. And, when a document is not referred to in the will as existing, parol evidence cannot be received to show that it actually did exist when the will was made.'* Epr the will is required to be in writing, and that fact must be disclosed upon its face. If the instrument itself, by its own terms, is not wholly in writing (and such is the result of an attempted incorporation of a document not described or re- ferred to as existing), the will itself proclaims its own partial in- validity, and parol evidence cannot be received to alter the legal import of the will. To receive such evidence would be to give, by parol testimony, a different effect to the instrument from that which it, of itself, purports to have, in view of the requirement that the will shall be in writing ; in other words, the legal effect of the will would be varied by parol evidence, which is to effect the very W. 426; Allen v. Haddock, 11 Moo. P. 0. 427 ; Goods of Sunderland, L. R. 1 P. & D. 198; In re Kehoe, L. R. 13 Ir. 13; Goods of Truro, L. R. 1 P. & D. 201 ; Durham v. Northen, L. R, 1 P. & D. 66. It Is submitted that if the reference is such as to render the document ca- pable of identification, but the words used could refer equally well either to a future or a past . document, parol evidence should be admissible to show that testator referred to an existing document. The cases, however, seem to require a reference to a document as then existing. Magnus v. Magnus, 80 N. J. Eq. 346, 84 Atl. "^05; Goods of Sunderland, L. R. 1 P. & D. 198. 87 Allen V. Maddock, 11 Moo. P. C. 427 ; Doe dem. Williams v. Evans, 1 Or. & Mees. 42; Goods of Heathcote, 6 P. D. 30. 6 8 Habergham v. Vincent, 2 Ves. Jr. 204; Molineux v, Molineux, C?ro. Jac. 144. 89 Ogsbury y. Ogsbury, 115 N. Y. 290, 22 N. E. 219. TO Goods of Willesford, 1 Notes Gas. 404. T~i Goods of Sunderland, L. R. 1 P. & D. 198. 72 Goods of Truro, L. R. 1 P. & D. 201 (dictum). 73 Goods of Mary Eeid, 38 L. J. (N. S.) P. & M. 1. 74 Durham v. Northen, [1895] Prob. 66, 6 Rep. 582 ; Goods of Sunderland, L. R. 1 P. & D. 198. 40 FORM OP WILLS (Ch. 2 thing that the statute requiring wills to be in writing was designed to render impossible. Definiteness of Reference Necessary To incorporate an extrinsic paper into a will by reference, the description of the paper in the will must be in clear and definite- terms and must not be so vague as to be incapable of being ap- plied to any instrument in particular.'* Intention to Incorporate Essential An instrument may be incorporated into a will only when the language used in the will manifests an intention that such shall be done.''* Document Must he Shown, to' be Existing Not only must the will refer to the document sought to be incor- porated as existing, but such must be shown to have been actually the case." This is by reason of the requirement that wills must be in writing at the time of their execution. If proof of the existence of the document were not required, a testator could substantially evade the provision of the statute regarding the execution of wills by referring in his will to a document as existing, which he might subsequently prepare at his leisure. It is well settled, however, that the execution of a codicil refer- ring to a prior will effects a republication of ^the will equivalent to execution de novo ; that it brings the will down to the date of the republication as effectually as though it were itself executed at that time.'* Hence a codicil, properly executed, and referring to a will, defectively executed or which had been altered after execution, effects, by the doctrine of incorporation, a republication so as to ren- der the will operative in its altered or defectively executed form." ■"> APPEAL OF BRYAN, 77 Oonn. 240, 58 Atl. 748, 68 L. K. A. 353, 107 Am. St. Rep. 34, 1 Ann. Gas. 393, Dunmore Cas. Wills, 15; Hartwell v. MartlB, 71 N. J. Eq. 157, 63 Atl. 754. A bequest to one of property "to dispose of in accordance witli my instructions to her," is insufficient; such reference not identifying the instructions. Magnus v. Magnus, 80 N. J. Eq. 346, 84 Atl. 705. '6 Hunt V. Evans, 134 111. 496, 25 N. E. 579, 11 L. R. A. 185; Zimmerman t. Hafer, 81 Md. 347, 32 Atl. 316 ; Chambers v. McDaniel, 28 N. C. 226. 7 T In re SMllaber's Estate, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433 ; Hunt v. Bvasis, 134 111. 496, 25 N. E. 579, 11 L. R, A. 185 ; Thayer v. Wellington, 9 Allen (Mass.) 283, 85 Am. Dec. 753; Langdon v. Astor's Ex'rs, 16 N. Y. 9; Vestry of St. John's Parish v. Bostwick, 8 App. D. O. 452. The document referred to need not, however, be present at the time of exe- cution of the wUl. In re Willey's Estate, 128 Oal. 1, 60 Pac. 471. TBI Wms. Executors (Perk. Ed.) 216; Skinner v. Ogle, 4 Notes Oas. 79; Goods of Hunt, 2 Robert. 622; Goods of Stuart, 3 Sw. & Tr. 192; Goods of Matthias, 3 Sw. & Tr. 100 ; Sheldon v. Sheldon, 1 Robert 81. T9De Battie v. Lord Fingal, 16 Ves. 167; Oarleton v. Griffin, 1 Burr. 549; §§ 10-11) INCORPORATION BY RBFERENOB 41 From this it follows that, although a document referred to as existing' did not actually exist at the. time of the making of the will, yet if, between this time and that of the execution of a subsequent codicil, 'the document comes into existence it thereby is incorpo- rated by reference, by virtue of the fact that the will then speaks from the time of the execution of the codicil, at which time the document was in existence. In short, if the will, ti;eated as exe- cuted at the date of the codicil, contains language sufiScient to effect the incorporation of a document within the principles already laid down, testamentary effect may be given to such document; other- ' wise not.*" Thus, if the will, regarded as speaking at the date of thp codicil, refers to the document sought to be incorporated as not in existence, it cannot be considered as incorporated, although actually in existence.*^ Parol Evidence to Identify Document A reference to a document in a will may be in such terms as to exclude parol testimony to establish its identity, as where it is to papers not yet written, or where the description is so vague as to be incapable of being clearly applied to any instrument in particu- lar. But where there is a reference in a duly attested testamen- tary instrument to another instrument in such terms as to make it capable of identification, parol evidence may be received to effect the identification. When the parol evidence suiificiently proves that, in the existing circumstances, there is no doubt as to the in- strument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified.*^ Parol evidence may be received to establish Doe dem. Williams v. Evans, 1 Cr. & Mees. 42; Guest v. Willasey, 12 J. B. Moo. 2 ; Aaron v. Aaron, 3 De G. & S. 475 ; Allen v. Maddock, 11 Moo. P. C. 427; In re Smitli,.2 Curt. 796; Shaw v. Camp, 163 lU. 144, 45 N. E. 211, 36 L. R. A. 112; Harvey v. Chtouteau, 14 Mo. 587, 55 Am. Dec. 120; Skinner v. Society, 92 Wis. 209, 65 N. W. 1037. 80 Goods of Truro, L. R. 1 P. & D. 201 ; In re Rendle, 68 Law J. Prob. 125. 81 Goods of Sunderland, L. R. 1 P. & D. 198. 82 Lord Kingsdoun in Allen v. Maddock, 11 Moo. P. C. 427. Here the testa- trix made a will, invalid through lack of proper attestation. Later, she made a codicil, headed, "This is a codicil to my last will and testament." Held, that the reference to the will in the codicil was sufficiently distinct to enable the court to receive parol evidence to identify it. See, also (accord) Goods of Greves,' 1 Sw. & Tr. 250; Goods of Almosino, 1 Sw. & Tr 508 ; Goods of McCabe, 2 Sw. & Tr. 478 ; Dickinson v. Stidolph, 11 C B. (N. S.) 341 ; Van Straubenzee v. Monck, 3 Sw. & Tr. 6 ; Goods of Luke, 34 L. J. (N. S.) P. M. & A. 105 ; Goods of Daniels, 8 P. D. 14; Phelps v. Rob- bins, 40 Oonn. 250, 272. Parol evidence cannot be received to supply deficiencies in identification, Schillinger v. Bawek, 135 Iowa, 131, 112 N. W. 210. 42 FORM OF WILLS (S--'^- ^ all the relevant circumstances of the case, so that the court^may place itself, as far as possible, in the situation of the testator.'* If the language of the will, read in the light of these circumstances, clearly identifies the document referred to, it thereby becomes m- corporated ; otherwise not.'* Whether a reference on one page of a will to a succeeding page, such as "See next page," will be sufificient to incorporate the_ con- tents of the page referred to into the preceding portions containing the testator's signature, is a matter of doubt. Under a statute re- quiring wills to be signed by the testator at the end thereof, the New York court has held that such subsequent portion cannot be treated as a part of the will.'" But in Pennsylvania, in construing a similar statute, an opposite conclusion has been reached.'* The doctrine of incorporation by reference should apply only to docu- ments which are not an integral part of the will. In the case sug- gested, the writing following the signature was intended by testa- tor to be part of will itself. The holding of the New York court therefore logically might be followed in jurisdictions which permit incorporation by reference of extrinsic documents. The burden of establishing the identity of the document sought to be incorporated is upon the party who alleges it,'' and such identity must be established so as to preclude all reasonable proba- 88 Goods of Almosino, 1 Sw. & Tr. 508. 84 Decedent left two papers, each in a sealed envelope, with: an Indorse- ment that it was testatrix's will. The first paper gave the brother and sister of testatrix the use of her property for life, "remainder to persons named on another sheet, and inclosed in another envelope, which shall not be opened until after the death of my said brother and sister." Indorsed on the enve- lope containing the second paper was a statement that it should not be opened untU after the death of the brother and sister of the testatrix. Both papers ' bore date on the same day, and were executed in due form. The second pa- per, which did not refer to the first, was held not to be sufficiently identified as that referred to in the first, and could not, therefore, be taken as part of the will. As illustrative of the application of the same principle, see In re Toung's Estate, 123 Cal. 337, 55 Pac. 1011 ; Garnett's Estate (1894) Prob. 90 ; Phelps V. Robbins, 40 Oonn. 250 ; Goods of Greves, 1 Sw. & Tr. 250 ; Bailey v. Bailey, 52 N. C. 44; Goods of Marchant (1893) Prob. 254; In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294, 30 Oiv. Proc. E, 377. 86 In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. El A. 662, 76 Am. St. Rep. 294; In re Whitney's Will, 153 N. Y. 259, 47 N. E. 272, 60 Am. St. Rep. 616; In re Conway, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796; Sis- ters of Charity of St. Vincent de Paul v. Kelly, 67 N. Y. 409. 86 In re Baker's Appeal, 107 Pa. 381, 52 Am. Rep. 478. See, also, Goods of Greenwood (1892) Prob. 7 ; Goods of Brit, 24 L. T. R. 142. «7 Singleton v. Tomlinson, 3 App. Oas. 404. §§ 10-11) INCORPORATION BY REFERENCES 43 bility of mistake.'* If the instrument referred to in the will, upon identification, is found to contain nothing, the paper is disregarded and the will is otherwise valid.'' Probate of a duly executed will cannot be denied on the ground that it is not the whole will merely because of the failure of an attempted incorporation.*" Where a document referred to in the will is lost or missing, there is a prima facie presumption that it was destroyed by the testator with intent to revoke the will in so far as such document consti- tuted a part thereof, and the will takes efifect as though no reference had been made to it.°^ But this presumption being once overcome, there is apparently no reason why the usual rule in the case of lost instruments should not apply and evidence of its contents be re- ceived. In view of the requirement that wills be in writing, oral instruc- tions cannot be incorporated by reference."* 88 Allday v. Cage (Tex. Civ. App.) 148 S. W. 838. 89 Handley v. Palmer (C. O.) 91 Fed. 948. 90 In re Eelns' Estate, 59 Misc. Kep. 126, 112 N. Y. Supp. 203. 91 Dickinson v. Stidolph', 11 O. B. (N. S.) 341 ; Wood v. Sawyer, 61 N. O. 25L 92 OlllfEe V. Wells, 130 Mass. 221; Goods of Marchant (1893) Prob. 254. 44 FORM OF WILL3 (Ch. 3 CHAPTER III FORM OF WILLS (Continued)— NUNCUPATIVE— HOLOGBAPHIO— CON- DITIONAL WILLS 12-13. Nuncupative Willa— Definition — History. 14. Nuncupative Wills of Soldiers and Sailors. 15. Nuncupative Wills Pass Title to Personalty Only. 16. Nuncupative Wills in Louisiana. 17. Holographic Wills. 18. Conditional Wills. NUNCUPATIVE WILLS— DEFINITION— HISTORY 12. A nuncupative will is an oral, will declared by the testator be- fore witnesses. 13. Historically, wills of this character have passed through three periods: * (a) That preceding the enactment of the statute of frauds, dur- ing which the oral declarations of any competent person as to his testamentary wishes in such manner as to be capa- ble of proof, if made in extremis, were valid. (b) That intervening between the enactment of the statute of frauds and the statute of wills, of 1 Victoria, during which wills of this character were valid only when made under certain circumstances, and in the presence of a fixed num- ber of witnesses, excepting from its operation mariners at sea, soldiers in actual service, and testators disposing of estates of £30 or less. (o) That following the passage of the last-named statute, by which the power to make wills of this character was con- fined to sailors at sea and soldiers in actual service. As has already been seen,^ wills qf personal property were not originally required to be in writing. Had such been the case, well- nigh universal intestacy would have resulted, by reason of the gen- eral ignorance of the art of writing. But with the decrease of illiteracy, the necessity for recognizing oral wills disappeared, and in view of the uncertainty existing in their very nature, and the op- portunities for fraud and perjury which they afforded, nuncupative wills came to be regarded with growing disfavor, and were appar- ently refused probate except when good reasons were shown for 1 Ante, p. 31. §§ 12-13) NUNCUPATIVE WILLS — DEFINITION — HISTOBT 45 failure to reduce the testator's wishes to writing. The only reason which could ordinarily exist was that the testator, overtaken by sudden and mortal illness, had no time for the preparation and for- malities of a written instrument. Hence, by the time of Henry VHI, it appears to have become the settled rule that a nuncupative will was valid only when made by the testator in extremis.^ Provisions of Statute of Frauds Such was the state of the law on this subject when the statute of frauds was enacted.* The nineteenth section, which contained the most important of the provisions relating to nuncupative wills, enacted "that no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was his will, or to that effect; nor unless such 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 been resident for the' space of ten days, or more, next before the making of such will, except where such person was surprised or taken sick, being from his, own home, and died before he returned to the place of his or her dwelling." 2 Thus Perkins In his book on Conveyancing (section 476), published in the reign of this King, defines a nuncupative will to be when the testator "lieth languishing for fear of sudden death, dareth not to stay the writing of his testament, and therefore he prayeth his curate, and others, his neighbors, to bear witness of his last wUl, and declareth by words what his last will is." And Swinburne, writing in the reign of James I, says that "this kind of testament is commonly made when the testator is now very sick, weak, and past all hope of recovery." Wills, p. 32. 3 29 Charles II, c. 3 (1677). The case of Cole v. Mordaunt, 4 Ves. 196, occurring one year prior to its passage, is supposed to have led to the incorporation of the sections relating to nuncupative wills. The facts of the case were these: Mr. Cole, at an ad- vanced age, married a young woman whose conduct, during his life, was, at least, indiscreet. After his death, she set up a nuncupative will, alleged to have been made in extremis, by which she was given by her husband his entire property, although, three years before, by a written will^ he had dis- posed of his estate to charitable uses. Nine witnesses were offered to prove the nuncupative will, but probate was rejected, and at trial, on appeal, it ap- peared that most of the witnesses were perjurted, and that Mrs. Cole had induced them to perjure themselves. The case is said to have suggested Lord Chancellor Nottingham's remark that "he hoped to see one day a law that no written will should ever be revoked but by a writing." Section 22 of the statute of frauds embodied this suggestion. See, on this general subject. Prince v. Hazleton, 20 Johns. (N. T.) 502, 11 Am. Dec. 307. 46 rORM OF WILLS (Ch. 3 Section 20 provides that "after six months passed after the speak- ing 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." This statute is thus given at length because it has formed the basis for much similar legislation in the United States, though there are, of course, va,riations in the number of witnesses required, the length of time within which the testator's wishes must be reduced to writing, etc. It is proposed now to discuss in detail the principal requirements of these statutes. - It is to be observed, at the outset, that the language of statutes respecting nuncupative wills is construed strictly, and that all their provisions must be completely conformed with.* "So little are nun- cupative wills favorites with the ecclesiastical courts, that not only must all the provisions of the statute of frauds be strictly complied with, to entitle such a will to probate, * * * but the factum of a nuncupative will requires to be proved by evidence more strict and stringent than that of a written one in every single particular. This is requisite in consideration of the facilities with which frauds in setting up nuncupative wills are obviously attended." ° The burden of showing compliance with the statute is upon the proponent, and the evidence to this effect must be clear.* Ammus Testandi In this, as in the case of all other wills, a fundamental requisite is the presence of testamentary intent,' and the same principles '- Ridley v. Coleman, 1 Sneed (Tenn.) 616 ; Welling v. Owings, 9 Gill (Md.) 467; Lucas v. GofC, 33 Miss. 629; In re Grossman's Estate, 75 111. App. 224; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Gas. 1128; Bennett v. Jackson, 2 Phil. 190; Lemann v. Bonsall, 1 Add. 389. Nuncupative wills are not favored in the, law. Mitchell ^v. Vickers, 20 Tex. 377 ; Johnston v. Glasscock, 2 Ala. 218. 6 1 Wms. Ex'rs, 122. 8 Scaife v. Emmons, 84 Ga. 619, 621, 10 S. B. ■ 1097, 20 Am. St. Rep. 383 ; Weir V. Chidester, 63 111. 453; Morgan v. Stevens, 78 111. 287; Mulligan v. Leonard, 46 Iowa, 692; Biddle v. Biddle, 36 Md. 630; Parkison v. Parkison, 12 Smedes & M. (Miss.) 672. Evidence in support of a nuncupative will should be closely scrutinized. Isham V. Bingham, 126 111. App. 513. 7 IN RE MALE'S WILL, 49 N. J. Eq. 266, 24 AO. 370, Dumnore Gas. Wills, 20; Knox v. Richards, 110 Ga. ?, 35 S. E. 295. Thus expressions of regret that the testator had made no will, together with the statement of the sort of a will he would have made, do not constitute a nuncupative will. In re Wiley's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am St Rep. 569. §§ 12-13) NUNCUPATIVE WILLS — DEFINITION — HISTOBT ; 47 control in this regard as elsewhere. Thus a paper stating that, sev- eral times before the death of the deceased, he "spoke about making a will," and "how he wanted it written," does not show a nuncupa- tive will." So declarations made solely for the purpose of having a written will prepared, and not with the intent and design that the words spoken should themselves operate as a testamentary disposition of the decedent's property, do not constitute a nuncupative will.° And this is true though all the formalities essential to a valid nuncupa- tive will are present.^" For an intention to make a written will is obviously not an intention to make an oral one. For the same rea- son, a written will, invalid as such by reason of defective execution, cannot, on principle and by weight of authority, be given effect as a nuncupative will.^^ It has, however, been held in some jurisdic- tions that instructions for the drawing up of a written will, declared before the requisite number of witnesses, may be received and proved as a nuncupative will, where the testator is, by the act of God, rendered incapable of completing his will in the mode contem- plated by him.^* Last Sickness Statutes generally provide, after the manner of the statute of frauds, that wills of this character, in order to be valid, must be made during the "last sickness" of the testator. The most general and unquestionably the preferable rule is that the will must be made not only during the sickness which terminated in the testator's death, but that it must be made at such a point in the sickness when, by reason of the apparent imminence of death, there is neither time nor opportunity to make a written will, In other words, "last sickness" is construed to mean that the testator must be in ex- » In re Askins* Estate, 20 D. O. 12. » Knox V. Richards, 110 Ga. 5, 35 S. E. 295; IN RE MALE'S WILL, 49 N. J. Eq. 266, 24 Atl. 370, Dunmore Cas. Wills, 20; Donald v. Unger, 75 Miss. 294, 22 South. 803; In re Grossman's Estate, 175 111. 425, 51 N. E. 750, 67 Am. St. Kep. 219. 10 Porter's Appeal, 10 Pa. 254. 11 Ellington v. Dillard, 42 Ga. 361; Tabler v. Tabler, 62 Md. 601; Dockum V. Robinson, 26 N. H. 372; IN RE MALE'S WILL, 49 N. J. Eq. 266, 24 Atl. 370, Dunmore Cas. Wills, 20; Kennedy v. Douglas, 151 N. C. 336, 66 S. E. 216; Hunt v. White, 24 Tex. 643 ; Winn v. Bob, 3 Leigh (Va.) 140, 23 Am. Dec. 258; Reese v. Hawthorn, 10 Grat. (Va.) 548. i2Frierson v. Beall, 7 Ga. 438; Offutt v. OfCutt, 3 B. Mon. (Ky.) 162, 38 Am. Dec. 183; Boofter v. Rogers, 9 Gill (Md.) 44, 52 Am. Dec. 680; Parkison V. Parkison, 12 Smedes & M. (Miss.) 672 ; Aurand v. Wilt, 9 Pa. 54 ; Guthrie V. Owen's Heirs, 10 Yerg. (Tenn.) 339; Phcebe v. Boggess, 1 Grat. (Va.) 129, 42 Am. Dec. 543. 48 FORM OF WILLS (Ch. 3 tremis.** The testamentary intent must manifest itself in nuncupa- tive form from jiecessity, not from choice,^* and in fear that death is at hand." Thus an alleged nuncupative will cannot be admitted to probate, made by the testatrix during her last illness, nine days before h^r death, where there is clear proof that she had time and capacity to subsequently make a written will, had she so desired.^* So a nuncupative will, made four hours before the testator's death, was refused probate, it appearing that, his physical and mental con- dition would have admitted of a will in writing, and that' death oc- curred unexpectedly.^' But the mere fact that physicians had warned a decedent to settle his affairs in sufficient time to have enabled him to do so by a written will will not disable him from making a nuncupative will, if, through misplaced confidence in his ability to recover, he postpones so doing until there is no time to execute a written will.^' The general rule prevents the too easy avoidance of the safe- guards surrounding a written will. But some courts have taken a more liberal view in construing the statute, holding that a nuncu- pative will made at any time during the last sickness is valid, if made by one impressed with the probability of death, regardless of the question as to whether, under the circumstances, there was opportunity for the execution of a written will.^* 13 In re Asklns' Estate, 20 D. C. 12; Bellamy v. Peeler, 96 Ga. 467, 23 S. E. 387: Scaife v. Emmons, 84 Ga. 619, 10 S. E. 109J, 20 Am. St Rep. 383; Mul- ligan V. Leonard, 46 Iowa, 692; O'Neill t. Smith, 83 Md. 569; Donald v. Unger, 75 Miss. 294, 22 South. 803; Carroll v. Bonham, 42 N. J. Bq. 625, 9 Atl. 371; Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307; In re Rutt'g Estate, 200 Pa. 549, 50 Atl. 171; Haus v. Palmer, 21 Pa. 296; In re Wiley's Estate, 187 Pa. 82, 40 AU. 980, 67 Am. St. Rep. 569 ; MofCett v. Mof- fett, 67 Tex. 642, 4 S. W. 70; Reese v. Hawthorn, 10 Gra^. (Va.) 548 ; Brun- son V. Burnett, 1 Chand. (Wis.) 136. 14 Scaife v. Emmons, 84 Ga. 619, 10 S.- E. 1097, 20 Am. St. Rep. 383; In re Munhall's Estate, 284 Pa. 169, 83 Atl. 66; Mellor v. Smyth, 220 Pa. 169, 69 Atl. 592. 15 In re Rutt's Estate, 200 Pa. 549, 50 Atl. 171. 16 Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371. 17 In re Conaughton's Will, 11 Pa.. Co. Ct. R. 460. It Is possible that, had the decedent been in immediate apprehension of death at the' time of making his declarations, the decision here would have been different. IS Tn re Wiley's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am. St. Rep. 569. 10 Johnston v. Glasscock, 2 Ala. 242; Harrington v. Stees, 82 111. 50, 25 Am. Rep. 290; Baird v. Baird, 70 Kan. 564, 79 Pac. 163, 68 L. R. A. 627, 3 Ann. Gas. 312; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Cas. 1128; Nolan v. Gardner, 7 Heisk. (T^enn.) 215; Gwin v. Wright, 8 Humph. (Tenn.) 639 ; In re Miller's Estate, 47 Wash. 253, 91 Pac. 967, 13 L. R. A. (N S ) 1092, 125 Am. St. Rep. 904, 14 Ann. Cas. 1163. §§12-13) NUNCUPATIVE WILLS — DEFINITION — HISTORY 49 Place Where Nuncupative Will must he Made Statutes in conformity to the provisions of the statute of frauds ^* require that a nuncupative will must be made in the house of the habitation of the testator, unless he is surprised or taken sick away from home, and dies before returning. If the excepted casie is "where the deceased is taken sick from home and dies," instead of being "surprised or taken sick," as was the wording of the English statute, a testator who leaves home, seriously ill, and dies while away, may make a valid nuncupative will at the place of his death.^* Rogatio Testium The statute of frauds required the testator executing a nuncupa- tive will "to bid the persons present, or some of them to bear wit- ness that such was his will, or to that effect." ^^ This corresponds to the rogatio testium of the civil law. American statutes, as a rule, either expressly or by implication, make an oral request necessary, though no form of words is ordinarily prescribed.^* Substantial conformity with the requirements of the statute in this regard is rigorously exacted. The desire of the testator that the parties re- quested bear witness to the will must be unequivocally manifested, though the exact words of the statute need not be employed.^* Thus a request to the persons present that his friends who are to have his property should be informed,"" and a statement that he wishes to make a disposition of his effects, have been held suffi- cient." ° But a mere statement of testamentary wishes is not enough. There must be something equivalent to a request that wit- nesses shall take notice of them as such. Thus a declaration : "Everything is to go to Willie.' I want Willie to have everything. I intended to fix it so that there would be no trouble, but it was put off" — unaccompanied by any request to witnesses, is inoperative."^ 20 Ante, p. 45. 21 Marks v. Bryant, 4 Hen. & M. (Va.) 91; Gwin v. Wright, 8 Humph. (Tenn.) 639. 22 Section 19, supra, p. 45. 23 1 Underbill, Wills, § 169. 24 In re Grossman's Estate, 75 111. App. 224. See, also, In re Eutt's Estate, 200 Pa. 549, 50 Atl. 171; In re Wiley's Es- tate. 20 Pa. Co. Ct. R, 389; Id., 6 Pa. Dist B. 691; In re Askins' Estate, 20- D. G. 12; Harrington v. Stees, 82 111. 50, 25 Am. Rep. 290; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450, 10 Ann. Cas. 1128. 2 6 Gwin V. Wright, 8 Humph. (Tenn.) 639. 26 Baker v. Dodson, 4 Humph. (Tenn.) 342, 40 Am. Dec. 650. In Baird v. Baird, 70 Kan. 564, 79 Pac. 163, 68 L. R. A. 627, 3 Ann. Cas. 312, the statement by testator to witnesses, "I want you to see that it [the verbal will] is carried out the way I want it to be," was held a sufficient rogatio testium. 2T In re WUey's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am. St Rep. 569. For Oard. Wills (2d Ed.) — 4 50 FORM OF WILLS (Ch. 3 A general request to the parties present at the declaration of the testamentary wishes to bear witness thereto, without specifying any particular individuals, is sufficient; ^' and this though the stat- ute provides that the witnesses must state that they were specially required to bear witness thereto by the testator himself.^® , The required number of witnesses must, however, be present at the same time. A declaration made to witnesses separately and at dififerent times is not sufficient.^" In Ohio the two witnesses to a nuncupative will required by stat- ute must be competent and disinterested witnesses at the time of the attestation, and their disqualification by reason of interest un- der the will cannot be removed by a renunciation thereof at the time of probate, nor does the provision of statute rendering a devise to the witness of a will void, and enabling the witness to testify to the execution of the .will, apply to the case of a nuncupative will.^^ Number of Witnesses By the statute of frauds, a nuncupative will was required to be proved by the oaths of at least three witnesses.*^ Consequently, if one of the three died prior to the probate, the will could not be proved.'^ In the United States, where wills of this character are recognized, three witnesses are sometimes required,** though two is the more usual number, and some statutes make no express provi- sion as to the number of witnesses.'" As^the will must be proved by the witnesses, they must agree as to its provisions ; otherwise probate is impossible.*' analogous cases, see In re Hebden's Will, 20 N. J. Eq. 473; Dockum v. Kobin- son, 26 N. H. 372 ; Bennett v. Jackson, 2 Phil. 190. 28 Bradford v. Glower, 60 111. App. 55, wliere the testatrix, after stating the disposition which she wished made of her property, raised her hands, ad- dressed generally those about her, and said: "You all know now what I want done. That is all I have got to say." 2 8 Long V. Foust, 109 N. C. 114, 13 S. E. 889, construing Code N. C. 1883, § 2148, par. 3. Here a nuncupative will was declared in the presence of several competent witnesses, and the testator, without naming them, called on all present to witness his will, and they heard and took notice. 3 TN KE MALE'S WILL, 49 N. J. Eq. 266, 24 Atl. 370, Dunmore Gas. Wills, 20; Bundrick v. Haygood, 106 K C. 468, 11 S. E. 423 ; In re Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115 ; Tally v. Butterworth, 10 Terg. (Tenn.) 501. 81 Vrooman v. Powers, 47 Ohio St. 191, 24 N. E. 267, 8 L. R. A. 39. 82 Ante, p. 45. 38 1 Eq. Gas. Abr. 401. See 1 Wms. Ex'rs, 121. 84 Such is the case In Maine, New Hampshire, New Jersey, Texas, and Wisconsin. SB There being no provision as to number of witnesses, two were required in Johnston y. Glasscock, 2 Ala. 218. «8 BoUes V. Harris, 34 Ohio St. 38; Mitchell v. Vickers, 20 Tex. 377. § 14) NUNCUPATIVE WILLS OF SOLDIERS AND SAILORS 51 Reduction to Writing. The statute of frauds required that nuncupative wills should be reduced to writing within six days after they were declared ; other- wise probate must be had within six months after the oral declara- tion-; ^' and similar legislation, with some variation as to time, is usual'in the United States.^* This requirement is mandatory, and no excuse for not proceeding within the time limited can avail. °° The writing must set forth substantially the same words as those spoken by testator.*" Repeal of Written Will by Nuncupative Will The statute ot frauds enacted that no will in writing shall be re- pealed, nor shall any clause therein be changed by any words or will by word of mouth only, except the same shall 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.*^ Statutory provisions in the United States usually prevent the revocation of a written will by a nuncupative will.*" NUNCUPATIVE WILLS OF SOLDIERS AND SAILORS 14. Oral wills of sailors at sea and soldiers in actual service were, in terms, excepted from the operation of the statute of frauds. In many jurisdictions the oral wills of these classes of persons are recognized as valid without subsequent re- duction to writing, without any specified number of wit- nesses, and generally without being made in extremis. Wills made by "any soldier in actual military service, or any mariner or seaman being at sea," were expressly excepted from the operation of the provisions of the statute of frauds relating to nun- cupative wills.** The statute of wills (1 Vict. c. 26) rendered all nuncupative wills invalid, making, however, the same exception in favor of soldiers and sailors.** 37 Ante, p. 46. 8 8 In re Haygood's Will, 101 N. C. 574, 8 S. E. 222. 39 Martinez v. De Martinez, 19 Tex. Civ. App. 661, 48 S. W. 532. *o Bolles V. Harris, 34 Ohio St. 38. 41 29 Car. II, ch. 3, § 22! ^aMcCune's Devisees v. House, 8 Obio, 144, 31 Am. Dea 438; Brook v. Chappell, 34 Wis. 405. 43 29 Car. II, c. 3, § 23. 44 "Any soldier being In actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done be- 52 FORM OF WILLS (Ch. 3 Statutes to the same effect have been enacted in many of the American states. Meaning of Terms The term "soldier" comprehends every military grade from pri- vate to commander in chief, and includes generals, regimental' and line officers, those assigned to field or staff duty, surgeons, all who hold commissions or warrants, or are borne on the rolls as enlisted men, and who are in actual military service.*" The term embraces not only the fighting force, but also those who attend to the feeding and transportation of the army and to the care of the sick and wounded.** A soldier is in "actual military" service" when he is engaged in an expedition,*' i. e. when he is taking part in hostile operations, either offensive or defensive, against the enem3^ If he is playing any part in a general scheme of military operations directed against an enemy, or is on his way to take such part, he is then sufficiently in service to make a valid nuncupative will. The nuncupative will of a soldier on his way from one regiment to another, both of which were in the field,*' of an officer with his regiment which is about to start on a military expedition,*' of a soldier ordered to the hospital when on the march to meet the enemy,^'' is valid. But a soldier is not in service when quartered with his regiment in barracks,^^ or when at home on a furlough,"'' or while on a tour of inspection of troops not engaged in warfare, under his command."^ A sailor is any person engaged in the naval service, or employed in the merchant service, on shipboard, to minister to the purposes for which the voyage was undertaken ; i. e., the safe transportation fore the making of this act" 1 Vict c. 26, § 11. See note on "Soldiers' and Seamen's Wills," 4 B. R. C. 899, for good collection of cases. * 5 Goods of Donaldson, 2 Curt 386; Leathers v. Greenacre, 53 Me. 561; Van Deuzer v. Gordon's Estate, 89 Vt 111; Schoul. Wills, § 366. *8 Ex parte Thompson, 4 Bradf. Sur. (N. T.) 154, 158. 47 Drummond v. Parish, 3 Curt 522. See, also, article on "Soldiers' Wills," 79 Cent Law J. 388. A person who has enrolled himself in a volunteer company, but has not yet heen mustered into service, cannot make a nuncupative wiU as a soldier. Pierce v. Pierce, 46 Ind. 86. *8 Herbert v. Herbert Dea. & Sed. 10. *9 Goods of Thome, 29 Jur. 569. Mobilization may be taken as a commencement of that which, in Roman law, -was understood by the words "in expeditione.* Gattward v. Knee [19021 Prob. 99. 60 Gould V. Safford's Estate, 39 Vt 498. 61 White V. Repton, 3 Curt 818, 62 Smith's Will, 6 Phil. 104. »» Goods of HUl, 1 Rob. 276. /§ 14) NUNCUPATIVE WILLS OF SOLDIEKS AND SAILORS 53 of the cargo and passengers, and the care of the latter during the prosecution of the voyage. The term includes engineers, firemen, pursers, cooks, stewards, surgeons, and chaplains."* A vessel is regarded as "at sea" when ready to prosecute or engaged in prose- cuting her voyage, though lying temporarily at anchor within the ebb and flow of the tide.°° A sailor is "at sea," for the purposes of making a nuncupative will, when he is attached to a vessel thus circumstanced, though temporarily ashore on leave.'" A properly made nuncupative will of a sailor is entitled to probate, although testator dies after hie has landed.'^ There seems no reason why the same rule should not apply to a vessel, on her voyage, but lying alongside a wharf for a temporary purpose. It has been held that a mariner, while on the Mississippi river, is not within a statute allowing nuncupative wills to be made by "marin'ers while at sea." "' If the ebb and flow of the tide is in all cases to be taken as the test as to whether a vessel is at sea, this decision is no doubt correct. But it is submitted that a ship may fairly be regarded as at sea when she is being navigated for the purposes of the voyage. There can be little doubt but that the presence of the tide was re- sorted to in England for the determination of this question because navigability was thus determined. But with the repudiation of the ebb and flow of the tide as a universal criterion of navigability in America, a more liberal rule in this regard should apply to nuncupa- tive wills. To hold to the ancient doctrine is to hold that a sailor on the Great Lakes cannot, when overtaken by sudden danger, make an oral will, although the reasons for sustaining a will thus made are as strong in his case as in that of his fellow on the Atlan- tic. B* Ex parte Thompson, 4 Bradf. Sur. (N. Y.) 154. See, also, Goods of Hays, 2 Curt 338; Goods of Milligan, 2 Rob. 108; HUBBARD V. HUBBARD, 8 N. T. 196, Dunmore Gas. Wills, 24. 5 5 HUBBARD V. HUBBARD, 8 N. Y. 196, Dunmore Gas. Wills, 24; Ex parte Thompson, 4 Bradf. Sur. (N, Y.) 154; In re Patterson, 79 Law T. (N. S.) 123 ; Goods of Rae, L. R. 27 Ir. Ch. Diy. 116. A vessel permanently stationed at a port in the coast defense is "at sea." Goods of McMurdo, L. R. 1 P. & D. 540. 5 6 Goods of Lay, 2 Curt. 375. In this case the unattested will of a sea- man, who, while on board a vessel lying in the harbor of Buenos Ayres, ob- tained leave to go ashore, where he met with an accident, and was thereby so severely injured that he died on shore, was admitted to probate. But the commander of a naval force, living on shore, at the official residence, with his family, is not sufficiently at sea to enable him to make a nuncupative will. See 1 Wms. Ex'rs, 154. BT In re O'Connor's Will, 65 Misc. Rep. 403, 121 N. X. Supp. 903. 58 Gwin's Will, Tuck. (N. Y.) 44. 54 FORM OF WILLS (Ch. 3 Must Mariner or Soldier he in Bxtremis? It is usually said that the general danger attaching to actual mili- tary service and to life at sea is sufficient to warrant the making of a nuncupative will, and that the sailor or soldier need not be in ex- tremis or in fear of immediate death when making an oral will.^* This is apparently true in the case of a soldier,"" and what little authority there is supports the same view as applied to mariners.*^ In Oklahoma, neither soldier nor sailor can make a will of this character except in actual contemplation of death, or in actual expectation of immediate death in consequence of sickness or in- jury.'* NUNCUPATIVE WILLS PASS TITLE TO PERSONALTY ONLY 15. Wills, in so far as they operate on real property, must be in writing. A nuncupative will can operate only upon per- sonalty, unless the statute expressly or by necessary im- plication provides otherwise. As has been seen,'* the legal title to land could not be disposed of by will, whether written or oral, prior to the passage of the stat- ute of wills, which enabled lands to be devised by a will in writing. The provisions of the statute of frauds relative to nuncupative wills ' had no reference to wills of real property. While under a few early American statutes it was held that realty might pass under a nun- cupative will,'* it is now the general if not the universal rule that wills of this character are valid only in so far as they deal with per- sonal property.'* Even the income of realty cannot be disposed of 5» 1 UnderhUl, WiUs, § 176; Schoul. Wills, §§ 367, 370. eo See Leathers v. Greenacre, 53 Me. 561, 574; Van Deuzer v. Gordon's Estate, 39 Vt. 111. 61 In re O'Connor's "Will, 65 Misc. Eep. 403, 121 N. Y. Supp. 903. 82 Ray V. Wiley (1902) 11 Okl. 720, 69 Pac. 809, a decision made necessary by Oklahoma statute. 68 Ante, p. 6. 64 Ashworth v. Carieton, 12 Ohio St. 381; Gillis* Lessee v. Weller, 10 Ohio, 462. Statute since changed. See Rev. St. Ohio 1910, § 10601. 6 McLeod V. Dell, 9 Fla. 451; Pierce v. Pierce, 46 Ind. 86; Palmer v. Palmer, 2 Dana (Ky.) 391; Campbell v. Campbell, 21 Mich. 438; Sadler v. Sadler, 60 Miss. 251 ; Maurer v. Reifschneider (1911) 89 Neb. 673, 132 N. W. 197, Ann. Cas. 1912C, 643; Cooper v. Pogue, 92 Pa. 254, 37 Am. Rep. 681; J9hnson v. Johnson, 92 Tenn. 559, 23 S. W. 114, 22 L. R. A. 179, 36 Am. St. Rep. 104; MofCett v. MofCett, 67 Tex. 642, 4 S. W. 70; Furrh v. Winston, 66 Tex. 521, 1 S. W. 527. § 16) NUNCUPATIVE WILLS IN LOUISIANA 55 by such a will.*' But a nuncupative will of land is admissible to show the intent of the deceased, and as corroborative of an assertion that deceased had previously made a parol gift or sale of the land.*^ A nuncupative will is valid as to personalty, although testator intended to pass realty also.** Fcdue of Property Bequeathed ^ The statute of frauds by its terms*' did not prohibit a nuncupa- tive will where the estate thereby bequeathed did not exceed the value of i30. In many jurisdictions the statutes permit only a lim- ited amount of personalty to be disposed of by a nuncupative will.'" NUNCUPATIVE WILLS IN LOUISIANA 16. A nuncupative will, under the Code of this state, is one executed by a public act, before a notary, and dictated to him in the presence of three witnesses who reside in the place where the win is executed, or of five non-residents ; or by private act, where the will is written in the presence of five vdt- nesses residing in the place where the will is made, or of seven residing elsewhere; or where the testator presents to the same number of witnesses his will, not written in their presence, declaring it to be his last will.^^ The Code requires that a testament by public nuncupative act shall be received by the notary, dictated by the testator, written down by the notary, read to the testator, all in the presence of the witnesses, and that express mention shall be made in the will itself that all these requirements have been complied with. Hence a will of this character which fails to recite that it was dictated and writ- ten down in the presence of the witnesses is invalid.'^ The omis- 86 Page V. Page, 2 Eob. (Va.) 424; In re Davis' Will, 103 Wis. 455, 79 N. W. 761. 01 Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818. 6 8 Mulligan v. Leonard, 46 Iowa, 692. 69 See ante, p. 45. 70 See Mulligan v. Leonard, 46 Iowa, 692, holding will valid to extent of statutory limit, although personalty bequeathed in excess of amount permitted by statute. Ti av. Code, arts. 1574, 1578, 1581; 1 Underhill, Wills, § 179; Page, Wills, §§ 241, 242. See Weick v. Henne, 41 La. Ann. 1153, 5 South. 528. T2 Succession of Vidal, 44 La. Ann. 41, 10 South. 414. So with a will fail- ing to state that the notary wrote it Miller v. Shumaker, 42 La. Ann. 398, 7 South. 456. For proper certificate, see Monroe v. Liebman, 47 La. Ann. 155, 16 South. 734. 56 FORM OF WILLS (Ch. S sion of any formality cannot be supplied by evidence dehors the testament-'^ The dictation must be by words pronounced orally, so that, where the testator hands to the notary written memoranda, expressing his wishes, saying "like this," and nothing more, the testament is null.^* The witnesses to a will, whether by public or private act, must understand the language in which the testator expresses himself, and in which the will is drawn up; otherwise it is invalid.'" And the fact that, while the will was being dictated, what was said was translated to a witness who did not understand the language, does not render the witness competent.'" The testament should set forth the names, number, and residence of the witnesses, but it need not expressly negative the incapacities of such witnesses as enumerated by the Code." A nuncupative testament by public act must show that all the formalities were complied with, "without interruption, and without turning aside to other acts." " But the notary need not declare in the will that the formalities were done at one time and without in- terruption. The party attacking the will must show the interrup- tioh.'' Neither need the notary employ the precise language of the testator. All that is necessary is to express exactly his intent.** And he may question the testator as to his meaning,*^ and suggest appropriate language in which to express it.*'' The placing by a Ts Weick V. Henne, 41 La. Ann. 1153, 5 South. 528. In a will by public act, the act must state that the witnesses are residents of the place where the will was executed. A recital that they are competent is not enough. Succession of VoUmer, 40 La. Ann. 593, 4 South. 254. T4 Succession of Theriot, 114 La. 611, 38 South. 471. 76 Richard v. Richard, 129 La. 967, 57 South. 286. 7 6 Succession of D'Auterive, 39 La. Ann. 1092, 8 South. 341. T7 Succession of Del Escobal, 42 La. Ann. 1086, 8 South. 268, 9 L. R. A. iil29; In re Marqueze, 50 La. Ann. 66, 23 South. 106; Succession of Murray, 41 La. Ann. 1109, 7 South. 126. A description of the witnesses to a -will as "all of this city," following, "C. R. a notary public for the city of New Orleans," sufficiently states their residence. In re Marqueze, supra. A boy over 16 years of age, who resides in the parish, is a competent wit- ness to a will by public act, although his parents live elsewhere. Oglesby v. Turner, 127 La. 1093, 54 South. 400. T8 Civ. Code, art. 1578. 78 Succession of Saux, 46 La. Ann. 1423, 16 South. 364; Succession of Mur- ray, 41 La. Ann. 1109, 7, South. 126. so Succession of Saux, 46 La. Ann. 1423, 16 South. 364; Succession of Cauvien, 46 La. Ann. 1412, 16 South. 309. 81 Succession of Saux, 46 La. Ann. 1423, 16 South. 364. 82 Hennessey's Heirs v. Woulfe, 49 La. Ann. 1376, 22 South. 394. I 17) HOLOGBAPHIO WILLS 57 notary of an omitted word in the margin is immaterial, when the word can be ignored and the will is intelligible without it.'" If able, the testator must sign the will ; ** if not, the notary certifies the fact, in which case nothing by way of mark or other signature is required of the testator.*" A nuncupative testament, void as a public act, may be valid as a private act, if it has the requisites.** Mystic Will A mystic testament, as recognized by the Code,*' is one signed 'by the testator himself, sealed and given to a notary in the pres- ■ence of three witnesses, accompanied by the testator's declaration that it is his last will. The envelope containing the document must then be indorsed by the notary, with a declaration of all the facts, which must be signed by him and the witnesses. HOLOGRAPHIC WILLS 17. A holographic will is one entirely written by testator. The statutes of a minority of jurisdictions recognize such virills as valid, without formal execution or attestation, if wholly written, dated, and signed by the testator's own hand. Wills of this character were recognized by the civil law, whence they were incorporated into the Code of Louisiana, whose legisla- tion in this respect has been followed in some states. The general tendency, however, is not to discriminate between holographic and ■other wills.** Substantially literal compliance with the statute is essential to the validity of a holographic will. Where the require- ments are those indicated in the black-letter text, a date partially written and partially printed invalidates the will.*" But a date 83 Dupuy V. Esnard, 51 La. Ann. 797, 25 South. 534. 84 Civ. Code, art 1582; Frith v. Pearce, 105 La. 186, 29 South. 809. 85 Hennessey's Heirs v. Woulfe, 49 La. Ann. 1376, 22 South. 394. See Civ. ■Code La. arts. 1579, 1582. 86 Ducasse's Heirs v. Ducasse, 120 La. 731, 45 South. 565; Succession of Keems, 115 La. 102, 38 South. 930. 87 Civ. Code La. arts. 1584, 1587. 88 In re Turell's Will, 166 N. Y. 330, 59 N. E. 910; Id., 47 App. Div. 560, 62 N. X. Supp. 1053 ; In re Akers' Will, 74 App. Div. 461, 77 N. Y. Supp. 643. 8 9 IN RE BILLINGS' ESTATE, 64 Oal. 427, 1 Pac. 701, Dunmore Cas. Wills. 29. Here, in the date, "April 1st, 1880," the figures "1880" were in •print, the will being written on a letter head. Accord: Succession of Robertson, 49 La. Ann. 868, 21 South. 586, 62 Am. rSt. Rep. 672. See, also. Rand's Estate, 61 Cal. 468, 44 Am. Rep. 555; Wil- 58 , FORM OP WILLS (Ch. 3 omitting the first two figures of the year, as '97, is sufficient,^" and it is immaterial in what part qf the instrument the* date appears.'^ So the amount, of a legacy may be expressed in figures.*^ And generally if the name of the testator appears anywhere in the in- strument, it is a sufficient signature,'' though the rule is otherwise in Louisiana.'* The will need not state the place of execution.'' Statutes sometimes require that a holographic will shall be found among the valuable papers or eifects of the deceased, or be lodged in the hands of some person for safe-keeping. This requirement is met when the will is found in a trunk containing papers belonging to the deceased and left with a friend for safe-keeping,'" and by a\ letter expressing a wish that, in event of his death, certain land should go to the person to whom it was addressed, although the latter was not directed in the letter to preserve it as the testator's will.'^ But a holographic will of a decedent found in a box in which he kept stamps and stationery for sale as a postmaster was not among his valuable papers.'^ As with other wills, the particular form which the writing may liams' Heirs v. Hardy, 15 La. Aon. 286; Gaines v. Lizardi, 3 Woods, 77, Fed> Cas. No. 5,175. An instrument reading, "dated the day of , 1906," is invalid because not dated as required by statute. In re Price's Estate, 14 Cal. App. 462, 112 Pac. 482. 8 In re Lakemeyer's Estate, 135 Cal. 28, 66 Pac. 961, 87 Am. St Bep. 96. Compare: Succession of Swanson, 132 La. 606, 61 South. 685. Dating by using figures, to wit, "4 — 14 — 07," is sufficient. In re Chevallier's Estate, 159 Cal. 161, 113 Pac. 130. 81 Zerega v. Percival, 46 La. Ann. 590, 15 South. 476. Although will must be dated, a mistake in the date will not invalidate it. In re Noyes' Estate, 40 Mont. 190, 105 Pac. 1017, 26 L. R. A. (N. S.) 1145, 20 Ann. Cas. 866. 92 Succession of Vanhille, 49 La. Ann. 107, 21 South. 191, 62 Am. St. Rep. 642. 9 3 In re Camp's Estate, 134 Cal. 233, 66 Pac. 227; In re Stratton's Estate, 112 Cal. 513, 44 Pac. 1028; Lawson v. Dawson's Estate, 21 Tex. Civ. App. 361, 53 S. W. 64 ; Dinning v. Dinning, 102 Va. 467, 46 S. E. 473. 9* Succession of Armant, 43 La. Ann. 310, 9 South. 50, 26 Am. St. Rep. 183; 7 Am. Prob. Rep. 361. See, also, Roy v. Roy's Ex'r, 16 Grat. (Va.) 418, 84 Am. Dec. 696; Warwick v. Warwick, 88 Va. 596, 10 S. E. 843, 6 L. R. A. 775. 95 stead V. Curtis, 191 Fed. 529, 112 C. C. A. 463. 9 6 Hill V. Bell, 61 N. C. 122, 93 Am. Dee. 583; Little v. Lockman, 49 N. C. 494. A holographic will locked in decedent's safe was "among his valuable pa- pers," regardless of whether there was any other paper in that particular drawer of safe. Harper v. Harper, 148 N. C. 453, 62 S. E. 553. 97 Alston V.' Davis, 118 N. C. 202, 24 S. E. 15. 9 8 Brogan v. Barnard, 115 Tenn. 260, 90 S. W. 858, 112 Am. St Rep. 822, 5 Ann. Cas. 634. § 18) CONDITIONAL WILLS 59 take is immaterial."' Any clear expression of testamentary intent is enough. Thus a letter to a sister, in which, after referring to land and his intention to build thereon, the testator said, "If I die or get killed in Texas, the place must belong to you, and I would not want you to sell it," was held a good holographic will.^ An instrument in the handwriting of the testator, though accom- panied with an attestation clause, or though actually attested, is not therefore void as a holograph; the presumption being, until re- butted, that the witnesses were for the purpose of proving the hand- writing, and not to prove an execution of the will in the statutory mode.^ The proof of the testator's handwriting is made in the usual man- ner in which such proof is effected whenever handwriting is in issue,^ and, if the will is assailed as a forgery, the fact must be es- tablished with some certainty.* * CONDITIONAL WILLS 18. A will may be conditional in form ; i. e., its operation as a will may depend upon the fulfillment or happening of a condi- tion precedent. The condition here referred to is one affecting the operation of the will as a whole, and not one conditioning a particvdar portion of a will otherwise un- conditioned. , Cases involving this question have most commonly arisen in the construction of wills referring to some impending danger, and the possible death of the testator under certain circumstances. The question always is whether the happening of the possibility referred to is a condition precedent to the operation of the will, or whether the possibility of the happening was the motive which led to the preparation of the instrument, and which has been carelessly or in- accurately referred to in language in itself suggestive of a condition. »9 A memorandum written by decedent on the front page of a book, dated eigbt years before his death and signed by him, reading, "Everything is Lou's," does not suflSciently show an intent to make a testamentary disposi- tion. Smith V. Smith, 112 Va. 205, 70 S. E. 491, 33 L. B. A. (N. S.) 1018. lAIston V. Davis, supra. See, also, Webster v. Lowe, 107 Ky. 293, 53 S. W. 1030. 2 In re Sober, 78 Cal. 477, 21 Pac. 8 ; Brown v. Beaver, 48 N. C. 516, 67 Am. Dec. 255; Ainsworth v. Briggs, 49 Tex. Civ. App. 344, 108 S. W. 753; Perkins V. Jones, 84 Va. 358, 4 S. B. 833, 10 Am. St. Rep. 863 ; 1 Underbill, Wills, § 9. s Mitchell v. Donohue, 100 Cal. 202, 34 Pac' 614, 38 Am. St Rep. 279; Franklin v. Franklin, 90 Tenn. 44, 16 S. W. 557. * Barlaw v. Harrison, 51 La. Ann. 875, 25 South. 378. 60 FORM OF WILLS (Ch. 3: While the cases are irreconcilable, the strong tendency of the courts is to construe wills as unconditional if there is any room for doubt. If by reasonable interpretation the language can be re- garded as meaning that the testator referred to the contingent event as the reason merely for making the will, the will is not con- ditional." Wills Held Conditional The following wills were construed as conditional : "I, being on the eve of embarking for San Francisco, South America, or Mexico,, do hereby, in case of my decease during my absence being fully as- certained and proved, will over," etc' An illiterate farmer, having occasion to go to town, executed the- following paper: "I am going to town and I ain't feeling good, and in case if i shouldend get back do as i say on this paper." Then followed a disposition of his property. He returned home, where he died a few days later. Held, that failure to return home was a condition precedent to the operation of the instrument.' The- words, "as I intend starting in a few days for the state of Missouri, and should anything happen that I should not return alive," were also construed as a condition.* Wills Held Unconditional A will read thus: '"Thursday morning. In case of any fatal' accident happening to me, being about to travel by railway, I here- by leave all my property," etc. The testator did not die upon the journey. Held, that its validity did not depend upon that event,, and that it was entitled to probate.* "In the name of God, amen : I, J. W. D., being about to go to Cuba, and knowing the dangers of voyages, do hereby make this 5 Damon v. Damon, 8 Allen (Mass.) 192 ; Brown v. Concord, 33 N. H. 285 ; Cody V. Conly, 27 Grat. (Va.) 313; Skipwlth-v. Cabell's Ex'r, 19 Grat (Va.> 758; Eaton v. Brown, 193 U. S. 411, 24 Sup. Ct. 487, 48 D. Ed. 730; In re Porter, L. R. 2 P. & D. 22, 24; Goods of Dobson, L. R. 1 P. & D. 88; 1 Redf. Wills, 176. 8 Goods of Winn, 2 Sw. & Tr. 147. Testator went to San Francisco, re- turned to England, afterwards went to Australia, where lie died. 7 Appeal of Morrow, 116 Pa. 440, 9 Atl. 660, 2 Am. St. Rep. 616. 8 Dougherty v. Dougherty, 4 Mete. (Ky.) 25. ' For further instances of con- ditional wills, see In re JefEries' Estate, 24 Pa. Co. Ct. R. 492, 9 Pa. Dist. R. 709; Robnett v. Ashlock, 49 Mo. 171; Maxwell v. Maxwell, 3 Mete. (Ky.) 101 -^ Goods of Porter, L. R. 2 P. & D. 22; Parsons v. Lrauve, 1 Ves. Sr. 189; Lind- say V. Lindsay, L. R. 2 P. & D. 459; Davis v. Davis (1914) 107 Miss. 245, 65- South. 241; Magee v. McNeil, 41 Miss. 17, 90 Am. Dec. 354; Wagner v. Mc- Donald, 2 Har. & J. (Md.) 346; Roberts v. Roberts, 2 Sw. & Tr. 337. « » Goods of Dobson, L. R. 1 P. & D. 88, § 18) CONDITIONAL WILLS 61 my last will and testament. First, if by casualty or otherwise I should lose my life during this voyage, I give and bequeath to my wife," etc. Testator returned from Cuba and died several years afterwards. This will was admitted to probate, though the bequest to the wife was held conditional.^" So a will reading, "If I get drowned this morning, March 7, 1872, I bequeath," etc., was held not conditional upon the testator's death by drowning at the time referred to, but a statement of the motive leading to the making of the will." Extrinsic Evidence to Determine Conditional Character The question as to whether a will is conditional is one of con- struction, to be decided by the court.^'' The court is to put itself as nearly as may be in the position of the testator, and then deter- mine his intent, looking at the will, as well as possible, from his standpoint. All the surrounding circumstances attending the ex- ecution may be shown, ^' as may also the preservation of the docu- ment after the apparent condition has failed, and instructions to the beneficiary to take care of it.^* Such evidence, however, is of comparatively little weight, for the conditional character of the will depends upon the testator's intent at the time of execution; and evidence of this sort would tend to show a subseqiient intent that the will should operate regardless of the condition, rather than an original intent that "the will should be unconditional. A subse- quent desire that a will once conditional should become absolute, is, of course, ineffective without a re-execution or republication of the will.^" Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional.^* 10 Damon v. Damon, 8 Allen (Mass.) 192. 11 French v. French, 14 W. Va. 458. For further eases illustrative of un- conditional wills, s6e In re Redhead's Estate, 83 Miss. 141, 35 South. 761; In re Forquer's Estate, 216 Pa. 331, 66 Atl. 92, 8 Ann'. Cas. 1146; Goods of Martin, L. K. 1 P. & D. 380; In re Mayd, 6 P. D. 17; Tarver v. Tarver, 9 Pet. 174, 9 D. Ed. 91; Burton v. Callingwood, 4 Hagg. 176; Forbes v. Gordon, 3 Phill. 625; Likefleld v. Likefield, 82 Ky. 589, 56 Am. Rep. 908; Thome's Case, 4 Sw. & Tr. 36; BATON v. BROWN, 193 U. S. 411, 24 Sup. Ct. 487, 48 li. Ed. 730, Dunmore Cas. Wills, 30. 12 Magee v. McNeil, 41 Miss. 17, 90 Am. Dee. 354. 13 French v. French, 14 W. Va. 460. 1* Likefleld r. Likefield, 82 Ky. 589, 56 Am. Rep. 908. 15 A republication of a contingent will, when the contingency has not oc- curred, relieves the will of the contingency expressed. In re Forquer's Es-* tate, 216 Pa. 331, 66 Atl. 92, 8 Ann. Cas. 1146. 18 Sewell V. SlinglufC, 57 Md. 537. 62 FORM OF WILLS , (Ch. 3 Will Absoluie, hut a Part Thereof Conditional The distinction is readily observed between a will operative only upon a contingency, and a will absolute, but containing a condi- tional legacy or bequest. The failure of the latter has, of course, no eiifect upon the rest of the will.^^ 17 Damon v. Damon, 8 Allen (Mass.) 192; Massie v. Griffin, 2 Mete (Ky.) 364; Halford v. Halford (1897) 66 L. J. P. D. & A. (N. S.) 29. 19) AGEEBME2NTS TO MAKE WILLS 63 CHAPTER IV AGREEMENTS TO MAKE WILLS, AND WILLS EESUnTING FROM AGREEMENT 19. The Contract to Make a WiU. 20. The Remedy. 21. Joint, Mutual, or Reciprocal Willa. THE CONTRACT TO MAKE A WILL 19. A contract to make a will in favor of another is valid, and is governed by the ordinary principles of the law of contracts. Though occasionally criticized,^ the doctrine that contracts of this character are valid is thoroughly established.'' All the essen- tial elements of a contract must be present. A writing, or an oral promise relating to the making of a will which discloses no con- sideration, and under which no obligation is assumed by either par- ty, does not constitute a contract, and may be revoked by the maker.* 1 Duvale v. Duvale, 54 N. J. Eq. 581, 35 Atl. 750. 2 BOLMAN V. OVERALL, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, Dun- more Cas. Wills, 38; Owens v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369; Banks v. Howard, 117 Ga. 94, 43 S. E. 438; Whlton v. Whiton, 179 111. 32, 53 N. B. 722, affirming 79 111. App. 99; Caviness v. Rushton, 101 Ind. 500, 51 Am. Rep. 759; Purviance v. Purviance, 14 Ind. App. 269, 42 N. EL 364; Woods v. Matlock, 19 Ind. App. 364, 48 N. B. 384; Bird vl Jacobus, 113 Iowa, 194, 84 N. W. 1062; AUbright v. Hannah, 103 Iowa, 98, 72 N. W. 421; Howe v. Watson, 179 M)ass. 30, 60 N. E. 415; Wright v. Wright, 99 Mich. 170, 58 N. W'. 54, 23 L. R. A. 196; Newton v. Newton, 46 Minn. 33, 48 N. W. 450; Kleeberg v. Schrader, 69 Minn. 136, 72 N. W, 59; Nowack V. Berger, 133 Mo. 24, 34 S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Duvale v. Duvale, 54 N. J. Eq. 581, 35 Atl. 750; Edson v. Parsons, 155 N. Y. 555, 50 N. B. 265; Kine v. Farrell, 71 App. Div. 219, 75 N. T. Supp. 542 ; Goldstein v. Goldstein, 35 Misc. Rep. 251, 71 N. X. Supp. 807 ; Ronton v. Welch, 48 App. Div. 378, 63 N. Y. Supp. 80 ; Judd v. Burrell, 67 Hun, 650, 22 N. Y. Supp. 212; Heath v. Heath, 18 Misc. Rep. 521, 42 N. Y. Supp. 1087; lipe v. Houck, 128 N. C. 115, 38 S. E. 297; Phipps v. Hope, 16 Ohio St 586; In re Harper's Estate, 7 Pa. Dist. R. 532 ; In re Hoffner's Estate, 161 Pa. 331, 29 Atl. 33; Townsend v. Vanderwerker, ,160 u; S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383 ; Walpole v. Oxford, 3 Ves. Jr. 402. s Drake v. Lanning. 49 N. J. Eq. 452, 24 Atl. 378 ; Spraker v. Dow, 48 Hun, 619, 1 N. Y. Supp. 240; Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455; In re Wiight's Estate, 155 Pa. 64, 25 Atl. 877 ; In re Pleasanton's Estate, 19 Pa. Oo. Ct R. 205; Id., 6 Pa. Dist. R. 5; In re King's Estate, 150 Pa. 143, 24 Atl. 661 ; Saure v. McQanahan (Tenn. Ch. App.) 57 S. W. 359 ; Mitchell v. 64 AGREEMENTS TO MAKE WILLS (Ch. 4 A contract to make a will does not ordinarily affect the revoca- bility of a will made in accordance therewith.* The power of the testator over the instrument remains unimpaired. A right of ac- tion only exists against his estate if the will called for by the con- tract is not left in force at his decease." Consideration , The considerations most common in contracts of this character are either the care and support of the testator by the person in whose favor the promise is made,* or the surrender of a child for adoption in return for a promise by the party adopting the child to make a will in the latter's favor ; ' but any other consideration is sufficient, such as services of any kind,^ the conveyance of proper- ty," an agreement to pay an annuity,^" mutual promises by two per- sons to make wills of certain property each in favor of the other,^^ the abandonment by a wife of proceedings for divorce and the re- sumption of conjugal relations in consideration of the husband's promise to provide for her by will,^'' improvements upon property conveyed by a husband to a wife, made by the former in considera- tion of the latter's promise to make a will in his favor,^^ the erection of a house by one party upon land of another in consid- eration of the latter's promise that the former should have it when the latter was done with it,^* the extension of time for payment Pirie, 38 Wash. 691, 80 Pae. 7Y4; In re Fickus, 69 Law J. Ch. 161, 81 Law T. dry, 69 Mo. App. 6; Stone v. Todd, 49 N. J. Law, 274, 8 Atl. 300; CuUen v. Woolverton, 65 N. J. Law, 279, 47 Atl. 626; In re Wescott, 34 App. Div. 239, 54 N. T. Supp. 545; Heath v. Heath, 18 Misc. Rep. 521, 42 N. Y. Supp. 1087; Hursey v. Surles, 91 S. O. 284, 74 S. B. 618; Bice v. Hartman, 84 Va. 251, 4 S. E 621. 86 Hudson, v. Hudson, 87 Ga. 678, 13 S. E. 583, 27 Am. St. Rep. 270. .87 Washburn v. Weeks, 63 Hun, 627, 17 N. Y. Supp. 708. 8 8 Lisle v. Tribble, 92 Ky. 304, 17, S. W. 742. 72 AGREEMENTS TO MAKE WILLS (Ch. i ally is not allowed to recover on an implied contract to pay for the benefit conferred by his partial performance.'* The right of action does not accrue upon a contract to make pro- vision for another by will until the death of the promisor, and the statute of limitations begins to run only from that time.'" But when a servant agrees to serve as housekeeper during the lifetime of her master, in consideration of a legacy to be bequeathed by the latter, she may, when wrongfully discharged, maintain an ac- tion during the master's lifetime, for such discharge.''^ Parties and Pleading In an action at law for breach of contract to make a will, the party defendant is the personal representative of the decedent,'^ and the heirs or legatees should not be joined.'* An agreement to leave property to several persons by will, share and share alike, is several, and all the promisees cannot join in enforcing it.''* A complaint need not state the date of the contract upon which the action is brought.'"' Estoppel is not available by, way of defense where a plaintiff who is, by contract, entitled to the property of the ■decedent, in ig- norance of her rights, and in the expectation that a will will be dis- covered, accepts a portion of the estate which she would have in- herited as heir, coupling her acceptance with, a protest that she is entitled to all the property.^' Damages When action is brought upon the contract, the measure of dam- ages is the value of the property agreed to be conveyed by will; " «» Tussey v. Owen, 139 N. C. 457, 52 S. B. 128. TO Oann v. Cann's Heirs, 45 W. Va. 563, 31 S. E. 923; Story v. Story (Ky.) 61 S. W. 279; Lawson v. Mullinix, 104 Md. 156, 64 Atl. 938; Llpe v. Houck, 128 N. O. 115, 38 S. E. 297; Green v. Orgain (Tenn. Ch. App.) 46 S. W. 477 ; Warden v. Hinds, 163 Fed. 201, 90 C. O. A. 449, 25 L. R. A. (N. S.) 529. '1 Edwards v. State, 184 Mass. 317, 68 N. E. 342. 72Whitcomb v. Whitcomb, 92 Hun, 443, 36 N. Y. Supp. 607; Williams v. Williams, 58 Hun, 610, 12 N. X. Supp. 599, reversing (Sup.) 11 N. Y. Supp. 753, 25 Abb. N. O. 217. ' ' 7s Day V. Wasbbum, 76 N. H. 203, 81 Atl. 474. T* Myers v. Cronk, 45 Hun, 401. 7 5 Purviance v. Purviance, 14 Ind. App. 269, 42 N. E. 364, TO Howe V. Watson, 179 Mass. 30, 60 N. E. 415. 77 Benge v. HIatt's Adm'r, 82 Ky. 666, 56 Am. Rep. 912; Wellington v. Ap- thorp, 145 Mass. 69, 13 N. E. 10 ; Andrews v. Brewster, 124 N. Y. 433, 26 N. B. 1024; Dill v. Harbeek, 49 Hun, 609, 1 N. Y. Supp. 832; Graham v. Gra- ham's Ex'rs, 34 Pa. 475. But in an action for breach of an agreement to give a legacy, in considera- tion of an extension of time for payment of past services the recovery al- lowed was the reasonable value of such services, and not the amount of the § 20) THE EEMEDT 73 when in general assumpsit, ,the value of the services or other con- sideration furnished in reliance on the promise.'* The fact that any provision which might have been made in the will would have been ineffectual, by reason of the insolvency of the estate, does not limit the recovery, in an action for breach of contract, to nominal damages, since the provision contemplated was for absolute com- pensation, and the measure of damages is the loss sustained by reason of failure to make such provision." Neither is the right of action defeated by the fact that the damages are referable to the amount of the residuary estate, which at the^ time of beginning suit is uncertain, by reason of the failure of the executors to ac- count.'* Remedy in Equity ^ The relief, analogous to specific performance, as stated in the black-letter text, is based upon the theory that the parties who take, by reason of the decedent's failure to make the will con- tracted for, do so as trustees of the promisee, and that they will be compelled to cdnyey to him the property to which, under the contract for the will, he is in equity entitled.'^ The common state- ment that courts of equity will specifically enforce contracts to make a will is obviously inaccurate. Nobody^ can make a will of property, save its owner. All that is meant is that the same re- sults will be gained by proceedings in equity, which would have been attained, had the will been executed in compliance with the contract. The relief given, however, is referable to the jurisdic- tion of courts of equity in the matter of specific performance. The trust thus raised in behalf of the promisee is enforceable against the heirs, devisees, legatees, and personal representatives of the promisor, and against purchasers with notice.*^ And where legacy promised. Murtha v. Donohoo, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158, 41 L. R. A. (N. S.) 246. 78 Succession of McNamara, 48 La. Ann. ttS, 18 South. 908; Laird v. Laird, 115 Mich. 352, 73 N. W. 382 ; Day v. Washburn, 76 N. H. 203, 81 Atl. 474 ; Collier v. Rutledge, 136 N. Y. 621, 32 N. E. 626; Whetstine v. WUson, 104 N. C. 385, 10 S. E. 471. 7 9 Collier v. Rutledge, 136 N. Y. 621, 32 N. E. 626. 80 Andrews v. Brewster, 124 N. Y. 433, 26 N. E. 1024. 81 BOLMAN V. OVER^VLL, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, Dun-, more Cas^ Wills, 38; Whiton v. Whiton, 76 111. App. 553; Baker v. Syfritt, 147 Iowa, 49, 1.25 N. W. 998; Parsell v. Strj'ker, 41 N. Y. 480; Kelley v. De- vin, 65 Or. 211, 132 Pac. 535. 82 BOLMAN V. OVERALL, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, Dun- more Cas. Wills, 38; Whiton v. Whiton, 76 111. App. 553; Thomas v. Feese (Ky.) 51 S. W. 150; Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St Rep. 647; Goldstein v. Goldstein, 35 Misc. Rep. 251, 71 N. Y. Supp. 807; Jo- hannes T. Martian, 22 App. Div. 561, 48 N. Y. Supp. 102 ; Heath v. Heath, 18 74 AGREEMENTS TO MAKE WILLS (Ch. 4 the promisee has acted upon the strength of the promise, and the promisor, in his lifetime, repudiates the contract, and makes a dif- ferent testamentary disposition of the property in question, equity will give the promisee relief during the lifetime of the promisor, by fixing upon the property a resulting trust in his favor.'* The usual principles controlling in the law of specific perform- ance obtain in enforcing trusts of this character. The contract to make the will must be clear and certain,'* reasonable,'" and founded upon a sufficient consideration.'* Laches in bringing the action in equity is a bar to its maintenance." Parties Ordinarily the personal representatives should be included among the parties defendant to a bill to compel the conveyance of land contracted to be devised to the plaintiff by will," but in an action brought against the sole devisee of land for this purpose, where the property has been turned over to the latter, neither the executor nor the heirs at law are necessary parties;'* nor is the Misc. Rep. 521, 42 N. Y. Supp. 1087; Colby v. Colby, 81 Hun, 221, 30 N. Y. Supp. 677, 24 Civ. Proc. R. 148 ; In re Keep's Will, 1 Con. Sur. 104, 2 N. Y. Supp. 750; Emery v. Darling, 50 OMo St. 160, 33 N. E. 715; In re Hoffner's Estate, 161 Pa. 331, 29 Atl. 33; Fogle v. Church, 48 S. C. 86, 26 S. E. 99; Smith V. Pierce, 65 Vt 200, 25 Atl. 1092 ; Synge v. Synge, 9 Rep. 265 ; 1 Q. B. (1894)- 466. A trust thus raised in favor of the promisee is good against promisor's wife, who married promisor after the contract was made, without notice thereof. Dillon v. Gray, 87 Kan. 129, 123 Pac. 878. 83 Duvale V. Duvale, 54 N. J. Eq. 581, 35 Atl. 750. 84 Mundorff v. Kilbourn, 4 Md. 459; Shakespeare v. Markham, 72 N. Y. 400; Sprinkle v. Hay worth, 26 Grat. (Va.) 384. 8 5 Owens V. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369; Wallace v. Rappleye, 103 111. 229. 8 Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455, where an agree- ment whereby decedent was to will her 'estate of $4,000 to her stepdaughter in consideration that the latter would live with the decedent and her hus- band and care for the husband during his illness was held not to be support- ed by a suflBcient consideration to warrant^specific performance, where it ap- peared that the daughter actually cared for her father for only a monli, when she was relieved from her duties by his removal to other quarters, and where she continued her regular occupation during the entire period. 87 Jones V. Perkins (O. C.) 76 Fed. 82, where a delay of seven years after the death of the decedent was held a bar to an action brought against his heir, who had been continuously in possession for six of these years, no con- cealment or fraud by him being alleged, and the only excuse offered for the ' delay being that the complainant "supposed until recently" that the contract could not be enforced. 88 Cole y. Society, 64 N. H. 445, 14 Atl. 73. 8 9 Belt V. Lazenby, 126 Ga. 767, 56 S. E. 81; Fogle v. Church, 48 S. C. 86, 26 S. E. 99. § 21) ^OINT, MUTUAL, OB KECIPKOCAL WILLS 75 administratrix, in an action to recover all the property of the dece- ' dent, brought against his heirs and next of kin."" It can hardly be doubted, however, that the administratrix, under these circum- stances, v\:ould be a proper, though perhaps not a necessary, party. A case could hardly be put in which the personal representative would be regarded as being improperly joined. Probate courts have ordinarily no jurisdiction in proceedings of this character, and, if proceedings are had there, they cannot amount to an adjudication against the right to maintain a suit in equity to enforce the trust.' ^ A conveyance made to a mere volunteer, and in fraud of the promisee's rights under a contract for a will to be made in .his fa- vor, may be set aside in a suit in equity brought by the promisee against the grantee for that purpose."* JOINT, MUTUAL, OR RECIPROCAL WILLS 21. Joint, and mutual or reciprocal, wills usually arise from agree- ment: (a) A joint wiU is a will executed jointly by two or more own- ers of property, as a means of transferring their several titles to one devisee. i (b) Mutual or reciprocal wills are those in which two or more persons make reciprocal testamentary' provisions in favor of each other, whether they unite in one will, or each ex- ecutes a separate instrument. Joint Wills The courts have differed in their interpretation of the meaning of the words "joint" and "mutual" as applied to testamentary dispo- sitions,"^ and whether there is any essential distinction between joint and mutual wills may be doubted. But the joint will that was originally regarded as objectionable was one undertaking' to dis- pose of joint property to some third party after the death of all the testators.'* Such instruments were said to be unknown to Eng- 80 Williams v. Williams (Sup.) 11 N..T. Supp. 753, 25 Abb. N. C. 217. »i Everdell v. Hill, 27 Misc. Rep. 285, 58 N. Y. Supp. 447. 92 Oarmichael v. Cannichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528; Riley v. Allen, 54 N. J. Eci. 495, 35 Atl. 654; Kastell v. Hlllman, 53 N. J. Eq. 49, 30 Atl. 535. 8 3 A testamentary disposition contained in one writing disposing of prop- erty held jointly is a "Joint will"; whereas, the same document, if it refers to and deals with property held separately, would be a "mutual will." Deseu- meur v. Rondel, 76 N. J. E)q. 394, 74 Atl. 703. »i See note 20 Har. Law Rev. 315. 76 AGREEMENTS TO MAKE WILLS (Ch. 4 lish testamentary law." But even in England it was held that probate might be had as to one of two parties. to a joint will.'' And it is now the general rule both in England and the United States that joint wills are valid.f' unless the testators join in one instrument for the complete disposition of their joint property, or of their separate property treated as joint property, and the in- strument is not to take effect until the death of the survivor."' A valid joint will is well illustrated in Goods of Lovegrove." The essential parts of the instrument, which was duly executed, were as follows : "We, Hannah Lovegrove and Letitia Lovegrove, being desirous that, as we are now living mutually together upon the joint savings of each other, at the death of either, * * * the survivor should have all that remains, and we further desire that at the death of the said survivor, should there be any money left at her decease, we wish it to be divided between our nephews and niece hereinafter named." Hannah died first, and the will was probated as that of Letitia, upon the death of the latter. No doubt, it inight also have been probated as Hannah's will, upon her death. Indeed, the rule, in case of joint wills, is that they should be pro- bated, upon the death of each testator, as his separate will.^ »5 Lord Denlington v. Pulteney, 1 C?amp. 268; Hobson t. Blactburn, 1 Add. 26T. See, also, Clayton v. liverman, 19 N. C. 558. «8 In re Stracey, 1 Deane & S. 6; Denyssen v. Mostert, IJ. B, 4 P. C. 236. See Lewis v. Sckofleld, 26 Conn. 452, 68 Am. Dec. 404. 97 Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135 ; Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751 ; State Bank v. Bliss, 67 Conn. 317, 35 Atl. 255 ; Ba- ker V. Syfritt, 147 Iowa, 49, 125 N. W. 998 ; Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474; Betts v. Harper, 39 Ohio St. 639, 48 Am. Kep. 477; Breathitt v. Whlttaker's Bx'rs, 8 B. Mon. (Ky.) 530; Hershy v. Clark, 35 Ark. 17, 23, 37 Am. Eep. 1; In re Lovegrove, 2 Sw. & Tr. 453; In re Raine, 1 Sw. & Tr. 144. » 8 Hershy v. Clark, 35 Ark. 17, 37 Am. Rep. 1; State Bank v. Bliss, 67 Conn. 317, 35 Atl. 255 ; GERBRICH v. FREITAG, 213 111. 552, 73 N. E. 338, 104 Am. St. Rep. 234, 2 Ann, Cas. 24, Dunmore Oas. Wills, 43. The objection to wills of this character is thus stated by Prof. Bigelow: "Suppose two or more should join in making a single will, declaring in de- liberate and technical language, 'We jointly give and devise' the property named. • * • By analogy to contract, ♦ * » it would require the joint act of all the testators to revoke the instrument so long as they lived; towards each alone It would be irrevocable. After the death of one the joint nature of the instrument would be destroyed ; but as before that event none of the testators could revoke the instrument without the consent of all, it is •extremely doubtful if the instrument could be regarded as a true will." Big. WUls, p. 112. »» 2 Sw. & Tr. 453. 1 Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751; Hill v. Hardijig, 92 Ky. 76, 17 S. W. 199, 437; Keith v. Miller, 174 111. 64, 51 N. E5. 151; In re Davis' Will, § 21) JOINT, MUTUAL, OR RECIPROCAL WILLS 77 A joint will, conditioned upon the simultaneous death of the makers, cannot operate in event of the condition being unfulfilled.^ Mutual Wills Mutual wills, as defined in the black-letter text, are of unques- tioned validity.* If not made in pursuance of a contract to that €nd, they, as well as joint wills, are, of course, revocable at the pleasure of the testator.* If made in. compliance with a contract, they may still be revoked, but the same remedies exist in favor of the injured party as in other cases of breach of contract to make a will, viz., an action on the contract, or a remedy in equity against the parties taking title by reason of the failure of the promisor to make the will contracted for." To obtain relief in equity, the con- tract must be clearly and defiriitely established,^ and the mere fact of the execution of mutual separate wills is not sufficient evidence in itself to show that the wills were made pursuant to a contract.' 120 N. C. 9, 26 S. B. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771 ; Betts v. Har- per, 39 Ohio St. 639, 48 Am. Rep. 477; Wyche v. (Happ, 43 Tex. 544. 2 Goods of -Hugo, 2 P. D. 73. s Oarle v. Miles, 89 Kan. 540, 132 Pac. 146; Ann. -Gas. 1915A, 363; In re Diez's Will, 50 N. Y. 88; In re Cawley's Estate, 136 Pa. .628, 20 Atl. 567, 10 li. R. A. 93; Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135; Rastetter T. Hoenninger, 214 N. Y. 66, 108 N. E. 210 ; Edsop. v. Parsons, 155 N. Y. 555, 50 N. E. 265. * HUl V. Harding, 92 Ky. 76, 17 S. W. 199, 437; Coghlin v. Coghl^n, 26 Ohio •Cir. Ct. R. 18; In re Cawley's Estate, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93. 6 Edson V. Parsons, 155 N. Y. 555, 50 N. E. 265, affirming 85 Hun, 263, 32 N. Y. Supp. 1036; EverdeU v. Hill, 27 Misc. Rep. 285, 58 N. Y. Supp. 447; Brown v. Webster, 90 Neh. 591, 134 N^ W. 185, 37 L. R. A. (N. S.) 11981; Trustees of Reformed Church of Uniontown v. Wise, 17 Ohio Cir. Ot. R. 659. 6 Herrlcli v. Snyder, 27 Misc. Rep. 462, 59 N. Y. Supp. 229. 1 Wanger v. Marr, 257 Mo. 482, 165 S. W. 1027 ; Edson v. Parsons, 155 N. T. 555, 50 N. B. 265. In the case of a joint wUl, as distinguished from mutual, separate wUls, the will itself has been considered sufficient evidence of a contract to keep the will unrevoked. Rastetter v. Hoenninger, 151 App. Div. 853, 136 N. Y. Supp. -961 ; Dufour v. Perelra, 1 Dick. 419. 78 WHO MAY BE A TESTATOB (Ch. 5 CHAPTER V ■ WHO MAT BE A TESTATOR 22-24. General Rule. 25. WiUs of Married Women at Common Law. 26. Wills of Married Women under Statutes. 27-29. Wills of Aliens and Criminals. 30. Natural Incapacity. 31. Nature of Testamentary Capacity. 32-33. Capacity to Do Business as a Test 34. Old Age and Sickness as Bearing upon Testamentary Capacity. 35-37. Insanity as Affecting Testamentary Capacity — Insane Delusions. 38. Eccentricity or Mistake Not Insane Delusions. 39. Jealousy and Prejudice Not Insane Delusions. 40-41. Monomania as Affecting Testamentary Capacity. 42. Peculiar Religious Beliefs Not Insane Delusions. 43. Senile Dementia. 44-45. Will Made in a Lucid Interval. 46. Guardianship as Affecting Testamentary Capacity. 47. Drunkenness as Affecting Testamentary Capacity. 48. Burden of Proof. 49. Evidence Relating to Testamentary Capacity. 50. Opinion Evidence. GENERAL RULE 22. Any person may make a will who is not disqualified therefor by reason of either legal or natural incapacity. 23. Legal incapacity exists or has existed, to an extent, in the case of (a) Married women. (b) Aliens. (c) Certain classes of criminals. 24. Natural incapacity exists when a person has not sufficient men- tal capacity to perform the testamentary act. Leaving aside for the moment questions of legal incapacity, the courts, on the whole, have shown a strong disposition to uphold and extend the power to dispose of property by will. It used to be said that a person who has been from his nativity* blind, deaf, and dumb is incapable of making a will, as he wants those senses through which ideas are received into the mind.^ But when, as has been shown in the case of Miss Helen Keller, the sense of touch 1 1 Jar. Wills, 47, citing Co. Lltt. 42b. §§ 22-24)i GENBEAL EULB 79 may be availed of as a medium through which the intelligehce can be aroused and ideas acquired, the reason for the rule disappears, and while, in such an instance, evidence would be required to show both testamentary capacity and knowledge by the testator of the contents of the will, together with a full and satisfactory expla- nation as to the means of communication employed, yet, these re- quirements once met, there can be no doubt that a person born with only the sense of touch might make a valid will. Blind Testators Blindness or deafness alone produces no incapacity.' It was the rule in the ecclesiastical law that while a blind man might make a nuncupative will by making declaration to that end before a suffi- cient number of witnesses, he could not make a testament in writ- ing unless the same be read before witnesses and in their presence acknowledged by the testator as his last will, and that, therefore, if a writing be delivered to the testator, and he, not hearing the same read, acknowledged it for his will, this would not be suffi- cient.' Such also was the requirement of the civil law. But no such strictness of proof is now required. Provided there be proof aliunde of a clear knowledge of the contents of the instrument, a will need not be read over to a blind testator prior to its execu- tion.* But it is the part of caution to thus read over the proposed will to a testator who is blind, and it shquld always be done when circumstances admit of it. > An illiterate stands on the same footing as a blind testator. In neither case does the ordinary presumption that a person executing a will knows and approves of its contents prevail, and proof must be made that the contents were made known to the testator." Deaf and Dumb Testators In the case of testators, deaf and dumb from birth, there is said to be a presumption of testamentary incapacity; but this presump- tion may be overcome, and their wills probated, upon satisfactorily establishing the fact that the document sets fprth the real wishes 2 Ray V. Hill, 3 Strob. (S. C.) 297, 49 Am. Dec. 647; Goods of Plercy, 1 Bob. 278; In re Mullen, 5 Ir. Eq. 309; WUson v. Mitchell, 101 Pa. 495, 503. 8 1 Wms. Ex'rs, 22, citing Swinb. pt. 2, § 11; Godolph, pt. 1, c. 11; Barton V. Bobins, 3 PhU. 455, note b. * Longchamp dem. Goodfellow v. Fish, 5 B. & P. 415 ; Edwards v. Fincham, 3 Curt. 63, 7 Jur. 25; Mitchell v. Thomas, 6 Moo. P. C. C. 137; Boyd v. Cook, 3 Leigh (Va.) 32; Lewis v. Lewis. 6 Serg. & B. (Pa.) 496; Clifton .v. Murray, 7 Ga. 564, 50 Am. Dec. 411; Wampler v. Wampler, 9 Md. 540 ; 1 Jar. Wills (Big. Ed.) 47. 5 Barton v. Bobins, 3 Phil. 455, note b; Day v. Day, 3 N. J. Eq. 549; Boll- wagen v. Bollwagen, 63 N. Y. 504; Maxwell v. Hill, 89 Tenn. 584, 15 S. W. 253. so WHO MAY BE A TESTATOR (CH. 5 of the ostensible testator.* Perhaps the truer presumption would have been lack of means adequately to express testamentary wishes than lack of capacity to entertain them. At present, at least, it is very doubtful if any presumption against testamentary capacity is entertained with regard to such persons.' There should be no such presumption, whether testator was born deaf and dumb, or subsequently became so.* Where a deaf and dumb testator can read and write, no reason exists why his will should not be treated precisely like that of any testator.' If such a testator cannot write, he may make known his wishes by signs, and these wishes, as thus manifested, may be reduced to writing, and the instrument signed with the testator's mark. Full proof as to the character of the signs used may be required by the court, and apparently, if the signs used are other than those employed to represent the letters of the alphabet, there must be some rational and natural connection between them and the wishes signified thereby.^" WILLS OF MARRIED WOMEN AT COMMON LAW 25. By virtue of the merger of the wife's identity with that of her husband, a married woman could not, as a rule, make a valid will at common law, except (a) Where the husband gave his consent to her will disposing of personal property. (b) Where, as executrix of a will, she by will appointed a suc- cessor to herself as executrix. ' (c) Where she made a will of property under a power conferred upon her by a will or other instrument, (d) Where she, by will, disposed of property given to her to her sole and separate use. The wife's incapacity to make a valid testament of personal prop- erty at common law, arose from no natural infirmity on her part, but followed from the common-law doctrine that the husband and e 1 Wins. Ex'rs, 21; Swinb. pt 2, § 4, pi. 2; Godolpli, pt. 1, c. 11; Brower V. Fisher, 4 Johns. Ch. (N. T.) 441; Christmas v. Mitchell, 38 N. C. 535; Potts V. House, 6 Ga. 324, 50 Am. Dec. 329 ; Dickenson v. Blisset, 1 Dick. 268. 7 Potts V. House, 6 Ga. 324, 50 Am. Dec. 329. 8 No such presumption ever existed, respecting persons born with all their senses, and who, after developing full intelligence, became deaf and dumb. See 1 Wms. Ex'rs, 22.' 8 See 1 Bedf. Wills, 52. 10 Goods of Geale, 3 Sw. & Tr. 431. For a case refusing probate of a will because of the unsatisfactory account of the method in which the instructions of the deceased were taken, see Goods of Owston, 2 Sw. & Tr. 461. § 25) WILLS OF MABKIED WOMEN AT COMMON LAW 81 wife were one person, in legal contemplation, in consequence of which the husband acquired absolute title to all his wife's choses in possession, and to all choses in action which he reduced to pos- session during her lifetime, while he was entitled as her adminis- trator to such of her choses in action as he had not already reduced to possession. With such rights existing in behalf of the husband, it is obvious that a power to defeat them by will could not exist on the part of the wife. Although, at common law, the husband acquired only a freehold estate in his wife's realty during their joint lives, and a life estate in such realty after his wife's death, if living issue were born of the marriage,^^, the fact that legal titles in freehold estates were not devisable according to feudal doctrines naturally prevented • the raising of the question as to the right of a feme covert to de- vise the interest in her land not acquired by her husband. While the terms of the statute of wills seemed broad enough to include married women, ^" a statute passed three years later pro- vided "that wills or testaments of any manors, lands, tenements or hereditaments, by any woman covert, shall not be taken to be good or effectual in law." '* Will with Consent of Husband A married woman could not make a will of lands even with her husband's consent.^* But his rights in her personalty could be waived with his consent. Hence the will of a married woman, dis- posing only of personalty, assented to by her husband, was valid. But a general assent that she make a will was not enough. Consent to the will in question must be. shown, ^^ and it should be given at the time of probate.^* Hence this consent may be revoked at any time during the life of the wife, or after her. death before probate.^^ But consent may be implied from circumstances,^* and if, after her 11 Burdick on Real Property, pp. 102-106. 12 32 Hen. VIII, c. 1 (1540), provided "that all and every person," having- lands, might devise them. 13 34 & 35 Hen. VIII, c. 5, § 14. 1* OSGOOD V. BREED, 12 Mass. 525, Dunmore Gas. Wills, 46; Bunnell v. Hlxon, 205 Mass. 468, 91 N. E. 1022; Marston v. Norton, 5 N. H. 205; Van Winkle V. Schoonmaker, 15 N. J. Eq. 384. 15 Rex V. Bettesworth, 2 Stra. 891. See, also, George v. Bussing, 15 B. Mon. (Ky.) 558; Cutter v. Butler, 25 N. H. 857, 57 Am. Dec. 330; WilUford v. Phelan, 120 Tenn. 589, 113 S. W. 365 ; 1 Wms. Ex'rs, 78. 10 Henley v. Philips, 2 Atk. 49. 17 Swinb. pt 2, § 9, pi. 10; 1 Wms. Ex'rs, 79; Van Winkle v. Schoonmaker, 15 N. J. Eq. 384; In re Wagner's Estate, 2 Ashm. (Pa.) 448. 18 Cutter V. Butler, 25 N. H. 357, 57 Am. Dec. 330; Smelie's Ex'r v. Rey- nolds, 2 Desaus. (S. C.) 66. Gakd. Wills (2d Ed.) — 6 82 WHO mIt be a testatob (Ch. 5 death, the husband acted upon the will, or at once agreed to. it, he could not, apparently, thereafter withdraw his ' consent.^® This assent on the part of the husband really amounted to noth- ing more than a waiver of his right to administer upon the estate of his wife. Hence it gave validity to the instrument only in event of his being the survivor. If he died before the wife, her will was void as against her next of kin, in so far as it derived validity from his consent.^" Inasmuch as his consent was required to the par- ticular will, it could not pass subsequently acquired property."^ Appointment of Executrix by Will At common law, an executor could, by will, appoint an executor to complete his unfinished trust. The same power could be ex- ercised by a married woman acting as executrix of a will.** Will under a Power A married woman may make a testamentary disposition of her real estate under a power, by way of execution of such power.^' Such power may be conferred by a settlement either before or after marriage,"* and may emanate either from her husband or a stranger.*" In the case of personal estate held by her to her sole and separate use, the power to dispose thereof by will exists as a necessary incident to the separate estate, though it is sometimes held that her real estate thus held cannot be devised except under a power expressly conferred. *° Where a will is made by a married woman under a power, her executors do not take as representatives of the testatrix, but mere- ly, under the power which she was authorized to execute by mak- ing a will as to particular property. Hence they can take noth- ing by virtue of the will save the particular property in question.*' Will of Separate Property Under an equitable doctrine, when personal property is actually given or settled, or is agreed to be given or settled, to the sole i» 1 Wms. Ex'rs, 79. 20 la. 21 1 Redf. WUls, 25. 22 Scammell v. Wilkinson, 2 East, 552; Willock v. Noble, L. R. 7 Eng. & Ir. App. 580. 28 2 Kent, Comm. 171, 172; 4 Kent, Comm. 50, 506; Wing v. Deans, 214 Mass. 546, 102 N. E. 313; Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523; Ander- son V. Miller, 6 J. J. Marsh. (Ky.) 573; West v. West, 10 Serg. & R. (Pa.) 447; Rich V. Cockell, 9 Ves. 375 ; Hodsden v. Lloyd, 2 Br. C. C. 534. 24 4 Kent, Comm. 505. 25 Picquet V. Swan, 4 Mason, 443, Fed. Cas. No. 11,133. See, also, Holman V. Perry, 4 Mete. (Mass.) 492. 28 Holman v. Perry, supra; OSGOOD y. BREED, 12 Mass. 525, Dunmore Cas. WiUs, 46; Marston v. Norton, 5 N. H. 205. 27 Tugmah v. Hopkins, 4 M. & Gr. 3S9; O'Dwyer v. Geare, 1 Sw. & Tr. 465; 1 Wms. Ex'rs, 83. § 26) WILLS OF MARRIED WOMEN UNDER STATUTES 83 and separate use of the wife, she may dispose of it, as a feme sole, to the full extent of her interest, although no particular form in which to do so is prescribed in the instrument by which the settlement or agreement is made.^* This rule applies to the sep- arate estate regardless of the method of its acquisition,'" of wheth- er the estate consists of personalty or realty,^" or of the circum- stance whether the property be in possession or reversion,*^ vested or contingent.*^ It is immaterial whether the property be given to trustees for the wife's separate use, or, without the intervention of trustees, to the wife herself for her own separate use and bene- fit;'* for in the latter case the husband would, in equity, be regarded as trustee for the separate use of the wife.** WILLS OF MARRIED WOMEN UND^R STATUTES 26. By statute, the common-law disability of married women to make a will has been either wholly removed or largely modified. These statutes are of two classes: (a) Those enabling a married woman to dispose of her proper- ty as though she were sole. (b) Those by implication removing the common-law disability. In England, by the Married Women's Property Act of 1882,*' and by the act of 1893, married women are in terms enabled to ac- quire, hold, and dispose, by will or otherwise, of real or personal estate as though sole. Similar legislation has been enacted in the more important commercial states of the United States.*' In many jurisdictions statutes providing that all persons, of age 28 Fettyplace v. Gorges, 1 Ves. Jr. 46, 3 Br. C. C. 8; Taylor v. Meads, z Oe Gex, J. & S. 597; Hall v. Waterhouse, 11 Jur. N. S. 361, 12 Law T. (N. S.) 297; Pride v. Bubb, L. R. 7 Ch. App. 64; Latouclie v. Latouche, 3 H. & C. 576; Bestall v. Banbury, 13 Ir. Ch. 549; Johnson t. Gallagher, 3 De Gex, F. & J. 494; Burton v. Holly, 18 Ala. 408 ; Ela v. Edwards, 16 Gray (Mass.) 91, 101; Willard v. Eastham, 15 Gray (Mass.) 328, 79 Am. Dec. 366; Hughey V. Warner, 124 Tenn. 725, 140 S. W. 1058, 37 L. R. A. (N. S.) 582 ; Caldwell V. Renfrew, 33 Vt. 213. See, also, 2 Kent, Comm. 170, 171 ; 2 Story, Eq. Jur. § 1394. 2» 1 Wms. Bx'rs, 85. 80 Holman v. Perry, 4 Mete. (45 Mass.) 492. 31 Sturgis V. Carp, 13 Ves. 190. 82 Lechmere v. Brotheridge, 32 Beav. 353. 38 1 Wms. Ex'rs, 86; Braham v. Burchell, 3 Add. 263; Ela v. Edwards, 16 Gray (Mass.) 91, 101. 34 Tappenden v. Walsh, 1 Phil. 352 ; Rolfe v. Budder, Bunb. 187. SB 45 & 46 Viet c. 75. See 1 Jar. Wills, 56, for important provisions. 88 1 Bedf. Wills, 27. S4 WHO MAY BE A TESTATOR (Ch. 5 and possessed of sound minds, may make valid wills, have been construed as extending full testamentary power to married wo- men,'^ though similar statutes have not infrequently been con- strued otherwise.'* Usually, in case of both classes of statutes, the husband's interest in the wife's property cannot be defeated by her will without his consent; '* and the signature of a husband, as executor, to the petition for probate of his wife's will, and the giving of bond by him, is not such a written consent as is contem- plated by a statute providing that a married woman's will shall not operate to deprive the husband of his interest in the wife's property without his written consent.*" Where written consent of the husband is required, no consideration n,eed pass to him to render such consent effective.*^ Sometimes the separate estate of the wife has been so extended by statute that, by rtie applicatiop of the common-law rule respect- ing her power over this species of property, she has full testamen- tary power.*^ Thus, under statutes conferring the power to devise her separate estate, a married woman may convey her separate real estate by will.** These statutes are frequently construed rath- er strictly. Thus, where a statute provided that a married woman might dispose of her separate estate by will properly executed and attested, it was held that she could not make a valid holo- graphic will without attestation, although the validity of such wills, without attestation, was recognized by statute.** But legislation with reference to the testamentary capacity of married women varies widely, and in some jurisdictions their pow- er in this respect is still greatly limited. The general tendency, however, is to treat husband and wife substantially alike in this respect. »7 Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998; Allen v. Little, 5 Ohio, 65 ; Bennett v. Hutchinson, 11 Kan. 398. S8 Baker v. Chastang's Heirs, 18 Ala. 417; OSGOOD v. BREED, 12 Mass. 625, Dunmore Gas. Wills, 46; Marston v. Norton, 5 N. H. 205. 39 Appeal of Cooke, 132 Pa. 533, 19 Atl. 274; Steward v. Middleton (N. J.) 17 Atl. 294; Stoutenburgh v. Hopkins, 43 N. J. Ea. 577, 12 Atl. 689; Staffan V. Zeust, 16 App. D. C. 141. Interest in community property may be devised witboidt the consent of the husband. Engleman v. Deal, 14 Tex. Civ. App. 1, 37 S. W. 652. Austen t. Graham, 8 Moore, P. C. 193. 102 WHO MAY BE A TESTATOR (Ch. 5 Mistake False beliefs entertained by a testator in consequence of some mistake, and influencing the disposition of his property, do not amount to insane delusions, unless they are wholly groundless and unsupported by any evidence. In other words, to amount to insane delusions, they must be beliefs such as no rational man, putting himself in the place of the testator, either would or could entertain; and this can be said of no belief that connects itself with any fact, however flimsy the connection may be.** Thus, where a father disinherited his children, who had testified against him in a divorce suit, because he thought that they sympathized with their mother, had testified falsely, and were trying to rob him, no insane delusion can be said to exist ; *° nor where a child was disinherited by reason of rumors that he was not the testator's child ; *° nor where a sin- cere believer in Christian Science left her home, and gave the bulk of her property to a church of that belief, because of a conviction that her sisters, who were strongly opposed to her belief, were persecuting her therefor;*' nor where the testatrix believed that her sister had attempted her life in consequence of being told that she had administered to her a double dose of morphine, and had remarked that it did the testatrix no harm.** 44 Many cases substantially illustrate this proposition. See In re Kuffino's Estate, 116 Cal. 304, 48 Pac. 127; Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101 ; Appeal of Kimberly, 68 Conn. 428, 36 Atl. 847, 37 L. E. A. 261, 57 Am. St Rep. 101; Snell v. Weldon, 243 111. 496, 90 N. E. 1061 ; Maynard v. Tyler, 168 Mass. 107, 46 N. B. 413; Middleditdi v. WilUams, 45 N. J. Eq. 726, 17 Atl. 826, 4 L. R. A. 738 ; Phillips v. Flagler, 82 Misc. Rep. 500, 143 N. Y. Supp. 798 ; Buchanan v. Belsey, 65 App. Div. 58, 72 N. Y. Supp. 601 ; In re Lang's Wm, 9 Misc. Rep. 521, 30 N. Y. Supp. 388; In re O'Dea's Will, 84 Hun, 591, 33 N. y. Supp. 463 ; POTTER v. JONES, 20 Or. 239, 25 Pac. 769, 12 L. R. A. 161, Dunmore Oas. Wills, 54; Skinner v. Lewis, 40 Or. 571, 62 Pac^ 523, 67 Pac. 951; In re Hemingway's Estate, 7 North. Co. R. (Pa.) 93; Martin v. Thayer, 37 W. Va. 38, 16 S. B. 489. 45 Bain v. Cline, 24 Or. 175, 33 Pac. 542. Very likely there was a delusion here, but it obviously was not an insane one. 48 In re Smith's Will (Sur.) 24 N. Y. Supp. 928. 47 In re Brush's Will, 35 Misc. Rep. 689, 72 N. Y. Supp. 421. « 8 In re Kendrick's Estate, 130 Cal. 360, 62 Pac. 605. See, also, Davenport V. Davenport, 67 N. J. Eq. 320, 58 Atl. 535 ; Hall v. Perry, 87 Me. 569, 33 Ati. 160, 47 Am. St. Rep. 352. 39) JEALOUSY AND PBEJDDICE NOT INSANE DELUSIONS 103 JEALOUSY AND PREJUDICE NOT INSANE DELUSIONS 39. Neither jealousy, if it has the slightest apparent foundation in fact, nor personal dislike nor prejudice, though wholly without foundation, amount to insane delusion. Jealousy The same principle controls here as in the case of mistake. In the absence of rumors and of all evidence of the wife's infidelity, a belief therein by the testator, in the teeth of all argument to the contrary, would be an insane belief; *" otherwise not. Prejudice With dislike and prejudice, it is somewhat dififerent. While these feelings may generally have what is at least conceived to be a solid foundation in fact, yet they are oftentimes, instinctive. In either case, they do not, of themselves, destroy testamentary capacity.'" Thus a violent dislike of one's daughter-in-law, and an indisposition to receive her advances towards a reconciliation, are not proof of insanity."^ Neither is a marked change in feelings towards a rela- tive, resulting in fear and antipathy ; "* nor dislike of a brother, resulting in his being disinherited, based upon an unjust belief that he had obtained more than his share of their father's estate; "' nor offense at a son because he sided with a neighbor in a dispute over a boundary line, and joined the Masons, of whom the testator thought ill."* But a wholly groundless hatred of a near relative, such as a child, towards whom a normal person would entertain feelings of kindness and regard in the absence of strong reasons for feeling otherwise, is evidence of testamentary incapacity."? 4» Burkhart v. Gladish', 123 Ind. 337, 24 N. E. 118; In re Smith's WUl (Sur.) 24 N. T. Supp. 928. 50 Carter v. Dixon, 69 Ga. 82; Drum v. Capps, 240 111. 524, 88 N. E. 1020; Gordon r. Morrow (Ky.) 10 S. W. 373 ; In re Oberdorf s Estate, 2 Lack. Leg. .N. (Pa.) 43; Brown v. Ward, 53 Md. 376, 392, 36 Am. Rep. 422; In re Clap- ham's Estate, 73 Neb. 492, 103 N. W. 61; Clapp v. FuUerton, 34 N. Y. 190, 90 Am. Dec. 681. 01 In re Spencer, 96 Oal. 448, 31 Pac. 453. B2 In re McGovran's Estate, 185 Pa. 203, 39 Atl. 816. 68 Bull V. Wheeler, 6 Dem. Sur. (N. Y.) 123. B 4 In re White, 121 N. Y. 406, 24 N. E. 935. BB In re Kahn, 1 Con. Sur. 510, 5 N. Y. Supp. 556; Merrill v. Eolston, 5 Redf. Sur. (N. Y.) 220. See, also, RIVARD v. RIVARD, 109 Mich. 98, 66 N. W. 681, 63 Am. St. Rep. 566, Dunmore Cas. Wills, 58. X04 WHO MAT BE A TESTATOR (Ch. 5 MONOMANIA AS AFFECTING TESTAMENTARY CAPACITY 40. Monomania is that species of insanity in which the delusion is confined to a single object, or a limited number of objects, and which does not result in the complete mental disor- ganization of its victim. 41. A monomaniac, who can meet the test for testamentary capac- ity hereinbefore stated, may make a valid will, provided that the insane delusion does not influence the disposition of property therein contained. The doctrine was, at one time, maintained in England that the human mind was indivisible ; that the expression "partial insanity" was an'incorrect phrase ; that a mind which is actually unsound at all times upon one subject cannot be deemed sound on other sub- jects ; and that a will made by a person having such a mind, though apparently rational and proper, and though the infirmity had no bearing upon the testamentary disposition, and was only discover- able when the mind was addressed to certain subjects to the exclu- sion of all others, was invalid."^ But this view was in conflict with the earlier decisions,"'' and has since been in terms rejected in Eng- land,°* and it never gained recognition in the United States, where the rule as stated in the black-letter text has been steadily fol- lowed."' And the rule is now substantially universal that the theory of medical science that there is no such thing as partial insanity, and that a man is either sane or insane, is not true in law. Within this rule, partial insanity or monomania invalidates a will which is its direct offspring, or where the will was in any way the effect of 6 8 lord Brougham, Ini Waring v. Waring, 6 Moore, P. C. 341, 12 Jur. 947. 7 Dew V, Clark, 1 Add. Eccl. 279, 3 Add. Eccl. 79. B8 Banks v. Goodfellow, 22 L. T. N. S. 841, L. R. 5 Q. B. 549, holding that delusions arising from mental disease, which are not calculated to prevent the exercise of those faculties essential to the making of a will, nor to inter- fere with the consideration of the matter which should be weighed on such an occasion, and which have not in fact influenced the testamentary disposi- tion in question, are not sufficient to deprive the testator of testamentary ca- t)acity. See Schoul. Wills, § 156. 6» Dunham's Appeal, 27 Conn. 192; James v. Langdon, 7 B. Mon. (Ky.) 193; Brown v. Ward, 53 Md. 376, 36 Am. Rep. 442; Whitney v. Twombly, 136 Mass. 145 ; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Hamon v. Hamon, 180 Mo. 685, 79 S. W. 422 ; HoUinger v. Syms, 37 N. J. EQ. 221 ; Olapp v. Fuller- ton, 34 N. Y. 190, 90 Am. Dec. 681; Gass' Heirs v. Gass' Ex'rs, 3 Humph. acity. 112 WHO MAT BE A TESTATOB (Ch. 5 DRUNKENNESS AS AFFECTING TESTAMENTARY CAPACITY 47. Although addiction, to the use of intoxicating liquors is relevant on the question of testamentary capacity, yet a man, though under the influence of liquor at the time, and though an habitual drunkard, may yet make a valid will, if he can meet the test of testamentary capacity as herein- before set forth. No presumption of testamentary incapac- ity arises from the use of liquor, however excessive. The test of testamentary capacity applies here," as in all other cases. Experience shows that, while the excessive use of liquor tends to weaken the mental faculties, yet it does not usually result in their disability for the testamentary act. Hence such use does not establish incapacity to make a will."'' And the facts that the testator was intoxicated, or under the influence of some drink or drug, at the time of executing the will, will not avoid the instrument 5f he is still capable of intelligently comprehending what he is do- ing.°° So, though a man may be what is termed an habitual drunk- ard, there is no such thing as chronic intoxication, and there is no presumption, however habitually a man be addicted to the use of intoxicants, and however wholly he may be overcome by them when used, that he was in a drunken or incapable condition when his will was made."' 93 Swygart v. Willard, 166 Ind. 25, 76 N. E. 755; Bannister v. Jackson, 45 N. J. Eq. 702, 17 AtL 692. 81 Fluck V. Rea, 51 N. J. Eq. 233, 27 AO. 636; In re Hewitt's Will, 31 Misc. Rep. 81, 64 N. Y. Supp. 571; In re Halbert's Will, 15 Misc. Rep. 308, 37 N. Y. Supp. 757; In re Jones' Will, 5 Misc. Rep. 199, 25 N. Y. Supp. 109; In re Peck's Will, 62 Hun, 622, 17 N. Y. Supp. 248; In re Watson, 58 Hun, 608, 12 N. Y. Supp. 115; In re Schreiber's Will (Sur.) 5 N. Y. Supp. 47; In re Tasker's Estate, 205 Pa. 455, 55 Atl. 24; In re Schusler's Estate, 198 Pa. 81, 47 Atl. 966; Appeal of Harmony Lodge, 127 Pa. 269, 18 Atl. 10. 65 Pierce v. Pierce, 38 Mich. 412 ; Frost v. Wheeler, 43 N. J. Eq. 573, 12 Atl. 612; Peck v. Gary, 27 N. Y. 9, 84 Am. Dec. 220; Gardner v. Gardner, 22 Wend. (N. Y.) 526, 34 Am. Dec. 340; In re Reed's Will, 2 Con. Sur. 403, 20 N. Y. Supp. 91. 8 In re Dugan's Estate, 6 Pa. Dist. R. 222; Hight v. Wilson, 1 Dall. (C. S.) 94, 1 L. Ed. 51 ; Temple v. Temple, 1 Hen. & M. (Va.) 476 ; ■ Ayrey v. Hill, 2 Add. 206; In re Lee's Will, 46 N. J. Eq. 193, 18 Atl. 525. Though a person execute a will during an attack of delirium tremens, it will be sustained, if executed during a lucid interval. Succession of Ciouzeil- les, 106 La. 442, 31 South. 64. See, also, Peck y. Gary, 27 N. Y. 9, 84 Am. Dec. 220; In re Miller's WiU (Pa.) 39 L. R. A. 220, note. § 48) BURDEN OF PROOF 113 When there is conflicting testimony as to the degree of intoxica- tion under which the testator was laboring at the time of executing the will, the question of testamentary capacity should be left to the jury, even though the provisions of the instrument are just and reasonable.*^ BURDEN OF PROOF 48. On principle, and by weight of authority, when the issue of tes- tamentary capacity is raised, the burden of establishing such capacity by a preponderance of the evidence rests upon the parties alleging it, i. e., upon those who offer the instrument for probate. But many cases hold that upon this issue those alleging testamentary incapacity must prove it by a preponderance of the evidence. Where there is no contest over the proposed probate of a will, proof of the execution of the will made by the witnesses thereto is usually sufficient, the presumption of sanity working the neces- sary prima facie proof of testamentary capacity.'' But where probate is opposed on the ground of lack of testamentary ca- pacity, and evidence is offered on both sides, the burden of proof is as indicated in the black-letter text.'" The cases supporting this »T Best V. Best's Ex'rs (Ky.) 11 S. W. 810. ssCounciU V. May hew (1911) 172 Ala. 295, 55 South. 314; In re Hull's wm, 117 Iowa, 738, 89 N. W. 979; TafE v. Hosmer, 14 Mich. 309; Beaubien v. Cicotte, 8 Mich. 9; Perkins v. Perkins, 39 N. H. 163; In re Evans' Estate (1903) 81 App. Div. 636, 81 N. Y. Supp. 1125 ; Thompson v. Kyner, 65 Pa. 368. Even where the witnesses are questioned as to their opinion of the testa- tor's capacity, such questioning is formal rather than necessary. See Perkins V. Perkins, supra. But In Maine and Massachusetts it seems that such testimony by at least one of the witnesses must be had before the will can be probated. Gerrish V. Nason, 22 Me. 438, 39 Am. Dec. 589 ; Brooks v. Barrett, 7 Pick. (Mass.) 94. But even here. In event of the death or absence of the. witnesses in parts un- known, proof of execution may be made by proof of the handwriting of the witnesses, whereupon the will i? admitted to probate without further evidence of testamentary capacity. See Baxter v. Abbott, 7 Gray (Mass.) 71. 9 9 Wells V. Thompson, 140 Ga. 119, 78 S. E. 823, 47 L. E. A. (N. S.) 722, Ann. Cas. 1914C, 898; Evans v. Arnold, 52 Ga. 169; In re Thomson, 92 Me. 563, 43 Atl. 511; Hall v. Perry, 87 Me. 569, 33 Atl. 160, 47 Am. St. Rep. 352; Fulton V. Umbehend, 182 Mass. 487, 65 N. B, 829; Richardson v. Bly, 181 Mass. 97, 63 N. E. 3; Baxter v. Abbott, 7 Gray (Mass.) 71; CROWNINSHIELD v. CROWNINSHIELD, 2 Gray (Mass.) 524, Dunmore Cas. Wills, 62 ; Mansbach's Estate, 150 Mich. 348, 114 N. W. 65 ; Moriarty v. Moriarty, 108 Mich. 249, 65 N. W. 964; Prentis v. Bates, 93 Mich. 234, 53 N. W. 153, 17 L. R. A. 494, over- ruling 88 Mich. 567, 50 N. W. 637; In re Layman's, Will, 40 Minn. 371, 42 N. ' W. .286; Maddox v. Maddox, 114 MO. 35, 21 S. W. 499, 35 Am. St. Rep. 734 ; Gaed.Wills (2d Ed.)— 8 114 WHO MAT BE A TESTATOK (Ch. 5 view go upon the obvious ground that it is incumbent upon the party offering an instrument for probate to show that ^it meets all the requirements of the statute, and that, as a sound and disposing mind on the part of the would-be testator is a universal require- ment of statutes relating to wills, the existence of this requisite must needs be shown. This is merely to apply the rule that the burden of proving every material allegation is upon the plaintiff. But there is almost equally weighty authority to the contrary.^ These cases in substance hold that the contestants must satisfy the jury that the alleged testator was without capacity to make a will; if the evidence on the question is evenly balanced, probate will be allowed. The Presumption of Sanity This difference of opinion upon so important a matter is due to a misapprehension by those courts which take the latter view as to the effect of the presumption of sanity in shifting the burden of Norton v. Paxton, 110 Mo. 456, 19 S. W. 807; Jone^ y. Roberts, 37 Mo. App. 163; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102; Pat- ten V. Cilley, 67 N. H. 520, 42 Atl. 47; Murry v. Hennessey, 48 Neb. 608, 67 N. "W. 470 ; Chrisman v. Chrisman, 16 Or. 127, 18 Pac. 6; Prather v. McClel- land (Tex. Civ. App.) 26 S. W. 657; Williams v. Ei)binson, 42 Vt. 658, 1 Am. Rep. 359; In re Baldwin's Estate, 13 Wash. 666, 43 Pac. 934; McMechen v. McMecheny 17 W. Va. 683, 41 Am. Rep. 682; Tucker v. Sandidge, 85 Va. 546, 8 S. E. 650; Rathjens v. MerriU, 38 Wash. 442, SO Pac. 754; Wigmore on Et. § 2500. In Indiana, if contest is before probate, the burden is on proponent, but If contest is made aQ:er probate, the burden of proof rests upon contestants. Pepper v. Martin (1910) 175 Ind. 580, 92 N. E. 777. 1 Barnewall v. Murrell, 108 Ala. 366, 18 South. 831 ; Murphree v. Senn, 107 Ala. 424, 18 South. 264; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St Rep. 235; Eastis v. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St Rep. 227; Blms v. Collier, 69 Ark. 245, 62 S. W. 593; McCuUoch v. Campbell, 49 Ark. 367, 5 S. W. 590; Clements v. McGinn, 4 Cal. Unrep. Cas. 163,-33 Pac. 920; In re Scott's Estate, 128 Cal. 57, 60 Pac. 527 ; Smith v. Day, 2 Pennewill (Del.) 245, 45 Atl. 396; Leach v. Burr, 17 App. D. C. 128, afC. 188 U. S. 510, 23 Sup. Ct 393, 47 L. Ed. 567 ; Johnson v. Johnson, 187 111. 86, 58 N. E. 237; Entwistle v. Meikle, 180 111. 9, 54 N. E. 217; HoUenbeck v. Cook, 180 111. 65, 54 N. E. 154; Graybeal v. Gardner, 146 111. 337, 34 N. B. 528; Wilbur v. Wilbur, 129 111. 392, 21 N. E. 1076; Pendlay v. Eaton, 130 111. 69, 22 N. E. 853; In re Goldthorp's Estate, 115 Iowa, 430, 88 N. W. 944; Howe v. Rich- ards, 112 Iowa, 220, 83 N. W. 909; Pee v. Taylor, 83 Ky. 259; Woodford v. Buckner, 111 Ky. 241, 63 S. W. 617; Boone v. Ritchie (Ky.) 53 S. W. 518; Howat V. Howat's Ex'r (Ky.) 41 S. W. 771 (see, however, Johnson v. Stivers, 95 Ky. 128, 23 S. W. 957); In re Murphy's Estate; 43 Mont 353, 116 Pac. 1004, Ann. Cas. 1912C, 380; Southworth v. Southworth (1903) 173 Mo. 59, 73 S. W. 129; Tyson t. Tyson, 37 Md. 567; In re Bums' Will, 121 N. C. 336, 28 S. B. 519 ; McCoon v. Allen, 45 N. J. Eq. 708, 17 Atl. 820 ; Howard v. Moot, 64 N. X. 262; Delafield v. Parish, 25 N. Y. 9; Jones v. Jones, 63 Hun, 630, 17 N. Y. Supp. 905; In re White's"Will, 52 Hun, 613, 5 N. Y. Supp. 295; Messner v. § 48) BUEDEN OF PBOOF 115 proof." As a general rule, the presumption that men are sane un- til evidence to the contrary be adduced, whether it be called a pre- sumption of law or of fact, or of both law and fact, is recognized as applying to the case of wills, and it thus works a prima facie proof of testamentary capacity.* Consequently the burden of proof, as referring to the duty of ofifering evidence upon the issue, shifts to the contestant, i. e., the proponent has made out his prima facie case. This is the true effect of the presumption, and the only effect that it is, in principle, capable of having.* But many courts have held that the burden of proof which this presumption causes to shift is the original burden of establishing the issue of testa- mentary capacity, and that, by force of the presumption, the con- testant is called upon to prove testamentary incapacity to the sat- isfaction of the triers.* The position is sometimes taken that the presumption of sanity establishes prima facie the testator's capacity, and is to be given weight, as having actual probative force, along with evidence of- ElUott, 184 Pa. 41, 39 Atl. 46; Key v. HoUoway, 7 Baxt. (Tenn.) 575; Allen V. Griffin, 69 Wis. 529, 35 N. W. 21. 2 Confusion in this connection is frequently caused because the courts, in speaking of the burden of proof, do not always have in mind the same thing. By burden of proof some courts mean the risk of non-persuasion upon any issue in controversy while others mean merely the duty of producing evidence to the tribunal at any time during, the trial. Wigmore on Bv. §§ 2485 and 2487. If burden of proof is used in the sense of the risk of non-persuasion, it never can properly be said to shift. Idem. § 2489. 8 Bamewall v. Murrell, 108 Ala. 366, 18 South. 831 ; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 ; STURDBV ANT'S APPEAL, 71 Conn. 393, 42 Atl. 70, Dunmore Cas. Wills, 65; Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153; Ethridge v. Bennett, 9 Houst (Del.) 295, 31 Atl. 813; Craig v. Southard, 162 lU. 209, 44 N. E. 393; Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560; liindsey v. Stephens (1910) 229 Mo. 600, 129 S. W. 641; Mayo v. Jones, 78 N. C. 402 ; Perkins v. Perkins, 39 N. H. 163 ; Delafield v. Parish, 25 N. Y. 9; Beresford v. Stanley, 6 Ohio N. P. 38; Messner v. Elliott, 184 Pa. 41, 39 Atl. 46; In re Hoyt Estate, 10 Kulp (Pa.) 166; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596. Contra, IN RE AMERICAN BOARD OF COM'RS FOR FOREIGN MIS- SIONS, 102 Me. 72r 66 Atl. 215, Dunmore Cas. Wills, 60, and In re Baldwin's Estate, 13 Wash. 666, 43 Pae. 934. The presumption of competency to make a will is not destroyed by any extremity of age. In re Carpenter's Will (Sur.) 145 N. Y. Supp. 365; In re Campbell's Will (Sur.) 136 N. T. Supp. 1086 ; Wooddy v. Taylor, 114 Va. 737, 77 S. E. 498. * Thayer, Pre. Treat, on Evid. 382; Sutton v. Sadler, 3 O. B. (N. S.) 87; Symes v. Green, 1 Sw. & Tr. 401 ; Baxter v. Abbott, 7 Gray (Mass.) 71. * This view requires the contestant to cause his scale to incline. The true view is that he is merely required to cause the scales to balance. Probably all that many of the cases on this subject mean to imply is that the effect of the presumption of sanity is so strong that much evidence must be produced 116 WHO MAY BE A TESTATOR (Ch. 5 fered by the proponent, and that, the other evidence offered by each party being equal, such presumption is sufficient to turn the scale in favor of the proponent.' Effect of Statutes on Burden of Proof Statutes frequently provide that the probate of a will shall be prima facie evidence of its due execution and validity in case of a later contest. Such statutes usually have been construed as placing the burden of proof in the later suit upon the contestant,' although a more obvious, interpretation would be to hold that the prima facie case simply shifts the duty of going forward to the contestant, but does not affect the burden on the proponent of establishing ulti- mately the question in issue. Right to Open and Close Where the burden of showing testamentary capacity is upon the proponent, he has the right to open and close.' Where the burden is on the contestant, he should, on principle, have this right, and such is the case in certain jurisdictions.' Question for Jury The existence of testamentary capacity, being a question of fact, is for the jury.^* by the defendant to restore the scales to their original equilibrium, but their language is unequivocal, in many' instances, that more than this is required of the contestant a STUEDEV ANT'S APPEAL,, Tl Conn. 392, 42 Atl. 70, Dunmore Gas. Wills, €5. See, also, Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302. A presump- tion cannot properly be given this effect. While, in consequence of the fact that men are more commonly sane than otherwise, a person alleging insanity may be fairly called upon to offer some evidence to show it, yet, such evi- dence once offered, there is surely no presumption that the Individual whom it concerns is sane. In fact, if the evidence is at all significant, the presump- tion, were there one at all, jWould be otherwise. See Thayer, Pre. Treat, on Evid. 336. 7.McGown V. Underhill, 115 App. Dlv. 638, 101 N. Y. Supp. 313; Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302; Mears v. Mears, 15 Ohio St. 90. 8 Comstock V. Society, 8 Conn. 261, 20 Am. Dec. 100; Robinson v. Adams, 6^ Me., 369, 16 Am. Eep. 473; Brooks v. Barrett, 7 Pick. (Mass.) 96; Taff v. Hosmer, 14 Mich. 309; Boardman v. Woodman, 47 N. H. 120; Syme v. Broughton, 85 N. C. 367; Williams v. Robinson, 42 Vt. 658, 1 Am. Eep. 359. » Chandler v. Ferris, 1 Har. (Del.) 460; Tyson v. Tyson, 37 Md. 567; Hig- gins V. Carlton, 28 Md. 115, 92 Am. Dec. 666; Townshend v. Townshend, 7 Gill (Md.) 24. 10 SlinglofC V. Bruner, 174 111. 561, 51 N. E. 772; Keithley v. Stafford, 126 111. 507, 18 N. E. 740 ; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072 ; Prim- mer V. Primmer, 75 Iowa, 415, 39 N. W. 676 ; Morris v. Morton's Ex'rs (Ky.) 20 S. W. 287; Sydner's Ex'r v. Cunningham (Ky.) 16 S. W. 130; Hegney v. Head, 126 Mo. 619, 29 S. W. 587; Petrie v. Petrie, 126 N. Y. 683, 27 N. E. 958; 49) EVIDENCE BELATINQ TO TESTAMENTAET OAPACITT 117 EVIDENCE RELATING TO TESTAMENTARY CAPACITY 49. Any evidence, relevant to the issue, and legally admissible, may be received. Matters peculiarly significant in this connec- tion are: (a) Insanity of the testator before or after the making of the •will. (b) The character of the will itself. (c) Declarations of the testator, as indicative of his mental con- dition. Prior or Subsequent Insanity > Chronic insanity, once shown to exist, is presumed to continue, and, occurring before the making of the will, the proponent has the burden of showing that the testator had recovered at the time of executing the instrument or that it was executed during a lucid interval. ^^ But, where the insanity is due to a temporary cause, the effect is presumed to disappear with the occasion. There is therefore no presumption that insanity thus caused continues.^^ In re WeU, 48 Hun, 621, 1 N. T. Supp. 91 ; Appeal of Ulmer (Pa.) 12 Atl. 686 ; Trezevant v. Eains (Tex.) 19 S. W. 567. 1 1 Murphree v. Senn, 107 Ala. 424, 18 South. 264 ; Johnson v. Armstrong, 97 Ala. 731, 12 South. 72; James White Memorial Home v. Haeg. 204 111. 422, 68 N. E. 568; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072; Jones v. Col- lins, 94 Md. 403, 51 Atl. 398; Von de Veld v. Judy, 143 Mo. 348, 44 S. W. 1117 ; ElUinton v. Brick, 44 N. J. Eq. 154, 15 Atl. 391, 1 L. E, A. 161 ; In re Wid- mayer's Will, 74 App. Div. 836, 77 N. Y. Supp. 663 ; Saxon v. Whitaker's Ex'r, 30 Ala. 237; Halley v. Webster, 21 Me. 461; Lucas v. Parsons, 27 Ga. 593; In re lapham's Will, 19 Misc. Rep. 71, 44 N. "Y. Supp. 90 ; In re Kiedaisch's Will, 2 Con. Sur. 438, 13 N. Y. Supp. 255; In re Hoopes' Estate, 174 Pa. 373, 34 Atl. 603 ; Manley's Ex'r v. Staples, 65 Vt. 370, 26 Atl. 630 ; Cartwright v. Cartwright, 1 Phillim. 100; White v. Driver, 1 Phillim. 84; Gombault v. Pub- lic Adm'r, 4 Bradf. Sur. (N. Y.) 226; Harden v. Hays, 9 Pa. 151; Goble v. Grant, 3 N. J. Eq. 629; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144, 4 Am. Dec. 330 ; Keely v. Moore, 196 U. S. 38, 25 Sup. Ct 169, 49 L. Ed. 376. Such is apparently the almost universal rule, regardless of the question as to which party has the burden of proof upon the issue of testamentary capac- ity. To be entirely consistent, courts holding that the contestant must show incapacity should also hold that, when the proponent has produced sufficient evidence of recovery or of the existence of a lucid interval at the time the wiU was executed to make it "an even cast" whether or no there was tes- tamentary capacity, the will should be admitted to probate. For when this is the situation, the caveator has, of course, not established testamentary incapacity. In Indiana, the risk of non-persuasion remains upon contestant even after he has established that testator was of unsound mind at a time prior to the execution of wiU. Branstrator v. Crow, 162 Ind. 362, 69 N. E. 668. 12 Johnson v. Armstrong, 97 Ala. 731, 12 South. 72 ; In re Wilson's Estate, 117 CaL 262, 49 Pac. 172, 711; Branstrator v. Crow, 162 Ind. 362, 69 N. E. 118 WHO MAT BE A TESTATOR (Ch. 5 But, if unsoundness of mind exists shortly before or after the mak- ing of the will, this is evidence to be considered in determining the mental condition of the testator at the time when the will was made, regardless of the temporary or permanent character of the unsound- ness.^' In the former case there is merely no presumption of its continuance sufficient to make out a prima facie case against the will. Thus the fact that the testator had an epileptic fit on the day when the will was made, but prior to the execution thereof, does not establish lack of capacity at the momen^ of execution.^* Evidence of testator's condition before or after the making of a will is only admissible when it tends to show his capacity at the time of the execution of the will,^" and it is left to the discretion of the trial court to fix the time to which the inquiry as to capacity _should be limited.^' The Character of the Will Itself A competent testator may, apart from statutory restrictions, make any kind of a will that pleases him. But, in determining the ques- tion of competency, the character of the will itself is extremely significant. A rational act, rationally done, is convincing proof that a rational being did it. "The strongest and best proof that can arise as to a lucid interval is that which arises from the act itself." " Indeed, sometimes the intrinsically reasonable character of a will gives rise to a presumption that it was executed during a lucid in- terval, though the testator be chronically insane.^* So, if the provi- sions of the will are just, reasonable, and natural, they point toward 668; Taylor v. Pegram, 151 111. 106, 37 N. B. 837; In re Glass' Estate, 127 Iowa, 646, 103 N. W. 1013; Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392; WilUams' Ex'r v. Williams, 90 Ky. 28, 13 S. W. 250; Hix v. WMttemore, 4 Mete. (Mass.) 545 ; Von de Veld v. Judy, 143 Mo. 348, 44 S. W. 1117; In re Lyddy's Will, 53 Hun, 629, 5 N. T. Supp. 636; Koegel v. Bgner, 54 N. J. Eq. 623, 35 Atl. 394; Eelchenbach v. Ruddach, 127 Pa. 564, 18 Atl. 432. 15 Spencer v. Terry's Estate (1903) 133 Mich. 39, 94 N. W. 372; Moore v. Heineke, Il9 Ala. 627, 24 South. 374; Mitchell v. Corpening, 124 N. O. 472, 32 S. E. 798. See, also, Harp v. Parr, 168 111. 459, 48 N. E. 113 ; Trezevant v. Rains (Tex. Civ. App.) 25 S. W. 1092. 14 In re Johnson's Will, 7 Misc. Rep. 220, 27 N. Y, Supp. 649. IB Todd V. Todd, 221 111. 410, 77 N. E. 680. 16 McCoy V. Jordan, 184 Mass. 575, 69 N. E. 358; In re Winch, 84 Neb. 251, 121 N. W. 116, 18 Ann. Cas. 903. Evidence of testator's condition three years before the execution of his will was excluded in Henry Blood's Will, 62 Vt. 359, 19 Atl. 770, and in Hardy v. Martin, 200 Mass. 548, 86 N. E. 939, the court limited evidence of insanity to six years before will made. , 17 Sir William Wynne in Cartwright v. Cartwright, 1 Phillim. 90. 18 Wood v. Salter, 118 La. 695, 43 South. 281; Succession of Bey, 46 La. Ann. 773, 15 South. 297, 24 L. R. A. 577. § 49) EVIDENCE RELATING TO TESTAMENTAEY CAPACITY 119 a normal testator ; otherwise towards an abnormal testator.** And the con,testant may urge the unjust treatment accorded by the will to a third party who does not himself resist the probate.'"' But the character of the' will is only to be considered, along with other evi- dence bearing on the issue, and gross inequality of distribution among the natural objects of testator's bounty does not of it-self establish testamentary incapacity.** If testamentary capacity is proved to have existed, the will is valid although "as eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can dic- tate." " Declarations of the Testator Declarations of the testator, made at the time of the execution of the will, and so closely identified therewith as to form part of the res gestae, are admissible to shed light upon his mental condition.''* And, in general, declarations of the testator, having this effect and made at such a time that the testator's mental condition at that time is relevant to his mental condition at the time of executing the will, may be received independent of the doctrine of res gestae.'* 19 Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Coleman V. Robertson's Ex'rs, 17 Ala. 84; In re Wilson's Estate, 117 Oal. 262, 49 Pac. 172, 711; In re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181; Denlson's Appeal, 29 Conn. 405; Lamb v. Lamb, 105 Ind. 457, 5 N. E. 171; Bottom v. Bottom (1907) 106 S. W. 216, 32 Ky. Law Rep. 494; Newcomb's Ex'r v. Newcomb, 96 Ky. 120, 27 S. W. 997; Brown v. Bell, 58 Mich. 58, 24 N. W. 824; Barker v. Comlns, 110 Mass. 477; In re Bndlong. 126 N. Y. 423, 27 N. E. 945; In re Comstock's Estate (Sur.) 7 N. Y. Supp. 334; Peck v. Gary, 27 N. Y. 9, 84 Am. Dec. 220; In re Bums' Will, 121 N. C. 336, 28 S. B. 519; Prather v. McClelland (Tex. Civ. App.) 26 S. W. 657; In re Jackman's Will, 26 Wis. 104; Dew v. Clark, 3 Addams, 90; Atbery v. Ashe, 1 Hagg. 214; Boughton v. Knight, L. R. 3 P. & D. 64 ; Nichols v. Binns, 1 Sw. & Tr. 239. 20 Pergason v. Etcherson, 91 Ga. 785, 18 S. E. 29. 21 Abrahams v. Woolley, 243 111. 365, 90 N. K 667; Mileham v. Montague (1910) 148 Iowa, 476, 125 N. W. 664 ; Bottom v. Bottom, 106 S. W. 216, 32 Ky. Law Rep. 494 ; Smith v. Shuppner, 125 Md. 409, 93 Atl. 514. 22 Schneider v. Vosburgh, 143 Mich. 476, 106 N. W. 1129. 23 Waugh V. Moan, 200 111. 298, 65 N. E. 713; Dickie v. Carter, 42 HI. 376; Colvin V. Warford, 20 Md. 357; May v. Bradlee, 127 Mass. 414; Gibson v. Gibson, 24 Mo. 227; Meeker v. Boy Ian, 28 N. J. Law, 274; McTaggart v. Thompson, 14 Pa. 149. 24 Bulger V. Ross, 98 Ala. 267, 12 South. 803 ; Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242; Denlson's Appeal, 29 Conn. 399; Ball v. Kane, 1 Pennewill (Del.) 90, 39 Atl. 778; Nieman v. Schnitker, 181 111. 400, 55 N. E. 151 ; Moore V. Gubbins, 54 111. App. 163; Conway v. Vizzard, 122 Ind. 266, 23 N. E. 771; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293 ; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072; Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566; Hammond v. Dike, 42 Minn. 273, 44 N. W. 61, 18 Am. St. Rep. 503; In re Brown, 38 Minn. 112, 35 N. W. 726; Sheehau t 120 WHO MAY BE A TESTATOR (Ch. 5 Such declarations, in both cases, are admissible solely as disclosing the testator's state of mind, and not as evidence of the truth of the facts which they may allege.^" The declarations may have been made before ^° or after '^'' the execution of the will. No definite rule can be laid down to determine when the declarations ofifered are too remote in time from the execution of the will to be relevant to the testator's mental state at the time of execution. This rests largely in the discretion of the court.^' Declarations made eighteen,"' sev- enteen,*" and five °^ years prior to the execution of the will have been held too remote. The same principles apply to written as to oral declarations, such as letters,'^ or an answer to a suit brought upon^a contract entered Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102; In re Woodward's WUl, 167 N. T. 28, 60 N. B. 233 ; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; In re Dates, 58 Hun, 608, 12 ^ST. Y. Supp. 205; In re Burns' Will, 121 N. C. 336, 28 S. E. 519; Peery v. Peery, 94 Tenn. 328, 29 S. W. 1; Mcintosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611. 25 Wilkinson v. Service, 249 111. 146, 94 N. E. 50, Ann. Cas. 1912A, 41; Crowson v. Crowson (1903) 172 Mo. 691, 72 S. W. 1065; Canada's Appeal, 47 Conn. 450; Gibson v. Gibson, 24 Mo. 227; In re Cooper's WiU (1909) 75 N. J. Eq. 177, 71 Atl. 676; In re Benjamin's Will (Sur.) 136 I^. Y. Supp. 1070; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Moritz v. Brough, 16 Serg. & R. (Pa.) 405 ; Provls v. Reed, 5 Bing. 435. They have, however, been held admissible to show motives, feelings, or de- signs entertained by the testator in the past Barbour v. Moore, 4 App. D. C. 535. 28 In re Snowball's Estate (1910) 157 Cal. 301, 107 Pac. 598; Goodbar v. Lidikey, 136 Ind. 1, 35 N. E. 691, 43 Am. St. Rep. 296; Estate of Lefevre, 102 Mich. 568, 61 N. W. 3 ; Chappell v. Trent, 90 Va. 849, 19 S. E. 314. 2 7 Dennis v. Weekes, 51 Ga. 24; Hill v. Bahrns, 158 111. 314, 41 N. B. 912; O'Dell V. GofC, 149 Mich. 152, 112 N. W. 736, 10 L. R. A. (N. S.) 989, 119 Am. St. Rep. 662; Kirkpatrick v. Jenkins' Ex'rs, 96 I'enn. S5, 33 S. W. 819. 28 Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71. 2 9 Healea v. Keenan, 244 111. 484, 91 N. E. 646. soLangford's Estate, '108 Oal. 608, 41 Pac. 701. 81 Bonnemort v. Gill, 165 Mass. 493, 43 N. E. 299. In Appeal of Dale, 57 Conn. 127, 17 Atl. 757, it was held that evidence as to the mental condition of the testatrix during the last week of her life was admissible, though the will was made seven years before, its weight being for the jury to determine ; find it has been said that evidence to establish the testa tor's, capacity may cover any period of time before or after the executiqn of the will. Jones v. Collins, 94 Md. 403, 51 Atl. 398. Evidence of the testa- tor's mental condition three months after making the VTill may be received. Hamburger v. Rliikel, 164 Mo. 398,. 64 S. W. 104. 3 2 Bulger V. Ross, 98 Ala. 267, 12 South. 803; In re Brunor, 21 App. Div. 259, 47 N. Y. Supp. 681 ; SlinglofC v. Bruner, 174 111. 561, 51 N. E. 772; Wood- ward V. Sullivan, 152 Mass. 470, 25 N. E. 837 ; Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 Atl. 253. But a letter offered only to explain certain actions is inadmissible unless it can be shown to have been written at about the time when the acts were done. Clements v. McGinn, 4 Cal. TJnrep. Cas. 163, 33 Pac. 920. § 49) EVIDENCE RELATING TO TESTAMENTARY CAPACITY 121 into by the decedent." Prior wills have also been admitted as showing the settled purpose of the testator, a subsequent unex- plained departure from which might indicate insanity ; '* and it seems that they might also be received as bearing, like any other declarations,, upon the general question of the testator's mental condition.'" Other Matters Regarded as Relevant While the fact of the testator's suicide may be considered as bear- ing upon his condition at the time when the will was executed,*' it ■does, not, of itself, give rise to any presumption against testamen- tary capacity." The insanity of the testator's ancestors and collatera,l relatives, if hereditary in its character, may be shown; *' otherwise not."" But where there has been no offer of direct proof of the testator's insanity, evidence cannot be received as to the insanity of other members of his family.*" «3 Manatt v, Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293. 8 4 Hughes V. Hughes' Ex'r, 31 Ala. 519; Taylor v. Pegram, 151 111. 106, 37 N. E. 837 ; Barlow v. Waters (Ky.) 28 S. W. 785 ; Hammond v. Dike, 42 Minn. 273, 44 N. W. 61, 18 Am. St. Rep. 503. Contra: Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. 3 5 Nieman v. Schnitker, 181 111. 400, 55 N. E. 151 ; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Koegel v. Egner, 54 N. J. E)q. 623, 35 Atl. S94; Frary v. Gusha, 59 Vt. 257, 9 Atl. 549; Burrows v. Burrows, 1 Hagg. 109. 3 6Duflaeld V. Morris' Ex'r, 2 Har. (Del.) 375; Brooks v. Barrett, 7 Pick. (Mass.) 94; In re Card's Will, 55 Hun, 607, 8 N. X. Supp. 297; Frary v. Cusha, 59 Vt. 257, 9 Atl. 549. . ■ 37 In re MiUer's Will (1912) 3 Boyce (Del.) 477, 85 Atl. 803; Succession of Bey, 46 La. Ann. 773, 15 South. 297, 24 L. B. A. 577; Roche v. Nason, 185 N. Y. 128, 77 N. E. 1007 ; In re Card's Will, 55 Hun, 607, 8 N. Y. Supp. 297 ; Koegel V. Egner, 54 N. J. Bq. 623, 35 Atl. 394. ss Snow V. Benton, 28 111. 306; Baxter v. Abbott, 7 Gray (Mass.) 71; Pren- tis V. Bates, 93 Mich. 234, 53 N. W. 153, 17 L. R. A, 494 (overruling Prentis v. Bates, 88 Mich. 567, 50 N. W. 637). Where evidence is admitted tending to show that testatrix was the victim of hereditary Insanity acquired both from her mother's and father's people, such evidence may be rebutted by evidence that her father had never shown ■any trace of insanity in his lifetime. In re Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695, 9 Ann. Cas. 795. 8 Reichenbach v. Ruddach, 127 Pa. 564, 18 Atl. 432, holding that evidence that testator's father became inslane in consequence of intemperate habits was inadmissible to show testator's lack of capacity. Probably evidence that in- sanity thus occasioned was trajismissible would lead to a different result. See Titus v. Gage, 70 Vt. 13, 39 Atl. 246. While the rule stated in the text is correct on principle, evidence of the in- ■sanity of testator's relatives ,1s sometimes admitted without proof that the insanity of relatives was of a kind that was hereditary. Dillman v. McDanel, 222 111. 276, 78 N. Ei. 591, 113 Am. St. Rep, 400. ' *o Berry v. Trust Co., 96 Md. 45, 53 Atl. 720 ; Pringle v. Burroughs, 185 N. X. 375, 78 N. E. 150, 7 Ann. Cas. 264. 122 WHO MAT BE A TESTATOR (Ch. 5 Evidence as to the impairment of the memory and of the impair- ment of any mental faculty of the testator is admissible,*^ as is also that relating to his appearance, conduct, manners, and habits.*^ So the testator's conduct *' or silence ** when his mental condi- tion was mentioned in his presence may be shown, as may also the person from whom the testator derived the bulk of his property,*" and deeds and other business papers executed by the testator after *' and before *' making his will. So, also, the conduct of the disin- herited heirs towards the testator;** the consistency of the will with the natural inclinations and previously declared intentions of the testator ; *' the circumstances and character of the executors ; "" knowledge by the testator, eight months before making the will, of the amount and character of his property ; "^ moral worth of a son as rebutting evidence that he was regarded with disfavor by the testator;"^ character and pecuniary condition of an agent em- ployed by the testator in the transaction of his business ; °° inability to converse at interviews occurring some time prior to death of ^testator, whose capacity was assailed by reason of the excessive use of morphine and whisky ; °* statements by the testator as to his treatment of his wife on their marriage night; °* expressions of a 41 Daly V. Daly, 183 lU. 269, 55 N. E. 671 ; Appeal of Richmond, 59 Oonn. 226, 22 Atl. 82, 21 Am. St. Bep. 85. 42 In re Evans' Estate, 114 Iowa, 240, 86 N. W. 283. A photograph of the testator, however, has been held not admissible. Vamer v. Varner, 16 Ohio Cir. Ct. R. 386. Evidence of the excessive use of ^Intoxicating liquors by testator Is admissi- ble on the issue of mental capacity. Swygart v. Wlllard, 166 Ind. 25, 76 N. B. 755. 48 In re Fenton's Will, 97 Iowa, 192, 66 N. W. 99. i4 Meeker v. Meeker, 74 Iowa, 352, 37 N. W. 773, 7 Am. St Rep. 489. 48 Pergason v. Etcherson, 91 Ga. 785, 18 S. E. 29; In re Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711. 4 6 Morris v. Morton's Ex'rs (Ky.) 20 S. W. 287; Kerr v. Lunsford, 31 W. Va. 659, 8 S. Eu 493, 2 L. R. A. 668. 47 Messner v. Elliott, 184 Pa. 41, 39 Atl. 46. It has been held, however, not error to exclude a deed, executed by the tes- tator about a year and a half prior to the making of the will, whereby he con- veyed a large tract of land to his daughter, who was a principal beneficiary under the will. Kelley v. Kelley, 168 111. 501, 48 N. B. 158. 48 Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118. 49 In re Shapter's Estate, 85 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216; Hammond v. Dike, 42 Minn. 273, 44 N. W. 61, 18 Am. St. Rep. 503. Prather v. McClelland, 76 Tex. 574, 13 S. W. 543. Bi Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219. «2 Frary v. Gusha, 59 Vt 257, 9 Atl. 549. 08 Id. 4 In re GUham's WiU, 64 N. J. Bq. 715, 52 Atl. 690. Brashears v. Orme, 93 Md. 442, 49 Atl. 620. § 49) EVIDENCE RELATING TO TESTAMENT AET CAPACITT 123 wish for death ; *' vacillating religious beliefs ; "^ reasons for dis- inheriting heirs ; "" sudden termination of friendly relations with a near relative without apparent cause;"' the honesty of persons about whom the testatrix was alleged to have entertained the in- sane delusion that they had stolen some of her property; *" kindly relations between testator and his family ; '^ business letters show- ing that business men regarded the testator as capable of transact- ing business before, when, and after the will was executed ; ®^ testa- tor's failure to make out his own tax lists for two years after the ex- ecution of the will ; *' testator's statements of grounds for an alleged groundless antipathy towards his brother ; •* a Iptter written by an attorney, with authority from the testatrix, thirty months prior to the execution of the will, repudiating a transaction entered into by the testatrix; "■ illicit relations between the testator and his illegiti- mate daughter;'* evidence tending to show that prior to the making of the will the contestant regarded the testator as compe- tent to do business ; °' spendthrift habits of a son for whom the testator by codicil created an estate in trust,. instead of the fee pro- vided by the will ** — are all admissible on the issue of testamentary capacity. Such, in general, is the case with any fact which is more consistent with either the theory of capacity or incapacity than with the opposite theory.** Declarations Against Interest The admissions of a sole beneficiary, in disparagement of the capacity of the testator, made after the execution of the will, are admissible as declarations against interest.^" But as the admissions of one person cannot be received, if it will affect the rights of an- other not jointly interested with the first in the matter to be af- 5 8 Id. BT Id. S8 Patten v. alley, 67 N. H. 520, 42 Atl. 47. B» Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St Eep. 293. eo Titus V. Gage, 70 Vt. 13, 39 Atl. 246. 81 In re Burns' WUl, 121 N. C. 336, 28 S. E. 519. 62 Wilcoxon V. Wilcoxon, 165 111. 454, 46 N. E. 369. 88 Bower v. Bower, 142 Ind. 194, 41 N. E. 523. «i Stevens v. Leonard, 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446. 8 5 Woodward v. Sullivan, 152 Mass. 470, 25 N. E. 837. 88 Johnson v. Armstrong, 97 Ala. 731, 12 South. 72. 8T Sim V. Eussell, 90 Iowa, 656, 57 N. W. 601. 88 Prather v. McClelland (Tex. Civ. App.) 26 S. W. 657. 89 Prentis v. Bates, 93 Mich. 234, 53 N. W. 15S, 17 L. B. A. 494. ToBlakey's Heirs v. Blakey's Ex'x, 33 Ala. 611; Egbers v. Egbers, 177 111. 82, 52 N. Ei. 285 ; In re Ames, 51 Iowa, 596, 2 N. W. 408 ; Ware v. Ware, 8 Me. (8 Greenl.) 42 ; Brick v. Brick, 66 N. Y. 144; Thompson v. Thompson, 13 Ohio St 356 ; Clark v. Morrison, 25 Pa. 453 ; Forney v. Ferrell, 4 W. Va. 729. Declarations of this character made before the execution of the will are 124 WHO MAT BE A TESTATOR (Ch. 5 fected by the admissions, the prevailing rule is that, where there are several beneficiaries, the declarations of one are inadmissible, as thereby the rights of all might be prejudiced/^ Evidence of state- ments of persons not parties to the suit as to the testator's capacity is, of course, inadmissible.'* Adjudication of Insanity The record of the proceedings resulting in commitment for insan- ity, or the appointment of a guardian on this ground, establishes such insanity, prima facie, as existing both at the time and there- after.'^ The record of the discharge of a guardian or from commit- ment is only prima facie evidence of a cure.'* Where the guardian was not appointed until two or three years clearly Inadmissible', as there Is there no interest to which they would be- adverse. In re Ames, 51 Iowa, 596, 2 N. W. 408 ; Burton v. Scott, 3 Rand. (Va.) 399. While it Is said that the execution of the will is the time at which the- interest arises, yet it Is clear that knowledge of its provisions in favor of the- declarant would be necessary to render his admission regarding the in'capacity of the testator against his interest. It can hardly be conceived that a decla- ration subsequent to the execution of the will, but in Ignorance of its con- tents, could be properly admitted. 71 La Bau v. VanderbUt, 3 Eedf. Sur. (N. T.) 384; Shailer v. Bumstead, 99' Mass. 112 ; Blakey's Heirs v. Blakey's Ex'x, 33 Ala. 616 ; In re Dolbeer's Es- tate, 149 Gal. 227, 86 Pac. 695, 9 Ann. Oas. 795; Dan v. Brown, 4 Cow. (N. T.) 492, 15 Am. Dec. 395; Osgood v. Manhattan Co., 3 Cow. (N. Y.) 612, 15 Am. Dec. 304; Clark v. Morrison, 25 Pa. 453; Titlow v. Titlow, 54 Pa. 222, 93. Am. Dec. 691; Bovard v. Wallace, 4 Serg. & R. (Pa.) 499; Thompson v. Thompson, 13 Ohio St 356; Forney v. Ferrell, 4 W. Va. 729; Morris v. Stokes, 21 Ga. 552 ; Brown v. Moore, 6 Yerg. (Tenn.) 272 ; Appeal of Living- ston, 63 Conn. 68, 26 Atl. 470;. McMillan v. McDill, 110 111. 47; Roller v. Kling, 150 Ind. 159, 49 N. E. 948 ; Fothergill v. FotherglU (1905) 129 Iowa, 93, 105 N. W. 377; Benaud v. Pageot, 102 Mich. 568, 61 N. W. 3; Fairchlld v. Bas- c6mb, 35 Vt 398; Whitelaw's Adm'r v. Whitelaw's Adm'r, 96 Va. 712, 32 S. E. 458. Contra: Beall v. Cunningham, 1 B. Mon. (Ky.) 399; Peeples v. Stevens, 8 Rich. (S. C.) 198, 64 Am. Dec. 750. In Williamson v. Nabers, 14 Ga. 286, the court admitted evidence of the declarations of the executrix who propounded the will and who was also a legatee but there seems to be no good reason why such evidence should have- been received against the other legatees. "Appeal of Dale, 57 Conn. 127, 17 Atl. 757; Naul v. Naul, 75 App. Div. 292, 78 N. Y. Supp. 101. 7 8 Estate of Johnson, 57 Cal. 529 ; Rice v. Rice, 50 Mich. 448, 15 N. W. 545 ; , Hamilton v. Hamilton, 10 R. I. 538. Such an adjudication is sometimes regarded as conclusive upon the mental condition of the testator at the time, and evidence to show restoration only is admissible. In re Hoopes' Estate, 174 Pa. 373, 34 Atl. 603. »* In re WUl of Fenton, 97 Iowa, 192, 66 N. W. 99. § 49) EVIDENCE RELATING TO TESTAMENTARY OAPAOITT 125 after the execution of the will, the record showing the appointment may properly be denied admission.'" Appointment of a Conservator Evidence of a decree for the appointment of a conservator to take care of the property of testator is admissible as bearing on testa- mentary capacity," but such evidence alone does not create a pre- sumption of incapacity.'^ Matters Irrelevant On the issue of testamentary capacity an unsigned and undated letter of the testatrix is inadmissible ; '* as is also the fact that the executor nominated was a man of wealth ; " and that the testator's widow objected toihis executing the will because he was unable to attend to business; '" and that a jury had found that the testatrix was of unsound m^nd in a contest over a subsequent will on that ground ; ^^ and that the testator held certain offices after making the will, where no offer is made to show the ability with which the duties connected therewith were discharged ; '^ and that difficulties occurred between the contestant and the testator's wife subsequent to th€ making of the will; ** and that testatrix complained of her neighbors for procuring a pipe to be laid on a certain side of the street ; ** and that boys on the street made fun of the testatrix.*" It is immaterial that the will would have been the same, had tes- tator possessed capacity,*" or that testator's conduct was dissolute 7B Entwistle v. Meikle, 180 111. 9, 54 N. E. 217; In re Harvey's Will (Iowa, 1903) 94 N. W. 559. Evidence of an adjudication bf testator's insanity, vrithin a reasonable time after execution of will, is admissible. McAllister v. Rowland, 124 Minn. 27, 144 N. W. 412, Ann. Cas. 1915B, 1006. 76 In re Mulholland's Estate, 217 Pa. 65, 66 Atl. 150. Evidence of such' a decree rendered six months after testator had executed his wUi was held inadmissible in Watson's Ex'r v. Watson (1909) 137 Ky. 25, 121 S. W. 626. T7 Clifford v. Taylor, 204 Mass. 358, 90 N. E. 862; In re Ctowdry's WiU, 77 Vt. 359, 60 Atl. 141, 3 Ann. Cas. 70. 7 8 Murphree v. Senn, 107 Ala. 424, 18 South. 264. 7»Id. 80 Prather v. McClelland (Tex. Civ. App.) 26 S. W. 657. 81 Packham v. Glendmeyer, 103 Md. 416, 68 Atl. 1048; Sewall v. Robbins, 139 Mass. 164, 29 N. B. 650 (and this though the evidence shows that there was no material change in her condition between the execution of the two instruments). 82 Ray V. Ray, 98 N. C. 566, 4 S. E. 526. 8 3 Wood V. Carpenter, 166 Mo. 465, 66 S. W. 172, 84 Titus V. Gage, 70 Vt 13, 39 Atl. 246. 85 In re Hine, 68 Conn. 551, 37 Atl. 384. 88 Shirley v. Ezell, 180 Ala. 352, 60 South. 905. 126 WHO MAT BE A TESTATOR (Ch. 5 and immoral,'^ or whether or not testator was truthful and honest,*' and where a will is' contested on the ground of testamentary inca- pacity induced by a belief in spiritualism, evidence of the truth or falsity of spiritualistic faith is inadmissible.*' OPINION EVIDENCE 50, (a) The witnesses to the execution of a will may state their opinion as to the testator's mental condition, without set- ting forth any facts upon which such opinion is based. (b) Experts in mental diseases, who have had opportunities for personal observation, may express an opinion as to the tes- tator's mental condition, without stating the facts on which it is based, or they may give an opinion in regard thereto, based upon the whole evidence, if there is no conflict, or in answer to h3^othetical questions, based upon the assumed existence of facts of which there is evidence in the case. (c) One not expert in mental diseases, after stating the facts upon which his opinion is based, may, as a general rule, express an opinion as to the testator's mental condition, if the facts as stated warrant the forming of an opinion. On principle, it should not be necessary that the facts observed precede a statement of opinion by a non-expert witness and in some jurisdictions, this requirement has been expressly negatived. Opinion of Witnesses In legal theory, witnesses are placed about the testator, among other purposes, for bearing witness to his capacity, and it is pre- sumed that they will satisfy themselves with regard to it before attesting the will.®" Hence it is the universal rule that such wit- nesses may give their opinion on this matter, regardless of its foun- dation, or lack of foundation in fact, or in opportunity for observa- tion.'^ But they may be examined as to such facts,''' and, in case 87 Snell V. Weldon, 239 lU. 279, 87 N. E. 1022. 88 Wallace v. Whitman, 201 111. 59, 66 N. E. 311. 89 O'Dell V. Goff, 149 Mich. 152, 112 N. W. 736, 10 I* E, A. (N. S.) 989, 119 Am. St. Eep. 662. 00 Williams v. Spencer, 150 Mass. 346, 23 N. E. 105, 5 L. R. A. 790, 15 Am. St. Rep. 206; Hastings v. Rider, 99 Mass. 624; Appleby v. Brock, 76 Mo. 314. 81 Duffield V. Morris' Ex'r, 2 Har. (Del.) 375; Scott v. McKee, 105 Ga. 256, 31 S. B. 183; Robinson v, Adams, 62 Me. 369, 16 Am. Rep. 473 ; CSlley v. OU- 92 Denning v. Butcher, 91 Iowa, 425, 59 N. W.^ 69; Jones, v. Collins, 94 Md. 403, 51 Atl. 398. § 50) OPINION EVlt)ENCB 127 it appears that the previously expressed opinion is without substan- tial foundation, it would, of course, have no weight with the jury." In Massachusetts, however, where other non-experts are not al- lowed to give an opinion, a subscribing witness cannot testify as to an opinion formed in part from what he had seen and heard since the execution of the will, and in part from what he saw at the time.** The testator's sanity need not be proved by all the subscribing wit- nesses,®° nor is the proponent limited to the testimony of such wit- nesses in making out his prima facie .case.*" Such a witness cannot give an opinion as to the condition of the, testator's mind, based upon his own testimony before the jury, where he has testified to no facts tending to show unsoundness of mind.*^ Neither are the declarations of a deceased attesting witness as to the capacity of the testatrix admissible."* While the subscribing witnesses may testify against the capacity of the testator, such testimony is viewed with suspicion, in view of their solemn attestation of the will, and is entitled to little weight." ley, 34 Me. 162; Townshend v. Townshend, 7 Gill (Md.) 10; May v. Bradlee, 127 Mass. 414; Hastings v. Rider, 99 Mass. 624; Brooks v. Barrett, 7 Pick. (Mass.) &i; Beaubien v. Cicotte, 12 Mich. 459; Appleby v. Brock, 76 Mo. 314; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; Turner v. Cfheesman, 15 N. J. Eq. 243 ; Clapp v. FuUerton, 34 N. Y. 190, 90 Am. Dec. 681; Dewltt v. Bar- ley, 9 N. Y. 371 ; Logan v. McGinnls, 12 Pa. 27 ; Kaufman v. Oaughman, 49 S. C. 159, 27 S. B. 16, 61 Am. St. Rep. 808; Gibson v. Gibson, 9 Terg. (Tenn.) 329 ; Wigmore on Evidence, § 1936. » 3 Turner v. Oheesman, 15 N. J. Eq. 243; Stevens v. Van Cleve, 4 Wash. O. C. 262, Fed. Cas. No. 13,412. »* WilUams v. Spencer, 150 Mass. 346, 23 N. B. 105, 5 L. R. A. 790, 15 Am. St. Rep. 206. Neither can a witness to a codicil express an opinion as to whether the tes- tatrix had sufficient strength of mind to comprehend the residuary clause of her will, which the codicil purported to affirm. Melanefy v. Morrison, 152 Mass. 473, 26 N. E. 36. See, also, In re McCarthy, 55 Hun, 7, 8 N. Y. Supp. 578. The subscribing witness should be examined as to the- opinion which he held at the time of the execution of the will. In re Will of Ingalls, 148 111. 287, 35 N. E. 743 ; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473. »5 Kaufman v. Caughman, 49 S. O. 159, 27 S.' E. 16, 61 Am. St Rep. 808. 8 8 Ashworth v. McNamee, 18 Colo. App. 85, 70 Pac. 156. »■> Furlong v. Carraher, 108 Iowa, 492, 79 N. W. 277. «8 Sewall V, Robbins, 139 Mass, 164, 29 N. E. 650; Sellars v. Sellars, 2 Heisk. (Tenn.) 430. 8 Stevens v. Leonard, 154 Ind. 67, 56 N. E. 27, 77 Am, St Rep. 446; Chap- pell V. Trent, 90 Va. 849, 19 S. E. 314. See, also, Loughney v. Loughney, 87 Wis. 92, 58 N. W. 250; Southworth v. Southworth (1903) 173 Mo. 59, 73 S. W. 129. Contra : In re D' Avignon's Will, 12 Colo. App. 489, 55 Pa& 936. Declarations alleged to have been made by the subscribing witnesses, made out of court that the testator was incompetent, but denied by them, can be shown only for the purpose of impeaching their testimony, and not" to show 128 WHO MAY BE A TESTATOR (Ch. 5 The evidence of attesting witnesses is, of itself, entitled to no greater weight than that of any other person who is qualified to express an opinion.^ Opinion of Experts An expert on mental diseases may give his opinion as to the men- tal condition of the testator, if he has had opportunity, by personal observation, to form such an opinion,^ or, upon the whole evidence in the case, if it be not conflicting and he is present at the trial,' or upon hypothetical questions, based upon facts of whose existence evidence has been produced.* The preliminary question as to whether a witness is an expert is for the court." A physician who has made a special study of mental diseases is an expert for- this purpose, and so, according to the prevailing rule, is a physician in general practice.* Such is certainly the case with an attending physician.' When an opinion is called for in answer to a hypothet- ical question, the inquiry should be as to the state of mind indicated by the facts assumed.* The question should be so framed as to re- what their opinions actually were, or to prove directly the incapacity of the testatrix. StirUng v. Stirling, 64 Md. 138, 21 Atl. 273. 1 Appeal of Orandall, 63 Ctonn. 365, 28 Atl. 531, 38 Am. St. Rep. 375. 2 Carpenter v. Calvert, 83 111. 62 ; Blake v. Bourke, 74 Iowa, 519, 38 N. W. 392 ; Inhabitants of Fayette v. Inhabitants of Chesterville, 77 Me. 28, 52 Am. Rep. 741; Crockett v. Davis, 81 Md. 134, 31 Atl. 710; Lange v. Wiegand, 125 Mich. 647, 85 N. W. 109; McHugh v. Fitzgerald, 103 Mich. 21, 61 N. W. 354; In re Darragh, 52 Hun, 591, 610, 5 N. Y. Supp. 58; Kerr v. Lunsford, 31 W. Va. 659, 8 S. B. 493, 2 L. R. A. 668. 8 Com. V. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 458; Schneider v. Man- ning, 121 111. 376, 12 N. E. 267. i Meeker v. Meeker, 74 Iowa, 352, 37 N. W. 773, 7 Am. St. Rep. 489 ; In re Norman's Will, 72 Iowa, 84, 33 N. W. 374; Howes v. Colbum, 165 Mass. 385, 43 N. B. 125 ; Kempsey v. McGinniss, 21 Mich. 123 ; Lester v. I'own of Pitts- ford, 7 Vt 158; 1 Underbill, WiUs, § 100. 1 GreeiU. Ev. (15th Ed.) § 440, note c. e Tnllis v. Kidd, 12 Ala. 650 ; In re MuUin's Estate, 110 Cal. 252, 42 Pac. 645 ; Appeal of Barber, 63 Conn. 393, 27 Atl. 973, 22 L. B. A. 90 ; In re Fen- ton's Will, 97 Iowa, 192, 66 N. W. 99; McHugh v. Fitzgerald, 103 MJch. 21, 61 N. W. 354; Mendum v. Commonwealth, 6 Rand. (Va.) 704; Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 Atl. 253. 7 Hall v. Perry, 87 Me. 569, 33 Atl. 160, 47 Am. St Rep. 352. A person who has made a special study of mental diseases may testify as an expert, though he be not regularly trained as a physician. See Toomes' Estate, 54 Cal. 509, 35 Am. Rep. 83, holding that a priest who had thus stud- ied and applied learning in determining the mental status of those applying for absolution was an expert. It may be doubted, however, whether a person without considerable knowledge of the structure of the body, and of the re- lation of its conditions to those of the mind, should, as a rule, be allowed to ■qualify as an expert. 8 Various forms have been approved. "If certain facts (assumed by the question to be established by the evidence) should be found true by the jury. § 50) OPINION EVIDENCE 129 quire the witness to state the degree of the testator's intelligence or ' imbecility in his own language, and in such form as will best con- vey his idea of the matter." No witness can be properly asked whether, in his opinion, the testator had sufficient capacity to make a will.^" The question is plainly objectionable as calling for an opinion on a question of law. It has occasionally been allowed, however.^^ A hypothetical question may be based upon the evidence brought forth at the trial, or upon such evidence together with facts which have come under the personal observation of -the expert and which he has stated to the jury.^^ But the opinion must be bottomed on these alone. It cannot rest upon representations made to the wit- ness by others, such as nurses and other physicians in regular at- tendance upon the te^tator.^* The question must call for an opinion as to the testator's mental condition at the time the will was made, or at a time sufficiently proximate thereto to render his state at the latter time relevant to that at the time of executing the will.^* It must also relate to mat- ters which are legitimatfe subjects for expert evidence, viz., such as study, observation, and investigation may peculiarly qualify one to speak upon. Hence a question whether a change in the testator's lifelong purpose to provide for a sister, occurring on his deathbed, what would be Ms opinions upon the facts thus found true, on the question 6t soundness of mind?" Woodbury v. Obear, 7 Gray (Mass.) 467. "Assuming the jury find the facts as testified to by a certain witness, or by all the witnesses, when there is no conflict in the testimony, whether in the opinion of the witness the prisoner was insane; and what was the na- ture and character of the insanity Indicated ; what state of mind such facts Indicated." Shaw, O. J., la Com. v. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 458. So the testimony of a medical expert that, from a medical standpoint, the testator was of unsound mind. Is admissible. Schneider v. Manning, 121 111. 376, 12 N. E. 267. 9 Crowell V. Kirk, 14 N. C. 355; Falrchild v. Bascomb, 35 Vt. 398. 10 Walker v. Walker's Bx'r, 34 Ala. 469; Schneider v. Manning, 121 111. 376, 12 N. E. 267; Hall v. Perry, 87 Me. 569, 33 Atl. 160, 47 Am. St. Rep. 352; Buys V. Buys, 99 Mich. 354, 58 N. W. 331 ; Hewlett v. Wood, 55 N. Y. 634 ; HOPKINS V. WHEELER, 21 R. I. 533, 45 Atl. 551, 79 Am. St. Rep. 819, Dun- more Oas. WUls, 70; Gibson v. Gibson, 9 Yerg. (Tenn.) 329; Brown. v. Mitch- ell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64 ; In re Blood's Will, 62 Vt. 359, 19 Atl. 770. See Wlgmore on Evidence, § 1937. 11 See McHugh v. Fitzgerald, 103 Mich. 21, 61 N. W. 354. Ethrldge v. Ben- nett, 9 Houst. (Del.) 295, 31 Atl. 813. 12 Foster's Ex'rs v. Dickerson, 64 Vt 233, 24 Atl. 253. IS Heald v. Thing, 45 Me. 392. 1* Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69; Lange v. Wi^and, 125 Mich; 647, 85 N. W. 109. Gabd. Wilis (2d Ed.)— 9 130 WHO MAT BE A TESTATOR (Ch. 5 and without apparent reason, indicates any change in his intellect, is not one for the opinion of experts.^" It has been said that the testimony of experts is entitled to more weight than that of other witnesses upon the question of mental soundness,^" and to lesg.^' It should, however, be left to the jury to give the testimony what weight they please.^* Opinions df Non-Experts By the weight of authority, a non-expert witness, other than a subscribing witness to the will, after stating his opportunities for observation, and the facts upon which his conclusion is based,^° may, if, in the view of the court, the facts justify the formation of an opinion,^" state his opinion as to the mental condition of the testator at the time of executing the will.^^ The rule is otherwise in Massachusetts "" and several other states.^' 15 Stockton V. Thorn, 39 Minn. 204, 39 N. W. 143. 18 Meeker t. Meeker, 74 Iowa, 352, 37 isT. W. 773, 7 Am. St Kep. 489. 17 In re Kiedaisch, 2 Con. Sur. 438, 13 N. 1. Supp. 255. 18 Watson V. Anderson, 13 Ala. 202; Durham v. Smith, 120 IndL 463, 22 N. EJ. 333 ; Cline v. lindsey, 110 Ind. 337, 11 N. E. 441. They may properly give it more. Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392. Sometimes the testimony of nonexperts, in view of all the facts. Is manifestly sufficient to overcome It. See In re Lawrence's Will, 27 Misc. Rep. 473, 59 N. Y. Supp. 174; In re Connor's WiU, 29 Misc. Rep. 391, 61 N. T. Supp. 910; Hagan v. Sone, 68 App. Div. 60, 74 N. T. Supp. 109; In re Conaty, 26 Misc. Rep. 104, 56 N. Y. Supp. 854 ; In re Lyddy's Will (Sur.) 4 N. Y. Supp. 468 ; In re Seagrist's Will, 1 App. Div. 615, 37 N. Y. Supp. 496. 18 Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; Mur- phree v. Senn, 107 Ala. 424, 18 South. 264 ; Dunham's Appeal, 27 Ctonn. 192 ; Zirkle v. Leonard (1900) 61 Kan. 636, 60 Pae. 318; Lamb v. Lippincott, 115 Mich. 611, 73 N. W. 887 ; Matter of Vanauken, 10 N. J. Eq. 186 ; . Lamb v. Lynch, 56 Neb. 135, 76 N. W. 428; In re Hoopes' Estate, 174 Pa. 373, 34 Atl. 603. If the facts testified to do not indicate incapacity, the witness is Incompe- tent to give an opinion. Buys v. Buys, 99 Mich. 354, 58 N. W. 331. A witness may testify that a person is sane, without giving his reasons for his opinion. State v. Soper (1899) 148 Mo. 217, 49 S. W. 1007. 20 Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219 ; Clary's Adm'rs v. Clary, 24 N. C. 78 ; O'Connor v. Madison, 98 Mich. 183, 57 N. W. 105; Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 Atl. 253. A single interview has sometimes been held to afford sufficient grounds for observation to justify the reception of an opinion formed as a result of it See Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813 ; In re Fenton's Will, 9T Iowa, 192, 66 N. W. 99. 21 Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St Rep. 33; Bulger V. Ross, 98 Ala. 267, 12 South. 803; Appeal of Shanley, 62 Conn. 325, 25 AtL 245 ; Petefish v. Becker, 176 111. 448, 52 N. E. 71 ; Kelthley v. Stafford, 126 22 See note 22 on following page. 28 See note 23 on following page. § 50) 1 OPINION EVIDENCE 131 Although the courts usually require that the non-expert witness first state the facts or grounds on which his opinion is based, there seems to be no good reason why this requirement should be made,** and some jurisdictions make no such requirement.*^ If the witness' opportunities for observation are adequate, but the facts observed are such that he cannot describe them accurately, he may still express his opinion.** Non-expert opinion evidence, in this connection, is sometimes, limited by statute to that of intimate friends.*' Testimony as to facts and circumstances tending to establish in- sanity is still competent, although the opinion of the witness is not asked regarding the testator's sanity.*' An opinion founded upon a provision of the will itself is inadmissible.*' IlL 507, 18 N. B. 740; Ethridge V. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392 ; In re Goldthorp's Estate, 94 Iowa, 336, 62 N. W. 845, 58 Am. St. Rep. 400; In re Norman's Will, 72 Iowa, 84, 33 N. W. 374; Meeker v. Meeker, 74 Iowa, 352, 37 N. W. 773, 7 Am. St. Rep. 489; Overall v. Bland (Ky.) 12 S. W. 273; Commonwealth Title Ins. & Trust Oo. V. Gray, 150 Pa. 255, 24 Atl. 640 ; Whitelaw's Ex'r v. Sims, 90 Va. 588, 19 S. B. 118. 2 2 Smith V. Smith, 157 Mass. 389, 32 N. E. 348. Nonexpert witnesses, aside from the witnesses to the will, are permitted, in this jurisdiction, to testify to the appearance of the testator; to any particular facts from which the sate of his mind might be inferred ; to apparent changes in the testator's fn- telligence and understanding ; to a want of coherence in his remarks, etc. ; but they cannot testify as to their opinion or judgment regarding his mental condition. See Poole v. Richardson, 3 Mass. 330; Buckminster v. Perry, 4 Mass. 593; Dickinson t. Barber, 9 Mass. 225, 6 Am. Dec. 58; Needham v. Ide, 5 Pick. (Mass.) 510; Barker v. Comlns, 110 Mass. 477; Nash v. Hunt, 116 Mass. 237. Such, also, Is apparently the rule in Maine (Wyman v. Gould, 47 Me. 159, See, however, Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473) and Texas (Gehrke v. State, 13 Tex. 568). , 2s See Wigmore on Ev. § 1938, where cases collected showing state of law in all American jurisdictions. 2 4 "All that needs to appear in advance is that he had an opportunity to observe and did observe, whereupon it is proper for him to state his conclu- sions, leaving the detailed grounds to be drawn out on cross-examination." Wigmore on Bv. § 1922. 2s State V. Lewis, 20 Nev. 333, 22 Pac. 241; Garrison v. Blanton, 48 Tex. 299; Wigmore on Ev. § 1985. 28 Newcomb's Ex'r v. Newcomb, 96 Ky. 120, 27 S. W. 997; Prentis v. Bates, 98 Mich. 234, 53 N. W. 158, 17 L. B. A. 494. 27 Code Civ. Proc. Oal. § 1870. The question as to whether a witness is an intimate acquaintance Is largely within the discretion of the trial court. In re Wax's Estate, 106 Oal. 343, 39 Pac. 624. But the exercise of this discretion may constitute reversible error. In re Carpenter's Estate, 79 Cal. 882, 21 Pac. 835. 2» Bower v. Bower, 142 Ind. 194, 41 N. E. 523. # 2» Commonwealth Title Ins. & Trust Oo. v. Gray, 150 Pa. 255, 24 Atl. 640. 132 WHO MAY BE A TESTATOR (Ch. 5 Form of Question Aside from the fact that no hypothetical question can be put to a non-expert witness, the form of question regarding the testator's capacity is much the same as in the case of expert witnesses.'" 80 See ante, p. 128. A witness may state whether certain transactions of the testator Impressed him as rational or Irrational (In re Folts' Will, 71 Hun, 492, 24 N. Y. Supp. 1052; Petrie v. Petrle, 53 Hun, 638, 6 N. Y. Supp. 831) ; and he may compare the mind of the testatrix with that of an average child seven or eight years old (Appeal of Elchmond, 59 Conn. 226, 22 Atl. 82, 21 Am. St Rep. 85). The witness may be asked as to any of the necessary requisites of testamentary capacity, without being asked as to them all (Reed v. Lilly's Ex'r [Ky.] 23 S. W. 955) ; and he may testify that, in his business relations, the testator acted like a rational man (In re Wax's Estate, 106 Oal. 343, 39 Pac. 624). So he may state that the testator was "childish," and his expression "simple" (Bur- ney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33) ; and what was the condition of the testator's mtad, memory, and judgment (Craig v. South- ard, 148 111. 37, 35 N. E. 361). He cannot testify to the fact that the testator was Incompetent to transact business (Brackney v. Fogle, 156 Ind. 535, 60 N. E. 303 ; Trubey v. Richard- son, 224 111. 136, 79 N. E. 592) ; nor that he was incapable of making con- tracts or a will (St. Joseph's Convent of Mercy v. Garner, 66 Ark. 623, 53 S. W. 298) ; nor that the testator conducted a case "well and shrewdly" (Sta- ser V. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990). For other cases, see Wigmore on Ev. § 1958, n. 1. 61) EESTRAINX UPON TESTAMENTAEY DISPOSITIOM 133 CHAPTER VI RESTRAINT UPON POWER OF TESTAMENTARY DISPOSITION— WHO MAY BE BENEFICIARIES— WHAT MAY BE DIS- POSED OF BY WILL 51. The Rule Against Perpetuities. 52. Statutes Against Suspension of Power of Alienation. 63-54. Who may be Beneficiaries. 55. What may be Disposed of by Will. THE RULE AGAINST PERPETUITIES 51. The power of a testator to dispose of his property as he will is limited by the common-law rule against perpetuities. This rule, as applied to wills, is that no interest is good unless it must vest, if at all, within twenty-one years after the termination of lives which are in being at the death of the testator. With variations in its wording, the above is generally recognized as a correct statement of the common-law rule ^ as applied to wills. Periods of gestation are excluded in computing the time within which future interests must vest.* The rule applies equally to equitable and legal estates, to instruments executing powers as well as to qflher instruments,* and to interests in both realty and person- alty.* A gift to the lineal descendants of the testator's grandchildren, in case the testator's daughter should die leaving issue ; ° or a gift to grandchildren contingent on their reaching a certain age ; • or a 1 Gray, Rule against Perpetuities (2d Ed.) § 201; Owsley v. Harrison, 1»0 111. 235, 60 N. E. 89 ; Hale v. Hale, 125 111. 399, 17 N. B. 470; Pulitzer v. Liv- ingston, 89 Me. 359, 36 Atl. 635; ANDREWS v. LINCOLN, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103, Dunmore Cas. Wills, 72 ; Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 152, 63 Am. Dec. 725 ; Ohilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; In re Lowman [1895] 2 Ch. 348. 2 Gray, Rule against Perpetuities (2d Ed.) § 220. 8 Pulitzer v. Llylngston, 89 Me. 359, 36 Atl. 635. * Gray, Rule against Perpetuities (2d Ed.) § 202 ; In re Walkerly, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97. B Stone V. Bradlee, 183 Mass. 165, 66 N. E. 708. Semble: Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843. 6 Eldred v. Meek, 183 111. 26, 55 N. E. 536, 75 Am. St. Rep. 86. Semble: ANDREWS V. LINCOLN, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103, Dunmore Cas. Wills, 72; Lawrence v. Smith, 163 111. 149, 45 N, E. 259. 134 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 devise of land in trust, to be used by a certain party and her lineal descendants for 200 years, then over; ' or the creation of an abso- lute estate in the heirs of the testator's son, the distribution to be had after the death of the son and of his children, including those born after as well as those living at the testator's death ; * or a devise to the first son of A who attains twenty-five (A having no son of that age at testator's death)," — furnish obvious instances of the violation of the rule. Rule Does Not Apply to Vested Interests From its very statement, it is evident that the rule does not apply to vested interests ; ^'' i. e., to reversions, vested remainders, and interests in personalty analogous thereto.^^ Hence a devise to trus- tees, to hold and manage for 75 years, and annually to pay the in- come to the testator's children, is valid; since both the legal and equitable estates are vested at once,^^ as is also a devise to a trus- tee, to pay the incumbrances upon the property from the income, and, when entirely free, to the testator's son.^* And where a resid- uary clause provided that, "as a condition of the vesting of this leg- acy," the residuary legatee should release certain claims, it was held that a present estate was intended, the condition merely re- quiring the execution of the release upon the legatee's being put in possession, and that the clause was not, therefore, objectionable as creating a perpetuity by a condition precedent.^* It follows that an estate which, though at the time of its origin a contingent remainder or an executory devise, must, to take effect at all, become vested within twenty-one years after lives in^being, is valid.^" Thus the rule against perpetuities is not offended by a devise in trust, the net income to be paid to the testator's daughters for life, and at their decease to be divided among their then living T Hanley v. Coal Co. (C. C.) 110 Fed. 62. 8 In re Gerber's Estate, 196 Pa. 366, 46 Atl. 497. » Abbiss V. Burney, 17 Ch. Div. 211. 10 ANDREWS V. LINCOLN, 95 Me. 541, 50 Atl. 898, 56 L. B. A. 103, Dun- more Cas. Wills, 72; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635; Appeal of Appleton, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St Rep. 925. A vested interest after a lease for 999 years veas held vaUd In Todhunter V. D. M., I. & M. R. Co., 58 Iowa, 205, 12 N. W. 267. 11 Gray, Rule against Perpetuities (2d Ed.) § 205. 12 In re Johnston's Estate, 185 Pa. 179, 39 Atl. 879, 64 Am. St Rep. 621. Semble: Weiser v. Zeigler, 192 Pa. 394, 43 Atl. 997. 13 MORGAN V. MORGAN, 20 R. I. 600, 40 AU. 736, Dunmore Cas. Wills, 75. 1* Congregational Church Bldg. Soc. v. Everett, 85 Md. 79, 36 Atl. 654, 35 Ll R. A. 693, 60 Am. St. Rep. 308. "Gray, Rule against Perpetuities (2d Ed.) § 206; Madison v. LarmoOi 170 m. 65, 48 N. E. 556, 62 Am. St Rep. 356; In re Lennig's Estate, 154 Pa. 209, 25 Atl. 1049. § 51) THE EULE AGAINST PEKPETUIT1E8 135 children; ^' nor by a devise to an unmarried son "and his wife, if he should marry, and after their decease, to his children";^' nor - by a devise, the income to be paid to a daughter for life, the trus- tees to convey the fee to the appointees of her will; ^* nor to a re- mainder over to the legal heirs of the tenant for life ; ^^ nor to the devise of a fee to the unborn children of the testator's son.^" Where an estate is given with limitation over upon the death of the first taker without issue, the failure of issue is now generally regarded as referring to a definite failure of issue during the life of the first taker,''^ and hence the limitation over does not offend the rule against perpetuities.*^, Even if an indefinite failure of issue is intended, where gift is of realty, the taker has an estate tail to remainders on which the rule against perpetuities does not apply.*' The Future Estate Must Vest Within the Time Specified It is not enough that the future estate may or is very likely to vest within the specified time. It must, beyond all peradventure, so vest; otherwise it offends the rule and is void;** as where the limitation is made to take effect when the estate shall cease to be used for a certain purpose.*" Such is the case with a devise to a daughter for life, and upon her death to her children in fee, but if the children, or either of them, should die Without issue in the life- time of any husband of the daughter, then to the heirs of the testa- tor ; for, although at the time of the testator's death the daughter might have a husband living, there is the possibility of her con- tracting, in case of his death, a marriage with a person not in being 10 In re Slddall's Estate, 180 Pa. 127, 36 Atl. 570; Beeks v. Eye, 77 Missi. 358, 27 South. 635. 17 Gates V. Seibert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625. 18 Appeal of Appleton, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St Rep. 925. Semble: Woodbridge v. Winslow, 170 Mass. 388, 49 N. E. 738. 19 Healy v. Healy, 70 Conn. 467, 39 AG. 793. 20 Chapman v. Cheney, 191 111. 574, 61 N. E. 363. In this will it was further provided that no grandchild should acquire any interest unless he should reach the age of 30; but this was regarded as creating a condition subsequent, the grandchildren taking a determinable fee. 21 See post, p. 451. 22 Metzen v. Schopp (1903) 202 111. 275, 67 N. E. 36; Selman v. Robertson, 46 S. C. 262, 24 S. E. 187; Armstrong v. Douglass, 89 Tenn. 219, 14 S. W. 604, 10 L. R. A. 85. 23 Gray on Perpetuities (2d Ed.) § 212. 24 Johnson v. Preston, 226 111. 447, 80 N. B. 1001, 10 L. R. A. (N. S.) 564 ; ANDREWS v. LINCOLN, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103, Dunmore Gas. Wills, 72; Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 155, 63 Am. Dee. 725; Society for Promoting Theological Education v. Attorney Gen- eral, 135 Mass. 285, 288; Hanley v. Coal Co. (C. C.) 110 Fed. 62. *5 Brattle Square Church v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725. 136 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 when the testator died, in consequence of which the devise over to the heirs might not take effect during a life in being at the testa- tor's dea'th.^'^ In determining whether the contingency will happen within the required limits, both men and women are presumed capable of re- production as long as they live, and the fact of their not being physi- cally capable of this function will not render a limitation valid which would otherwise be void for remoteness.^' Future interests may be alienable and still be void as too remote, if they do not necessarily vest within the time limited by the rule.''* Accordingly, where property was given to trustees to hold upon trusts which might not vest within the time limited by the rule such trusts were void, although trustees were given full power to change investments so that property was at all times alienable.^' Vesting Suspended for a Term of Years Whenever lives in being do not form any part of the time of post- ponement, but the vesting is suspended for a term of years, such term cannot exceed twenty-one years,*" and an estate limited to vest at the expiration of a longer period is void,'^ as in the case of the devise of a remainder to testator's children that may be living seventy-five years after his death, and to the legal descendants of any of his children then dead.'" This follows inevitably from the requirement that the estate shall surely vest within the period in- dicated by the rule. For while the estate, whose vesting is sus- pended for a term not largely in excess of twenty-one years, will in all probability vest actually within what would have been the re- quired period, had regard been had to existing lives, yet the possi- bility of its not thus vesting is apparent enough. But a devise in trust for twenty-five years is not within the rule, where the trust was to expire on the beneficiary's death, and the estate, was then to be distributed among the testator's heirs.*' 26 Sears v. Russell, 8 Gray (Mass.) 86, 98, 9&. 27 Jee V. Andley, 1 Cox, Ch. 324. See, also. Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843. 28Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Gray, Eule against Per- petuities (2d Ed.) § 268. ^ . 29 Wheeler v. Fellowes, 52 Conn. 238. so ANDREWS v. LINCOLN, 95 Me. 541, 50 AtL 898, 56 L. R. A. 103, Dun- more Cas. Wills, 72. 81 In re Walkerly's Estate, 108 Cal. 627, 41 Pac. 772, 49 Am. St. Rep. 97 (after twenty-five years); Eldred v. Meek, 183 111. 26, 55 N. E. 536, 75 Am. St Rep. 86 ; Sledler v. Syms, 56 N. J. Eq. 275, 38 Atl. 424. »2 In re Johnston's Estate, 185 Pa. 179, 39 Atl. 879, 64 Am. St Rep. 621. »8 McClelland v. McClelland (Tex, Civ. App.) 37 S. W. 350. § 51) THE BULB AGAINST PERPETUITIES 137 Remoteness to be Determined with Reference to Testator's Death It is now well settled that the question as to whether the provi- sions of a will offend the rule against perpetuities is to be deter- , mined with reference to the situation at the time of the testator's death, and not with regard to the time when the will was executed.** Alternative Contingencies • If an estate is given over on one contingency, which must happen, if at all, within the rule, and that contingency does happen, the valid- ity of the gift will not be affected by the fact that there was an alter- native disposition which is void for remoteness.'' Thus, where the income of a trust estate is given to the testator's son for life, and, upon his death without surviving children, then to a charity, but, if there are surviving children, the income to be paid to them for life, and the principal then to go to the charity, the bequest to the char- ity will be regarded as valid in event of the son's dying without sur- viving children, though in the second contingency it is obviously too remote.'" Separable Limitations ^ Where successive gifts are made, some of which offend the rule against perpetuities, while others do not, and the valid and invalid gifts are not so closely connected as to make it manifest that the testator intended that all should stand or fall together, the good will be separated from the bad, and the prior valid interests become what they would have been, had the subsequent invalid limitations been omitted.''_ A subsequent vested interest is never too remote, although preceded by other interests which are too remote.'* Where a devise is given to a class of persons answering a given description, and any member of that class may possibly have to be ascertained at a period exceeding that allowed by the rule against perpetuities, the whole devise is void.'° s4Hosea v. Jacobs, 98 Mass. 65, 67; 1 Jar. Wills, 254; Hale v. Hale, 3 Ch. D. 643, 645. Gray, Rule against Perpetuities (2d Ed.) § 231. S5 Jackson v. Phillips, 14 Allen (Mass.) 539, 572; Halsey v. Goddard (C. C.) 86 Fed. 25. 86 Jackson v. Phillips, 14 Allen (Mass.) 539. sTHaynes v. Sherman, 51 Hun, 585, 4 N. T. Supp. 413; Dulany v. Middle- ton, 72 Md. €7, 19 Atl. 146 ; Chapman v. Cheney, 191 111. 574, 61 N. B. 363. See Sg.ston v. Webber, 83 Wis. 617, 53 N. W. 905, 20 L. R. A. 509. 3 8 "Thus if an estate is given (1) to A. for life, (2) to A.'s unborn son for life, (3)«to the duld of such unborn son for life, (4) to B. in fee, B.'s estate is good, alfthough the remainder to the chUd of A.'s unborn child Is too remote." Gray, Rule against Perpetuities (2d Ed.) § 251. so Eldred v. Meek, 183 111. 26, 55 N. B. 536, 75 Am. St. Rep. 86; HiUs v. Simonds, 125 Mass. 536, 539. 138 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 But if the gifts to the memhers of a class are separable, so that the amount of the gift to each member may be ascertained within the legal period, the gift to one member is not rendered invalid by reason of the fact that the gift to others may be too remote.*" Gifts to Charities Although a charitable trust is not invalid by reason of the fact that it is inalienable because there are no definite cestuis que trust to alien,*^ such a trust may be invalid under the rule because too remote. Accordingly, if there is a gift to a charity to take effect Only upon the happening of a contingency which may not occur within the legal period, and there is no preceding gift to another donee, the gift to the charity fails." If, however, there is a gift to a charity, with a gift over to another charity, the gift over to the second charity is good, even though it may not vest within the limits of the rule against perpetuities.*^ A gift to a corporation or association on a charitable trust is usually held valid, although no such corporation or association exists at the date of the gift.** Accumulations In the absence of legislation to the contrary, a testator may law- fully provide for the accumulation of the income of property during the whole of the period within the rule against perpetuities.*" A gift which vests within the required period is valid, though accom- panied by a void direction for accumulation.** If, however, the provisions relative to the disposition of the principal and income of the fund are void, the directions to invest and accumulate are also void, as being auxiliary thereto.*^ When testator directs that in- to Albert v. Albert, 68 Md. 352, 12 Atl. 11; Gray,. Rule against Perpetuities (2d Ed.) § 389. *i Gray, Rule against Perpetuities (2d Ed.) § 590. *2 Jocelyn y. Nott, 44 Conn. 55 ; Brooks v. Belfast, 90 Me. 318, 324, 38 Atl. 222; Gray on Perpetuities (2d Ed,) § 605. *s Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141; Mac- Kenzie v. Jersey City Presbytery, 67 N. J. Eq. 652, 61 Atl. 1027, 3 L. B. A. (N. S.) 227; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401. 44 Ingraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. B. 320; Chase v. Stockett, 72 Md. 235, 19 Atl. 761; Codman y. Brigham, 187 Mass. 309, 72 N. E. 1008, 105 Am. St. Bep. 394 ; Almy v. Jones, 17 B. I. 265, 21 Ati. 616, 12 L. B. A. 414; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct 336, 27 L. Ed. 401; Bussell V. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397. 4B Odell V. Odell, 10 Allen (Mass.) 1, 5; Thorndike v. Loring, 15, Gray (Mass.) 391; St. Paul's Church v. Attorney General, 164 Mass. 188, 203, 41 N. E. 231; Boughton v. Boughton, 1 H. L. C. 406. See Duggan v. Slocum (C. O.) 83 Fed. 244. 48 Odell V. Odell, 10 Allen (Mass.) 1. 4T Fosdiek v. Fosdick, 6 Allen (Mass.) 41, 48 ; ANDREWS v. LINCOLN, 95 Me. ,541, 50 AO. 898, 56 L. B. A, 103, Dumnore Cas. Wills, 72. g 52) SUSPENSION OF POWER OF ALIENATION 139 come be accumulated for the payanent of debts, such a direction is not void for remoteness, since creditors have a present interest and may stop the accumulation at any time.** Statutes have been passed in some jurisdictions curtailing the 9ommon-law rule, and limiting the period of accumulation to twen- ty-one years after the death of the testator, or during the minority of the beneficiaries.*" Provisions for accumulation beyond the period fixed by statute are not void in toto, but only to the extent of the excess."" STATUTES AGAINST SUSPENSION OF POWER OF ALIENATION 52. The common-law rule against perpetuities has been replaced in many jurisdictions by the statutory requirement that the po-wer of transferring the absolute title to property shall not be suspended beyond a certain period — ordinarily for not longer than the duration of two lives in being when the interest was created. Occasionally statutes provide that the power of alienation shall not be suspended in excess of the period prescribed by the rule against perpetuities for the vesting of estates,"^ but ordinarily legis- lation in this connection has taken the form above indicated.^'' Un- «s MORGAN V. MORGAN, 20 R. I. 600, 40 Atl. 736, Dunmore Gas. Wills, 75. Gray, Rule against Perpetuities (2d Ed.) § 676. *» 39 & 40 Geo. Ill, c. 98 ; 1 Rev. St. N. Y. (1st Ed.) p. 726, part 2, c. 1, tit 2, §§ 37, 38 ; How. Ann. St. Mich. 1882, c. 213, §§ 5553, 5554. These statutes are cited, from a number, as generally typical of legislation on this subject. so Hafner v. Hafner, 171 N. Y. 633, 63 N. E. 1117 ; Appeal of Brubaker (Pa.) 15 Atl. 708. 61 Ky. St. 1915, § 2360. ConstiMed in Stevens v. Stevens (Ky.) 54 S. W. 8.S5; Coleman v. Coleman (Ky.) 65 S. W. 832. Code Iowa 1897, § 2901. Construed in Sioux Oity Terminal R. & Warehouse Co. v. Trust Co., 27 C. O. A. 73, 82 Fed. 124. Civ. Code Oal. § 715, prohibiting the suspension of the power of alienation beyond the existence of lives in being. Construed in Re Hendy's Estate, 118 Oal. 656, 50 Pac. 753; Grew v. Pratt, 119' Cal. 139, 51 Pac. 38; In re Cavarly's Es- tate, 119 Cal. 406, 51 Pac. 629; Blakeman v. Miller, 136 Cal. 138, 68 Pac. 587, 89 Am. St. Rep. 120. In Ohio it is provided that no estate shall be given, by deed or will, to any persons but such as are in being, or to the immediate issue, or descendants of such as are in being at the time of making such deed or will. Gen. Code 1912, § 8622. The "time of making will" means the time at which the will takes effect by reason of the death' of testator. Phillips v. Herron, 55 Ohio St. 478, 45 N. E. 720. 2 Among the statutes taking this form are Real Property Law N. Y. (Con- sol. Laws, c. 50; Laws 1909, p. 3381) § 42; How. Ann. St. Mich. 1913, § 10637; Gen. St. Minn. 1913, § 6665 ; Rev. St. Wis. 1898, § 2038. 140 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 der these statutes the question is not so much when the future es- tate vests, as when the power of alienation may be exercised. The lives during which the power is suspended must be in existence at the creation of the estate; i. e., in the case of a will, at the death of the testator/* A devise which suspends ^the power of alienation for a specific time, not measured by two lives in being, but by a prescribed term of years, is void,°* as is also one in which the pow- er of alienation is suspended for a number of lives in excess of the number allowed by statute/^ A trust created to last during two lives in being is valid,°° as is also a Bequest in trust, to divide the income among three persons, and at the end of 10 years to dis- tribute the principal among them, since the estate vested in the beneficiaries at the death of the testatrix."' In general, where the estate vests, but enjoyment only is postponed, the statute is not violated."* So the power of alienation is not suspended by a provi- sion in a will giving the executor a power to sell in his discretion, without restriction as to time."" Statutes against suspension aim to prevent only a suspension of the power of alienation by the terms of the instrument and not such a suspension as arises from the disability of infancy, or from any other cause outside of the instrument."" i B3 MtQlreed v. Clark, 110 Mich. 229, 68 N. W. 138,' 989. «* Trowbridge v. Trowbridge, 158 N. Y. 682, 52 N. E. 1126; Haynes v. Sher- man, IIT N. Y. 433, 22 N. B. 938 ; Underwood v. Curtis, 127 N. Y. 523, 28 Nj B. 585; Fargo v. Squiers, 154 N. T. 250, 48 N. E. 509; Kalish v. Kalish, 166 N. Y. 368, 59 N. B. 917; Farrand v. Petit, 84 Mich. 671, 48 N. W. 156; Fitz Gerald v. City of Big Rapids, 123 Mich. 281, 82 N. W. 56; State v. Holmes, 115 Mich. 456, 73 N. W. 548. 6 6 Hooker v. Hooker, 166 N. T. 156, 59 N. E. 769; Niles v. Mason, 126 Mich. 482, 85 N. W. 1100 (where one-half the Income of a trust fund was to be paid to a son for life; one-half to a daughter for life; on their deaths, to their issue, if any survive; on the death of either without issue, the Income to go to the survivor for life, and then over, if both die without issue) ; Trufant v. Nunneley, 106 Mich. 554, 64 N. W. 469 (where a life estate in separate tracts of land was given to each of three children, with remainder over in each case to the bodily heirs of all such children, share and share alike) ; Fowler v. IngersoU, 127 N. Y. 472, 28 N. E. 471. 6 8 Buchanan v. Little, 154 N. Y. 147, 47 N. E. 970; Mansbach v. New, 170 N. Y. 585, 63 N. E. 1119; Schermerhom v. Cotting, 131 N. Y. 48, 29 N. B. 980; Allen V. Stevens, 161 N. Y. 122, 55 N. E. 568. Semble: Hughes v. Hughes, 91 Wis. 188, 64 N. W. 851. 6 7 Hillyer v. Vandewater, 121 N. Y. 681, 24 N. B. 999. Semble: Wilber v. "Wllber, 165 N. Y. 451, 59 N. E. 264. 68 Quade V. Bertsch (1903) 173 N. Y. 615, 66 N. E. 1115; Wilber v. Wilber, 165 N. Y. 451, 59 N. E. 264. so Fitz Gerald v. City of Big Rapids, 123 Mich. 281, 82 N. W. 56; Hope v. iBrewer, 136 N. Y. 126, 32 N. B. 558, 18 L. R. A. 458. 80 Beardsley v. Hotchklss, 96 N. Y. 201, 214. |§ 53 '54) WHO MAT BE BENEFI0IABIE8 141 WHO MAY BE BENEFICIARIES 53. As a general rule, any person may be a beneficiary under a will. 54. But there are certain limitations upon this principle arising from the character of the beneficiaries, which affect gifts to (a) Aliens; (b) Corporations; (c) Subscribing witnesses ; (d) Beneficiaries rendered incompetent by considerations of pub- lic policy. « Broadly speaking, any person may take as beneficiary under a will. Such is the case with infants, habitual drunkards, and all persons non compos mentis. Here an acceptance of the gift, if beneficial, will be presumed.'^ So a married woman, independent ■of statute, could take under a will, to her sole and separate use, and she might also be a beneficiary under her husband's will.®*- But a ■devise or bequest to the "estate" of a person is void, since an estate is not a person or entity that can take under a will."* Bequests to Charity Bequests for charitable purposes are as a rule, much favored by the law, and much less definiteness is required in the beneficiaries than in the case of an ordinary trust.'* But in some jurisdictions the proportionate amount of his estate which a testator may 4evo'te to such purposes has been limited by statute,*" while not infre- j «il Jar. Wills, 75; Burdett v. Hapgood, 1 P. Wms. 486. See, also, De l«villain v. Evans, 39 Cal. 120; Gardner v. Merritt, 32 Md. 78, 3 Am. Eep. 115. 82 Litt. § 168; 1 Jar. Wills, 75. « 8 In re Glass' Estate, 164 Oal. 765, 130 Pac. 868. «* Pomeroy's Eq. Juris. (3d Ed.) § 1025. «•> California: Civ. Code, § 1313 (amount given to charity shall not exceed ■one-third of the distributable estate). ■ Construed In Re Eoyer's Estate, 123 <3al. 614, 56 Pac. 461, 44 L. R. A. 364. Georgia: Code 1910, § 3851 (limiting devises to religious or civil institutions •of testator leaving wife or child to one-third of his estate). Construed in KeUey v. Welbom, 110 Ga. 540, 35 S. E. 636. New York: Laws 1860, p. 607, c. 360, § 1 (limiting devises to charitable associations or corporations of a testator leaving husband, wife, child, or parent to one-half his estate). Statute does not apply to a permanent chari- table devise to trustees (Allen v. Stevens, 161 N. Y. 122, 55 N. E 568, revers- ing 33 App. Div. 485, 54 N. X. Supp. 8), nor to gifts to a municipal corporation (In re Crane's Will, 159 N. Y. 557, 54 N. E. 1089). The statute applies to a -gift absolutely, but in fact upon a secret trust for the benefit of charitable corporations. Trustees of Amherst College v. Ritch, 151 N. X. 282, 45 N. E. *76, 37 li. R. A. 305. The statute was passed for the sole benefit of those 142 RESTKAINT UPON TESTAMBNTAET DISPOSITION (Ch. 6 quently gifts of this character are rendered invalid unless the will is executed at least a certain specified time before the testator's death.'* Aliens At common law an alien could take land by devise, and hold the title subject to the right of the sovereign to procure an escheat or forfeiture by information and office fovmd."^ Personal property might be acquired by an alien as completely as by a citizen,**' sub- ject, of course, to confiscation in event of his becoming an alien enemy. While in many states an alien, by statute or by constitutional provision, stands precisely upon the footing of a citizen, in his ca- pacity to take land by devise,** in others nonresident aliens are, in mentioned therein, and, if they voluntarily release their interests under the wiU, no one else can Impeach its validity. Trusteps of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. K. A. 305. See, also, Allen v. Stev- ens, 22 Misc. Rep. 158, 49 N. Y. Supp. 431. Under this act, a testator cannot give more to two or more charitable institutions than he could to one. In re Torrance's Estate (Sur.) 15 Misc. Rep. 317, 37 N. Y. Supp. 583. And it ap- plies to foreign institutions of the kind referred to In the act, although, by the law of the state of their creation, their power to receive bequests is un- restricted. Scott V. Ives, 22 Misc. Rep. 749, 51 N. X. Supp. 49. A bequest to a priest of a certain church, for masses, is not a bequest to a religious association, as the term is used in this statute. In re Zimmerman's WiU, 22 Misc. Rep. 411, 50 N. Y. Supp. 395. 68 California: Civ. Code, § 1313 (thirty days). ■ Georgia: Code 1910, § 3851 (ninety days). ' New York: Laws 1848, p. 448, c. 319, § 6 (two months). But this section, in terms, applies only to corporations organized thereunder. In re Fitzslm- mons' Estate, 29 Misc. Rep. 731, 62 N. Y. Supp. 1009; Pritchard v. Kirsch, 58 App. Div. 332, 68 N. Y. Supp. 1049 ; Spencer v. Association, 36 Misc. Rep. 393, 73 N. Y. Supp. 712; In re Cornelius' Will, 23 Misc. Rep. 434, 51 N. Y. Supp. 877; In re Hardy, 28 Misc. Rep. 307, 59 N. Y. Supp. 912; In re Brush's Will, 35 Misc. Rep. 689, 72 N. Y. Supp. 421. See, also, Fairchlld v. Edson, 154 N. Y. 199, 48 N. E. 541, 61 Am. St. Rep. 609. Ohio: Gen. Code 1912, § 10504 (one year, if testator leave "issue of his body" or an adopted child). Construed in Theobald v. Fugman, 64 Ohio St. 473, 60 N. E. 606 ; Davis v. Davis, 62 Ohio St. 411, 57 N. E. 317, 78 Am. St Rep. 725 ; Huidekoper v. Perry, 14 Ohio Cir. Ot. R. 68. Pennsylvania : Act of 1855 (P. L. 332), thirty days, if bequest is made to a religious or charitable use. 6T Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, 3 L. Ed. 453; Scan- Ian V. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; SheafCe v. O'Neil, 1 Mass. 256; Racouillat v. Sansevain, 32 Cal. 376; Lenehan v. Spaulding, 57 Vt. 115. 68 Oralg v. Leslie, 3 Wheat. 563, 4 L. Ed. 460. 69 Alabama: Code 1907, § 2831. Georgia: Code 1910, § 2173. Iowa: Const, art. 1, § 22 (applying only to resident aliens). Kentucky: St. 1915, § 334 (after declaring intention to become a citizen of United States). §§ 53-54) WHO MAT BE BENEFIOIAEIES 143 terms, prohibited from holding lands by devise or in any manner/" in others aliens of any description are forbidden to take land by devise,''* while, again, aliens are allowed to take, provided that they sell the land within a prescribed number of years. '^ Statutes disabling aliens to take real estate are sometimes con- strued as making a devise to an alien absolutely void; '' but usually such statutes are construed as giving to the state alone the right to raise the question of incapacity of the alien to hold title to real estate.''* Corporations By the various statutes of mortmain, corporations had been in- f capacitated from holding title to land without license from the crown, and the statute of wills '" expressly excepted out of its en- abling clause devises to bodies politic and corporate. Accordingly a devise to a corporation, whether aggregate or sole, either for its own benefit or as trustee, was void; and the lands so devised de- scended to the heir, either beneficially or charged with the trust, as the case might be.'" The statute 1 Vict. c. 26, contained no such prohibition, in consequence of which corporations in England had capacity to take land by devise, though a proper license was needed to enable them to hold land thus acquired because of the disability arising by reason of the mortmain statutes.'"' As the statutes of mortmain have rarely been held to be a part of the common law in the United States, and as the various statutes of wills do not in- capacitate corporations as beneficiaries, they may acquire land by devise, in the absence of some provision in their charters or the general law to the contrary.''* In the absence of restraining laws, 70 See Code Iowa 1897, § 2889. Construed In Furenes v. Mlckelson, 86 Iowa, 508, 53 N. W. 416. Ti Washington: Const art. 2, § 33 (inappllcaljle where alien has declared Ms intention to become a citizen of the United States). T2 In Illinois, a resident alien may hold land six years. Jones & A. 111. Stat. 1913, c. 6, par. 284. 73 De Grate v. Went, 164 111. 485, 45 N. E. 1075. 74 Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532; Abrama v. State, 45, Wash. 327, 88 Pac. 327, 9 L. R A. (N. S.) 186, 122 Am. St Kep. 914, 13 Ann. Oas. 527. 7 5 34 Hen. VIII, c. 5. 7 8 1 Jar. WiUs, 63. TTld. 7 8 White V. Howard, 38 Conn. 342; American Bible ^^oc. v. Marshall, 15 Ohio St 537; White v. KeUer, 68 Fed. 796, 15 C. G. A. 683. Such provisions are sometimes found. In New York, no devise to a cor- poration is valid unless the corporation be expressly authorized to take by devise. Wright v. Methodist Episcopal Church, 1 Hoff. Ch. 225 ; Andrew v. Society, 6 N. I. Super. Ct 156. Sometimes the amount of real estate which 144 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 corporations have apparently always had the right of taking per- sonal property by will.'* The foregoing principles apply substantially to municipal as well / as to private corporations. In the absence of legislation to the con- trary, such a devise is valid if it be for purposes such as can be ac- complished by the municipality in view of its statutory powers.*" And, in the absence of statutory prohibition, a devise or bequest to any public corporation should be valid.' ^ Subscribing Witnesses All witnesses to a will must be competent or credible. A witness who was a beneficiary under a will was incompetent by reason of his interest under the instrument. Hence, if one of the necessary witnesses was thus interested, the will was void. To remedy this, it has generally, though not universally, been provided by statute that a bequest to a subscribing witness shall be void, and that the will shall otherwise be valid,*^ i Beneficiaries Incompetent by Considerations of Public Policy While an illegitimate child in esse, whether born or unborn, is competent to take under a will, the only serious question being as a corporation can hold Is limited to a certain sum. A devise In excess of this amount is held void In some jurisdictions (In re McGraw's Estate, 111 N. T. 66, 19 N. E. 233, 2 L. R. A. 387), v?hile in others the limitation is held to oper- ate only in favor of the state (Farrington v. Putnam, 90 Me. 405, 37 Atl. 652, 38 L. K. A. 339 ; In re Stickney's WUl, 85 Md. 79, 36 Atl. 654, 35 L. R. A. 693, 60 Am. St. Rep. 308; Jones v. Habersham, 107 U. S. 174, 183, 2 Sup. Ct. 336, 27 L. Ed. 401; De Camp v. Dobbins, 29 N. J. Eq. 36). Were the question res Integra, the former view would appear sound on principle, and in view of the obvious purpose of the legislation in question, but by the weight of author- ity, particularly in view of the decisions upon analogous questions involving the validity of a corporation's title to real estate, the latter view is upheld as correct- A foreign corporation may take by devise. Santa Clara Female Academy V. SulUvan, 116 ni. 375, 6 N. E. 183, 56 Am. Rep. 776. 79 Burbant v. Whitney, 24 Pick. (Mass.) 151, 35 Am. Dec. 312 ; Trustees of Phillips Academy v. King, 12 Mass. 546 ; McCartee v. Society, 9 Cow. (N. Y.) 437, 18 Am. Dec. 516 ; Gibson v. McOaU, 1 Rich. Law (S. C.) 174 ; Thompson V. Swoope, 24 Pa. 474. 80 1 Underbill, Wills, § 74. See, also, Qulncy v. Attorney General, 160 Mass. 431, 35 N. E. 1066; Carder v. Board, 16 Ohio St. 353; Mcintosh v. City of Charleston, 45 'S. C. 584, 23 S. B. 943; Sheldon v. Town of Stockbridge, 67 Vt. 299, 31 Atl. 414. A bequest to a municipality of the German Empire Is good. In re Huss, 126 N. Y. 537, 27 N. E. '^4, 12 L. R. A. 620. 81 Estate of Bulmer, 59 Cal. 131 (devise to a school district) ; Fulbright v. Perry County, 145 Mo. 432, 46 S. W. 955 (devise to a county); Dickson v. United States, 125 Mass. 311, 28 Am. Rep. 230 (devise to United States). 82 For full discussion of the competency of subscribing witnesses, see post^ p. 200. §§ 63-54) WHO MAT BE BENEFICIABIE8 145 to its sufficient designation,*' yet the early cases were opposed to gifts to such children neither born nor conceived.'* But' dicta to the contrary have been thrown out.*" So far as the objection to gifts of this description because of uncertainty goes, it is plainly of little weight, for a gift to the future illegitimate children of a woman is obviously as certain as is the undoubtedly valid gift to her legiti- mate children; but the objections on the ground of public policy are very serious, and are powerfully set forth by Mr. Jarman,'* who, after reviewing the authorities, concludes such gifts to be invalid.*^ But if testator's intention to provide for a future-born illegitimate child clearly appears and the will describes the intended beneficiary with sufficient certainty, by the weight of modern authority a de- vise or bequest to such a child is valid.'* On the same principle of public policy, conditions of a testamen- tary gift tending to separation or divorce between husband and wife are held void,** and a beneficiary who murders the testator for the purpose of hastening his enjoyment of the gift should not be per- mitted to profit by his iniquity."" The Louisiana Code provides that a will made in favor of the testator's concubine shall be null and void,°^ but in the absence of such a statute a testator may make 83 1 Jar. Wills, 74. See Smith v. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Bep. 260, and In re Sander's Estate, 126 Wis. 660, 105 N. W. 1064, 5 Ann. Cas. 508. The amount which can be given to such child is sometimes limited by statute. Civ. Code S. C. 1902, § 2487 (one-fourth where there is a lawful wife or children). 8* Blodwell V. Edwards, Cro. El. 510. "The law will not favor such a gen- eration, nor expect that such shall be." 85 Wilkinson v. Adam, 1 V. & B. 446. 88 2 Jar. Wills, 1108. ST Id. p. 1114. 88 Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347: In re Hastle's Trusts, L. R. 35 Ch. Div. 728. See, also, Hayden v. Barrett, 172 Mass. 472, 52 N. E. 530, 70 Am. St. Rep. 295; Heater v. Van Auken, 14 N. J. Eq. 159; SchoU's Will, 100 Wis. 650, 76 N. W. 616. A gift to a future illegitimate child described only by reference to paternity has been held tnvaUd. In re Bolton, L. R. 31 Ch. Div. 542. 80 Conrad v. Long, 33 Mich. 78. »o RIGGS V. PALMER, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, Dunmore Cas. WUls, 77 — a decision somewhat criticised, but reaching a desirable result. See, however, Owens v. Owens, 100 N. C. 240, 6 S. E. 794, and Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935, 25 L. R. A. 564. The murder of the testator by a devisee does not render the devise void, but should authorize proceedings in equity to deprive the devisee of the fruits of his crime. Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540. 81 See Gibson v. Dooley, 32 La. Ann. 959. In Louisiana, the Code also prohibits ministers of religion who have profes- sionally attended a sick person during his last lUness from receiving any Gaed. Wills (2d Ed.) — 10 146 EBSTEAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 a valid bequest or devise to a paramour."^ The question as to what contravenes public policy in this connection is a question of law to be determined by the court.' ° WHAT MAY BE DISPOSED OF BY WILL 55. The power of testamentary disposition extends to all interests in real and personal estate which at the decease of the tes- tator would, if not so disposed of, devolve to his heir at law or personal representative, whether the testator be the legal or the beneficial owner only, or unite in himself both these characters. The above rule, as stated by Mr. Jarman,'* is abundantly sup- ported by the authorities. An executory interest in real or personal estate is disposable by will, if the nature of the contingency upon which it is dependent be such that the interest does not cease with the life of the testator. "^ So with vested estates, even though lia- ble to be defeated by conditions subsequent."* A naked legal title may be devised °^ and one in possession bf land without other title may devise his interest.'* Rights of action °° and of entry ^ were not originally devisable, but this has been generally changed by statute.* Any equitable interest in land, including those arising donation made during tliat illness. See Succession of VUla, 132 La. 714, 61 South. 765. 82 Arnault v. Arnault, 52 N. J. Eq. 801, 31 Atl. 606; Monroe v. Barclay, 17 Ohio St 302, 93 Am. Dec. 620. »3 Smith V. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Rep. 260. «*1 Jar. Wills, 48. »5 Goodtitle v. Wood, 3 T. R. 94;; Doe dem. Perry v. Jones, 1 H. BI. 30; Moor V. Hawkins, 2 Eden, 342 ; IngUby v. Amcotts, 21 Beav. 585. See Allen V. Watts, 98 Ala. 384, 11 South. 646; Fisher v. Wagner, 109 Md. 243, 71 Atl. 999, 21 L. R. A. (N. S.) 121 ; Rembert v. Evans, 86 S. O. 445, 68 S. E. 659. The contingency must be one of event and not of person. Mohn v. Mohn, 148 Iowa, 288, 126 N. W. 1127 ; McClain v. Capper, 98 Iowa, 145, 67 N. W. 102. A crop yet to be grown may be bequeathed. Rock v. Zimmermarm. (1910) 25 S. D. 237, 126 N. W. 265. ■*• 9 8 Pinbury v. Elkin, 1 P. Wms. 563, 566; Winslow v. Goodwin, 7 Mete. (Mass.) 363 ; Doe dem. Ingram v. Roe, 1 Houst (Del.) 276. 9 7 Atwood V. Weems, 99 U. S. 183, 25 L. Ed. 471; Whittemore v. Bean, 6 N. H. 47. 9 8 Asher v. Whitlock, L. B. 1 Q. B. 1. 9 9 Baker v. Hacking, Cro. Car. 387, 405; Doe dem. Cooper v. Finch, 4 B. & Ad. 283. i Goodright v. Forrester, 8 East, 564. 2 For English statute, see 1 Jar. Wills, 50. Code N. C. 1883. § 2140, is a type of many American statutes on this point Construed in Methodist Prot- estant Church of Henderson v. Young, 130 N. C. 8, 40 S. E. 691. § 55) WHAT MAT BE DISPOSED OF BT WILL 147 from an agreement for its purchase, may be disposed of by will.* So the proceeds of a policy of life insurance payable to the personal representatives of the insured may be bequeathed,* and one may be a legatee who has no insurable interest in the life of the testator; ° otherwise with policies payable to a particular beneficiary, whom the insured has no power to change, or whom he can change only in a particular manner, which he has not employed." What may not be Devised ' A possibility, when the person to take is not ascertainable, can- not be devised ; '' neither can a naked expectancy, such as that of the heir that he may inherit from his ancestor, or that of a bene- ficiary under a will whose maker is still alive ; * otherwise with ex- pectancies coupled with an interest.* A testator disseised of lands could not, at common law, transfer a good title thereto by will,^" but modem will statutes are usually construed as permitting a de- vise by one who has been disseised. ^^ Neither husband nor wife can, as a rule, defeat by will the interest secured by statute to the other in the decedent's real or personal estate, unless provision is made in lieu thereof in the will itself, when the survivor is com- monly put to his election as between the statutory provision and that of the will.^" So a right to enter for breach of condition sub- sequent is not ordinarily devisable, in the absence of an express statutory provision to the contrary.^' And a testator has no prop- 3 Broome v. Monck, 10 Ves. p. 605; Marston v. Fox, 8 Ad. & E. 14; Dodge V. Gallatin, 130 N. Y. 117, 29 N. E. ,107; Malin v. Malln, 1 Wend. (N. Y.) 625; Raymond v. Butts, 84 Ohio St 51, 95 N. E. 387. 4 Maclean v. Fisher (1910) 60 Fla. 331, 53 South. 614 ; Fletcher v. Williams (Tex. Civ. App.) 66 S. W. 860; Gold^r v. Chandler, 87 Me. 63, 32 Atl. 784; Hartwig v. Schiefer, 147 Ind. 64, 46 N. E. 75. B Fletcher v. Williams (Tex. Civ. App.) 66 S. W. 8C0. « Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166 ; Mellows v. Mellows, 61 N. H. 137; In re Tinney's Estate, 49 Misc. Bep. 213, 99 N. Y. Supp. 159. 7 4 Kent, Comm. 262; Loring'v. Arnold, 15 B. I. 428, 8 Atl. 335. 8 Perry v. Hunter, 2 B. I. 80. 9 Moor V. Hawkins, 2 Eden, 341 ; Succession of Allen, 49 La. Ann. 1096, 22 South. 319. i» Goodright v. Forrester, 8 East, 552; Poor v. Eobinson. 10 Mass. 131. 11 May V. Slaughter, 10 -Ky. (3 A. K. Marsh.) 505; Jackson v. Varick, 7 Cow. (N. Y.) 238 ; Hyer v. Shobe, 2 Munf . (Va.) 200. The Wills Act, 1 Vict. c. 26, § 3 (1837), expressly authorizes the devise of rights of entry. 12 See Hayes v. SeaveJ^, 69 N. H. 308, 46 Atl. 189 ; Otts v. Otts, 80 S. O. 16, 61 S. E. 109;- In re Little, 22 Utah, 204, 61 Pac. 899. i|8 Upington v. Corrigan, 151 N. Y. 143, 45 N. E. 359, 37 L. E. A, 794. See, also, Southard v. N. J. Cent. B. Co., 26 N. J. Law, 13. 148 RESTRAINT UPON TESTAMENTARY DISPOSITION (Ch. 6 •erty in his body, such as to enable him to dispose thereof by will.^* While there was never any question as to the power of ^ testator to dispose of personalty acquired subsequent to the execution of the will if such was his manifest intention,^' the rule was otherwise with regard to realty. There seisin was regarded as necessarj'- from the time of the execution of the will until it became operative by the death of the testator. If, therefore, a testator devised all the real estate of which he should be seised at his death, and after the making of his will purchased lands in fee simple, such lands did not pass by the will, but descended to his heir at law.^" This doctrine has, however, been very generally changed by statute. A disposal by will By one of several joint tenants of his interest in the property thus held is void in case the testator dies in the lifetime of his co-proprietors, whose claim by survivorship takes precedence over the claim of the beneficiary,^^ and a husband has no power to devise land held by himself and wife as tenants by the •entireties.^' Damages recovered by a personal representative for wrongfully causing his decedent's death cannot pass by the will of decedent,^' and one who has made a fraudulent conveyance of realty can make no devise of such realty even in a jurisdiction where the statute authorizes the administrator or executor to have set aside a fraudu- lent conveyance by his decedent.^" 14 Enos v. Snyder, 131 Cal. 68, 63 Pac. 170, 53 L. R. A. 221, 82 Am. St. Eep. 330. 15 James v. Dean, 11 Ves. 389; Wait v. Belding, 24 Pick. (Mass.) 136; Loveren v. Lamprey, 22 N. H. 434; McNaiighton v. McNaughton, 34 N. T. 201; Nichols V. Allen, 87 Tenn. 131, 9 S. W. 430. 18 1 Jar. Wills, 50, and cases cited; Carroll v. Carroll, 10 How. 275, 14 L. Ed. 936; George v. Green, 13 N. H. 521; McKinnon v. Thompson, 3 Johns. Ch. (N. T.) 307, 310; Leiper's Ex'rs v. Irvine, 26 Pa. 54; Hays v. Jackson, 6 Mass. 149; Wait v. Belding, 24 Pick. (Mass.) 129; Brigham v. Winchester, 1 Mete. (Mass.) 390. IT 1 Jar. Wills, 48; Co. Litt 185a. 18 Chaplin v. Leapley, 35 Ind. App. 511, 74 N. E. 546. 18 Sturges V. Sturges, 126 Ky. 80, 102 S. W. 884, 31 Ky. Law Eep. 637, 12 L. R. A. (N. S.) 1014. 20 Moore V. Waldsteln, 74 Ark. 273, 85 S. W. 416. §§ 56-57) MISTAKE, FRAUD, AND UNDUE INFLUENCE 149 CHAPT'ER VII MISTAKE, FRAUD, AND UNDUE INPLUENOB B6-57. Mistakes may be Either External or Internal. 58. Fraud Defined — Effect of. 59-60. Undue Influence Defined — Effect of. 61. Burden of Proof. 62. Confidential Relations as Affecting Undue Influence. 63. Evidence of Undue Influence. MISTAKES MAY BE EITHER EXTERNAL OR INTERNAL 56. An external mistake may relate either to the identity of the doc- ument executed as a will, or to some collateral fact, in consequence of which the provisions of the will are other than would have been the case had the mistake not been made. A will executed in consequence of a mistake of the former kind is inoperative. A mistake of the latter sort does not, as a rule, affect the validity of the will. 57. An internal mistake relates to the contents of the instrument. If a will is executed in actual ignorance of certain of its provisions, and upon the supposition that it does not con- tain them, the will is inoperative with regard to such pro- visions. If the contents of the instrument are actxially known, the will is not affected by the testator's failiure to realize the effect of its provisions. Independent of knowl- edge of its contents, no matter can be incorporated into a will which has failed of incorporation in consequence of ' mistake. ■ ■ An instrument executed as a will under a mistake as to its iden- tity cannot be probated by reason of lack of animus testandi. Thus where two wills were prepared, one for each of two sisters, and each, by mistake, executed the instrument prepared for the other, neither was entitled to probate.^ ■ A will executed in consequence of some collateral mistake, such as the supposed death of a relative, ' 1 Goods of Hunt, 3 P. & P. 250. Accord: Nelson v. McDonald, 61 Hun, 406, 16 N. X. Supp. 273, and In re Meyer, [1908] P. 353, 3 B. R. O. 339. So where a party signed what he supposed to be a direction regarding his burial, but which proved to be a will, It was held inoperative as a will. HU- dreth v. Marshall, 51 N. J. Eq. 241, 27 Atl. 465. 150 MISTAKE, FEAUD, AND UNDUE INFLUENCE (Ch. 7 Stands on a different footing. Here the testamentary intention exists, although the form in which it manifests itself may be mate- rially affected by the mistake. But this fact will not affect the va- lidity of the will.^ Statutory changes in the law on this point have occasionally been made.' • A will containing provisions of which the testator was actually ignorant is inoperative to the extent of such provisions, by reason of lack of testamentary intent.* Thus a codicil containing a clause revoking all former wills, which the testatrix did not intend to have inserted therein and of whose existence she was unaware at the time of execution, was held to be ineffectual to revoke a prior will." - So where a testator executed a will, leaving all his property to his wife, upon a blank containing a printed bequest to children which was not stricken out, nor read to the testator, and he signed the document supposing it to contain nothing save the bequest to his wife, which had been read to him, the instrument was probated, omitting the residuary clause to the children.* - But where the contents of the will are actually ■ communicated to the testator, the will takes effect as written, and no evidence can be received to add to or subtract therefrom. Thus where a will was read over to a testatrix, who intended that a legacy should be given to a certain person whose name had been inadvertently omitted, and whose omission she failed to observe, the will is valid as against the party thus omitted.^ So where words were inad- ■* 2 Maynard v. Tyler, 168 Mass. 107, 46 N. B. 413 ; In re White, 121 N. T. 406, 24 N. B. 935 (mistake regarding feelings of heirs towards testator) ; In re Tousey's Will, 34 Misc. Rep. 363, 69 N. Y. Supp. 846 (mistake as to non- existence of heirs); Jones v. Grogan, 98 Ga. 552, 25 S. E. 590 (mistake as to extent of heir's property) ; Kidney's Will, 33 N. B. 9 (mistake as to legitimacy of child); Howell v. Troutman, 53 N. C. 304 (mistake as to testator's father- hood of beneficiary) ; Martin v. Thayer, 37 W. Va. 88, 16 S. E. 489 (mistake as to conduct of excluded heir); In re Bedlow, 67 Hun, 408, 22 N. Y. Supp. 290, accord, 3 See Code 6a. 1873, § 2403, construed in Mallery v. Young, 98 Ga. 728, 25 S. E. 918 ; Jones v. Grogan, 98 Ga. 552, 25 S. E. 590. In Ohio, a child absent and erroneously reported to be dead, if not provided for in will, takes the same share he would have received had testator died intestate. Gen. Code 1912, § 10563. '' 4 Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289; GOODS OF BOBHM, (1891) P. 247, Dunmore Gas. Wills, 82. See article "Striking Words Out of a Will," 26 H. L. E. 212-236. •^6 Goods of Oswald, L.R. 3 P. & D. 162. In this case the codicil was not read over to the testator. Had such been the case, the decision would have been different. •^« Goods of Duane, 2 Sw. & Tr. 590. This case goes purely on the ground of mistake. No fraud was attempted by the party preparing the wUl. T Mitchell V. Gard, 3 Sw. & Tr. 75. No fraud was pleaded or proved. §§ 56-57) EXTERNAL AND INTEENAL MISTAKES 151 I vertently inserted in a codicil making certain legacies, which by the will were charges upon land, payable from the personal es- tate, and the instrument was read to the testatrix, who executed it without remark, the codicil was given effect as written, though the evidence was clear that it did not effectuate the real intention of the testatrix.* And, regardless of knowledge of the contents of the instrument, nothing can be added thereto by reason of an omis- sion due to a mistake.' • This is not by virtue of any so-called rule of evidence, but merely because all modern statutes require that wills shall be in writing, and to piece out a will by showing what the testator would have written if he had made no mistake would do obvious violence to such statutes. • Thus the failure of the draughtsman to insert a full description of the property intended for a beneficiary cannot be. overcome by a bill in equity for the rec- tification of the will.^". So when a testator devised "all his real es- tate situate in the county of Limerick and the city of Limerick" to a certain beneficiary, parol evidence cannot be received to show that the testator intended to devise all his real estate in the counties of Clare and Limerick, and that by a mistake of the scrivener this intention was thwarted.^^ 'Where the mistake in fact was one of omission, the court will not reject a word intentionally inserted, although an omission would effect the exact result desired by testator. . Thus the word "real," inserted in the residuary clause before the word "estate," cannot be subtracted, although it is established by oral evidence that testator intended both realty and personalty to pass by residu- 8 Gnardlioiise v. Blackburn, L. R, 1 P. & D. 109. See, also, Harter v. Har- ter, L. B. 3 P. & D. 11. ■ The arbitrary rule tbat the fact that the will has been read over to a com- petent testator, in connection with the proof of its due execution, is conclu- sive evidence of testator's knowledge and approval of the contents of his will, seems a wise one. See Wigmore on Bv. § 2421. -There is little American au- thority In point, but the attitude of the courts is against the permitting of any change in a will duly executed by a competent testator. McAlister v. Butterfield, 31 Ind. 25. - •'o Gilmore v. Jenkins, 129 Iowa, 686, 106 N. W. 193, 6 Ann. Oas. 1008. ■io Newburgh v. Newburgh, 5 Mad. 365. Prior to the statute of wills (1 Vict. c. 26) the ecclesiastical courts had rather loosely received oral testimony as to the testator's intent, and had ef- fectuated that intent as thus established. See Blackwood v. Darner, 3 Phil- lim. 458 (note); Castell v. Fogg, 1 Ourt. 298; Fawcett v. Jones, 3 Phillim. 434, 485-487. The soundness of these cases may well be doubted. At all events, they are without significance, in view of modern statutes relating to wills. 11 Miller V. Travers, 8 Bing. 244. 152 MISTAKE, PEADD, AND UNDUE INFLUENCE (Ch. 7 ary clause.^* - And the courts have usually refused to reject words included in a will by mistake when a rejection would change the eifect of those words which remain.^' FRAUD DEFINED— EFFECT OF 58. Fraud may be of such a character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact,, in consequence of the deception regarding which the testa- tor is led to make a certain will which, but for the fraud, he would not have made. Fraud of the first sort renders the instrument, or that portion of it with reference to which the fraud was practiced, invalid. Under certain cir- cumstances fraud of the second sort may also invalidate the will. If, in consequence of deception, a party executes a will under a mistake as to the character of the instrument, or under a mistake as to its contents, though aware of its character, the instrument is in- valid for want of testamentary intent.^* Thus where the question involved was as to the validity of one of two wills, it was held that the party relying upon the earlier will should have been allowed to- show that when the second* will was executed the testator inquired whether it was the same as the former will and was told that it was,^° and where the name of the executor was surreptitiously in- serted in the will, or was different from what testator was led to- suppose, the name might be rejected.^* With regard to fraud relating to some extrinsic fact, the rule is that wherever a legacy is given to a person under a particular char- acter which he has falsely assumed, and which alone can be sup- 12 Barter v. Barter, L. E. 3 P. & D. 11. Probably It might be shown, were such the case, that no residuary clause- was intended, that it was introduced by mistake, and that the testator had no actual knowledge thereof. IS Rhodes v. Rhodes, L. R. 7 A. C. 192, 198. See, also, 26 B. L. R. 230. 1* Fraud in connection with the execution of a will does not mean the same thing as "undue Influence." Testator may be a victim of deceit, and stUl act voluntarily ; but, if he is subjected to undue influence, the will of another is substituted for his own. Shirley v. Ezell, 180 Ala. 352, 60 South. 905 ; In re Snowball's Estate, 15T Cal. 301, 107 Pac. 598. 10 Doe dem. Small v. Allen, 8 T. R. 147. See, also, WAITB v. FRISBIE, 45- Minn. 361, 47 N. W. 1069, Dunmore Oas. Wills, 100 ; - Hildreth V. Marshall, 51 N. J. Eq. 241, 27 Atl. 465 ; Lyon v. Dada, 111 Mich. 340, 69 N. W. 654. 18 Wombacher v. Barthelme, 194 111. 425, 62 N. K 800. g 58) FEAUD DEFINED — EFFECT OF 153 posed to be the motive of the bounty, the fraud is such as to defeat the legacy. This principle applies to a legacy given "to my hus- band, the said Edward Lovell," the testatrix having innocently en- tered into a void marriage with Lovell, who had at the time a for- mer wife living, from whom he had not been divorced ; " and to a legacy to "my wife, Adelaide," the said Adelaide having falsely rep- resented herself to the testator to be a widow.^' But the mere re- tention of the name of a former husband by a widow who' has se- cretly remarried, especially in the absence of proof of any improper motive therefor, is not sufficient to defeat a legacy given to her un- der that name.^° And where a prejudice is created towards a natu- ral object of the testator's bounty by the false representations of another, made for the purpose of creating such prejudice, in con- sequence of which the person so misrepresented is disinherited, the will may be set aside as procured by fraud.^" A fraudulent representation will not invalidate a will unless made prior to or at the time of its execution,"^ and unless the deception actually induced or affected the will.^" It is said that where a will is obtained by fraud it is void, and no 1 subsequent ratification is good without a formal re-e!xecution or IT Kennell v. Abbott, 4 Ves. 802. See, also, Meluish v. Milton, 3 Ch. Div. 27. It Is doubtful whether the mere fact of the assumed relationship in the principal case, standing alone, should be sufficient to establish fraud. The fraud on the testatrix may not have been directed ' toward] the procuring of the legacy and testatrix might haye made her reputed husband a beneficiary even had she known all the facts. In Wenning v. Teeple, 144 Ind. 189, 41 N. B. 600, the court refused to declare a will void, although executed under sim- ilar circumstances. In Anderson v. Berkley, 1902, 1 Oh. 936, testator gave a legacy to his son's wife, L. Testator's son lived in the Colonies and had writ- ten his father of his Carriage to L., who in fact only lived with him as his mistress. The court permitted L. to take. IS Wilkinson v. Joughin, L. R. 2 Bq. 319, Dunmore Cas. Wills, 84. 19 Rishton v. Cobb, 6 Mylne & C. 145. 20 In re Endlong, 126 N. Y. 423, 27 N. E. 945. See, also, Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Franklin v. Belt, 130 Ga. 37, 60 S. E. 146. It is true that in the first-mentioned case some stress is placed upon undue in- fluence, but the case discloses no trace of such influence, apart from the fraud practiced by one of the beneficiaries, of which there was considerable evi- dence. Indeed, there is no reason why a will procured by fraud should not be vitiated thereby as much as any other instrument. Fraud in the Inducement, as distinguished from fraud in the execution, is sometimes said to be insufficient to vitiate the will. Sanger v. McDonald, 87 Ark. 148, 112 S. W. 365 ; Page on Wills, § 124. But this view doe's not seem to be correct on principle or to be sustained by the authorities. 21 In re Ricks' Estate, 160 Oal. 450, 117 Pac. 532. 22 Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec 150; Ste\?rart v. Jordan, 50 N. J. Bq. 733, 26 Atl. 706. 154 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 republication.^' If, however, the testator, after acquiring full knowl- edge of the deceit, does not cancel the will, there is no apparent reason why it should not be sustained. Other instruments procured by fraud are voidable, at the option of the party defrauded. It is submitted that the same principle should apply in the case of wills whether obtained by fraud -or undue influence.''* UNDUE INFLUENCE DEFINED— EFFECT OF 59. A will which is the result of undue influence is void to the ex- tent that it is the result of such influence. 60. Undue influence is any means employed upon and with the tes- tator which, under the circumstances by which he was surrounded, he could not well resist, and which controlled his volition, and induced him to do what he otherwise would not have done. It must, in some measure, destroy the free agency of the testator, and interfere with the ex- ercise of that independent discretion which the law re- quires a testator to possess as essential to a valid testamen- tary disposition. In one form and another the substance of the above definition, either elaborated or condensed, has been stated in numerous cases. The essential element is the overcoming of the independent voli- tion of the testator.^^ Influence, to be undue, must be such as to 23 Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Eep. 566; Lamb V. Girtman, 26 Ga. 625 ; Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233. 2* Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Barp v. Bdgington, 107 Tenn. 23, 64 S. W. 40. See, also. Deck v. Deck, 106 Wis. 470, 82 N. W. 293, and Van Ness' Will, 78 Misc. Hep. 592, 139 N. Y. Supp. 485, 519. 25 CoghiU V. Kennedy, 119 Ala. 641, 24 South. 459; Johnson v. Armstrong, 97 Ala. 731, 12 South. 72 ; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; In re Packer's Estate, 164 Oal. 525, 129 Pae. 778; Appeal of -Turner, 72 Conn. 305, 44 Atl. 310; Appeal of Dale, 57 Conn. 127, 17 Atl. 757; Pritchard v. Henderson, 3 Pennewill (Del.) 128, 50 Atl. 217; Perkins v. Per- kins, 116 Iowa, 253, 90 N. W. 55 ; Oberdorfer v. Newberger (Ky.) 67 S. W. 267 ; Dean v. Phillips (Ky.) 61 S. W. 10; Bledsoe's Bx'x v. Bledsoe (Ky.) 1 S. W. 10; Bacon v. Bacon, 181 Mass. 18, 62 N. E. 990, 92 Am. St. Rep. 397; Schmidt V. Schmidt, 47 Minn. 451, 50 N. W. 598 ; Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701; Jones v. Roberts, 37 Mo. App. 163; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506; Riley v. Sherwood, 144 Mo. 354, 45 S. W. 1077; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. St. Rep. 552; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39 ; In re Johnson's Will, 80 N. J. Eq. 525, 85 Atl. 254, 260 ; Ledwith v. aaffey, 18 App. Dlv. 115, 45 N. Y. Supp. 612 ; In re Blair, 16 Daly, 540, 16 N. Y. Supp. 874 ; RoUwagen v. RoUwagen, 63 N. Y. 504 ; In re Holman's Estate, 42 Or. 345, 70 Pac. 90S ; Robinson v. Robinson, §§ 59-60) UNDUE INFLUENCE DEFINED — EFFECT OF 155 overpower the will without convincing the judgment.^" It has been said that undue influence must be equivalent to coercion or fraud."^ In nearly all cases, no doubt, in the last analysis, the will is that of the testator. Strictly, it may be presumed that no man does an act of this character involuntarily; the will is his, subjec- tively. But, where undue influence exists, the will is not, objec- tively, with reference to its operation upon his death, that which the testator would have it. The reason for the rule is clear. A will, to be valid, must be that of the testator and not of somebody else. It must be what the tes- tator would objectively have it, not what another would objectively have it. Physical force is not necessary to establish undue influence,"* neither need it be equivalent to physical coercion or restraint.^^ From what has been said, it at once follows that mere persuasion or argument, addressed to the judgment or the aft'ections, or ap- peals to gratitude for past services, and to pity because of needy circumstances, do not amount to undue influence.'" For influences 203 Pa. 400, 53 Atl. 253;- Bnglert v. Englert, 198 Pa. 326, 47 Atl. 940, 82 Am. St Rep. 808 ; In re Hoyt's Estate, 10 Kulp (Pa.) 166 ; Chappell v. Trent, 90 Va. 849, 19 S. B. 314; In re Evenson's Will, 152 Wis. 113, 139 N. W. 766. 28 Hall V. Hall, L. R. 1 P. & D. 481; GINTER v. GINTER, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024, Dunmore Gas. WUls, 86. 2 7 Bo£se V. Rossborough, 6 H. L. C. 2; Wlngrove v. Wingrove, 11 P. D. 81; Mullen V. Johnson, 157 Ala. 262, 47 South. 584. In this form, the statement is not misleading, but to identify undue Influence with fraud is incorrect, and the coupling of the two terms can answer no useful purpose. An instruction that if the jury believed that the will was not obtained by the exercise of an influence amounting to coercion, by a motive tantamount to force or fear, such was not an undue influence, has been held correct in SchiefEelin v. SchiefCelin, 127 Ala. 14, 28 South. 687. But an instruction that undue influence is improper influence exerted to induce the testator to dispose of his property otherwise than he would have done is tnsuflicient. Myers v. Hanger, 98 Mo. 433, 11 S. W. 974. 2 8 Estes V. Bridgforth, 114 Ala. 221, 21 South. 512. The importunity of a wife with regard to a will, yielded to by a sick testator to the end that he may be quiet, may amount to undue influence. Hacker v. Newborn, Styles, 427. Here, of course, the will was made voluntarily. The testator made it because he chose to make it. But he made it for the sake of the respite gained thereby for himself, not because he wished for its objective operation to the advantage of his wife and the exclusion of everybody else. 2 9 Anderson v. Anderson, 43 Utah, 26, 134 Pac. 553. Undue influence may be exercised by working upon the fears or hopes of a weak-minded person; by artful and cunning contrivances ; by constant per- suasion and effort, so that the mind of the testator is not left free to act in- telligently and understandingly. Marx v. McGlynn, 88 N. Y. 357, 370. 30 Eastis V. Montgomery, 93 Ala. 293, 9 South. 311 ; Jones v. Roberts, 37 Mo. App. 163; Hall v. Hall, L. R. 1 P. & D. 481; Barlow v. Waters (Ky.) 28 S. W. 785; Bevelot v. Lestrade, 153 111. 625, 38 N, E. 1056; Townsend v. 156 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. T of this character, if yielded to, would cause the testator to wish that the will might have the objective operation which it contemplates.'^ So the mere fact that the beneficiaries "teased" "^ or "coaxed" '* the testator to make provisions in his will- in their favor does not constitute undue influence. Indeed, a son has a right to importune his mother to make a will in his behalf, and if the only effect of his importunities was to arouse her affections or to appeal to her sense of duty, they are unobjectionable.** So the fact that a wife urged upon her hjisband the propriety of leaving his property to her, al- though he had children by a former wife, does not constitute undue influence.'" So the influence gained by kindness and affection i& not undue, though it induce the testator to make an unequal and unjust distribution of his property in favor of those who have ad- ministered to his wants,'" and this rule applies as well to the friends of the testator as to his relatives.'^ And the promptings of friendship and gratitude do not constitute undue influence.'* The mere possession of influence, and the opportunity and motive to exercise it, are not sufficient to establish undue influence; it must appear that the influence was exerted, and that it operated to domi- nate the testator, and to coerce him to make a disposition of his property which he would not otherwise have made.'" But undue Townsend, 128 Iowa, 621, 105 N. W. 110; Appeal of O'Brien, 100 Me. 156, 60> Atl. 880 ; Robinson v. Stuart, 73 Tex. 26T, 11 S. W. 275 ; Appeal of Turner, 72 Conn. 305, 44 Atl. 310. 31 Earl of Sefton v. Hopwood, 1 F. & F. 578; Bush v. Lisle, 89 Ky. 393, 12 S. W. 762. 3 2 McCfuUoch V. Campbell, 49 Ark. 367, 5 S. W. 590. S3 In re Cameron's Estate, 14 Pa. Co. Ot. K. 247, 3 Pa. Dist. R. 101. 3 4 Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253. Otherwise, if she yield* for the sake of peace, or to escape serious distress of mind. 3 6 Berwick v. Langford, 108 Cal. 608, 41 Pac. 701. 3 8 Appeal of Turner, 72 Conn. 305, 44 Atl. 310; Hurd v. Reed, 260 111. 154,. 102 N. E. 1048 ; Hoerth v. Zable, 92 Ky. 202, 17 S. W. 360; Towson v. Moore, 11 App. D. O. 377 ; In re Eatley's Will, 82 N. J. Eq. 591, 89 Atl. 776; Converse V. Mix, 63 Wash. 318, 115 Pac. 305; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668. 3 7 Weber v. Strobel, 236 Mo. 649, 139 S. W. 188; Campbell v. Carlisle, 162 Mo. C34, 63 S. W. 701. , 88 In re Halbert's WUl (Sur.) 15 Misc. Rep. 308, 37 N. T. Supp. 757. 88 In re Black's Estate, 132 Cal. 392, 64 Pac. «95; Crump v. Chenault, 154 Ky. 187, 156 S. W. 1053; Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710, 49' Atl. 485; In re BoUes' Will (Sur.) 37 Misc. Rep. 562, 75 N. X. Supp. 1062; Mason v. Williams, 53 Hun, 398, 6 N. Y, Supp. 479; In re Dixon's Will, 42 App. Div. 481, 59 N. Y. Supp. 421 ; In re GUion's Will, 44 App. Div. 621, 60 N. Y. Supp. 65; In re Bedlow, 67 Hun, 408, 22 N. Y. Supp. 290; In re Keefe'a Will, 47 App. I>lv. 214, 62 N. Y. Supp. 124, reversing same case (Sur.) 27 Misc. Rep. 618, 59 N. Y. Supp. 490; Barry t. Graciette (Tex. Civ. App.) 71 S, W. 309. §§ 59-60) UNDUE INFLUENCE DEFINED — EFFECT OP 157 influence exercised by a third person' not a beneficiary is sufficient to invalidate a will.** Influence must Operate at Time of Execution Undue influence, to render a will invalid, must be connected with its execution, and be operative at that time.*^ Contemporaneous threats have this effect.*^ But undue influence exercised in the past may be shown as indicating control over the testator, and if such control can be connected with the execution of the will it may ren- der the instrument void.*' Question One for Jury The existence of undue influence at the time of the execution of the will is one of fact and for the jury, and, if the evidence is such that a rational mind might draw the conclusion reached by that body, its finding will not be disturbed.** Where the contestant's evidence to establish undue influence is wholly insufficient, a ver- dict may be directed for the proponents.** May Invalidate Will in Whole or in Part If the portion of the will which was the result of undue influence can be separated from the parts not thereby afifected, the portion so *o Cheney v. Goldy, 225 111. 394, 80 N. B. 289, 116 Am. St Rep. 145. «i Crowson v. Crowson (1903) 172 Mo. 691, 72 S. W. 1065; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; McCuUoch v. Campbell, 49 Ark. 367, 5 S. W. 590; In re Black's Estate, 132 Cal. 392, 64 Pac. 695; In re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 U K. A. 387, 89 Am. St. Rep. 181; Harp V. Plarr, 168 111. 459, 48 N. E. 113; POOLER v. ORISTMAN, 145 111. 405, 34 N. E. 57, Dunmore Cas. Wills, 53 ; Dunaway v. Smoot (Ky.) 67 S. W. 62; Morris v. Morton's Ex'rs (Ky.) 20 S. W. 287; Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566; Kettemann v. Metzger, 23 Ohio Cir. Ct. R. 61 ; Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620; Reichenbacb V. Ruddach, 127 Pa. 564, 18 Atl. 432; Gable v. Ranch, 50 S. C. 95, 27 S. E. 555; Campbell v. Barrera (Tex. Civ. App.) 32 S. W. 724; Trezevant v. Rains (Tex. Civ. App.) 25 S. W. 1092; In re Miller's Estate, 31 Utah, 415, 88 Pae> 338. 42 Moore's Ex'rs v. Blauvelt, 15 N. J. Eq. 367. *3 Boyse v. Rossborough, 6 H. L. C. 2; Jenckes v. Court of Probate, 2 R. I. 255; Ketchum v. Steams, 7^ Mo. 396; Rutherford v. Morris, 77 111. 397; Chandler v. Ferris, 1 Har. (Del.) 454. i *i Moore v. McDonald, 68 Md. 321, 12 Atl. 117. See Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Higginbotham v. Higginbotham, 106 Ala. 314, 17 South. 516; In re Kendrick's Estate, 130 Cal. 860, 62 Pac. 605; Lischy v. Schrader, 104 Ky. 657, 47 S. W. 611; Johnson's Adm'r v. Johnson (Ky.) 45 S. W. 456; Hiss v. Weik, 78 Md. 439, 28 Atl. 400; In re Sqymour's Estate, 111 Mich. 203, 69 N. W. 494 ; RIVARD v. RIVARD, 109 Mich. 98, 66 N. W. 681, 63 Am. St Rep. 566, Dunmore Cas. Wills, 58; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642; In re Bishop's Will, 56 Hun, 648, 10 N. Y. Supp. 217; In re Jacott's WiU, 53 Hun, 634, 6 N. Y. Supp. 122; In re Armor's Estate, 154 Pa. 517, 26 Atl. 619; Smith's Ex'r v. Smith, 67 Vt 443, 32 Atl. 255. *B In re McLaife's Estate, 21 App. D. O. 554. 158 MISTAKE, FRAUD, AND DNDDB INFLUENCE (Ch. 7 occasioned may be rejected as void without aifecting the validity of the rest.*" But if the undue influence afifects the entire will, though exercised by only one of the beneficiaries, it is invalid.*' BURDEN OF PROOF 61. The burden of showing that a will was the product of undue in- fluence is upon him who alleges such to be the fact. On principle, the burden of proving that undue influence did not exist should be on the proponent, since the allegation of undue in- fluence, although apparently in the nature of a plea by way of con- fession and avoidance, in reality traverses the assertion involved in the very offer of a will for probate, that it is the true will of the testator, and not that of another, which it is incumbent on the pro- ponent to show.** However, in nearly all jurisdictions, it is well settled that the party alleging undue influence must prove it.*" It is not enough to show that the circumstances attending the execution of the will * 48 Eastis V. Montgomery, 93 Ala. 293, 9 South. 311; Harrison's Appeal, 48 Conn. 202; Wombacher v. Barthelme, 194 111. 425, 62 N. E. 800; Old Colony Trust Co. V. Bailey, 202 Mass. 283, 88 N. E. 898 ; Steadman v. Steadman (Pa.) 14 Atl. 406. ' *7 CoghUl V. Kennedy, 119 Ala. 641, 24 South. 459. See, also, Lyon v. Dada. 127 Mich. 395, 86 N. W. 946. 48 1 Jar. WiUs (6th Ed.) 68 (Bigelow's note). Professor Bigelow suggests that the language of the cases may merely mean that the burden of ofiCering evidence upon the issue of undue influence is up- on those who allege it But the language employed is generally too un- equivocal to admit of this interpretation, as this learned writer substantially admits. 1 Jar. Wills (6th Ed.) 68 (Bigelow's note). ; 40 Crowson v. Crowson (1908) 172 Mo. 691, 72 S. W. 1065 ; In re Motz's Estate, 136 Cal. 558, 69 Pac. 294; Swearingen v. Inman, 198 111. 255, 65 N. B. 80; Pepper v. Martin, 175 Ind. 580, 92 N. E. 777; Mallow v. "Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; In re Allison's Estate, 104 Iowa, 130, 73 N. W. 489; Woodford v. Buckner, 111 Ky. 241, 63 S. W. 617; Barlow v. Waters (Ky.) 28 S. W. 785; Johnson v. Stivers, 95 Ky, 128, 23 S. W. 957; HofCman v. HofCman, 192 Mass. 416, 78 N. E. 492; Orossan v. Cros- san, 169 Mo. 631, 70 S. W. 136 ; Tibbe v. Kamp, 154 Mo. 545, 54 S. W. 879, 55 S. W. 440; Morton v. Heidom, 135 Mo. 608, 37 S. W. 504; Maddox v. Mad- dox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734; Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650; Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710, 49 Atl. 485; Stoutenburgh v. Hopkins, 43 N. J. E(i. 577, 12 Atl. 689; In re Spratt's Will, 4 App. Div. 1, 38 N. Y. Supp. 329; In re Clark (Sur.) 5 Misc. Rep. 68, 25 N. y. Supp. 712; Miles v. Treanor, 194 Pa. 430, 45 Atl. 368; In re Burns' Estate, 21 Tex. Civ. App. 512, 52 S. W. 98 ; Brown v. Mitchell, 75 Tex. 9, 12 g. W. 606; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596; CofCman v. Hedrick, § 62) UNDUE INFLUENCE, CONFIDENTIAL RELATIONS 159 are consistent with the hypothesis of its having been obtained by undue influence ; it must be shown that they are inconsistent with a contrary hypothesis.'"' CONFIDENTIAL RELATIONS AS AFFECTING UNDUE IN- FLUENCE 62. The rnere fact that a relation of trust or confidence existed be- tween the testator and the beneficiary gives rise to no pre- sumption, i. e., effects no prima facie proof of the exercise by him of undue influence. Although there is considerable authority to the contrary,"^ the more modern and the prevailing rule is that stated in the black- letter text."^ Indeed, the fact that the beneficiary is one with whom the testator has maintained intimate and affectionate relations dur- ing his life has been said rather to indicate the absence of undue 32 W. Va. 119, 9 S. B. 65; Cutler v. Cutler, 103 Wis. 258, 79 N. W. 240; Beyer V. Le Fevre, 186 U. S. 114, 22 Sup. Ct 765, 46 L. Ed. 1080. In a few jurisdictions, the burden of showing that the wUl was not the re- sult of undue influence is on the proponent. Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 U E. A. 102; Edgerly v. Edgerly, 73 N. H. 407, 62 Atl. 716 ; In re Holman's Estate, 42 Or. 345, 70 Pac. 908. 50 SchiefCelin v. SchiefCelin, 127 Ala. 14, 28 South. 687; Boggs v.JBoggs, 62 Neb. 274, 87 N. W. 39; Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710, 49 Atl. 485 ; Boyse v. Rossborough, 6 H. L. C. 2. , 01 In re Iiockwood, 80 Conn. 513, 69 Atl. 8; Richmond's Appeal, 59 Conn 226, 22 Atl. 82, 21 Am. St. Rep. 85; Dale's Appeal, 57 Conn. 127, 17 Atl. 757 In re Bromley's Estate, 113 Mich. 53, 71 N. W. 523; Gay v. Gillilan, 92 Mo 250, 5 S. W. 7, 1 Am. St Rep. 712; Jones v. Roberts, 37 Mo. App. 163; Brid weU V. Swank, 84 Mo. 455 ; Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701 Byrnes v. Gibson, 73 N. J. Bq. 617, 68 Atl. 756; Barkman v. Richards, 63 N. J. Bq. 211, 49 Atl. 831 ; Gidney v. Chappell, 26 Okl. 737, 110 Pac. 1099. But the relation of landlord and tenant does not constitute a confidential relation for this purpose. Tallman's Will, 9 Pa. Co. Ct. R. 357. Neither does a business relation by which one' person acts as agent for another in making Investments in a distant state. In re Sheldon's Will (Sur.) 16 N. Y. Supp. 454. See, also. In re Adam's Estate, 201 Pa. 502, 51 Atl. 368. Nor does the prior release of a debt due to the testator from the beneficiaries show a, confidential relation existing between the parties. Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701. 62 McQueen v. Wilson, 131 Ala. 606, 31 South. 94 ; Chandler v. Jost, 96 Ala. 596, 11 South. 636; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St Rep. 904; In re Packer's Estate, 164 Cal. 525, 129 Pac. 778; Ethridge v. Ben- nett, 9 Houst (Del.) 295, 31 Atl. 813; Rutherford v. Morris, 77 111. 397; Den- ning V. Butcher, 91 Iowa, 425, 59 N. W. 69 ; GINTER v. GINTER, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024, Dunmore Cas. WUls, 86 ; Hoerth V. Zable, 92 Ky. 202, 17 S. W. 360; King v. Holmes, 84 Me. 219, 24 Atl. 819; Tyson v. Tyson, 37 Md. 567; In re Bernsee's Will, 71 Hun, 27, 24 N. Y. Supp. 160 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 influence." But where it appears that the beneficiary, who has stood in a fiduciary relation to the testator, has been instrumental in preparing or obtaining the will in his favor, a prima facie case of undue influence is made out; the proponent must then go on with the evidence, and cause the scales to at least balance ; °* and this principle applies to all cases in which circumstances exist which ex- cite the suspicion of the court."' These principles find specific illustration in the various relations of confidence and intimacy, which will now be considered in detail. Husband and Wife No presumption of undue "influence arises from the fact that a wife is a beneficiary under her husband's will,°° though the will 504; In re Rohe's Will (Sur.) 22 Misc. Rep. 415, 50 N. Y. Supp. 392; In re Smith, 95 N. Y. 516; Lee v. Lee, 71 N. C. 139; In re Holman's Estate, 42 Or. 345, 70 Pac. 908; Messner v. Elliott, 184 Pa. 41, 39 Atl. 46; Watterson v. Watterson, 1 Head (Tenn.) 1; PARFITT v. LAWLESS, L. R. 2 P. & D. 462, Dunmore Cas. Wills, 90. There is a distinction between the case of a gift inter vivos and of a be^ quest by will, when the recipient of the gift or bequest is in a confidential relation. In the former case the relation raises a presumption of undue in- fluence because the fact that the donor deprives himself of property, which he may nesed during his lifetime, needs explanation. But a testator must leave his property and it is perfectly natural for him to make a will in favor of those with whom he is in a confidential relation. Bs Harp V. Parr, 168 111. 459, 48 N. E. 113. B^Coghill V. Kennedy, 119 Ala. 641, 24 South. 459; Higginbotham v. Hig- ginbotham, 106 Ala. 314, 17 South. 516; Weston v. Teufel, 213 111. 291, 72 N. E. 908 ; Jones v. Simpson, 171 Mass. 474, 50 N. E. 940; In re Everett's Will, 153 N. C. 83, 68 S. E. 924; In re Douglass' Estate, 16S Pa. 567, 29 Atl. 715; In re Barney's Will, 70 Vt 352, 40 Atl. 1027; Barry v. Butlin, 2 Moore, P. C. 480 ; Fulton v. Andrew, L. R. 7 H. L. 448; Brown v. Fisher, 68 Law T. (N. S.) 465. The cases commonly say that any suspicious circumstances connected with the execution of a will in which a party standing in a fiduciary relation to the testator is a beneficiaiy shifts the burden of showing absence of undue influence upon the beneficiary. But this Is probably to be understood as meaning merely that the burden of going on with the evidence passes to the beneficiary under such circumstances, and that evidence vsdll be necessary to meet the prima facie case made out by the contestants. See Compher v. Browning, 219 111. 429, 76 N. B. 678, 109 Am. St Rep. 346, deciding that bur- den of proof does not actually shift. 6 5 Tyrrell v. Painton, 6 Reports, 540; Id. (1894) Prob. 151; Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253 (where the testatrix was aged, and there was evidence of power possessed by the beneficiary over her); Whitelaw's Ex'r V. Sims, 90 Va. 588, 19 S. E. 113 (wh^re the will as executed differed widely from the previously expressed intentions of the testatrix). When the confidential relation Is made to appear, slight suspicious circum- stances are sufficient to throw on proponent the duty of going forward with evidence. In re Cooper's Will, 75 N. J. Eq. 177, 71 Ati. 676. 6,6 Bulger V. Ross, 98 Ala. 267, 12 South. 803; In re Welch's WUl, 6 Cal. App. 44, 91 Pac. 336 ; Herwick v. Langf ord, 108 Cal. 608, 41 Pac. 701 ; In re § 62) UNDUE INFLUENCE, CONFIDENTIAL RELATIONS 163 may have been procured by her solicitation and importunity,"' to the exclusion of the children by a former marriage,"" and though she be the sole beneficiary." Such is the case though the husband be of yielding disposition, and disposed to follow the guidance of his wife.'" Nor will the fact that children were disinherited by the influence of their stepmother invalidate the will.°^ So a will ex- ecuted by a testator in favor of his wife, from whom he was at the time living apart, will be sustained, where there is nothing sus- picious about the circumstances attending its execution. °^ There is no evidence of undue influence in the fact that a testator, a few days after executing a will in favor of his wife and sister, made another revoking the prior will, and giving all his property to his wife, wi-th no appiarent reason for this change in its disposition.** So evidence that the children by a former marriage were kept away from the house by their stepmother, and that the testator had ex- pressed regret at his second marriage, is insufficient to go to the jury on the question of undue influence, alleged to have been exercised by the wife in regard to the execution of the will.*^* Illicit relations between the parties prior to their marriage, which was brought about by the woman for the purpose of procuring a will in her favor, do not establish undue influence.'" McLane's Estate, 21 App. D. C. 554; Pierce v. Pierce, 38 Mich. 412; Boggs v. Boggs, 62 Neb. 274, 87 N. W. 39; Black v. Foljambe, 39 N. J. Eq. 234; Stew- art V. Stewart, 57 N. J. Eq. 664, 68 Atl. 1116; In re Thome's Estate (Sur.) 7 N. y. Supp. 198. 5 7 In re Townsend's Estate, 122 Iowa, 246, 97 N. W. 1108; In re White's Wm, 52 Hun, 613, 5 N. Y. Supp. 295; In re Lyddy's Will, 53 Hun, 629, 5 N. Y. Supp. 636; In re Richardson's Will, 51 App. Div. 637, 64 N. Y. Supp. 944; In re McKenna's Will (Sur.) 4 N. Y. Supp. 458 ; Peery v. Peery, 94 Tenn. 328, 29 S. W. 1; Deck v. Deck, 106 Wis. 470, 82 N. W. 293. 5 8 Gwln V. Gwin, 5 Idaho, 271, 48 Pac. 295. 5 Kultz V. Jaeger, 29 App. D. C. 300; Orth t. Orth, 145 Ind. 184, 42 N. E. 277, 44 N. E. 17, 32 L. R. A. 298, 57 Am. St. Rep. 185 ; In re Fricke, 64 Hun,. 639, 19 N. Y. Supp. 315; In re Cruger's Will, 36 Misc. Rep. 272, 73 N. Y. Supp. 412 ; In re Cooper's Will, 166 N. O. 210, 81 S. E. 161 ; Kettemann v. Metzger, 23 Ohio Clr. Ct. R. 61; In re Watkins' Will, 81 Vt 24, 69 Atl. 144. 60 Herwick v. Langford, 108 Cal. 608, 41 Pac. 701; In re Motz's Estate, 136 Cal. 558, 69 Pac. 294 ; In re De Baun, 2 Con. Sur. 304, 9 N. Y. Supp. 807. 61 Berwick v. Langford, 108 Cal. 608, 41 Pac. 701; Claussenius v. Claus- senius, 179 IlL 545, 53 N. B. 1006. 62 James v. Sutton, 36 Neb. 393, 54 N. W. 670. 63 In re Nelson's Will, 39 Minn. 204, 39 N. W. 143. See, however, Krankel's Ex'r V. Krankel (Ky.) 50 S. W. 863. 64 In re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181. See, also, SEHR v. LINDEMANN, 153 Mo. 276, 54 S. W. 537, Dunmore Cas. Wills, 49; Defoe v. Defoe, 144 Mo. 458, 46 S. W. 433. 6 5 Maynard v. Tyler, 168 Mass. 107, 46 N. B. 413; In re Buckley's Will (Sur.) 2 N. Y. Supp. 24 (semble). GAED.WiiiS (2d Ed.)— 11 162 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 Similar principles prevail where the husband is beneficiary under the will of his wife.*° But undue influence may be, and frequently is, exercised by a wife upon the husband in the matter of the execu- tion of his will, as where a bedridden testatqr was led to make, a certain will in consequence of a threat by his wife that she would leave him if h'e refused to do so,°' in which case testator's expres- sion of gratitude towards the beneficiaries and of satisfaction with the will is insufiScient to prove the absence of undue influence. So where an aged and feeble testator made a will disinheriting a faithful son, at the demand of his wife, wiith whom the son had quarreled, a verdict against the will was regarded as justifiable, in view of all the facts."' Such also is the case where the wife married the testator for the purpose of obtaining his property, he being at the time in his last sickness, and where she and her parents con- spired to procure the will, which was executed shortly before his death, when he was weak in body and mind, the testator being pre- vented from seeing any one alone at about the time the will was made.°° Illicit Relations Between Testator and Beneficiary Despite some authority to the contrary,^" it is now generally con- ceded that illicit sexual relations between the testator or testatrix and the beneficiary do not, of themselves, establish a prima facie case of undue influence.''^ But the fact that such relations exist 8 « Bulger v. Ross, 98 Ala. 267, 12 South. 803; Weathers v. McFarland, 97 Ga. 266, 22 S. E. 988; Thompson v. Bennett, 194 111. 57, 62 N. E. 321; White V. Roes, 65 Hun, 626, 20 N. Y. Supp. 520; In re Brunor's Will, 19 Misc. Rep. 203, 43 N. Y. Supp. 1141; Oilman v. Ayer, 63 N. J. Eq. 806, 62 Atl. 1131; Stoutenburgh v. Hopkins, 43 N. J. Eq. 577, 12 Ati. 689. See, however, Dudley V. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; -Armstrong v. Armstrong, 63 Wis. 162, 23 N. W. 407. 67 In re Sickles' Will, 63 N. J. Eq. 233, 50 Atl. 577. 6 8 Ferret v. Ferret, 184 Fa. 131, 39 AG. 33. See, also, In re Nolte's Will, 10 Misc. Rep. 608, 32 N. Y. Supp. 226; Baldwin v. Robinson, 93 Mich. 438, 53 N. W. 531; In re Stewart's Will (Sur.) 10 N. Y. Supp. 744. 6 8 Frimmer v. Frimmer, 75 Iowa, 415, 39 N. W. 676. See, also, Baker t. Baker, 102 Wis. 226, 78 N. W. 453. ■"> Snyder v. Erwin, 229 Fa. 644, 79 Atl. 124, 140 Am. St Rep. 737; Dean V. Negley, 41 Fa. 312, 80 Am. Dec. 620. See 1 Underbill, Wills, § ,149. The Pennsylvania cases above cited do not lay down a general rule ap- plicable to all cases and they raise a presumption of undue influence only when the will diverts the entire estate from the natural objects of testator's bounty and estate is given to the one with whom testator has had illicit rela- tions. 71 Moore v. Heineke, 119 Ala. 627, 24 South. 374; Wenning v. Teeple, 144 Ind. 189, 41 N. B. 600 ; Waters v. Reed, 129 Mich. 131, 88 N. W. 394; Fulton V. Freeland, 219 Mo. 494, 118 S. W. 12, 131 Am. St. Rep. 576 ; Smith v. Smith, 48 N. J. Eq. 566, 25 Atl. 11 ; In re Willford's Will (N. J. Prerog.) 51 Atl. 501; § 62) UNDUE INFLUENCE, CONFIDENTIAL GELATIONS 163 may be considered, along with others, in determining the ques- tion." Blood Relationship — More Particularly Between Parent and Child No presumption of undue influence arises from the fact that a child is a beneficiary under a parent's will, though Ije may receive thereunder a disproportionate share of the estate, and may have lived on terms of intimacy and trust with the testator; ^^ and the same rule apparently applies to other relatives who are beneficia- ries,^* such as brothers and sisters,'" grandsons,'* nephews and In re Mondorfs WUl, 110 N. T. 450, 18 N. E. 256; In re Rand's Will, 28 Misc. Rep. 465, 59 N. Y. Supp. 1082 ; In re Westennan's WUl, 29 Misc. Rep. 409, 61 N. Y. Supp. 1065; Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620; In re Johnson's Estate, 159 Pa. 630, 28 Atl. 448 ; In re Heilbrun's Estate, 9 Pa. Co. Ct. R. 350; In re Gordon's Estate, 28 Plttsb. Leg. J. (N. S.) 78. 72 Alford V. Johnson, 103 Ark. 236, 146 S. W. 516 ; In re Ruffino's Estate, 116 Cal. 304, 48 Pac. 127; Waters v. Reed, 129 Mich. 131, 88 N. W. 394; Smith V. HenUne, 174 111. 184, 51 N. E. 227 ; McClure v. McClure, 86 Tenn. 173, 6 S. W. 44; Stewart v. Lyons, 54 W. Va. 665, 47 S. E. 442. Evidence of the existence of meretricious relations properly may be ex- cluded when there is no other proof of the exercise of undue Influence. Snell V. Weldon, 239 111. 279, 87 N. E. 1022. TsEastis V. Montgomery, 93 Ala. 293, 9 South. 311; In re Ricks' Estate; 160 Cal. 450, 117 Pac. 532; Appeal of Dale, 57 Conn. 127, 17 Atl. 757; Huff- man V. Graves, 245 111. 440, 92 N. E. 289; Furlong v. Carraher, 108 Iowa, 492, 79 N. W. 277; Marshall v. Hanby, 115' Iowa, 318, 88 N. W. 801 ; Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392; King y. Holmes, 84 Me. 219, 24 Atl. 819 ; Severance v. Severance, 90 Mich. 417, 52 N. W. 292 ; LitUe v. little, 83 Minn. 323, 86 N. W. 408; Aylward v. Briggs, 145 Mo. 604, 47 S. W. 510; West v. West, 144 Mo. 119, 46 S. W. 139 ; Cash v. Lust, 142 Mo. 630, 44 S. W. 724, 64 Am. St Rep. 576; Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 634; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506 ; Maddox v. Mad- dox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734; Latham v. Schaal, 25 Neb. 535, 41 N. W. 354; In re Barber's Will (N. J. Prerog.) 49 Atl. 826; Salt- er V. Ely, 58 N. J. Eq. 581, 43 Atl. 1098 ; Fritz v. Turner, 46 N. J. Eq. 515, 22 Atl. 125 ; White v. Starr, 47 N. J. Eq. 244, 20 Ati. 875; Brick v. Brick, 44 N. J. Eq. 282, 18 AU. 58 ; Elkinton v. Brick, 44 N. J. Eq. 154, 15 Ati. 391, 1 L. B. A. 161; Brick v. Brick, 43 N. J. Eq. 167, 10 Ati. 869; Conover v. Con- over (N. J. Prerog.) 8 Atl. 500; In re Hurlbut, 26 Misc. Rep. 461, 57 N. Y. Supp. 648; In re Hurlbut's Will, 48 App. Div. 91, 62 N. Y. Supp. 698; In re Woodward's Will, 52 App. Div. 494, 65 N. Y. Supp. 405 ; In re Evans' Will, 123 N. C. 113, 31 S. E. 267; In re Friend's Estate, 198 Pa, 363, 47 Atl. 1106; In re Logan's Estate, 195 Pa. 282, 45 Atl. 729; In re Coleman's Estate, 185 Pa. 437, 40 Atl. 69 ; In re Foster's Estate, 142 Pa! 62, 21 Atl. 798 ; In re But- ler's Will, 110 Wis. 70, 85 N. W. 678; In re Morgan's Will, 110 Wis. 7, 85 N. W. 644. 7* Succession of Stewart, -51 La. Ann. 1553, 26 South. 460. 76 In re McDevitt, 95 Cal. 17, 30 Pac. 101; Fox v. Martin, 104 Wis. 581, 80 N. W. 921; In re Crane's WUl, 68 App. Div. 355, 74 N. Y. Supp. 88; In re Green, 67 Hun, 527, 22 N. Y. Supp. 1112. 7* In re Rosecrans' WUl, 52 Hun, 615, 5 N. Y. Supp. 516. 164 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 nieces,^' cousins,'* and to more distant relatives,'" and to members of the testator's family, though not of his kin,'" and to a son-in- law,'^ and to a sister-in-law.'" The rule also applies to wills made by children in favor of their parents.'* When any one thus related stands in the position of a confidential agent towards the testator, the same principles then control as in the case of wills making agfents of this character beneficiaries.'* But where, in any of these cases, the facts establish an undue influence on the part of such beneficiary, as control over the testator by fear,'° or overpersua- sion,'* or domination by reason of testator's weakness of mind," a will thus procured may be avoided." Guardian and Ward Gifts by a ward to his guardian or to one who formerly stood in that relation are looked upon with suspicion. On principle, a be- quest by a ward to one who recently acted as guardian should raise no presumption of undue ihfluence, if beneficiary is not shown to have had anything to do with the execution of the will;'" but in TT Klschman v. Scott, 166 Mo. 214, 65 S. W. 1031; Doherty v. Gilmore (Mo.) 35 S. W. 1130; Hampton v. Westpott, 49 N. J. Eq. 522, 25 Atl. 254^; In re Wells, 96 Me. 161, 51 Atl. 868; In re Phyfe's Will (Sur.) 4 N. Y. Supp. 340; In re Hedges' Will, 57 App. Div. 48, 67 N. Y. Supp. 1028 ; EpUng v. Button, 121 111. 555, 13 N. E. 242; In re Carter's Will, 60 N. J. Eq. 388, 51 Atl. 65. 78 Roberts v. Clemens, 202 Pa. 198, 51 Atl. 758. ToHegney v. Head, 126 Mo. 619, 29 S. W. 587. 80 In re Groot, 72 Hun, 548, 25 N. Y. Supp. 633 ; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Doherty v. Gilmore, 136 Mo. 414, 87 S. W. 1127. 81 In re Journeay's Will, 162 N. Y. 611, 646, 57 N. E. 1113; Riley v. Sher- wood, 144 Mo. 354, 45 S. W. 1077. 82 Appeal of McCauley, 130 Pa. 480, 18 Atl. 617. 8s In re Andrews' Will, 33 N. J. Eql 514; Coleman's Estate, 185 Pa. 437, 40 Atl. 69. 84 Miller V. Miller, 187 Pa. 572, 41 Atl. 277. See, also, Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774. SBHartman v. Strlckler, 82 Va. 225; Chambers v. Chambers, 61 App. Div. 299, 70 N. Y. Supp. 483. 86 Carroll v. Hause, 48 N. J. Eq. 269, 22 Atl. 191, 27 Am. St. Rep. 469. 87 Boisaubin v. Boisaubin, 51 N. J. Eq. 252, 27 Atl. 624; In re Keedriek's Estate, 130 Cal. 360, 62 Pac. 605. 88 Keyes v. Kimmel, 186 111. 109, 57 N. E. 851 ; Moyer v. ^wygart, 125 111. 262, 17 N. E. 450; Fry v. Jones, 95 Ky. 148, 24 S. W. 5, 44 Am. St. Kep. 206 ; Capper t. Capper, 172 Mass. 262, 52 N. E. 98; Jones v. Simpson, 171 Mass. 474, 50 N. E. 940 ; Lyon v. Dada, 111 Mich. 340, 69 N. W. 654 ; Gordon v. Bur- ns, 153 Mo. 223, 54 S. W. 546; Edwards v. Edwards, 63 N. J. Eq. 224, 49 Atl. 819 ; Olaffey v. Ledwith, 56 N. J. Eq. 333, 38 Atl. 433 ; In re Bernsee, 63 Hun, 628, 17 N. Y. Supp. 669; In re Garland's Will, 15 Misc. Rep. 355, 37 N. X. Supp. 922 ; Scattergood t. Kirk, 192 Pa. 263, 43 Atl. 1030 ; Walters v. Walters, 89 Va. 849, 17 S. B. 515 ; In re Derse's Will, 103 Wis. 108, 79 N. W. 46. -8 8 See Michael v. Marshall, 201 111. 70, 66 N. B. 273. § 62) UNDUE INFLUENCE, CONFIDENTIAL EELATIONS 165 some jurisdictions the beneficiary is required to show affirmatively that no unfair advantage was taken of testator."' And where tes- tator i^ under guardianship as non compos mentis, a guardian claim-: ing as beneficiary is usually required to establish both mental capac- ity and such freedom of w^U and action as are required to render a will legally valid.' ^ Clergyman and Parishioner The mere relation of priest and parishioner, coupled with the fact that the former is a legatee, does not create, according to the general rule, any presumption of undue influence such as to throw the burden of explanation upon the legatee,*'' But the relation is peculiarly susceptible to abuse, and slight proof of activity on the beneficiary's part in procuring the execution of the will, such as suggestions regarding its contents," ° dictation thereof to the draftsman in the absence of the testator,"* intimate relations be- tween the parties, coupled with the preparation of the will from a memorandum in the handwriting of the priest,"' may create suspi- cion sufficient to make out a prima facie case of undue influence. Similar principles govern when the beneficiary is an ecclesiastical or religious organization." Attorney and Client The general rule is that no presumption of undue influence arises from the fact that the testator's attorney was a beneficiary under the will, even though he assisted in its preparation."' In fact, noth- 8 Meek v. Perry, 36 Miss. 190; Bridwell v. Swank, 84 Mo. 455 (a bequest by ward to wife of guardian held within operation of rule) ; Garvin v. Wil- liams, 50 Mo. 206. 91 Breed v. Pratt, 35 Mass. (18 Pick.) 115; In re Cowdry's Will, 77 Vt. 359, , 60 Atl. 141, 3 Ann. Cas. 70. 9 2 Lyons V. Campbell, 88 Ala. 462, 7 South. 250; Oollins v. Brazill, 63 Iowa, 434, 19 N. W. 338; Martin v. Bowdern, 158 Mo. 379, 59 S. W. 227; In re Sparks' WUl, 63 N. J. Bq. 242, 51 Atl. 118 ; Kerrigan v. Leonard (N. J. Pre- rog.) 8 Atl. 503; In re Portingall's Will, 60 Hun, 585, 15 N. Y. Supp. 486; Figueira v. Taafe, 6 Dem. Sur. 166 ; In re Bartholic, 1 Oon. Sur. 373, 5 N. Y. Supp. 842; McEnroe v. McEnroe, 201 Pa. 477, 51 Atl. 327 ; Collins v. Kilroy, 1 Ont. Law Eep. 503 ; PARFITT v. LAWLESS, L. R. 2 P. & D. 462, Dun- more Cas. Wills, 90. Contra : Hegney v. Head, 126 Mo. 619, 29 S. W. 587 ; Marx V. McGlynn, 88 N. X. 357. 9 3 McQueen v. Wilson, 131 Ala. 606, 31 South. 94; Brady v. McEnroe, 10 Pa. Dist. R. 115. »* In re Baugh's Estate, 9 Pa. Dist. R. ^59. 9 6 In re Sparks' Will, 63 N. J. Eq. 242, 51 Atl. 118. 9 6 See Tibbe v. Kamp, 154 Mo. 545, 54 S. W. 879, 55 S. W. 440; In re Shan- non's Will, 11 App. Div. 581, 42 N. Y. Supp. 670; In re Johnson's Will, 28 Misc. Rep. 363, 59 N. Y. Supp. 906; Appeal of Cornelius, 199 Pa. 427, 49 Atl. 281 ; Will V. Sisters of Order of St. Benedict, 67 Minn. 335, 69 N. W. 1090. 97 Appeal of Livingston, 63 Conn. 68, 26 Atl. 470; White v. Cole (Ky.) 47 166 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 ing could be more natural than that a testator should wish to bestow some bounty upon a trusted legal adviser. But slight circumstances in addition to such relation will throw on the beneficiary the bur- den of showing that testator was not unduly influenced °* and where the relation was of short duration, and the attorney prepared the will, and directed the hand of the testatrix, who was feeble and aged, as she signed it, undue influence may be inferred,"' as may also be the case where the attorney had obtained entire dominion over the testatrix,^ where he had rendered little service to the tes- tator, and there was no satisfactory evidence that the latter under- stood the contents of the will,? and where the codicil to the will of a testator of advanced age, prepared by his attorney, made extensive changes in the residuary provisions, to the advantage of the latter.' Patient and Physician While this relation is, perhaps, one of peculiar trust, yet the mere fact that the will was suggested by the physician, who wrote it at the testator's dictation, does not show undue influence ; * nor should the fact that the physician was a legatee, in the absence of proof that he sought to influence the testator to make a will in his favor.^ Evidence of transactions subsequent to the execution of the will, showing the testator to be much under the influence of his physician, S. W. 759; Barkley v. Association, 153 Mo. 300, 54 S. W. 482; Famum v. Boyd, 56 N. J. Eq. 766, 41 Atl. 422 ; In re Kindberg's Will, 207 N. Y. 220, 100 N. B. 789 ; In re Murphy's Will, 28 Misc. Rep. 650, 59 N. Y. Supp. 1078 ; In re Smith's Will, 36 Misc. Rep. 128, 72 N. Y. Supp. 1090; In re Skaats' WUl, 74 Hun, 462, 26 N. Y. Supp. 494 ; In re Read's Will, 17 Misc. Rep. 195, 40 N. Y. Supp. 974 ; In re Burns' Estate, 21 Tex. Civ. App. 512, 52 S. W. 98. In a few states, a devise or bequest to an attorney raises a presumption of undue influence. Donovan v. Bromley, 113 Mich. 53, 71 N. W. 523; Gidney V. Chappell, 26 Okl. 737, 110 Pac. 1099. See, also, In re Morey's Estate, 147 Cal. 495, 82 Pac. 57. 8 8 In re Banvard's Estate, 83 N. J. Bq. 286, 89 Atl. 1024; In re Cooper's Wm, 75 N. J. Eq. 177, 71 Atl. 676. ^9 In re Gallup's Will, 43 App. Div. 437, 60 N. Y. Supp. 137. 1 Grove v. Spiker, 72 Md. 300, 20 Atl. 144. 2 In re Rintelen's WUl, 77 App. Div. 142, 78 N. Y. Supp. 1092. 3 In re Soule, 3 N. Y. Supp. 259, 22 Abb. N. O. 236. But see Trubey v. Rich- ardson, 224 111. 136, 79 N. E. 592, reaching a contrary result where articles given to attorney were of little value. 4 In re Keefe's WiU, 47 App. Div. 214, 62 N. Y. Supp. 124 ; In re Cornell's Will, 43 App. Div. 241, 60 N. Y. Supp. 53, affirmed without opinion in 163 N. Y. 608, 57 N. E. 1107; Folks v. Folks, 107 Ky. 561, 54 S. W. 837; In re Widdowson's Estate, 189 Pa. 338, 41 Atl. 977. 6 In re Small's WUl, 105 App. Div. 140, 93 N. Y. Supp. 1065; In re CorneU's Will, 43 App. Div. 241, 60 N. Y. Supp. 53. In some states a contrary view prevails, and where a will is made in favor of a physician, he has the burden of proving the absence of undue influence. In re Wickes' Estate, 139 Cal. 195, 72 Pac. 902 ; Cash v. Dennis, 159 Iowa, 18, 139 N. W. 920; Hitt v. Terry, 92 Miss. 671, 46 South. 829. § 62) UNDUE INFLUENCE, CONFIDENTIAL EELATIONS 167 who was a beneficiary, does not of itself show that the will was im- properly procured.® In any event, the relation of physician and patient must actually exist at the time when the will was, made/ But where a will was made by the testator, two days prior to his death, in favor of his physician's wife, to the exclusion of the natu- ral objects of his bounty, in who"se favor a prior will had been ma'de, and its execution was attended, with secrecy, a prima facie case of undue influence was made out.* Other Relations The appointment of a confidential business adviser as executor of a will and a beneficiary thereunder does not of itself indicate the exercise of undue influence.* But where the will was prepared by such an adviser, who prociired its execution, under circumstances of secrecy, by a testatrix who was aged and feeble both in mind and body, the beneficiary must remove the suspicion of undue influence thus created.^" Relations of intimate friendship between the testa- tor and the" beneficiary raise no presumption of itndue influence,^^ even though the beneficiary prepared the memorandum for the will ; ^^ and the same principle applies to a beneficiary who was housekeeper for the testator," his landlord,^* care-taker,^" or pri- vate secretary.^* - 8 In re Oomell's WUl, 43 App. Div. 241, 60 N. T. Supp. 53. T Succession ol Bidwell, 52 La. Ann. 744, 27 South. 281. 8 In re Keefe's WUl, 27 Misc. Eep. 618, 59 N. Y. Supp. 490. See, also, Conk- lin V. Conklin, 165 Mich'. 571, 131 N. W. 154. » In re Purcell's Estate, 164 Cal. 300, 128 Pac. 932 ; Wheeler v. Whipple, 44 N. J. Eq. 141, 14 Atl. 275 ; Waddington v. Buzby, 45 N. J. Eq. 173, 16 Atl. 690, 14 Am. St. Rep. 706 ; In re Rohe's Will, 22 Misc. Rep. 415, 50 N. Y. Supp. 392; In re Dwyer's Will, 29 Misc. Rep. 382, 61 N. Y. Supp. 903 ; Lamb t. Llp- pincott, 115 Mich. 611, 73 N. W. 887 ; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 60; In re Douglass' Estate, 162 Pa. 567, 29 Atl. 715. Contra: Byrne V. Byrne, 250 Mo. 632, 157 S. W. 609 (where devisee managed business of tes- tator, his father). 10 Waddington v. Buzby, 43 N. J. Eq. 154, 10 Atl. 862. 11 Clarke v. Schell, 84 Hun, 28, 31 N. Y. Supp. 1053; Ramsdell v. Streeter, 62 N. J. Eq. 718, 48 Atl. 575 ; In re WUliams, 2 Con. Sur. 579, 15 N. Y. Supp. 828 ; In re Levis' Estate, 140 Pa. 179, 21 Atl. 242; In re Burns' Estate, 21 Tex. Civ. App. 512, 52 S. W. 98. 12 Carpenter v. Hall, 64 Hun, €36, 19 N. Y. Supp. 778. 15 Richardson v. Bly, 181 Mass. 97, 63 N. E. 3; In re Snelling, 136 N. Y. 515, 32 N. E. 1006 ; In re Murphy's Will, 41 App. Div. 153, 58 N. Y. Supp. 450 ; In re BarthoUc, 1 Con. Sur. 373, 5 N. Y. Supp. 842 ; In re Janes, 87 Hun, 57, 33 N. y. Supp. 968; Trost v. Dingier, 118 Pa. 259, 12 Atl. 296, 4 Am. St. Rep. 593. 1* Tallman's Will, 9 Pa. Co. Ct. R. 357. And family of employer. In re Harrold, 50 Hun, 606, 3 N. Y. Supp. 316. 16 Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701; In re King's Will, 29 18 CouncUl V. Mayhew, 172 Ala. 295, 55 South. 314. 168 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 The fact that a beneficiary under a will was a partner of the tes- tator, and that the latter lived with him, and was cared for by his family, gives rise to no presumption of undue influence.*^ So the fact that a partner, whose children were made beneficiaries under the will, had great influence with the testator, is insufficient to show that the will was improperly procured ; ^* and the same is true of a will drawn by the testator's partner, appointing himself executor, and providing for the continuance of the partnership business after the testator's death.^' Beneficiary the Writer of the Will While there is considerable authority to the contrary,^" yet thie sounder and the more general rule is that the mere facj: that the beneficiary wrote the will gives rise, as a matter of law, to no pre- sumption of undue influence (i. e., this fact, alone and of itself, would not justify a court in directing a verdict for the contestants) ; and this is true although a fiduciary relation, such as that of attor- ney and client, or physician and patient, exists between the testator and the beneficiary.^^ The fact that the sole beneficiary wrote the will raises no presumption, either of law or fact, that the testator's mind was controlled by him. This is a question of fact for the jury.^^ "The fact that a party is largely benefited by a will pre- Misc. Rep. 268, 61 N. T. Supp. 238 ; Springsted's Will, 55 Hun, 603, 8 N. Y. Supp. 596; McMaster t. Scrlven, 85 Wis. 162, 55 N. W. 149, 39 Am. St Kep. 828. 17 Goodbar v. Lldlkey, 136 Ind. 1, 35 N. E. 691, 43 Am. St Rep. 296. 18 Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101. 18 Koegel V. Egner, 54 N. J. Bq. 623, 35 Atl. 394. 20 1 Underhill, Wills, § 137 ; Appeal of Richmond, 59 Ctonn. 226, 22 Atl. 82, 21 Am. St Rep. 85; Appeal of Drake, 45 Ctonn. 9 ; Smitli v. Smith, 174 Ala. 205, 56 Sou'th. 949; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St Bep. 22 ; Beall v. Mann, 5 Ga. 456 ; England v. Fawbush, 204 111. 384, 68 N. B. 526 ; Webster v. Torty, 194 111. 408, 62 N. E. 907 ; Hughes v. Meredith, 24 Ga. 325, 71 Am. Dec. 127; Duffleld v. Robeson, 2 Har. (Del.) 375. See, also, Barry v. Butlln, 2 Moore, P. C. 480. 21 Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St Rep. 89; Sellards V. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, ISjS Am. St. Rep. 110, 20 Ann. Oas. 214; Appeal of O'Brien, 100 Me. 156, 60 Atl. 880; Stirling V. Stirling, 64 Md. 138, 21 Atl. 273; Carpenter v. Hatch, 64 N: H. 573, 15 Atl. 219; Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. 573; Loder v. Whelpley, 111 N. Y. 239, 18 N. Ei. 874; Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689; In re Sheldon's Will (Sur.) 16 N. Y. Supp. 454; Clarke v. Schell, 84 Hun, 28, 31 N. Y. Supp. 1053 ; In re Suydam's Will, 84 Hun, 514, 32 N. Y. Supp. 449; In re Murphy's Will, 48 App. Div. 211, 62 N. Y. Supp. 785; In re Bdson's Will, 70 Hun, 122, 24 N. Y. Supp. 71 ; In re Spellier's Estate, 2 Pa. Dist. R. 513. The rule under the civil law was otherwise. There a will drawn by the beneficiary was invalid. Dig. 48, tit 10, §§ 15, 34. 2 2 Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219. § 62) UNDUE INFLUENCE, CONFIDENTIAL KELATION3 169 pared by himself, or in the preparation of which he took an active part, is nothing more than a suspicious circumstance, of more or' less weight according to the facts of each case. If the testamentary- capacity be doubtful, or if the party benefited be a stranger, not allied by ties of kindred to the testator, these and other like facts would tend, of course, to increase the suspicion." ^* The mere cir- cumstance that the draftsman of a will is made executor or trustee does not raise a presuhiption of undue influence.''* Whatever doubt may be excited by a beneficiary's drawing the will is removed by proof of testamentary capacity, knowledge by the testator of its provisions, and his declarations for many years after its execution that it conformed to his wishes,^" by proof that under a prior will, whose integrity was not questioned, the bene- ficiary took more than under the will in controversy, written by himself,^ ° and by showing that the scheme of the will had been long contemplated by the testator before his relation with the bene- ficiary was formed."' Although any doubt as to the testator's knowledge of the con- tents of the instrument is a suspicious circumstance when it is pre- pared by a beneficiary, yet it is not necessary to the validity of a will thus made for the proponents to show, besides the testamen- tary capacity of the testator and the formal execution of the instru- ment, the further fact, by distinct evidence, that he knew and ap- proved of its contents.''* Capacity and execution once proved, the general question as to the presence of fraud and undue influence is then for the jury. 23 Robinson, J., in. Griffltli v. Dlffenderffer, 50 Md. 466. There are cases where the fact that a beneficiary acted as draftsman is not even a suspicious circumstance and the trial court is therefore not bound tp stigmatize it as such in every case when making his charge to jury. Stirling V. Stirling, 64 Md. 138, 21 Atl. 273. 2* Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 36 Am. St. Rep. 110, 20 Ann. Cas. 214; In re Thompson's Will, 121 App. Div. 470, 106 N. Y. Supp. 111. 2 5 In re Reed, 2 Con. Sur. 403, 20 N. T. Supp. 91. 2 6 In re Walton's Estate, 194 Pa. 528, 45 Atl. 426. See, also, In re Soule, 3 N. Y. Supp. 259, 22 Abb. N. C. 236. 2 T In re Carver's Estate, 3 Misc. Rep. 567, 23 N. Y. Supp. 753. 28 Downey v. Murphey, 18 N. C. 82. 170 MISTAKE, FRAUD, AND UNDDH INFLUENCE (Ch. 7 EVIDENCE OF UNDUE INFLUENCE 63. Any facts relevant under the rules of evidence, and supported by proper medium of proof, may be received to show the presence or absence of undue influence. They include facts relating to the testator's condition and the circumstances attending the execution of the will, the character of the dis- positions contained therein, former intentions of the testa- tor regarding the disposition of his property, and declara- tions of the testator and of the beneficiaries. Testator's Condition, and Circumstances Attending Execution of Will In determining the question of undue influence, there must be taken into consideration the state and condition of mind of the testator at the time of executing the will, his condition and relative situation as compared with that of the beneficiary, and all the cir- cumstances under which the will was made.^' From the very necessity of the case, undue influence must often be proved, if at all, by circumstantial evidence.*" It is obvious that what would amount to undue influence with re- gard to a person of weak and impaired intellect would be wholly ineffectual to improperly affect one of resolute character and full mental power.*^ Hence evidence of the mental and physical con- dition of the testator is always competent on the issue of undue in- fluence,*^ and this though the period referred to is remote from 2» Eeichenbach v. Ruddach, 127 Pa. 564, 18 Atl. 432; BlacUman v. Edsall, 17 Colo. App. 429, 68 Pac. 790; Kettemann v..Metzger, 23 Ohio CSr. Ct R. 61; In re Tresidder's Estate, 70 Wash. 15, 125 Pac. 1034. 30 In re EUwanger's Will (Sur.) 114 N. Y. Supp. 727; Campbell v. Barrera (Tex. Oiv. App.) 32 S. W. 724. 31 In re Hoflfman's Estate, 151 Mich. 595, 115 N. W. 690; Reiehenbach v. Ruddach, 127 Pa. 564, is Atl. 432. 3 2 Olmstead v. Webb, 5 App. D. C. 38; Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. B. 990 ; Lingle V. Lingle, 121 Iowa, 133, 96 N. W. 708; Bush v. Lisle, 89 Ky. 393, 12 S. W. 762 ; Sullivan v. Foley, 112 Mich. 1, 70 N.. W. 322 ; In re Sperl's Estate, 94 Minn. 421, 103 N. W. 502 ; Myers v. Hauger, 98 Mo. 433, 11 S. W. 974 ; Gay V. Gillilan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Rep. 712 ; Patten v. Cilley, 67 N. H. 520, 42 Atl. 47; In re Bennett's Will, 53 Hun, 634, 6 N. Y. Supp. 199; Peck V. Belden, 6 Dem. Sur. 299; Perret v. Perret, 184 Pa. 131, 39 Atl. 33; In re Logan's Estate, 195 Pa. 282, 45 Atl. 729 ; Denny t. Pinney's, Heirs, 60 Vt 524, 12 Atl. 108. See, also, Malcomsen v. Graham, 75 Iowa, 54, 39 N. W. 179; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293 ; Campbell v. Carlisle. 162 Mo. 634, 63 S. W. 701; Salter v. Ely, 56 ,N. J. Eq. 357, 39 Atl. 365; In re Dunham's Will, 48 Hun, 618, 1 N. T. Supp. 120. § 63) EVIDENCE OF UNDUE INFLUENCE 171 f the date of the will.'^ And where the testatrix was a fairly intelli- gent person, wha gave clear instructions to her counsel, by whom each clause was read to her, and to whose questions she made proper answers, probate of her will will not be refused on the ground of undue influence, though it appears that she was somewhat deaf, and not very familiar with the English language.'* But where a testatrix, with full mental powers, made a will at the beginning of her last sickness in accordance with her previously expressed in- tentions, and within a few hours afteijward, when unable to move' or speak, executed another will without mentioning the former, there is sufficient proof of undue influence to prevent probate of the second will.'° So the fact that the testator was under the in- fluence of liquor or any other drug at the time of executing the will is relevant upon the issiie of undue influence.** The feelings, either of friendship, dislike, or hostility, of the testator towards the bene- ficiaries under the will,>,or the natural objects of his bounty, who have been either disinherited or discriminated against, may be con- sidered upon the issue of undue influence.' ' While secrecy in the making of a will does not of itself raise any presumption of undue influence, particularly if the testator's mind be strong and in its usual condition,'' yet it is evidence ^o be con- sidered in connection with other facts,'* as are- also attempts of the 3 3 In re Arnold's Estate, 147 Cal. 583, 82 Pae. 252 (evidence of physical condition three years before wUl executed was admitted) ; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990. The court has a somewhat wide discretion in fixing the limits of such time. Barber v. Allen (R. I.) 68 Atl. 366. 3* In re Brommer's Will, 78 Hun, 611,. 28 N. Y. Supp. 907; Goerke v. Goerke, 80 Wis. 516, SO N. W. 345. 3 5 In re Fox's Estate, 9 Misc. Rep. 661, 30 N. Y. Supp. 835. 38 In re Sltnger's Will, 72 Wis. 22, 37 N. W. 236; Gay v. GillUan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Rep. 712 ; Smith's Bx'r v. Smith, 67 Vt. 443, 32 Atl. 255. 3T OoghlU V. Kennedy, 119 Ala. 641, 24 South. 459 ; Bstes v. Bridgforth, 114 Ala. 221, 21 South. 512 ; Campbell v. Oarnahan (Ark.) 13 S. W. 1098; Cheney V. Goldy, 225 111. 394, 80 N. E. 289, 116 Am. St. Rep. 145; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69 ; Betts r. Betts, 113 Iowa, 111, 84 N. W. 975; McHugh v. Fitzgerald, 103 Mich. 21, 61 N. W. 354; Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219; In re Bolles' Will, 37 Misc. Rep. 562, 75 N. T. Supp. 1062; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642 ; Collins v. Collins, 101 N. O. 114, 7 S. E. 687 ; Kette- mann v. Metzger, 23 Ohio fflr. Ct. R. 61 ; Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275 : Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 Atl. 253. seTibbe v. Kamp, 154 Mo. 545, 54 S. W. 879, 55 S. W. 440; Fox v. Martin, 104 Wis. 581, 80 N. W. 921. 3 9 In re BJair, 16 Daly, 540, 16 N. X. Supp. 874. 172 MISTAKE, FEAUD, AND UNDUE INFLUENCE (Ch. 7 beneficiaries to exclude the natural objects of his bounty from ac- cess to the testator.*" While the mere proof that the testator did not know the contents of the will when he signed it will not avail contestants alleging un- due influence,*^ yet positive proof that such knowledge was actually brought home to the testator is always significant in behalf of the proponents ; " and the fact that it was not read over to him, and that he did not know its contents, is admissible in a contest on this ground, as tending to show that the will did not express his real intentions.** When the circumstances are such as to overcome the usual presumption, arising from due execution, that the testator was aware of the contents of his will, such as illiteracy, ignorance of the language in which it is written, or weakness of mind, or when there is substantial suspicion that improper influence may have been exercised to procure it, the proponents must then show, that the testator was aware of its contents.** The Character of the Will In determining the question of undue influence, the nature of the ' testamentary dispositions furnish important evidence.*" If these are unnatural and unjust, they afford an indication of undue in- fluence,*' though they are not, as a matter of law, sufficient to raise a presumption that the will was procured by unlawful means.*^ «ocoghm V. Kennedy, 119 Ala. 641, 24 South. 459; Walts v. Walts, 127 Midi. 607, 86 N. W. 1030; Davenport v. Johnson, 182 Mass. 269, 65 N. E. 392; Tyler v. Gardiner, 35 N. Y. 559; Chappell v. Trent,.90 Va. 849, 19 S. E. 314; Smith's Ex'r v. Smith, 67 Vt. 443, 32 Atl. 255. 41 Swearingen v. Inman, 198 111. 255, 65 N. E. 80. *2 Wilcoxon V. Wilcoxon, 165 111. 454, 46 N. E. 369 ; Eggers v. Anderson, 63 N. J. Eq. 264, 49 Atl. 578, 55 L. R. A. 570. 48 WUbur V. Wilbur, 138 111. 446, 27 N. E. 701. 44 Oomstock V. Society, 8 Conn. 254, 20 Am. Dec. 100; Lake v. Kanney, 33 Barb. (N. Y.) 49 ; Kelly v. Settegast, 68 Tex. 13, 2 S. W. 870. In the last case, the will was drawn by one of the beneficiaries, who sug- gested the persons present at its execution. Neither of the beneficiaries was a relative of the testator, whose will disinherited a daughter and grandchil- dren. ( The testator was Illiterate. The only evidence that he was aware of its contents was the testimony of one witness that it was read over to the testator, and that the witness knew it to be the "wording of a will." Held not sufficient proof that the testator knew of its contents. 45 Appeal of Orandall, 63 Conn. 365, 28 Atl. 531, 38 Am. St. Eep. 375; Mitch- ell v. Mitchell, 43 Minn. 73, 44 N. W. 885 ; In re Hess' Will, 48 Minn. 504, 51 N. W. 614, 31 Am. St. Rep. 665. 48 In re Blair, 16 Daly, 540, 16 N. Y. Supp. 874 ; Donnan v. Donnan, 256 111. 244, 99 N. E. 931 ; Sim v. Russell, 90 Iowa, 656, 57 N. W. 601. See, also, , Farmer v. Farmer, 129 Mo. 530, 31 S. W. 926. 4T Councill y. May hew (1911) 172 Ala. 295, 55 South. 314; Bumey v. Torrey, XOO Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; In re Snowball's Estate, 157 § 63) EVIDENCE OF UNDUE INFLUENCE 173 In fact, where it is admitted that the testator was aware of its con- tents, and the only evidence upon the issue of undue influence is the unequal distribution of the estate among his children, a verdict in favor of the will may properly be directd by the court; ** and this though the testator be old and physically infirm, and the chil- dren discriminated against be helpless, while the children benefited are able to take care of themselves.*' But where a testator of this character, while away from his kinsfolk, gives all his property by will to other than relatives, a prima facie case of undue influence is made out.°° The question as to whether a will is just and natural is for the jury, in view of all the facts ; and evidence as to the actual relations between the testator, the natural objects of his bounty, and the beneficiaries, may wholly explain any inequality in the pro- visions of the will, or the apparently unjust exclusion of the former to the advantage of the latter."^ Prior Intention of Testator While the mere fact that a will was not in accordance with the testator's previously expressed intentions does not prove undue influence,"'' yet such intentions may be proved by the contestant,"^ and by the proponent, as showing a deliberate and fixed purpose; "* Cal. 301, 107 Pac. 598; McFadin v. Catron, 138 Mo. 197, 38 S.'W. 932, 39 S. W. 771; In re Holman's Estate, 42 Or. 345, 70 Pac. 908 ; In re Budlong, 126 N. X. 423, 27 N. E. 945; In re Cleveland's Will (Sur.) 28 Misc. Rep. 369, 59 N. X. Supp. 985; In re Lasak, 57 Hun, 417, 10 N. Y. Supp. 844; In re Journeay, 15 'App. Div. 567, 44 N. Y. Supp. 548 ; Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. 573 ; Kaufman v. Oaughman, 49 S. O. 159, 27 S. E. 16, 61 Am. St. Rep. SOS. 48 Manogue v. Herrell, 13 App. D. O. 455; Abrahams v. WooUey, 243 111. 365, 90 N. R 667. See, however. Walls v. Walls, 30 Ky. Law Rep. 948, 99 S. W. 969. 4 9 Maddox V. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734. See, however. Gay v. Gillllan, 92 Mo. 250, 5 S. W. 7, 1 Am. St. Rep. 712. 50 Chappell V. Trent, 90 Va. 849, 19 S. E. 314 ; In re Liney's Will (Sur.) 13 T^. Y. Supp. 551. »^ Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Merri- man's Appeal, 108 Mich. 454, 66 N. W. 372 (strained relations between testa- -tor and next of kin) ; Chandler v. Jost, 96 Ala. 596, 11 South. 636 (loans by beneficiary to testator); Pensyl's Estate, 157 Pa. 465, 27 Atl. 669 (efforts by sons to have testatrix put under guardianship) ; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69 (where testator had been ill-treated by relatives and aided by beneficiary). See, also, Campbell v. McGuiggan (N. J. Prerog.) 34 Atl. 383. See, also, In re Skaats' Will, 74 Hun, 462, 26 N. Y. Supp. 494. 2 In re Johnson's WUl (Sur.) 7 Misc. Rep. 220, 27 N. Y. Supp. 649; Mason T. Williams, 53 Hun, 398, 6 N. Y. Supp. 479. 8 In re Blair, 16 Daly, 540, 16 N. Y. Supp. 874; Bulger v. Ross, 98 Ala. 267, 12 South. 803. ' 04 Bulger V. Rbss, 98 Ala. 267, 12 South'. 803; Perkins v. Perkins, 116 Iowa, ^53, 90 N. W. 55; Powers' Ex'e v. Powers (Ky.) 52 S. W. 845; Peninsular 174 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 and when such intention, as expressed in the will, has existed long prior to the exercise of any alleged undue influence, the fact goes strongly to show that no such influence was exercised.'" Prior wills are frequently introduced in evidence to show that the will in question is in harmony with ar contrary to the former intention of testator."* And such prior .wills are admissible without proof of their formal execution."' Declarations of Testator Declarations of the testator made in sufficiently close connection with the execution of the will to be regarded as a part of the act are admitted as part of the res gestse,"' and they are then evidence of the truth of the facts to which they relate. So declarations made within a reasonable time before or after the execution of the will are admissible to show the state of the testa- tor's mind, his affection' for or fear "of the beneficiaries, and his re- gard or dislike for the natural objects of his bounty."" In other Trust Co. V. Barker, 116 Micli. 333, 74 N. "W. 508 ; Varner v. Vamer, 16 Ohio Cir. Ot. R. 386; Perry v. Moore, 66 Vt. 519, 29 Atl. 806. OB Peninsular Trust Co. v. Barker, 116 Mich. 333, 74 N. W. 508. s8In re Arnold's Estate, 147 Cal. 583, 82 Pac. 252; Freund v. Becker, 235 lU. 513, 85 N. B. 610; In re Selleck's Will, 125 Iowa, 678, 101 N. W. 458; Simon t. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441 ; In re Young's Es- tate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Cas. 596. 07 McConnell v. Wildes, 153 Mass. 487, 26 N. E. 1114; Love v. Johnston, 34 N. C. 355 ; Thornton v. Thornton, 39 Vt. 122. 8 In re Arnold's Estate, 147 Cal. 583, 82 Pac. 252; Waterman v. Whitney, 11 N. T. 157, 62 Am. Dec. 71; Comstock v. Ecclesiastical Soc, 8 Conn. 254, 20 Am. Dec. 100. 9 Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; In re Ricks' Estate, 160 Oal. 450, 117 Pac. 532; Appeal of Gunn, 63 Conn. 254, 27 Atl. 1113; Denison's Appeal, 29 Conn. 399; Jones v. Grogan, 98 Ga. 552, 25 S. B. 590; Mallery v. Young, 94 Ga. 804, 22 S. E. 142 ; Kaenders v. Montague, 180 111. 300, 54 N. B. 321; Moore v. Gubbins, 54 111. App. 163; Staser v. Hogan, 120 Ind. 207, 21 N. Bi 911, 22 N. B. 990; In re Goldthorp's Estate, 94 Iowa, 336, 62 N. W. 845, 58 Am. St. Rep. 40O; Oberdorfer v. Newberger (Ky.) 67 S. W. 267; Griffith v. Diffenderffer, 50 Md. 466 ; SHAILER v. BUMSTBAD, 99 Mass. 112, Dunmore Cas. Wills, 93; Bush v. Delano, 113 Mich. 321, 71 N. W. 628; Porter v. Throop, 47 Mich. 313, 11 N. W. 174 ; Haines v. Hayden, 95 Mich. 382, 54 N. W. 911, 35 Am. St. Rep. 566; Jones v. Roberts, 37 Mo. App. 163; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102 ; Middleditch v. Williams, 45 N. J. Eq. 726, 17 Atl. 826, 4 U R, A. 738; In re Potter's Will, 161 N. Y. 84, 55 N. E. 387, reversing 17 App. ' Div. 267, 45 N. Y. Supp. 563 ; Bowen v. Sweeney, 63 Hun, 224, 17 N. Y. Supp. 752; White v. Roes, 65 Hun, 626, 20 N. Y. Supp. 520; In re Green, 67 Hun, 527, 22 N. Y. Supp. 1112; In re Dar- ling's Will, 53 Hun, 636, 6 N. Y. Supp. 191; Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253 ; Hindman v. Van Dyke, 153 Pa: 243, 25 Atl. 772 ; Herster v. Herster, 122 Pa. 239, 16 Atl. 342, 9 Am. St Rep. &5; Gardner v. Frieze, 16 R. I. 640, 19 Atl. 113 ; Campbell v. Barrera (Tex. Civ. App.) 32 S. W. 724 : § 63) EVIDENCE OF UNDUE INFLUENCE 175 words, when the testator's mental condition is relevant, his declara- tions are admissible as indicia of that condition, and for no other purpose." Thus they are not evidence of the truth of the facts which they purport to recite.'^ And there must be other evidence of the exercise of undue influence in order to establish the existence of such influence.*^ In accordance with these principles, previous declarations of a testatrix consistent with the will are admiss^le to rebut undue in- fluence,®* as are also declarations inconsistent with the will, to aid in establishing such influence."* So letters written by the testator WaUen v. Wallen, 107 Va. 131, 57 S. E. 596; In re lioennecker's Will, 112 Wis. 461, 88 N. W. 215 ; Bryant v. Pierce, 95 Wis. 331, 70 N. W. 297. 80 "So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental i)eculiarity, and condition are mainly ascertainable through the medi- um afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as men- tal acts ,or conduct. The truth or falsity of the statement is of no conse- quence. As a narration, it is not received as evidence of the facts stated. It is only to be used as showing what manner of man he is who makes it. * * * Its weight will depend upon its significance and proximity. It may be so remote in point of time, or so altered in its import by subsequent chang- es in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge." Colt, J., in SHAILER v. BUMSTEAD, 99 Mass. 112, Dunmore Gas. Wills, 93 ; Wigmore on Bv. § 1738. ei CoghUl V. Kennedy, 119 Ala. 641, 24 South. 459; In re Kaufman's Estate, 117 .Cal. 288, 49 Pac. 192, 59 Am. St. Kep. 179 ; In re Gregory's Estate, 133 Gal. 131, 65 Pac. 315; Appeal of Vivian, 74 Conn. 257, 50 Atl. 797; Towson V. Moore, 11 App. D. O. 377 ; Underwood v. Thurman, 111 Ga. 325, 36 S. B. 788 ; Gwin v. Gwtn, 5 Idaho, 271, 48 Pac. 295 ; Doyle v. Doyle, 257 111. 229, 100 N. B. 950; Johnson v. Johnson, 134 Iowa, 33, 111 N. W. 430; Wood v. Zibble, 131 Mich. 655, 92 N. W. 348 ; Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604; Defoe v. Defoe, 144 Mo. 458, 46 S. W. 433; Gordon v. Burns, 141 Mo. 602, 43 S. W. 642; Doherty v. GUmore, 136 Mo. 414, 37 S. W. 1127 ; McFadln v. Catron, 120 Mo. 252, 25 S. W. 506; Pemberton V. Pemberton, 41 N. J. Eq. 349, 7 Atl. 642; In re Palmateer-s Will, 78 Hun, 43, 28 N. Y. Supp. 1062; Kaufman v. Caughman, 49 S. C. 159, 27 S. E. 16, 61 Am. St. Rep. 808 ; Earp v. Edgington, 107 Tenn. 23, 64 S. W. 40 ; In re Burns' Estate, 21 Tex. Civ. App. 512, 52 S. W. 98 ; Mueller v. Pew, 127 Wis. 288, 106 N. W. 840. In a few instances courts have established a special exception to the hear- say rule for such declarations and have admitted them as evidence of the facts recited. Wigmore on Bv. § 1738, note 2, and cases there cited. «2 Manogue v. Herrell, 13 App. D. C. 455 ; In re Hess' WiU, 48 Minn. 504, 51 N. W. 614, 31 Am. St. Rep. 665; In re Dic&son's Estate, 20 Pa. Co. Ot. R. 152. «s Kaufman v. Caughman, 49 S. C. 159, 27 S. B. 16, 61 Am. St Rep. 808; Compher v. Browning, 219 111. 429, 76 N. B. 678, 109 Am. St Rep. 346; Harp V. Parr, 168 Ili. 459, 48 N. E. 113; Gardner v. Frieze, 16 R. I. 640, 19 Atl. 113. 8* Denison's Appeal, 29 Conn. 399. 176 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 to the beneficiary may be received to show the intimate relations between them.*" The declarations must have been made at a time sufficiently prox- imate to the execution of the will to make them relevant, in view of all the circumstances; and this is a question resting somewhat in the discretion of the trial court,"* whose decision is subject to reversal if such discretion is abused.*'' Thus twelve years have been held not too remote,** while "several years" have been re- garded as rendering the declarations incompetent.^" The date of the declarations should, of course, be made to appear.^* Declarations of Beneficiary Assuming that the declarations, if received, will afifect only the party making them, or those who are jointly interested with him under the will, the declarations of a beneficiary made prior to the execution of the will may be received when they tend to show an actual control exercised by the deiclarant over the testator,'^ or an intention or threat to obtain or exercise such control,'^ or activity by the declarant in procuring a will in his favor.''* It must appear, however, that the declarations had reference to the execution of the will,'* and that they were not made at a period too remote from the time thereof." I so SlinglofE V. Bruner, 174 111. 561, 51 N. E. 772. See, also, Schieffelin v. Schieffelin, 127 Ala. 14, 28 South. 687. 8 8 Huffman v. Graves, 245 111. 440, 92 N. E. 289. 87 Denlson's Appeal, 29 Conn. 399. 88 Moore v. McDonald, 68 Md. 321, 1^ Atl. 117. 89 Garland v. Smith, 127 Mo. 567, 28 S. W. 191, 29 S. W. 836. See, also. Smith V. Keller, 205 N. Y. 39, 98 N. E. 214, where declarations made six to ten years after execution of will were held too remote. 7 Mason v. Williams, 53 Hun, 398, 6 N. Y. Supp. 479. 71 Steele v. Helm, 2 Marv. (Del.) 237, 43 Atl. 153; In re Wheeler's Will, 5- Misc. Eep. 279, 25 N. T. Supp. 313; Gordon v. Burris, 141 Mo. 602, 43 S. W., 642;" Linebarger v. Llnebarger, 143 N. C. 229, 55 S. E. 709, 10 Ann. Cas. 596; Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253. Where the fact of the making of a declaration by a beneficiary ife materiaU because the declaration was designed to influence the testator, such a declara- tion is of course admissible, since the utterance is then used merely as cir- cumstantial evidence. 72 In re Miller's Estate, 179 Pa. 645, 36 AU. 139, 39 L. R. A. 220; Coghlll V. Kennedy, 119 Ala. 641,-24 South. 459; Smith v. Henline, 174 111. 184, 51 N. E. 227; Wallis v. Luhring,, 134 Ind. 447, 34 N. E. 231; Wall v. Dimmitt,. 114 Ky. 923, 72 S. W. 300, 24 Ky. Law Rep. 1749. 78 Wilbur V. Wilbur, 138 111. 446, 27 N. E. 701; Harrel v. Harrel, 1 Duv. (Ky.) 203 ; In re Loree's Estate, 158 Mich. 372, 122 N. W. 623 ; Ferret v. Per- ret, 184 Pa. 131, 39 Atl. 33. 7* King v. Holmes, 84 Me. 219, 24 Atl. 819. 7 5 Garland v. Smith, 127 Mo. 567, 28 S. W. 191, 29 S. W. 836 (holding thir- § 63) EVIDENCE OF UNDUE INFLUENCE 177 Declarations made after the execution of the will, if against in- terest, are admissible if they affect the 4eclarant only,^' as is the case when lie is the sole beneficiary, or when the will may be avoid- ed in part by reason of undue influence. So the declarations of a joint devisee are admissible as against his co-devisee,''' as are those of a conspirator, while carrying out the conspiracy, against hjs co- conspirators.'* If the will is to be treated as a unit, the declara- tions of one beneficiary cannot be received to affect the rights of other several beneficiaries,, in the absence of proof of conspiracy. The same principles control here as in the case of admissions re- garding testamentary capacity.'* Other Evidence Admissible The^ financial condition of the natural objects of the testator's bounty may usually be proved,^" as may also the failure of the tes- tator to revoke the wi^, with full opportunity to do so ; *^ the resi- dence of the test-ator with the beneficiaries ; '^ the disposition made of the will after its execution ; ** knowledge by the beneficiary of teen years to be too remote); Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599 (nine years too remote). T 8 In re Ames, 51 Iowa, 596, 2 N. ,W. 408; Capper v. Capper, 172 Mass. 262, 52 K E. 98 ; Morris v. Stokes, 21 Ga. 552. So, when a will is contested on this ground, it is proper to show that the proponent has filed in the prohate court a petition stating that the testator was mentally incompetent. Wood v. Zibble, 131 Mich. 655, 92 N. W. 348. 77 Smith V. Henline, 174 111. 184, 51 N. E. 227 (declaration was made in presence of the other devisee). '8 Coghill V. Kennedy, 119 Ala. 641, 24 South. 459. And see In re Budlong, 126 N. Y. 423, 27 N. E. 945. The declarations of a conspirator made after execution of will but before testator's death are admissible against a co-conspirator. Primmer v. Prim- mer, 75 Iowa, 415, 39 N. W. 676. 7» See ante, p. 123. See, also. La Bau v. Vanderbilt, 3 Redf. Sur. (N. T.> 384; SHAILER v. BTJMSTEAD, 99. Mass. 112, Dunmore Cas. Wills, 93; Me- Connell v. Wildes, 153 Mass. 487, 26 N. E. 1114; Seal v. Goebel, 31 Ohio Cir. Ct. R. 286. ' I soEastis V. Montgomery, 95 -Ala. 486, 11 South. 204, 36 Am. St. Rep. 22t7; Oxford V. Oxford, 136 Ga. 589, 71 S. E. 883; Sim v. Russell, 90 Iowa, 656, 57 N. W. 601; Stevens v. Leonard, 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446; Gurley v. Park, 135 Ind. 440, 35 N. E. 279; Mowry v. Norman, 223 Mo. 463, 122 S. W. 724 ; Hurley v. O'Brien, 34 Or. 58, 54 Pac. 947 ; In re Esterbrook's Estate, 83 Vt. 22§, 75 Atl. 1. See, however. In re Kaufman's Estate, 117 Cal. 288, 49 Pac. 192, 59 Am. St. Rep. 179. 811 Underhill, Wills, § 133; Barbour v. Moore, 10 App. D. C. 30; Kaul v. jBrown, 17 R. I. 14, 20 Atl. 10. The significance of this fact depends wholly upon the various circumstances of each case. \. 82 In re Palmateer's Will, 78 Hun, 43,' 28 N. Y. Supp. 1062. 83 Ijvering v. Russell, 30 Ky. Law Rep. 1185, 100 S..W. 840. Gaed.Wlls (2d Ed.)— 12 178 MISTAKE, FRAUD, AND UNDUE INFLUENCE (Ch. 7 the testator's intentions ; "* the presence of the beneficiary when the will was executed ; *" dependence of the testator upon advice of the beneficiary ; " a request by. a beneficiary to a third party to induce the testator to make a will in her favor; '^ failure of a testator to provide for relatives, although he had no intercourse with- them, and although they were persons of independent means ; '^ the truth of a report alleged by the contestant to have been fabricated by the proponent for the purpose of injuring him in the estimation of the testator;*" inequality of gifts made to hfer children by the testatrix during life;'" acts of undue influence subsequent to the execution of the will ; " a will by a wife in favor of her husband, to rebut evidence of undue influence on her part in procuring the will in question from him in her favor ; "^ and, in general, any facts which properly may be deemed explanatory of the nature of the will.*' A subscribing witness, who drew the will, may state that he ob- served no indication of undue influence on the mind of the testa- tor;'* and there seems to be no sufficient reason, in jurisdictions admitting the opinion evidence of non-experts, why a witness, after stating his opportunities for observation, might not give an opinion as to whether the testator was being unduly influenced at the time of making his will ; °° but a number of courts have refused to re- ceive such opinion evidence."' There is, of course, no room for expert evidence in this connection. 84 In re Cornell's Will, 43 App. Div. 241, 60 N. Y. Supp. 53 (of itself, of but little weight), affirmed 163 N. Y. 608, 57 N. E. 1107. See Roberts v. Roberts, 107 Wis. 213, 83 N. W. 318. SB Delgado v. Gonzales (Tex. Civ. App.) 28 S. W. 459; Etbridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; Pennypacker v. Pennypacker (Pa.) 8 AtL 634 (though this fact, of itself, is not suspicious). 88 In re Sparks' Will (N. J. Prerog.) 63 N. J. Eq. 242, 51 Atl. 118. 8 7 Perkins v. Perkins, 116 Iowa, 253, 90 N. W. 55 (as going to show lack of Influence on part of beneficiary, who was the wife of testator). 88 CoghlU V. Kennedy, 119 Ala. 641, 24' South. 459. 88 Torrey v. Burney, 113 Ala. 496, 21 South. 348. 00 Eastis V. Montgomery, 93 Ala. 293, 9 South. 311. 91 Walts V. Walts, 127 Mich. 607, 86 N. W. 1030. See, however, Thompson V. Bennett, 194 lU. 57, 62 N. B. 321. 82 Appeal of Vivian, 74 Conn. 257, 50 Atl. 797. »3 Smith v. Ryan, 136 Iowa, 335, 112 N. W. 8 (ill health of beneficiary and his expenditures on property of testatrix); Wood v. Rigg,*152 Ky. 242, 153 S. W. 214 (that beneficiaries had enabled testator to pay off his debts) ; Floore V. Green, 26 Ky. Law Rep. 1073, 83 S. W. 133 (how testatrix came by her property). , 0* Taylor v. Pegram, 151 111. 106, 37 N. E. 837. 85 See Jones v. Grogan, 98 Ga. 552, 25 S. B. 590. 8 6 Lehman v. lindenmeyer, 48 Colo. 305, 109 Pac. 956; Chamberlayne, Mod- em Law of Ev. § 1945, and cases there cited. § 53) EVIDENCE OF UNDUE INFLUENCE 179 Evidence Inadmissible On the issue of undue influence, evidence of the insanity of the wife, who was alleged to have unduly influenced the testator, is inadmissible, in the absence of proof that such insanity contHbuted to the alleged improper influence,'' as is also evidence of medicines used by the testator under the same circumstances,"' and of a con- tract with the beneficiary prior to the testator's marriage with her; ** of the fact that others were more worthy of the testator's bounty than the beneficiaries under the will,^ of the penurious char- acter of the party alleged to have unduly influenced the testator,^ of the tendencies of the principal legatee to speculate in stocks,* and of illegal relations between sole beneficiary, , husband of testatrix, and another woman.* Evidence is frequently inadmissible by reason of remoteness, such as the relations between testator and his wife eight or nine years before the will was made," or an estrangement between testator and his wife, caused by the proponent, sixteen years prior to the making of the will,* or a camping trip made by the testator and proponent nine years previous to the execution of the will, during iwhich testa- tor introduced proponent as his wife, though he had a wife then living,'' or of quarrels between husband and wife five and eight years before the execution of a will by her naming him sole beneficiary.' »T Appeal of Vivian, 74 Conn. 257, 50 Atl. 797. 98 Id. »9 Smith V. Smith, 168 111. 488, 48 N. E. 96. 1 In re Merriman's Appeal, 108 Mich. 454, 66 N. W. 372. 2 In re Calkins' Estate, 112 Cal. 296, 44 Pae. 577. 3 Garland v. Smith, 127 Mo. 567, 28 S. W. 191, 29 S. W. 836. * In re Hernandez's "Will, 158 App. Dlv. 815, 144 N. Y. Bupp. 150. ^ B BatcheWer v. Batchelder, 139 Mass. 1, 29 N. E. 61. « In re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181. 7 In re Flint's Estate, 100 Gal. 391, 34 Pac. 863. See, also, Fulton v. Free- land, 219 Mo. 494, 118 S. W. 12. \ \ \ 8 Kultz V. Jaeger, 29 App. D. C. 300. 180 EXECUTION OF WILLS (Ch. 8 CHAPTER VIII EXECUTION OF WILLS 64. Essentials. 65-66. Signing. 67. Making or Acknowledging Signature before Witnesses. 68. Publication. 69. Request by Testator That Witnesses Sign. 70-71. Attestation. 72. What Constitutes a Competent Witness. 73-74. Signing by Witnesses. 75. Attestation In the Presence of the Testator. 76. Evidence of Execution. 77. The Significance of the Attestation Clause. 78. Declarations of the Testator as Evidence of Execution. ESSENTIALS 64. Under the various statutes, some or all of the following^ require- ments are essential to the due execution of a will: (a) Signing by the testator. (b) The making or acknowledgment of such signature before witnesses. (c) Publication of the will, as such, to the witnesses. (d) Request for the signatures of the witnesses by the testator. (e) Attestation by the witnesses. \ i The. essentials of the valid execution of a will are determined wholly hy statutes, whose provisions vary considerably, but the enumeration in the black-letter text embraces all of any conse- quence. The requirements of the statute are mandatory and must be fully met; otherwise the instrument cannot be probated as a will.^ A will, not dated, is valid, if properly executed,^ and the in- sertion of the date aftfer execution does not affect its validity.* As has already been observed, a will, though executed in due 1 Albany Fertilizer Co. v. James, 112 Ga. 450, 37 S. E. 707 ; Kelly v. Park- er, 181 111. 49, 54 N. E. 615 ; Hosea v. Skinner, .52 Misc. Rep. 653, 67 N. T. Supp. 527; Brengle v. Tucker, 114 Md. 597, 80 Atl. 224; Trustees of Western Maryland College v. McKlnstry, 75 Md. 188, 23 Atl. 471 ; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500; Sears v. Sears, 77 Ohio St. 104, 82 N. E. 1067, 17 L. R. A. (N. S.) 353, 11 Ann. Cas. 1008 ; Wall v. Wall, 123 Pa. 545, IS Atl. 598, 10 Am. St. Rep. 549. 2 In re HavUand's Wills, 17 Misc. Rep. 193, 40 N. Y. Supp. 973. 8 Lange v. Wiegand, 125 Mich. 647, 85 N. W. 109. % 64) ESSENTIALS 181 form, may yet be inoperative by lack of testamentary intent,* as when it is executed in jest, or without knowledge of its contents. But due execution gives rise to a presumption that the testator knew its contents," and this presumption is not overcome by proof that it was not drawn in accordance with his instructions, but as near thereto as the law would permit, he having been told that his •directions could not be entirely followed." But where the testator's instructions are not followed, and the will is signed by him without reading, on the assurance that they have been observed, it cannot operate as his will.' Essentials Changed After Execution When a change in statutory requirements is made after the exe- cution of the will and before the death of testator, there is a conflict in the decisions as to what law should govern. Some courts hold that the will is entitled to probate, if made in accordance with the law at the time of its execution,* while others insist that the will comply with the statutory requirements in force at the time of tes- tator's death." Although it is clear that there is no constitutional restriction in the way of the legislature applying the changed re- quirements to wills already executed,^" the better view is that which interprets a statute effecting changes as having no retrospec- , tive operation unless from 'the language of the statute it is clear that the legislature intended it to be applicable to wills already made.^^ * Ante, p. 14. 6 See ante, p. 14. In re Hall's Will, 5 Misc. Rep. 461, 24 N. T. Supp. 864. 6 Sheer v. Sheer, 159 111. 591, 43 N. E. 3.S4. T Waite V. Frisbie, 48 Minn. 420, 51 N. W. 217, following WAITE v. FRIS- BIB, 45 Minn. 361, 47 N. W. 1069, Dunmore Gas. Wills, 100. See, also, Brad- ford V. Blossom, 207 Mo. 177, 105 S. W. 289. 8 Lane's Appeal, 57 Conn. 182, 17 Atl. 926, 4 L. R. A. 45, 14 Am. St. Rep. 94; Mundy v. Mundy, 15 N. J. Eq. 290 ; Salter v. Bryan, 26 N. O. 494 ; Packer V. Packer, 179 Pa. 580, 36 Atl. 344, 57 Am. St Rep. 615; Giddings v. Tur- geon, 58 Vt. 106, 4 Atl. 711 ; Barker v. Hinton, 62 W. Va. 639, 59 S. E. 614, 13 Ann. Cas. 1150. sLeamed's Estate, 70 Cal. 140, 11 Pae. 587; Sutton v. Chenault, 18 Ga. 1; Lawrence v. Hebbard, 1 Bradf. (N. Y.) 252 ; Langley v. Langley, 18 R. I. 618, 30 Atl. 465 (good opinion). 10 American Baptist Missionary Union v. Peck, 10 Mich. 341. > 11 See SchoTiler, Wills (2d Ed.) § 11. The view approved seems preferable because of practical considerations. Technically, the position taken in Langley v. Langley, supra, is difficult to assail. 182 EXECUTION OF WILLS (Ch. 8 SIGNING 65. A will must be signed by the testator, or by some person in his presence and at his express direction and request. 66. Any completed mark or design made by the testator upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the testator as the written name would do, is as sufficient a signing as is the writing of the signature in full. The cases abundantly support the rule as above stated. "Custom controls the rule of names, and so it does the rule of signatures. * * * So the form which a main customarily uses to identify and bind himself in writing is his signature, whatever shape he may choose to give it. * * * What, therefore, shall constitute a sufficient signature must largely depend on the custom of the time and place, the habit of the individual, and the circumstances of each particular case." ^^ Thus a signature by a cross,^^ or by a mark,^* is sufficient, and this though the testator was able to write at the time.^° And where the statute provides for a signature by mark when the testator "cannot write," such a signature is justified by physical incapacity,^ ° as well as by incapacity arising frotti igno- rance. So a scrawl is sufficient when the testator was too weak to i2 Mitchell, J., in EE KNOX'S ESTATE, 131 Pa. 220, 18 AtL 1021, 6 L. R. A. 353, 17 Am. St. Eep. 798, Dunmore Cas. Wills, 11. IS Robinson-v. Brewster, 140 111. 649, 30 N. B. 683, 33 Am. St. Eep. 265; Nlckerson v. Buck, 12 Cush. (Mass.) 332. i*Appeal of Reaver (1903) 96 Md. 735, 54 Atl. 875, 94 Am. St. Rep. 610; SchlefCelin v. SchlefEelin, 127 Ala. 14, 28 South. 687; Bevelot v. Lestrade, 153 111. 625, 38 N. B. 1056; Rook v. Wilson, 142 Ind.*24, 41 N. E. 311, 51 Am. St Eep. 163; Scott v. Hawk, 107 Iowa, 723, 77 N. W. 467, 70 Am. St. Rep. 228; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; In re Klinzner's Will, 71 Misc. Rep. 620, 130 N. Y. Supp. 1059. Where a testator signs by mark, it is not essential that his name be written by one of the subscribing witnesses. Scott v-. Hawk, 107 Iowa, 723, 77 N. W. 467, 70 Am. St. Rep. 228 ; and if testator signed by mark, it is not material that another wrote testator's name at the end of will without any express direction to do so, Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838. 10 Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; In re Cozzens' Will, 61 Pa. 196; Sprague V. JOuther, 8 E. I. 252; Baker v. Dening, 8 Ad. & El. 94. See, however, Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec. 567. Probably his failure to write his name under such circumstances would, however, be suspicious. 10 In re Guilfoyle, 96 Cal. 598, 31 Pac. 553, 22 L. E. A. 370. §§ 65-66) SIGNING * 183 do more/^ or a signature by initials,^' or by initials engraved up- on a seal and impressed upon wax affixed to the instrument,'^* or by an engraved stamp.^" And the writing of the wrong name about the mark made by the testatof does not affect the vali- dity of the will/^ neither does a misdescription of the testator in the body of the instrument.^^ So the name of the testator need not appear in the body of a will signed by mark only.'^ A signature imperfectly spelled is a good signature/* as is also a signature un- der an assumed name,"" and a signature by the first name only,^* provided that this was all the signature intended. But the testator must write all that he intended to write, in order that there may be a sufficient signing, i. e., a signature that is subjectively incomplete is no signature. Thus where a testator began to sign his name, wrote the syllable "Pat," and then desisted because of physical weakness, the signature was insufficient by reason of incomplete- ness.^^ A will is regarded as signed by the testator, though his hand may have been steadied .or guided by another,^* and it is not necessary to prove an express request by the testator for the assis- tance given him.^° IT In Re Plate's Estate, 9 Pa. Co. Ct. R. 644. 18 PILCHER V. PILOHER (1915) 117 Va. 356, 84 S. E. 667, I^. B. A. igiSr/, 902, Dunmore Oas. Wills, 98 ; Re Savory, 15 Jurist, 1042. 19 Goods of Emerson, L. R. 9 Ir. 443. But a sealing, not intended for a sig- nature, does not constitute a signing. Id. 20 Jenkins v. Gaisford, 3 Sw. & Tr. 93. 21 Goods of Clarke, 1 Sw. & Tr. 22. See, also, Bailey's Heirs v. Bai- ley's 'Ex'r, 35 Ala. 687; Long, v. Zook, 13 Pa. 400. 22 Goods of Douce, 2 Sw. & Tr. 593. 2 8 Goods of Bryce, 2 Curt. 325. 24 Word V. Whipps (Ky.j 28 S. W. 151 (when testator wrote his name "A. J. Whpps" instead of "A. J. Whipps") ; In re Williams, 2 Con. Sur. 579, 15 N. Y. Supp. 828 (semble); Succession of Bradford, 124 La. 44, 49 South. 972, 18 Ann. Cas. 766 (where testator signed as "J. W. Bradfor," although his name was "J. W. Bradford." 2 5 Goods of Redding, 2 Robert. 339; Long v. Zook, 13 Pa. 400. See 1 Jar. Wills, 78. 2 8 IN RE KNOX'S ESTATE, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798, Dunmore Cas., Wills, 11. 2 7 Knapp V. Reilly, 3 Dem. Sur. (N. Y.) 427 (the testator's full name was Pat- rick J. O'Neill). See, also. In re Plate's Estate, 148 Pa. 55, 23 Atl. 1038, 33 Am. St. Rep. 805; Everhart v. Everhart (C. C.) 34 Fed. 82. 28 In re Kearney's Wills, 69 App. Div. 481, 74 N. Y. Supp. 1045; Fritz v. Turner, 46 N. J. Eq. 515, 22 Atl. 125 ; In re Shotwell's Estate, 11 Pa. Co. Ct. B. 444; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102 ; Wood V. Rhode Island Hospital Trust Co.. 27 R. I. 295, 61 Atl. 757; Trezevant v. Rains (Tex. Sup.) 19 S. W. 567. 2» In re Cozzens' WUl, 61 Pa. 196 ; VandrufC v. Binehart, 29 Pa. 232. 184 EXECUTION OF WILLS (Ch. 8 Signing by Another Statujtes usually provide for a signature by another in the pres- ence of the testator, at his express request. What constitutes the "presence" of the testator for this purpose is determined by the same principles which govern in attestation by the subscribing witnesses.'" Mere knowledge that the will is being signed by an- other, and acquiescence therein, is not sufficient to meet the require- ments of these statutes.'^ There must be a positive request to this end, or the adoption of the suggestion of another with regard there- to, or in some manner, either by words, looks, gestures, or unam- biguous token, the positive wish on the part of the testator must be made known."^ In the absence of some statutory limitation, a testator may pro- cure another to sign his will for him, under a general provision in the statute to that end, though able to write his own signature him- self ; but a signature thus made would be suspicious when fraud or undue influence is alleged.'' A subscribing witness to the will is as competent to sign for the testator at his request as is anybody.'* In the absence of provision therefor in the statute," the form of the signature is not very material. Thus the signature "A. for B.," the latter being the name of testator, has been held sufficient," so See post, p. 212. It has been held, however, that where the person directed to sign for the- testatrix wrote the latter's name before coming Into her presence, but later, in her presence, wrote beneath the name of the testatrix his own name, pre- ceded by the word "by," and followed by the words "by request," there was a sufficient signing in the presence of the testatrix. Ex parte Leonard, 39 S. C 518, 18 S. E. 216, 22 L. R. A. 302. 51 WAITE V. FRISBIE, 45 Minn. 361, 47 N. W. 1069, Dunmore Gas. Wills, 100 ; Murry v. Hennessey, 48- Neb. 608, 67 N. W. 470. 52 See WAITE v. FRISBIE, 45 Minn. 361, 47 N. W. 1069, Dunmore Gas.. Wills, 100; In re Isaac's Estate, 76 Neb. 823, 107 N. W. 1016; In re McGoy's Will, 64 Neb. 150, 89 N. W. 665 ; Ex parte Leonard, 39 S. G. 518, IS S. E. 216, 22 L. R. A. 302 ; Stevens v. Stevens, 6 Dem. Sur. 262, 3 N. T. Supp. 131. Thus where a testator, in response to his attorney's statement, "You can make your cross, and I can sign it for you if you so direct," replied, "Very- well; do so," there was held to be a sufficient request. In re MuUln's Estate, 110 Gal. 252, 42 Pac. 645. 83 In re Vosburg's Will, 9 Pa. Co. Gt. R. 243. S4 Riley v. Riley, 36 Ala. 496; Herbert v. Berrier, 81 Ind. 1; Robins v. Coryell, 27 Barb. (N. T.) 556; Goods of Bailey, 1 Curt. 914; Smith v. Harris, 1 Robert. 262. 35 Northcutt V. Northcutt, 20 Mo. 266; McGee v. Porter, 14 Mo. 611, 55 Am. Dec. 129. The Missouri statute at this time required the person who wrote the testator's name to add his name as a subscribing witness to the will, and to state that he had written the testator's name at the latter's request. so Vernon v. Kirk, 30 Pa. 218. See Abraham v. Wilklns, 17 Ark. 292. •§§ 65-66) SIGNING 185 as has also the writing of the testator's name alone,°^ and that of the person acting by request alone," there appearing, however, a statement that it was signed on behalf of the testator and in his . presence. Sealing A seal is not necessary to the validity of a will unless expressly required by statute.^* And the want of a seal does not afifect its validity, though it is referred to in the attestation clause as "signed and sealed." *" Sealing is not equivalent to signing, unless the seal is intended to operate as a mark.*^ Time of Signing Where the statute does not require the signature to be at the end, it is no objection to the will that the only signature of testator was written by him on the paper before the will was completed.*^ But under a statute requiring a signature at the end, it has been held that words written in the body of the will after testator has affixed "his signature are not entitled to probate, although testator subse- quently acknowledges his signature and has will attested.** Place of Signature Under the statute of frauds, a will was merely required to be signed. Hence it was unimportant in what part of the instrument the signature appeared, provided it was placed there with the inten- tion that it shou^ operate as a signature. Therefore, if a testator wrote his name at the beginning of the will thus, "I, A. B.," with the •design of giving it authority, and acknowledged it to be his writing when he called the subscribing witnesses to attest it, and if, at the time of the acknowledgment, he did not intend any further signa- ture, the signing was sufficient, without any subscription of his 3T In re Dombrowski's Estate, 163 Cal. 290, 125 Pac. 233; Haynes v. Haynes, 33 Ohio St. 598, 31 Am. Eep. 579. 3 8 In re Clark, 2 Curt. 329. See, also, In re Blair, 6 Notes Cas. 529. 39 Doe dem Knapp v. Pattlson, 2 Blackf. (Ind.) 355 ; Avery v. Plxley, 4 Mass. 460; Grubbs v. McDonald, 91 Pa. 236. Such was formerly the requirement with reference to wills of real estate In New Hampshire. Rev. St 1842, c. 156, § 6. Such, however, is no longer the case. See Pub. Laws 1901, c. 186, § 2. *o Ketchum v. Stearns, 76 Mo. 396. *iTownsend v. Pearce, 8 Vin. Abr. 102, pi. 3; Gryle v. Gryle, 2 Atk. 177. 42 IN RE BULLIV ANT'S WILL, 82 N. J. Eq. 340, 88 Atl. 1093, 51 L. R. A. (N. S.) 169, Ann. Cas. 1915C, 72, Dunmore Cas. Wills, 102; Adams v. Field, 21 Vt. 256, and cases cited infra in note 45. * 3 In re Foley's Will, 76 Misc. Rep. 168, 136 N. Y. Supp. 933. The courts, however, have usually treated testator's acknowledgment of his signature before witnesses as equivalent to a new signature. In re Kohn's Estate, 172 Mich. 342, 137 N. W. 735; Schouler on Wills (2d Ed.) § 443. 186 EXECUTION OP WILLS (Ch. 8 name at the end.** Such is the American rule, where no position for the signature is specified by statute,*" and where the will, con- taining name of testator, is written for him by another, the same rule is applied on the ground that it may be treated as signed by an- other for him.*° In the above statement there is little to which exception can be taken, for there is a plain adoption of the signature as such, and it is clear enough that any mark, meant to operate as a signature by the testator, can have that effect, provided this intention can be proved. But it is evident that, in principle, the mere acknowledg- ing of an instrument as a will, or its bare subscription by witnesses, is not, of itself, an adoption of the name at the beginning or in the middle of a will as a signature ; for these things are as consistent with forgetfulness that the signature at the end had not been made or with ignorance that any signature was required as with the adoption of the writing in the early parts of the instrument as a signature.*^ "When a testator or the maker of a contract sub- scribes it at the end and in the manner in which legal instruments are usually authenticated, a presumption arises that the signature was affixed for the purpose of creating a valid instrument. But when the name is ■yvritten near the beginning of the document, where, as a rule, names are inserted by way of description of the person 'who is to execute it, and rarely as signatures, it must, be- fore it can be held to have been inserted for the purpose of validat- ing the instrument, be proved to have been written with that in- tent." *» 44 Lemayne v. Stanley, 3 Lev. 1 ; Morison v. Turnour, 18 Ves. 176 ; Ellis V. Smith, 1 Ves. 11 ; Grayson v. Atkinson, 2 Ves. 454 ; Stonehouse v. Evelyn, 3 P. Wms. 254. See, also, 1 Jar. Wills, 70. 46 Armstrong's Ex'r v. Armstrong's Heirs, 29 ^la. 538; Merritt v. Cla- son, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286; People v. Murray, 5 Hill (N. Y.) 468; Kolowski v. Fau^z, 103 HI. App. 528; In re Miles' Will, 4 Dana (Ky.) 1 ; MEADS v. EARLE, 205 Mass. 553, 91 N. E. 916, 29 L. R. A. (N. S.) 63, Dunmore Gas. Wills, 106 ; Hall v. Hall, 17 Pick. (Mass.) 373 ; Upchurch V. Upchurch, 16 B. Mon. (Ky.) 102 ; In re Phelan's Estate, 82 N. J. Eq. 316, 87 Atl. (N. J.) 625; Kamsey v. Ramsey's Ex'r, 13 Grat. (Va.) 664, 70 Am. Dec. 438 ; Selden v. Coatler, 2 Va. Gas. 553 ; Adams v. Field, 21 Vt. 256. 48 Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 538; Miles' Will, 4 Dana (Ky.) 1 ; Armstrong v. Walton (1913) 105 Miss. 337, 62 South. 173, 46 L. R A. (N. S.) 552. See, however,' Catlett v. Oatlett, 55 Mo. 330. 4' Some of the cases cited in notes 44 and 45 are inconsistent with this view, however. See criticism on them in 1 Redf. Wills, p. 212, note, and particularly upon Lemayne v. Stanley, 3 Lev. 1, in which the doctrine was first declared. 4sFollett, C. J., in Re Booth, 127 N. Y, 109, 27 N. B. 826, 12 L. B, A 452, 24 Am. St. Rep. 429. So where a will written wholly In the handwriting of the testator, and beginning, "I, A. W., declare this to be my last will," but nowhere else con- §§ 65-66) SIGNING 187, It is sometimes held that the testator's intention to sign must be disclosed or discoverable by an inspection of the will ; ** but the sounder view is that proof of surrounding facts and circumstances, including declarations of the testator, may be received to deter- mine his intention regarding the signature."" In any event, it is esse^ntial that the testator intend his signature, wherever inserted, to be an authentication of his will and that he contemplate no further signing."^ ■ ■ Signature at End In view of the difificulty of determining whether a signature oth- er than at the end of a will was intended to operate as such, statutes have frequently been passed prescribing the position of the signa- ture, and requiring, in substance, subscription at the end. While the purpose of this legislation was commendable, it has probably served to create as much difficulty as it has removed. Upon certain points, however, there is substantial agreement. Thus, the attes- tation clause is not a part of the will for the purpose of determining the location of its end. Hence a signature by the testator at the end of the .will proper, and before the attestation clause,"^ o^ after this clause,"' if it follows the will proper, or in a blank space within such clause,"* is a sufficient signing at the end. • So when the will talning testator's name, was inclosed in a sealed envelope on which was written, in testator's handwriting, "My will. A. W.," it was held not to be signed, within the meaning of a- statute providing, "No will shall be valid un- less it * * * be signed by the testator "' • • in such manner as to make it manifest that the name is intended as his signature." Warwick v. Warwick, 86 Va. 596, 10 S. B. 843, 6 L. K. A. 7Y5, construing Code Va. 1887, § 2514, but under such a statute, the will need not necessarily be signed at the end. Murguiondo v. Nowland's Ex'r, 115 Va. 160, 78 S. E. 600. 49 Waller v. Waller, 1 Grat. (Va.) 454, 42 Am. Dec. 564; In re Jolly's Will, 5 N. J. Eq. 456. See, also, Armendariz de Acosta v. Cadena (Tex. Civ. App.) 165 S. W. 555. BO Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala, 538; Adams v. Eield, 21 Vt. 256. 51 Catlett V. Catlett, 55 Mo. 330. 02 Younger v. DufBe, 94 N. X. 535, 46 Am. Rep. 156 ; Jackson v. Jackson, 39 N. Y. 153 ; In re Dayger-s Will, 110 N. Y. 666, 18 N. E. 480. '53 Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156; In re Laudy's Will, 78 Hun, 479, 29 N. Y. Supp. 136 ; In re Young's Will, 153 Wis. 337, 141 N. W. 226. 'B4in re De Hart's Will, 67 Misc. Rep. 13, 122 N. Y. Supp. 220; In re Noon's Will, 31 Misc. Rep. 420, 65 N. Y. Supp. 568 ; Goods of Walker, 2 Sw. & Tr. 354. See, however. Sears v. Sears, 77 Ohio St. 104, 82 N. B. 1067, 17 L. R. A. (N. S.) 353, 11 Ann. Cas. 1008, where it appeared that testatrix wrote her will on a printed form which contained a line for signature. Below this line was a printed attestation clause, which aTso contained a blank space for the name of the maker, and testatrix wrote her name only in the latter space. The court held the will invalid, but the case seems wrong, unless the policy of 188 EXECUTION OF WILLS (Ch. 8 has been signed at the end, and properly attested, the subsequent appending of new matter thereto does not affect the validity of the will as originally executed." And if, prior to attestation, there is placed, after the signature, matter which is merely directory, and which would not be binding upon either the bene^giaries or the- executor, i. e., which does not affect the disposition|tf^Iie testator's property or the manner of its disposition, such matter is not suffi- ciently a part of the will to avoid the instrument by reason of the location of the signature.^^ A signature preceding a clause appoint- ing executors, however, is void, as not being at the end of the will.V ' In a number of cases, the courts have been called upon to decide whether the word "end" in the statute is to be construed as mean- ing the logical end of the will or the physical end. The construc- tion usually made is that which requires that the will be signed at the grammatical or logical end."' So where testator wrote the first page of his will, skipped the second page, filled the third page, and then finished and signfed the will on the second page, the signature the statute Is taken to require that the signature be so placed as clearly to- indicate an intention to execute the will. ♦ 5 Stevens v. Stevens, 6 Dem. Sur. 262, 3 N. Y. Supp. 131; SAUNDERS v.. J. K. T. SAMARREG CO., 205 Pa. 632, 55 Atl. 763, Dunmore Cas. Wills, 110; Helse T. Heise, 31 Pa. 246; In re Mandelick's Will, 6 Misc. Rep. 71, 26 N. Y. Supp. 888. See, also, In re Taylor's Estate, 230 Pa. 346, 79 Atl. 632, 36 L. R. A. (N. S.)- 66, where, in the absence of evidence to the contrary, the court presumed that writing, beneath the signature when will offered for probate was not there at the time of execution. oj,In re Gibson's Will, 128 App. Div. 769, 113 N. Y. Supp. 266 (where added! paragraph contained provisions in case of death of beneficiary and the law would have made the same disposition without such paragraph) ; Baker v.. Baker, 51 Ohio St. 217, 37 N. B. 125 (where the addition was a request that no bond be required of the executrix) ; WikofE's Appeal, 15 Pa. 281, 53 Am.. Dec. 597 (a memorandum stating the date when the Instrument was begun). See, also. In re Fouche's Estate, 147 Pa. 395, 23 Atl. 547 ; Conboy v. Jennings, 1 Thomp. & C. (N. Y.) 622. sj In re Gedney's Will, 17 Misc. Rep. 500, 41 N. Y. Supp. 205 ; APPEAL OF WlNELAND, 118 Pa.l37, 12 Atl. 301, 4 Am. St. Rep. 571, Dunmore Cas. Wills, 109. The rule stated in the text is not always followed, Ward v. Putnam, lift- Ky. 889, 27 Ky. Law Rep. 367, 85 S. W. 179; but, on principle, it is correct, since the nomination of an executor is a testamentary act. 08,ln re Peiser's Will, i79 Misc. Rep. 668, 140 N. Y. Supp. 844 ; Baker's Ap- pedl, 107 Pa. 381, 52 Am. Rep. 478 ; Goods of Wotton, L. R. 3 P. & D. 159 ; Goods of Birt, L. R. 2 P. & D. 214. Contra and requiring a signing fet the physical end: Matter of Andrews^ 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294; Matter of Conway, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796. §§ 65-66) SIGNING 18i> \ was at the end ; *• but where testator wrote a dispositive clause along the margin of the last page in his will, after he had written all of the other items in his will, and then signed under the body of the will, the will was not signed at the end.®" - It has been said that, if the matter following the signature has been sufficiently referred to in what goes before to amount to an incorporation thereof; the signature is then to be regarded as at the end,°^ and there are authorities to this effect.'^ The incongruity of permitting an incorporation by reference of matter which by the intention of testator is already an integral part of his will is appar- ent, and, if permitted, it should be limited in its application to cases where, in view of the form of the will and the character of the mat- ter sought to be incorporated, there is no. room for the evasion of the statute by subsequent additions to the will under the guise of incorporation by reference. Thus where a will was drawn on a printed blank covering one page, and the first two subdivisions of the will filled this, and a paper containing additional provisions was annexed to this by metal staples, being referred to in the original blank by the words, "See annexed sheet," at the bottom thereof, it was held that there was not a sufficient subscription at the end.°* Of course, the mere physical attachment of a document to the in- strument containing the signature does not effect a sufficient in- corporation to bring the signatu^-e at the end of the will.°* 9^ In re Stinson's Estate, 228 Pa. 475, 77 Atl. 807, 30 L. B. A. (N. S.) 1173, 139 Am. St. Rep. 1014. eo^Irwin v. Jacques, 71 Ohio St. 395, 73 N. E. 683> 69 L. E. A. 422. Compare: In re Swire's Estate, 225 Pa. 188, 73 Atl. 1110, where court reach: ed a contrary conclusion on similar facts, although insisting that the will be signed at the logical end. 81 Page, Wills, § 186. 62 In re Brand's Will, 68 App. Div. 225, 73 N. Y. Supp. 1073 ; Baker's Ap- peal, 107 Pa. 381, 52 Am. Rep. 478. 83 In re Whitney's Will, 153 N. T. 259, 47 N. E. 272, 60 Am. St. Bep. 616, overruling 90 Hun, 138, 35 N. Y. Supp. 796. The same conclusion was reached in Re Conway, 124 N. Y. 455, 26 N. E. 1028, 11 K B. A. 796, reversing 58 Hun, 16, 11 N. Y. Supp. 606. Here the will was written on half a sheet of paper, at the bottom of which were printed forms for signature and attestation. Part of the will was written on the first page, and at the end of such part were the words "Carried to the back of the will." On the back was the word "Continued," after which followed various provisions, at the end of which were the words "Signature on face of the will." The signature was at the bottom of the first page. See, also, In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. B. A. 662, 76 Am. St. Bep. 294, affirming 43 App. Div. 394, 60 N. Y. Supp. 141. Compare, with cases above cited. Matter of Field, 204 N. Y. 448, 97 N, E. 881, 39 li. B. A. (N. S.) 1060, Ann. Cas. 19130, 842. 64 In re Fults' Will, 42 App. Div. 593, 59 N. Y. Supp. 756. 190 EXECUTION OF WILLS ,(Ch- ^ The occurrence of blanks in the body of the will or the interven- tion of a blank between the last words of the will and the signature does not aflect the validity of the latter."' But the intervening space may bear heavily on the question as to whether the writing was actually intended as a signature. Thus where a holographic will, written on a sheet of letter paper, ended at the middle of the second page, and the paper was folded so that the third page was outside, in the middle' of which were the words, "David M. Roy's Will," this was held to be an insufficient signing.** On the question as to whether a will, not signed at the end, i^ wholly void, or void only with regard to what follows the signature, the cases are in conflict, though this may be partially explained by variations in the phraseology of the statutes involved. The pre- vailing rule is that the entire will is void, for the courts are hardly justified in assuming that the testator would wish one part of the will to stand in view of. the fact that other portions are inopera- tive.*,? But the English rule is othemise.*?^ . - When the will covers several sheets of paper, one signature at the end is sufficient for all, although the sheets are not fastened to- gether until after execution,** or even if they are not fastened at all. As a matter of precaution and to identify the sheets as a part of th'e will, the testator may well sign his name at the foot of each sheet. And a signature may be made upon a piece of paper attach- ed to the body of the instrument,^* if it be shown that the paper 85 Mader v. Apple, 80 Obio St 691, 89 N. E. 37, 23 L. R. A. (N. S.) 515, 131 Am. St. Eep. 719; In re Morrow's Estate (1903) 204 Pa. 479, 54 Atl. 313; Bamewall v. Murrell, 108 Ala. 366, 18 Soutli. 831 ; In re Blake's Estate, 136 Cal. 306, 68 Pac. 827, 89 Am. St. Hep. 135; In re Dayger, 47 Hun, 123; In re Oilman's Will, 38 Barb. 364; Goods of Fuller (1892) Prob. 377. The courts, construing 1 Vict. c. 26 (requiring testators to sign at the foot or end of the will), held that, for the prevention of fraud by the insertion of additions, the signature must follow closely the body of the will. 1 Wms. Ex'rs, 78; Willis v. Lowe, 1 Robert. 618; Smeer v. Bryer, 6 Moore, P. C. 404. But such is no longer the case, in consequence of 15 Vict. c. 24. 86 Roy V. Roy's Ex'r, 16 Grat. 418, 84 Am. Dec. 696. 87 Glancy v. Glancy, 17 Ohio St. 134, 137 ; In re Conway, 124 N. Y. 455, 26 N. B. 1028, 11 L. R. A. 796; In re Donner's Will, 37 Misc. Rep. 57, 74 N. Y. Supp. 828 ; WINELAND'S APPEAL, 118 Pa. 37, 12 Atl. 301, 4 Am. St Rep. 571, Dunmore Cas. Wills, 109. Most of the cases heretofore cited take this view for granted. e8,in re Anstee (1893) Prob. 283,. 1 Reports, 487; Royle v. Harris (1895) Prob. 163, 11 Reports, 601 ; In re Gilbert, 78 Law T. (N. S.) 762 ; In re Gee, 78 Law T. (N. S.) 843. 8^ In re Snell, 32 Misc. Rep. 611, 67 N. Y. Supp. 581, 8 N. Y. Ann. Cas. 366 ; Gass' Heirs v. Gass' Ex'rs, 3 Humph. (Tenn.) 285; Ela v. Edwards, 16 Gray (Mass.) 99 ; WikofC's Appeal, 15 Pa. 281, 53 Am. Dec. 597. ( 7j> In re Horsford, L. R. 3 P. & D. 211 ; Cook v. Lambert, 3 Sw. & Tr. 46. g 67) MAKING OR ACKNOWLEDGING SIGNATURE 191 was duly fastened prior to or at the time of attestation.^^ So the signature and attestation may be upon the back of the paper con- taining the body of the will." MAKING OR ACKNOWLEDGING SIGNATURE BE- FORE WITNESSES 67. It is frequently provided by statute that the testator shall either sign the will in the presence of the witnesses, or shall ac- knowledge his signature before them. Any words, acts, or conduct of the testator which, reasonably interpreted, amount to a recognition of the signature as his, in the pres- ence of witnesses who are aware bi such words, acts, or conduct, constitute a sufficient acknowledgment. In the absence of a statutory requirement, the witnesses need not see the testator sign the will.''' Where there is such a require- ment, the alternative of acknowledgment is usually allowed, as the witnesses attest the signature of the testator adopted by him as his rather^ than the act of affixing the signature.'* Must See the Signature In order that there may be a valid acknowledgment of a signa- ture, it is imperative that the witnesses see, or have an opportuni- ty of seeing, such signature,'" and this though the testator stated that it was his will, and read the attestation clause, which recited all the requirements of the law.'" Sp where it appeared that the Ti 1 Wms. Ex'rs, 19. '2 In re Dayger, 47 Hun, 127. Ts Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145; Nixon V. Snellbaker, 155 Iowa, 390, 136 N. W. 223 ; Stirling v. Stirling, 64 Md. 138, 21 Atl. 273; Simmons v. Leonard, 91 Tenn. 183, 18 S. W. 280, 30 Am. St Kep. 875; In re Claflin's Will, 73 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. 693. 7* Hall -ff: Hall, 34 Mass. (17 Pick.) 373, and cases in preceding note. 7B NITNN V. BHLERT, 218 Mass. 471, 106 N. E. 163, L. R. A. 1915B, 87, Dunmore Oas. Wills, 112 ; In re Abercrombie, 24 App. Diy. 407, 48 N. Y. Supp. 414; In re Laudy's Will, 14 App, 0iv. 160, 43 N. T. Supp. 689; In re De Haas' Will, 9 App. Dlv. 561, 41 N. T. Supp. 696 ; Vogel v. Lehrltter, 139 N. Y. 223, 34 N. B. 914 ; In re Eakins' Will, 13 Misc. Rep. 557, 35 N. X. Supp. 489 ; In re Hitchler's Will, 25 Misc. Rep. 365, 55 N. X. Supp. 642; In re Ooles' Will (N. J. Prerog.) 47 Atl. 385; Goods of Gunstan, L. R. 7 P. D. 102. •See, also, Hobart v. Hobart, 154 111. 610, 39 N. E. 581, 45 Am. St. Rep. 151. But both signing in the presence of the witnesses and acknowledgment of the signature are not necessary, and an instruction to that effect is errone- ous. Webster v. Yorty, 194 111. 408, 62 N. E. 907. A deed referred to in a will need not be presented and exhibited to the wit- nesses of the wiU, for a propei- attestation of the latter. In re Willey's Es- tate, 128 Cal. 1, 60 Pac. 471. T« In re De Haas' Will, 9 App. Dlv. 561, 41 N. Y. Supp. 696. 192 , EXECUTION OF WILLS (Ch. 8 ; instrument was so folded that the signature was invisible to the witnesses, it was refused probate, although they signed an attes- tation clause in regular form, and all other statutory provisions were complied with.''' Where the signature was in plain sight of the witness at the time of attestation she may be presumed to have seen it, though she may have forgotten the fact, and may even think that she did not see it.'* But where the statutes governing testamentary disposition are similar to the statute of frauds and do not require that the witness- es attest the signature, but only that they attest the will, it is some- times held that the witnesses need not be able to see testator's sig- nature on the will." Request to Sign the Wul A presentation of the will by the testator to the witnesses, with his signature in plain sight, accompanied by the statement that it is his will, and a request that they sign it, is a sufficient acknowledg- ment of the signature,*" and under these circumstances the request to sign may not be necessary.*^ So a request to sign, with the sig- nature in plain sight, may be sufficient.** Acknowledgment When Signed by Another When the will is signed for testator by another in the absence of witnesses, a general acknowledgment by testator to subscribing witnesses that the signature is his is sufficient, and such acknowl- edgment need not embrace the fact that he authorized another to sign for him.** ^ 77 In re Mackay's WiU, 110 N. Y. 611, 18 N. E. 433; 1 L. R. A. 491, 6 Am. St. Rep. 409. 7 8 In re McDougall's Will, 87 Hun, 349, 34 N. Y. Supp. 302; In re Stock- well's Win, 17 Misc. Rep. 108, 40 N. Y. Supp. 734; In re Look, 1 Con. Sur. 403, 5 N. Y. Supp. 50. See In re Boardman's Will (Sur.) 20 N. Y. Supp. 60; In re Hennes' Estate, 81 Minn. 30, 83 N. W. 439, and Gould v. Chicago Theolog- ical Seminary, 189 111. 282, 59 N. E3. 536. 7 9 In re Dougherty's Estate, 168 Mich. 281, 134 N. W. 24, 38 L. R. A. (N. S.) 161, Ann. Gas. 1913B, 1300; White v. Trustees of British Museum, 6 Bing. 310, 19 E. O. L. 145. Contra : NUNN v. EHLEIRT, supra. 80 Canatseyv. Oanatsey, 130 111. 397, 22 N. E. 595; Stewart v. Stewart, 56 N. J. Eq. 761, 40 Atl. 438 ; In re Akers' Will (1903) 173 N. Y. 620, 66 N. E. 1103; Biskin v. Baskin, 36 N. Y. 416; Stephens r. Stephens, 129 Mo. 422, 31 S. W. 792, 50 Am. St. Rep. 454; In re Lang's Will, 9 Misc. Rep. 521, 30 N. Y. Supp. 388; In re Look, 54 Hun, 635, 7 N. Y. Supp. 298; In re Trenor's Estate « In re Look, 1 Con. Sur. 403, 5 N. Y. Supp. 50. 196 EXECUTION OF WILLS (Ch. 8 ecution of his will at a certain time and place, and at the appointed time signs a will which he hands to the witness, there is a sufficient publication, though nothing is said at the time as to the character of the instrument.' The witnesses need not know the contents of the will.* Pub- lication may immediately precede the signing by the testa tor,° and, may take place while the witnesses are in the act of signing.^" But an acknowledgment to the witnesses by the testator on a sub- sequent occasion, that the document signed was his will, is not such a publication as the statute requires. ^^ InsuMcient AcUnowledgment Not only must the testator use adequate means to declare that the instrument is his will, but the fact must be actually brought home to the witnesses. Hencei a person who, from inattention or abstraction, is unaware of what is being said, does not witness the will, and cannot testify to its publication.^'' And a mere request to the witnesses to sign the instrument, without declaring its char- acter, is not a publication,^* even though the witnesses may infer that the document was a will, the inference not arising from any words or acts of the testatrix.^* REQUEST BY TESTATOR THAT WITNESSES SIGN t 69. It is a frequent, if not general, statutory requirement that the testator shall request the witnesses to attest the will. This request may be made expressly by the testator, or by an- other in his behalf, or may be inferred from his conduct, and from all the facts and circumstances attending the at- testation. ' Robbins v. Robbins, 50 N. J. Bq. 742, 26 Atl. 673. See, also, In re Brein- Ing'si Estate, 68 N. J. Eq. 553, 59 Atl. 561. 8 Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664 ; In re Voorhis' Will, 125 N. T. 765, 26 N. E. 935; Id., 54 Hun, 637, 7 N. Y. Supp. 596; Freeman v. Free^ man, 71 W. Va. 303, 76 S. B. 657. » De Hart's Will, 67 Misc. Rep. 13, 122 N. Y. Supp. 220 ; Gamber's Will, 53 Misc. Rep. 168, 104 N. Y. Supp. 476 ; In re Williams, 2 Con. Sur. 579, ,15 N. Y. Supp. 828. 10 In re Phillips, 98 N. Y. 267. 11 In re Dale, 56 Hun, 169, 9 N. Y. Supp. 396. Compare: In re Baldwin's Will, 67 Misc. Rep. 329, 124 N. Y. Supp. 612, where a publication one hour after witliess signed was held sufficient. 12 Robbins v. Robbins, 50 N. J. Eq. 742, 26 Atl. 673. 18 In re Delprat's Will, 27 Misc. Rep. 355, 58 N. Y. Supp. 768. 1* In re Turrell's Will, 28 Misc. Rep. 106, 59 N. Y. Supp. 780. § 69) BEQUEST BY TESTATOB THAT WITNESSES SIGN 197 Although under any statute the witnesses must sign with the knowle'dge and assent of the testator,^" in the absence of express legislation to this effect, the witnesses need not be requested by the testator to attest the will.^' The object of legislation making this necessary is to further safeguard the testator against fraud and im- position, and to secure him from officious interference in the per- formance of an act commonly regarded as very solemn. It .may be doubted whether statutes of this character, requiring many formali- ties to the due execution of wills, do not more often serve to thwart the intentions of competent testators than to defeat the designs of unscrupulous beneficiaries, and whether they are not more produc- tive of uncertainty and litigation than of advantage to the testa- mentary public. However, when a request of this character is re- quired it, must be made ; otherwise the will is void. A Sufficient Request Anthing which conveys to the witnesses the idea that they are desired to be witnesses is a good request.^^ A request therefore may be made by words, as where, in reply, to his attorney's question as to whether he wished certain persons in whose presence he had just signed and acknowledged a will, to witness the. same, the tes- tator replied, "I do," ^* or by conduct, as where the testator, after signing his will in the presence of witnesses there by his request, passed it to one of them, who signed it, and then passed it to the other, who also signed.^' So a request may be implied from the fact that the witness in question drew the will and took it to his house to be executed,*" or from attestation in his presence by wit- nesses known by him to have been procured for that purpose by 15 See Craig v. Trotter, 252 111. 228, 96 N. E. 1003; Gross v. Burneston, 91 Md. 383, 46 ^ti. 993. 18 In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372 ; Burney v. Allen, 125 N. C. 314, 34 S. E. 500, 74 Am. St. Rep. 637; In re Lillibridge's E5state, 221 Pa. 5, 69 Atl. 1121, 128 Ajn. St. Rep. 723. 17 In re Miller's Estate, 37 Mont. 545, 97 Pac. 985. IS In re Mullln's Estate, 110 Cal. 252, 42 Pac. 645; In re Voorhis' Will, 125 N. Y. 765, 26N."B. 935. 19 Schierbaum v. Schemme, 157 Mo. 1, 57 S. W. 526, 80 Am. St. Rep. 604. So where an attorney, who had drawn a will, proposed to the testator that he and his stenographer would witness it, and thereupon called her from an adjoining room into the office, where they both signed it in the testator's presence and without objection from him, there is a sufficient request, though the testator did not personally ask the stenographer to witness the will, and may not have heard the attorney do so. Ames v. Ames, 40 Or. 495, 67 Paa 737. 20 In re Woolscy's Will, 17 Misc. Rep. 547, 41 N. J. Supp. 263. 198 EXECUTION OF WILLS ' (Ch. 8 the draftsman of the will.*^ So a request made by any one in the testator's presence, of which he is aware, and which is acquiesced in by him, is sufficient,"'' as is also a request by the testator to one of the witnesses to sign, made in the presence of the other, and followed by attestation by^both.^^ The request to the subscribing witnesses to become such may be made by the testator before he affixes his own signature, when it appears that all the formalities of execution are practically com- pleted at one transaction,"* and where an attestation clause, which was already signed by witnesses and which recited that they signed at testator's request, was read in the presence of testator and wit- nesses, there was such an adoption of a request to sign as to com- ply with a. statute requiring a request."" Insufficient Request Acquiescence in the act of attestation, in order to amount to a request therefor, must he a thoroughly conscious acquiescence. Thus where the testatrix had been under the influence of drugs for several days before the execution of the will, and there was nothing to signify her acceptance of the attestation save a nod to her hus- band in reply to a question, it was held that a request was not suffi- ciently shown."^ So where a third party procured the attendance of two witnesses at the request of the testatrix, who told him that she wished "to settle" certain money, and no further proof of a request was shown, and the will contained no attestation clause, probate was refused by reason of lack of sufficient request."' 21 Martin v. Bowdem, 158 Mo. 379, 59 S. W. 227; Skinner v. Lewis, 40 Or. 571, 62 Pac. 523, 67 Pac. 951. 2 2 Rogers v. Diamond, 13 Ark. 474; Peck t. Gary, 27 N. Y. 9, 84 Am. Dea 220 ; Gilbert v. Knox, 52 N. X. 125 ; Skinner v. Society, 92 Wis. 209, 65 N. W. 1037. 2s Coffin V. Coffin, 23 N. Y. 9, 80 Am. Dec. 235. 2* Seguine v. Seguine, 2 Barb. (N. T.) 385 ; In re Camber's Will, 53 Misc. Rep. 168, 104 N. Y. Supp. 476. 25 In re Stewart's Will, 2 Redf. Sur. (N. Y.) 77. 26 In re Lyman's Will, 14 Misc. Rep. 352, 36 N. Y. Supp. 117. 2 T In re McMulkin, 6 Dem. Sur. (N. Y.) 347. §§ 70-71) ATTESTATION 199 ATTESTATION 70. It is substantially a universal statutory requirement, save in the case of* nuncupative, and, occasionally, of holographic, wills, that a will, to be valid, must be attested by a certain nxunber of competent or credible witnesses. 71. Attestation is the bearing witness to the fact that the instru- ment in question is that of the maker, as evidenced by the subscription of the witness. Attestation of wills of real property was required by the statute of frauds,"* but in England, prior to 1838, wills of personal property were valid without attestation.^* But by the wills act of 1838,'° and by most American statutes, wills of either sort of property must be witnessed, though sometimes a greater number of witnesses is required for a will of real than of personal property.'^ A will not executed in compliance with these requirements is void,'" and a judgment admitting such a will to probate has been held an absolute nullity, whose invalidity may be taken advantage of at any time."' These statutes usually require that the will be attested and sub- scribed. A distinction between attestation and subscription is some times attempted,'* and has also been denied.'" The definition in the black-letter text avoids any difficulty on this score and is justified by the fact that the courts require the names of the witnesses to be subscribed when the statute merely provides that the will must be "attested."" 2 8 29 Car. II, c 3 (1677). 2» 1 Wms. Ex'rs, 84. 80 1 Vict. c. 26, § 9. 81 Hays V. Ernest, 32 Fla. 18, 13 South. 451. 32 Clark V. MiUer, 65 Kan. 726, 68 Pac. 1071, 70 Pac. 586 ; Murdock v. Bridges, 91 Me. 124, 39 Atl. 475; Tobin v. Haack, 79 Minn. 101, 81 N. W. 758; Jolinson V. ^Planting Go., 77 Miss. 15, 26 South. 360 ; Perea v. Barela, 5 N. M. 458, 23 Pac. 766; Simmons t. Leonard, 91 Tenn. 183, 18 S. W. 280, 30 Am. St. Rep. 875. s ss Fortncr v. "Wiggins, 121 Ga. 26, 48 S. B. 694; Oureton v. Taylor, 89 Ga. 490, 15 S. E. 643. These Georgia cases seem incorrect on principle. Since the court has jurisdiction, its decree granting probate should be conclusive upon the question of due execution when collaterally attacked. See post. Effect of Probate, 11 Oh. § 97. 8* Swift V. Wiley, 1 B. Mon. (Ky.) 114 ; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dea 687; Tobin v. Haack, 79 Minn. 101, 81 N. W. 758. 85 Skinner v. Society, 92 Wis. 209, 65 N. W. 1037. 88 International Trust Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 L. R. A. (N. S.) 1002, 16 Ann. Cas. 1087; In re Sloan's Eistate, 184 111. 579, 56 N. B. 952; In re Paxson's Estate, 221 Pa. 98, 70 Atl. 280. When the statute requires that the will be "witnessed" by two compe- 200 EXECUTION OF WILLS (Ch. 8 The witnesses must attest the fact that the instrument is that of the maker, and that it is his will, when publication of that fact is required. Hence when the maker does not indicate the character of the paper, or exhibit the- signature, or acknowledge that he has signed it, there can be no valid attestation.' ' The act of attestation is complete when the witnesses have signed their names to the will in the presence of the testator.'* The number of witnesses required depends wholly upon local legislation. Following the English statutes, two is the more com- mon number, but three is not infrequent, and this is the number generally required in New England, and also in several of the Southern states. The attestation by a superfluous witness who is incompetent, or who does not attest the instrument in a proper manner, does not affect the validity of the will if properly attested by the requisite number of competent witnesses.'* WHAT CONSTITUTES A COMPETENT WITNESS 72. A competent or credible witness to a will is one who is qualified to testify, under the rules of evidence, in a proceeding for the probate of the will. Statutes in this connection use the words "credible" *' or "com- petent," the latter being employed more frequently. Both terms have precisely the same meaning,*^ viz., that stated in the black- letter text.*' Hence a witness, for this purpose, may be credible, tent witnesses, It is essential that the witnesses subscribe their names. Mat- ter of Boyeus, 23 Iowa, 354. ST Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455; Tobin v. Haack, 79 Minn. 101, 81 N. W. 758. 38 Mays V. Mays, 114 Mo. 536, 21 S. W. 921. 3 » In re Sizer's Will, 129 App. Div. 7, 113 N. Y. Supp. 210, affirmed Id., 195 N. X. 528, 88 N. B. 1132 ; Boone v. Lewis, 103 N. C. 40, 9 S. E. 644, 14 Am. St. Rep. 783; Scattergood v. Kirk, 192 Pa. 263, 43 Atl. 1030. *o 29 Oar. II, c. 3. *i Johnson v. Johnson, 187 111. 86, 58 N. E. 237; In re Noble's Estate, 22 111. App. 535 ; In re Marston, 79 Me. 25, 8 Atl. 87; Jones v. Larrabee, 47 Me. 474 ; Amory v. Fellowes, 5 Mass. 219; Haven v. Hilliard, 23 Pick. (Mass.) 10; Swanzy v. Kolb, 94 Miss. 10, 46 South. 549, 136 Am. St. Rep. 568, 18 Ann. Cas. 1089. * 2 Robinson v. Savage, 124 lU. 266, 15 N. E. 850; Hiatt v. McCoUey (1908) 171 Ind. 91, 85 N. E. 772; Fuller v. Fuller, 83 Ky. 345; Vrooman v. Powers, 47 Ohio St 191, 24 N. B. 267, 8 I* R. A. 39. 72) WHAT CONSTITUTES A COMPETENT WITNESS 201 though quite unworthy of credit.** A witness to a will need not, of necessity, be a person of veracity.** Time When Competency must Bxist - ^ The competency of an attesting witness to a will is to be tested by the facts existing at the time of attestation.*^ If then competent, any subsequent incompetency will not prevent the probate of the will,*® and if then incompetent subsequently acquired competency will not validate the will.*'' Competency Determined by Reference to> Statute or Common Law The competency of a witness to a will is to be determiiied by the common-law 'rules regarding the competency of witnesses in gen- eral, as modified by legislation. Some statutes, changing the com- mon-law disqualifications, expressly exempt witnesses to wills from their operation, while "others include witnesses of every description. The controlling principle is thus stated by a learned judge: "A competent witness * * * Jg one who is entitled to be examined in a court of justice. * * * He must be so situated, in respect to the issue depending between parties to a cause or proceeding, or to the particular fact concerning which he is called to testify, and must have such sense of the obligations of an oath, as to come within the class of persons whom the common law deems it wise and safe to admit to give testimony. In general, if a witness is not wanting in religious belief, if he has not been rendered infamous by conviction of crime, and has no pecuniary interest in the event of the suit in which he is called to testify, he is admissible and com- petent as a witness." ** 43 In re Noble's Estate, 22 111. App. 535. It is therefore error for the court to charge the jury in a will contest that they must find that the witnesses were credible persons, thus using the word credible in reference to the character of the subscribing witnesses. Savage V. Bulger, 77 S. W. 717, 25 Ky. Law Rep. 1269; Fuller v. Fuller, 83 Ky. 345. ** Johnson v. Johnson, 187 111. 86, 58 N. B. 237. See, also. In re Klinzner's Will, 71 Misc. Rep. 620, 130 N. Y. Supp. 1059. 45 Johnson v. Johnson, 187 111. 86, 58 N. E. 237; Patten v. Tallman, 27 Me. 17 ; IN RE HOLT'S WILL, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434, Dunmore Cas. WUls, 124; Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dee. 481 ; Carlton v. Carlton, 40 N. H. 14; Morton v. Ingram, 33 N. O. 368; Taylor v. Taylor, 1 Rich. Law (S. O.) 531; Search's Appeal, 13 Pa. 108; Bruce v. Shuler, 108 Va. 670, 62 S. B. 973, 35 L. R. A. (N. S.) 686, 15 Ann. Cas. 887. 48 In re Delavergne's WUl, 259 111. 589, 102 N. E. 1081 ; Amory v. Fellowes, 5 Mass. 219, 229 ; Sears v. Dillingham, 12 Mass. 358 ; IN RE HOLT'S WILL, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434, Dunmore Cas. Wills, 124; Smith v. Jones, 68 Vt. 132, 34 Atl. 424 (by statute). 4 7 Warren t. Baxter, 48 Me. 193; Morton t. Ingram, 33 N. C. 368; 1 GreenL Evid. § 69. 48 Bigelow, C. J., in SPARHAWK v. SPARHAWK, 10 Allen (Mass.) 155, Dunmore Cas. Wills, 120. 202 EXECUTION OF WILLS (Ch. 8 Lunatics, Idiots, Women, and Infants as Witnesses IvCgislation amendatory of the common law of evidence respect- ing witnesses has not attempted to remove natural disqualifications. Accordingly, one under the disability of lunacy or idiocy is incom- petent as a witness to a will, where his derangement is such as sub- '. stantially to negative trustworthiness upon the subject of his tes- timony.*" I At common law, there was no testimonial disability based mere- ly on sex.^" A woman is therefore a competent witness to a will of another than her husband, unless disabled by statute."^ An infant above the age of fourteen is presumed Jto be compe- tent,"^ as one younger than this is presumed not to be,°* but both these presumptions may be rebutted."* Disqualification by Reason of Conviction for Infamous Crime The common-law disqualification from giving testimony by rea- son of conviction of an infamous crime has been generally removed by statute,"^ but it still exists in Massachusetts in respect to the attestation of wills.'* Disqualification by Reason of Interest A person beneficially interested under a will is disqualified from acting as a witness thereto,"' and, in the absence of some provision therefor by statute, a will, thus attested, is void."* But the ques- tion of the witness's interest is not determined by the terms of the will alone, but with reference to his status had there been no will. If, as heir, he would have taken as much as, or more than, he takes as beneficiary, he is not interested in sustaining the will, and he is then a competent witness."^ *« Wigmore on Evidence, § 492. eo Id. § 517. 01 Women were formerly thus disabled In Louisiana. Roth's Succession, 31 La. Ann. 315. But. under Act No. 30 of 1908 women are now incapable of being witnesses only to wills of their husbanas. 02 Jones V. Tebbetts, 57 Me. 57i:. OS Carlton v. Oarlton, 40 IN. H. 14. 04 Id. 00 Eoblnson v. Savage, 124 111. 266, 15 N. E. 850. oe O'Oonnell v. Dow, 182 Mass. 541, 66 N. E. 788. 57 SPAEHAWK V. SPARHAWK, 10 Allen (Mass.) 155, Dunmore Cas. Wills, 120; Haven v. Hilliard, 23 Pick. (Mass.) 10; Lord v Lord, 58 N. H. 7, 42 Am. Rep. 565; Frink v. Pond, 46 N. H. 125; Huidson v. Kersey, 1 Burr. 97; Wiley V. Gordan, 181 Ind. 252, 104 N. E. 500 ; Bruce v. Shuler, 108 Va. 670, 62 R. E. 973, 35 L. R. A. (N. S.) 686, 15 Ann. Cas. 887. 08 Holdfast V. Dowsing, 2 Str. 1253. 6J Smalley v. Smalley, 70 Me. 545, 35 Am. Rep. 353 (where a son who was a witness was given one dollar, when, as heir, he would have tkken a larger amount); SPARHAWK v. SPARHAWK, 10 AUen (Mass.) 155, Dunmore Cas. § 72) WHAT CONSTITUTES A COMPETENT WITNESS 203 The interest, to disqualify, must be immediate and direct, coming to the witness from the will itself, and not, the marriage relation aside, from relationship to a beneficiary. Thus the heir of a devisee is a competent witness.^ as is also a property owner in a town which takes as beneficiary under the will," a pewholder in a church,'^ the members of an incorporated charitable association,'^ and a stockholder in a hall association."^ And a provision in a will that one who signed as a witness should be employed by the execu- tor as his attorney would not disqualify such person as a witness.®,? While it is said that the interest which will disqualify a person from being a witness must be a present, certain, vested interest, and not uncertain and contingent," yet the fact that the benefi- ciary's interest may depend upon the happening of a contingency prior to the testator's death will not render him a competent wit- ness, even though t)ie contingency does not occur.®' One who is a direct beneficiary under a trust created by a will is disqualified as a witness by reason of his interest.®* There is strong authority for, the proposition that a release by a witness of his interest under the will will render him competent,®* and the general trend of the cases appears to favor this view.'® But there is some support for the contrary view,'^ which is_in accord with the rule that competency must exist at the time of attestation. Wills, 120 (where one of the witnesses, an heir, received nothing). See, also, Strawn y. Shank, 110 Pa. 259, 262, 20 Atl. 717; In re Hoppe's Will, 102 Wis. 54, 78 N. W. 183. 80 Maxwell t. Hill, 89 Tenn. 584, 15 S. W. 253. 81 Hitchcock V. Shaw, 160 Mass. 140, 35 N. E. 671 (where money was given for the maintenance of a public library) ; Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481 (where money was given for the establishment of a pub- lic school); In re Marston, 79 Me. 25, 8 Atl. 87 (a bequest to a town in trust for the worthy poor). 6_2 Warren v. Baxter, 48 Me. 193; Oonrades v. Heller, 119 Md. 448, 87 Atl. 28. 63 Wm V. Sisters of Order, etc., 67 Minn. 335, 69 N. W. 1090. 8^In re Marston, 79 Me. 25, 8 Atl. 87. 8/ In re Rehard's Estate, 163 Iowa, 310, 143 N. W. 1106; In re Pickett's Will, 49 Or. 127, 89 Pac. 377. 6 8 Warren v. Baxter, 48 Me. 193 ; Hawes v. Humphrey, 9 Pick. (Mass.) 361, 20 Am. Dec. 481 ; 1 Greenl. Bv. § 390. 8T In re Trinitarian Congregational Church, 91 Me. 416, 40 Atl. 325. 88 In re Fleetwood, L. R. 15 Ch. D. 594, 609. 8 8 Shaffer v. Corbett, 3 Har. & MpH. (Md.) 513; Lowe v. JolllfEe, 1 W. Bl. 305; Goodtitle v. Welford, Doug. 139; In re Berrien's WUl, 58 Hun, 610, 12 N. Y. Supp. 585 ; Dickson v. Bates, 2 Bay (S. C) 448. TO 1 Underbill, Wills, § 192, and cases cited. * Ti Smith V. Goodell, 258 111. 145, 101 N. E. 255; Fisher v. Spence, 150 111. 253, 37 N. E. 314, 41 Am. St Rep. 360; Allison v. Allison, 11 N. C. 141. 204 EXECUTION OF WILLS (Ch. 8 Statutes as Affecting the Question Modern legislation is in line with the view that a release of in- terest will remove the disqualification, it being generally provided by statute that all beneficial devises and legacies to attesting wit- nesses shall be void, and the witnesses shall thereby be rendered competent/^ Usually, if there are enough competent witnesses who are not beneficiaries, a bequest to a superfluous witness is ex- cepted from the operation of the statute/* Husband or Wife as Witnesses At common law, by virtue of their legal identity, a wife is not a competent witness to her husband's will,'* nor is a husband to his wife's will.'" For the same teason, coupled with a supposed com- munity of interest, at common law and under many modern stat- utes, neither husband nor wife is a competent witness to a will un- der which the other is a beneficiary.'" But where the general dis- qualification of husband and wife to testify by reason of interest has been removed by statute the tendency of the modern cases is to hold that each may be a competent witness to a will under which the other is a beneficiary," and this though the. husband be also appointed executor.'' And it has been held that a wife is not suffi- ciently interested in a will under which her husband was a legatee to disqualify her as a witness under a statute disqualifying an inter- e'sted witness." 72 This legislation largely follows 25 Geo. II, c. 6, and 1 Vict. c. 26; Harp V. Parr, 168 111. 459, 48 N. E. 113 ; Elliot v. Brent, 6 Mackey (D. G.) 98. It is sometimes proA'ided that such a witness shall be entitled to the same share as he would have inherited. See Grimm v. Tittman, 113 Mo. 5% 20 S. W. 664. 73 In re Owen (Sur.) 26 Misc. Rep. 179,-56 N. Y. Supp. 853 (where a will to which a legatee was a witness was afterwards republished by a codicil to which he was not a witness). And see Scattergood v. Kirk, 192 Pa. 263, 43 Atl. 1030. f < Pease v. Mils, 110 Mass. 157, 14 Am. Rep. 591. T5 Dickinson v. Dickinson, 61 Pa. 401. '8 Belledin v. Gooley, 157 Ind. 49, 60 N. E. 706; Hodgman v. Kittredge, 67 N. H. 254, 32 Atl. 158, 68 Am. St. Rep. 661; Sullivan v. Sullivan, 106 Mass. 474, 8 Am. Rep. 356; Winslow v. Kimball, 25 Ma 493; Rucker v. Lambdm, 20 Miss. (12 Smedes & M.) 230; Giddings v. Turgeon, 58 Vt. 106, 4 Atl. 711; Hatfield v. Thorp, 3 B. & Aid. 589 ; Aplin v. Stone [1904] 1 Ch. 543, 4 B. R. C. 704. " White V. Bower, 56 Colo. 575, 136 Pac. 1053; Bates v. Officer, 70 Iowa, :843, 30 N. W. 608; Lannlng v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407; IN RE HOLD'S WILL, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 4? Am. St. Rep. 434, Dunmore Cas. .Wills, 124 ; Llppincott v. WikofC, 54 N. J. Eq. 107, 33 ^tl. 305; Gamble v. Butchee, 87 Tex. 643, 30 S. W. 861. TO Idppincott V. Wikoff, 54 N. J. Eq. 107, 33 Atl. 305. i» Hawkins v. Hawkins, 54 Iowa, 443, 6 N. W. 699. See, also. Gamble v. § 72) WHAT CONSTITUTES A COMPETENT WITNESS 205 It has sometimes been held that a bequest to a husband or wife in a will to which the other was a witness may be avoided as within the purview of the statutes avoiding bequests to attesting witnesses for the purpose of rendering them competent" to testify, and that thus the will may be probated and operate as it would have oper- ated had the immediate beneficiary been a witness.'" But this view amounts to judicial legislation. It is based "rather upon a conjec- ture of the unexpressed intent of the Legislature, or upon a consid- eration of what they might wisely have enacted, than upon a sound judicial exposition of the statute by which their intent has been manifested." '^ The sounder view is that assuming the witness, un- der these circumstances, to have any interest at all, it cannot be renioVed by canceling the bequest to the immediate beneficiary.'^ Other Parties as Witnesses While there is some authority to the effect that an executor is sufficiently interested in a will by reason of the commissions to which he may be entitled for services rendered as such to disqualify him from acting as a witness,'^ yet this ground has generally been regarded as insufficient, and much the prevailing rule is that an executor is not disqualified from acting as a witness.'* The wife « Butehee, 87 Tex. 643, 30 S. W. 861; IN RE HOLT'S WILL, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434, Dunmore Cas. Wills, 124. The husband of a wholly disinherited heir is a competent witness. Sling- loff V. Bruner, 174 lU. 561, 51 N. E. 772. 80 Kaufman v. Murray (1914) 182 Ind. 372, 105 N. B. 466; Wlnslow v. Kimball, 25 Me. 493; Fortune v. Buck, 23 Oonn. 1; Jackson v. Durland, 2 Johns. Cas. (N. Y.) 314; Jackson v. Woods, 1 Johns. Cas. (N. Y.) 163. And see Key v. Weathersbee, 43 «. C. 414, 21 S. E. 324, 49 Am. St. Rep. 846 (under a statute in terms providing for this result). 81 Gray, J., in Sullivan v. Sullivan, 106 Mass. 475, 8 Am. Rep. 356. The statute sometimes expressly provides that a husband or wife of a bene- ficiary may be a competent witness, but that nothing shall pass under the will to the husband or wife of such witness, gee Rowlett v. Moore, 252 111. 436, 96 N. E. 835, Ann. Cas. 1912D, 346. 82 Sullivan v. Sullivan, 106 Mass. 475, 8 Am. Rep. 356; IN RE HOLT'S WILL, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434, Dun- more Cas. Wills, 124; Fisher v. Spence, 150 111. 253, 37 N. E. 314, 41 Am. St. Rep. 360. 83 Tucker v. Tucker, 27 N. C. 161 ; Allison's Ex'rs v. Allison, 11 N. C. 141 ; Taylor v. Taylor, 1 Rich. Law (S. C.) 531. This doctrine, however, was held to apply only to wills of personalty. It was admitted that an executor of a will disposing of realty only might be a witness thereof. See, also, Bettison v. Bromley, 12 East, 250. In Illinois, an executor, as to his competency, is placed in the same class with a devisee or legatee. Fearn v. Postlethwaite, 240 111. 626, 88 N. E. 1057; Jones v. Grieser, 238 111. 183, 87 N. E. 295, 15 Ann. Cas. 787. 8* Sears V. Dillingham, 12 Mass. 358; Richardson v. Richardson, 35 Vt. 238; OmdorfC v. Hummer, 12 B. Mon. (Ky.) 619; Rucker v. Lambdin, 12 Smedes & 206' EXECUTION OF WILLS , (Ch. 8 of an executor is a competent attesting witness.^" So a judge of probate or other judicial officer is a competent witness, particularly where the issue of probate may be tried before some one else.'* When land was not chargeable -yvith the debts of the owner, a creditor who was a witness to a will creating a charge upon the realty for the payment of a debt was disqualified to act as a witness. But modern statutes generally in terms prevent disqualification under such circumstances,'* and with the change in the law relating to the liability of real property for the payment of debts it is likely that the same result would follow, even in the absence of express legislation. A trustee is not beneficially interested under a will, so as to dis- qualify him from acting as a witness,'' and the fact that the attor- ney who drew the will is an attesting witness does not affect the validity of its execution.'* So a person who has signed the will for the testatrix may act as a witness."" And one need not be able to decipher all the words of a will to be a competent witness.'^ M. (Miss.) 230; Murphy v. Murphy, 24 Mo. 526; Comstock v. Ecclesiastical Soc, 8 Conn. 254, 20 Am. Dec. 100; Coalter's Ex'r v. Bryan, 1 Grat (Va.) 18; MUlay V. "WUey, 46 Me. 230 ; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441'; In re Gagan, 66 Hun, 632, 21 N. Y. Supp. 350; In re Eysaman's Will, 113 N. T. 62, 20 N. E. 613, 3 L. R. A. 599; Wyman v. Symmes, 10 Allen (Mass.) 153; Baker v. Bancroft, 79 Ga. 672, 5 S. E. 46; Children's Aid Soc. of City of New Tork V. Loveridge, 70 N. Y. 387 ; Geraghty v. KUroy, 103 Minn. 286, 114 N. W. 838. 85 Cochran v. Brown, 76 N. H. 9, 78 Atl. 1072; In re Lyon's Will, 96 Wis. 339, 71 N. W. 362, 65 Am. St E«p. 52. Contra: Hule v. McConnell, 47 N. 0. 455 ; Feam v. Postlethwaite, 240 111. 626, 88 N. E. 1057. 86 McLean v. Barnard, 1 Root (Conn.) 462; Patten v. Tallman, 27 Me. 17. 87 25 Geo. II, c. 6, i 2; 1 Vict. c. 26, § 16. This legislation has generally been followed in the United States. S8 Key V. Weathersbee, 43 S. C. 414, 21 S. E. 324, 49 Am. St Rep. 846. 89 SchiefCelin v. ScMeffelin, 127 Ala. 14, 28 South. 687. The fact that communications between attorney and client are ordinarily privileged does not prevent the attorney who attested from testifying 'concern- ing all pertinent facts. O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202. so Ex parte Leonard, 39 S. C. 518, 18 S. E. 216, 22 L. R. A. 302. »i Succession of Stewart, 51 La. Ann. 1553, 26 South. 460. §§ 73-74) SIGNING BY WITNESSES 207 SIGNING BY WITNESSES 73. Attestation is evidenced by the signatures of the witnesses. 74. Any completed mark or design made by the witness upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the maker in the capacity of an attesting witness, as the written name would do, is a sufficient signing. The required number of witnesses must subscribe the will. The requirements of the statute are not satisfied by one witness sub- scribing it and the others being present ; °^ and a person present at the execution, but not subscribing the will, is not a competent wit- ness to prove it." It must be manifest also that the signature was intended as that of a witness. Thus where a will was signed, "G. W., per H. M. Witness : T. M.," it was held that H. M. was but an amanuensis for the testator, and that there was but one witness to ^he will."* When the witness signs for himself, the same principles control regarding the character of his signature, as in the case of signature by the testator.*" A name, or a mark intended to represent the name, is enough." And a mistake in the name written about the mark does not invalidate the attestation."^ So a signature by ini- tials is sufficient,** or by an assumed name,*' though it has been held that where the witness inadvertently wrote the surname of the testator instead of his own there was not a sufficient attesta- »i!McCam v. RundaU, 111 Iowa, 406, 82 N. W. 924; Brengle v. Tucker, 114 Md. 597, 80 Atl. 224. »8 International Trust Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 L. R. A. (N. S.) 1002, 16 Ann. Gas. 1087; Sloan v. Sloan, 184 111. 579, 56 N. E. 952. «* Burton v. Brown (Miss.) 25 South. 61. »» See ante, p. 182. »e Hindmarsh v. Charlton, 8 H. L. O. 160; Pridgen v. Pridgen's Heirs, 35 N. C. 259; GilUs v. GUlis, 96 Ga. 1, 23 S. E. 107, 30 L. R. A. 143, 51 Am. St. Bep. 121 (under a statute providing for signing by mark — Civ. Code 6a. 1882, S 2415); Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 39 Am. St Rep. 89; Davis V. Semmes, 51 Ark. 48, 9'S. W. 434 (under a statute providing for sig- nature by mark) ; Appeal of Reaver, 96 Md. 735, 54 Atl. 875, '94 Am. St Rep. 610. »r Goods of Ashmore, 3 Curt 756. »8 Goods of Christian, 2 Robert. 110; Jackson v. Van Dusen, 5 Johns. (N. r.) 144, 4 Am. Dec. 330. 8 » In re OlUver, 2 Splnks, 57. 208 EXECUTION OF WILLS (Ch. 8 tion.^ The writing made must be intended by the witness to oper- ate as a completed signature; otherwise there is no attestation. Thus where a witness started to write his name, and after writing "Sam'l" desisted because, through weakness, he found that he could not complete his signature legibly, probate was refused because the witness did not put the word upon the paper with the intention at the time that it should be a perfect signature.* So where a witness, having signed his name under circumstances such as to render the signature- inoperative, afterwards completed an imperfect letter in the name, under circumstances which would have rendered the attestation valid had a signature then been made, the completion of the letter was held not to amount to a signature by reason of lack of intent that it should operate as such.* But where a witness in- tentionally signed himself, "Servant to Mr. Sperling," understand- ing from the solicitor that this was the required form, the attesta- tion was held sufficient.* While another may sign for the testator, in his presence and at his request, by virtue of the usual statutory provision, there is con- siderable authority for the view that one may not thus sign for an attesting witness under any circumstances," though Wt is a suffi- cient signing if the witness's hand is guided by another,* or if he 1 In re Walker's Estate, 110 Cal. 387, 42 Pac. 815, 30 li. R. A. 460, 52 Am. St. Rep. 104. Three judges dissented, in the California case, and tn a recent New York case, Jacobs' Will, 73 Misc. Rep. 162, 132 N. Y. Supp. 481, where witness in- advertently signed the name of testator, instead of his own, animo attestandi, the court admitted the will to probate. Under the statute of frauds, requiring an attestation and subscription by three or four witnesses, it is well settled that any writing animo attestandi is sufficient. Harrison v. Harrison, 8 Ves. 185. There seems to be no sufficient reason why the same construction should not be made in connection with modern will statutes. 2 Goods of Maddock, L. R. 3 P. & D. 169. There Was other evidence tend- ing to show that the word written was not regarded as a signature. Had the writer, finding that he could not well complete his name, concluded that the word, as written, should be his signature, the result might have been dif- ferent. 3 Hindmarsh v. Carlton, 8 H. L. C. 160. So it may be shown that a signature in the usual place for that of a wit- ness was not intended for attestation of the will, blit to attest the signature of another witness, who signed by mark. Boone v. Lewis, 103 N. C. 40, 9 S. E. 644, 14 Am. St. Rep. 783. * Ooods of Sperling, 3 Sw. & Tr. 272. 5 Goods of White, 2 Notes of Cas. 461; 1 Wms. Ex'rs, *127; Riley v. Riley, 36 Ala. 496; Horton v. Johnson, 18 Ga. 396; McFarland v. Bush, 94 Tenn. 538, 29 S. W. 899, 27 L. R. A. 662, 45 Am. St. Rep. 760. 6 Harrison v. Elvin, 3 Q. B. 117; Goods of Frith, 1 Sw. & Tr. 153; Lewis V. Lewis, 2 Sw. & Tr. 153; Campbell v. Logan, 2 Brad. Sur. (N. Y.) 90. Contra: Dawkins v. Dawkins, 179 Ala. 666, 60 South. 289 (where one of the witnesses also signed for testatrix). §§ 73-74) SIGNING BT WITNESSES 20& merely holds the top of the pen while another writes his name for him.' But while a signature thus made may well require explana- tion and careful scrutiny, yet on principle and by weight of Ameri- can authority, a signature made in behalf of a witness, at his re- quest, and in the presence both of the witness and the testator, is sufficient,* even though it be made by another witness.® Place of Signature In the absence of a statute to the contrary, the attestation need not be in any particular place, provided that there is evidence that the witnesses, in signing their names, had the intention of attest- ing.^" Thus where the signatures of the attesting witnesses ap- peared in the margin of the will, opposite certain alterations and in- terlineations only, and it was in evidence that when the witnesses thus wrote their names they intended to attest the testator's signa- ture, the attestation was sufficient.^^ So, also, an attestation of a codicil upon the back of the will to which the paper containing the codicil was attached, is valid. ^^ A signing by the witnesses in the attestation clause,** or above it, is sufficient; ** but the position of 7 Montgomery v. Perkins, 59 Ky. (2 Mete.) 448, 74 Am. Dec. 419; Lewis v. Lewis, 2 Sw. & Tr. 153, 7 Jur. (N. S.) 688 ; POPE'S WILL, 139 N. C. 484, 52 S. E. 235, 7 L. R. A. (N. S.) 1193, 111 Am. St Rep. 813, 4 Ann. Cas. 635, Dun- more Cas. Wills, 126 (even though witness was able at the time to write her own name). 8 Schnee v. Schnee, 61 Kan. 643, 60 Pae. 738 ; In re Crawford's Will, 46 S. C. 299, 24 S. E. 69, 32 L. R. A. 77, 57 Am. St. Rep. 701; Upchurch v. Up- church, 16 B. Mon. (Ky.) 102; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Mock V. Garson, 84 App. Div. 65, 82 N. Y. Supp. 310; In re Strong's Will (Sur.) 16 N. Y. Supp. 104; Jesse v. Parker, 47 Va. (6 Grat.) 57, 52 Am. Dec. 102. » In re Strong (Sur.) 16 N. Y. Supp. 104 (the New York cases are convicting on this point). Seie In re Losee's Will, 13 Misc. Rep. 298, 34 N. Y. Supp. 1120; Lord V. Lord, 58 N. H. 7, 42 Am. Rep. 565 ; Jesse v. Parker, 47 Va. (6 Grat) 57, 52 Am. Dec. 102 (in this case the will was sustained, although the body of the will, the signatures of the testator and of the three subscribing wit- nesses were all written by one person). Contra: Riley v. Riley, 36 Ala. 496. 10 Goods of Braddock, 1 P. D. 433; Kolowski v. Fausz, 103 111. App. 528. Although the statute of frauds required that the testator "sign" and that the witnesses "subscribe," the English courts held a signature by the witness anywhere upon the instrument to be a sufficient subscription under that stat- ute. Roberts v. Phillips, 4 El. & Bl. 450, 82 E. C. L. 450, 1 Jur. (N. S.) 444. A similar construction has usually been made of the word "subscribe" in modern will statutes. But in Kentucky the word "subscribe" has been con- strued as requiring a signing by witnesses at the foot or end of the will. Soward v. Soward, 1 Duv. (Ky.) 126. 11 Goods of Streatiey (1891) Prob. 172. 12 Goods of Braddock, 1 P. D. 433. 18 Franks v. Chapman, 64 Tex. 159. 1* Moale V. Cutting, 59 Md. 510. Gabd.Wills (2d Ed.) — 14 210 EXECUTION OF WILLS (Ch. 8 the signatures is always significant as bearing upon the question whether attestation of the will as such was intended. In any event, the subscription by the witnesses must be on the same sheet as that of the testator, or on something physically con- nected with that sheet,^" though the method of attachment is ap- parently immaterial.^' Accordingly, there was no sufficient attes- tation, when a will was drawn in duplicate and inadvertently testa- tor signed one copy and witnesses the other.^' Where, however, the will is written upon several sheets, the parts may be fastened after attestation, without affecting the validity of the will.^' By statute, the signatures of the witnesses are sometimes re- quired to be at the end of the will. Here, as in all cases, the signa- tures should follow the dispositive portions of the will, or the at- testation clause, if one is used, as it always should be. Signatures preceding a clause appointing an executor are not at the end of the will, as required by statute,^' as are not signatures at the foot of the first page of a two-sheet printed form, where there is matter on a subsequent page, referred to by the words, "Continued on next page," and followed by the testator's signature."" The intervention of a blank between the end of the will and the 'signatures of the witnesses is not apparently material, even though it consist of two pages of a printed blank," ^ though signatures upon the envelope containing the will cannot be regarded as at the end thereof."" The signatures are at the end when the attestation clause follows the testator's signature, and is written entirely across the page, separat- ing his signature from those of the witnesses."' 16 In re Baldwin's WUl (1907) 146 N. C. 25, 59 S. B. 163, 125 Am. St. Rep. 460. See, however, Bolton v. Bolton (1914) 107 Miss. 84, 64 Soutli. 967, where a mere folding of sheet signed by witness with that signed by testator was held suflScient i« Goods of Horsford, L. R. 3 P. & D. 211 (attestation on a paper fastened to wUl by a string); Goods of Braddock, L. R. 1 P. D. i483 (where witness- es, in attesting a codicil, signed their names on a will to which codicil was attached by a pin). 17 Goods of Hatton, L. R. 6 P. D. 204. 18 Jones V. Habersham, 63 Ga. 146. And see Ward v. Board, 12 01^1. 267, 70 Pac. 378. 19 In re Blair's Will, 84 Hun, 581, 32 N. T. Supp. 845. 20 In re Albert's Will, 38 Misc. Rep. 61, 76 N. Y. Supp. 965. 21 In re Singer, 19 Misc. Rep. 679, 44 N. T. Supp. 606. 22 Vogel V. Lehritter, 139 N. Y. 223, 34 N. E. 914. These signatures, how- ever, were clearly upon a paper which was no part of the wilL 28 In re Beck's Will, 6 App. Div. 211, 39 N. Y. Supp. 810. §§ 73-74) SIGNING BY WITNESSES 211 ( Mutual Presence of Witnesses and Testator Unless there is an express statutory requirement to that effect, the witnesses need not sign in one another's presence. A testator may sign in the presence of one witness, and acknowledge his signa- ture to another, or he may acknowledge the signature to each sepa- rately.^* Construing the Wills Act, I.Vict, c. 26, § 9, the English courts have held that the witnesses must both be present when the testator signs, and that a signature in the presence of one, followed by an acknowledgment to another, is insufficient.'" Under a statute requiring that the witnesses sign in' the presence of each other, it is not essential that the witnesses actually see each other sign.'' When Witnesses must Sign The rule, supported by principle and the weight of authority, is that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the at- testing witnesses, and that if the signatures of the latter precede the signing by the testator there is no proper attestation, and the will is void ; " for, until the testator has signed, there is no will and nothing to attest. There is, however, very respectable au- thority for the view that where the witnesses and the testator all sign in the presence of one another it is not essential that the tes- tator sign first, if the signature and attestation be parts of the same transaction.'* Courts taking the latter view regard the affix- 2* Hoffman v. Hoffman, 26 Ala. 536 ; Appeal of Lane, 57 Conn. 182, 17 Atl. 926, 4 L. R. A. 45, 14 Am. St Sep. 94; Fllnn v. Owen, 58 111. Ill; In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Appeal of Deake, 80 Me. 50, 12 Atl. 790; Hogan V. Grosvenor, 10 Mete. (Mass.) 54, 43 Am. Dec. 414; In re Clark's Will (N. J. Prerog.) 52 Atl. 222; Willis v. Mott, 36 N. Y. 486 ; Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62. 25 Moore v. King, 3 Curt. 243. 20 Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62; IN RE OLAFLIN'S WILL, 73 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. 693, Dunmore Cas. Wills, 115. 27 Lane v. Lane, 125 Ga. 386, 54 S. B. 90, 114 Am. St. Rep. 207, 5 Ann. Cas. 462; Brooks v. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160; Reed v. Watson, 27 Ind. 443; Marshall v. Mason, 176 Mass. 216, 57 N. E. 340, 79 Am. St Rep. 305; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Lacey V. Dobbs, 63 N. J. Eq. 325, 50 Atl. 497, 55 L. R. A. 580, 92 Am. St Rep. 667, reversing Id., 61 N. J. Bq. 575, 47 Atl. 481; In re Purdy's Will, 25 Misc. Rep. 458, 55 N. Y. Supp. 644; In re McMulkin, 6 Dem. Sur. (N. Y.) 347; Sisters of Charity of St Vincent de Paul v. Kelly, 67 N. Y. 409; Goods of Olding, 2 Curt 865 ; In re Irvine's Estate, 206 Pa. 1, 55 Atl. 795 ; Simmons v. Leonard, 91 Tenn. 192, 18 S. W. 280, 30 Am. St. Rep. 865. 28 In re Silva's Estate (1915) 169 Cal. 116, 145 Pae. 1015; In re Shafter's Es- tate, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St Rep. 216; O'Brieii v. Galagher, 25 Conn. 229 ; Gibson v. Nelson, 181 111. 122, 54 N. E. 901, 72 Am. St Rep. 254 ; Swift v. Wiley, 1 B. Mon. (Ky.) 114; Horn v. Bartow (1910) 212 EXECUTION OF WILLS (Ch. 8 ing of signatures as constituting part of a single transaction and therefore say that there is no substantial priority.^' In the absence of proof to the contrary, it will be presumed that the testator signed first."* ATTESTATION IN THE PRESENCE OF THE TESTATOR 75. It is generally required, by statute, that the witnesses shall at- test the will in the presence of the testator. This require- ment is met when the witnesses sign in such a location that the testator, assuming him to be conscious and aware of the fact that attestation is going on, could, without materially changing the general situation of his body, see the act of attestation, or, in case there is any obstacle in- tervening, could, of himself, remove such obstacle. The purpose of this requirement is to guard against fraud being practiced upon the testator by the substitution of another document for that really containing his will, and to make the testator an ac- tive instrumentality to this end. Hence the testator must be con- scious, i. e., there must be a mental as well as physical presence on his part;*^ and, for the same reason, though conscious, he must actually know what is going on.*" Where the will is attested in a secret and clandestine manner, the attestation is invalid, though the testator be present in the same room.** But if, when able to do so, the testator fails to exercise his privilege of actually seeing 161 Mich. 20, 125 N. W. 696, 26 L. R. A. (N. S.) 1126, 20 Ann. Cas. 1364; Cut- ler V. Cutler, 130 N. C. 1, 40 S. E. 689, 57 L. R. A. 209, 89 Am. St. Rep. 854; Kaufman v. Caughman, 49 S. C. 159, 27 S. E. 16, 61 Am. St. Rep. 808. 29 "In acts substantiallj' contemporaneous, It cannot be said that there is any substantial priority." Jones, J., in Kaufman v. Caughman, 49 S. C. 159, 166, 27 S. E. 16, 61 Am. St. Rep. 808. 3 Flood V. Kerwin, 113 Wis. 673, 89 N. W. 845; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21 ; • Goods of Peverett (1902) Prob. 205. So the testimony of the scrivener and one of the witnesses of a will drawn in due form, though contradicted by the other witness, is sufficient to prove that the testator signed first. In re Menge's Will, 13 Misc. Rep. 553, 35 N. T. Supp. 493. 31 Right V. Price, 1 Doug. 241; Hill v. Barge, 12 Ala. 687; Etchison v. Etchison, 53 Md. 348. In re Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591. "All the witnesses knew at the time of the attestation that the testator was insensible. He was a log, and totally absent, to all mental purposes. • * • Here the trunk remained, but the man was gone." Right v. Price, supra. 32 Jenner v. Finch, 49 L. J. P. 25, 5 P. D. 106. 88 Longford v. Eyre, 1 P. Wms. 740; WAITB v. FRISBIE, 45 Minn. 361, 47 N. W. 1069, Dnnmore Cas. Wills, 100. § 75) ATTESTATION IN THE PRESENCE OF THE TESTATOB 213 the signing, this does not affect the validity of the execution.** For the requirement is made primarily for the benefit of the testa- tor, and, although he cannot waive attestation in his presence, he may, if he chooses, refuse or neglect to look when the act is actual- ly done in his presence. A signature by a witness after the death of the testator is inef- fectual, though made at the request of the latter, who died before it could be complied with.*' Acknowledgment InsuMcient The signatures of the witnesses must be actually made in the presence of the_ testator. If not thus made, their subsequent ac- knowledgment ** or retracing '^ is wholly ineffectual. To allow them to acknowledge in his presence would open a door to fraud and mistake. But statutes are sometimes so construed as to make such an acknowledgment valid.** Physical Presence of Testator Provided that the witnesses are so situated that the testator can see them when they sign,*° it is immaterial where the witnesses are. They may be in the same room or an adjoining room, or in a room connected with the room where the testator is ; the only dif- ference being that, when attestation takes place in the same room, there is a presumption that the testator saw or might have seen the act,*" while there is no such presumption in the other case.*^ It is not necessary that the testator and witnesses be even in the 3 4Drury v. Connell, 177 111. 43, 52 N. E. 368; Allen's Will, 25 Minn. 39; Tod V. Winchelsea, 2 Carr. & P. 488; Walker v. Walker, 67 Miss. 529, 7 South. 491; Aikin v. Weckerly, 19 Mich. 482; Cherry's Will, 164 N. 0. 363, 79 S. E. 288; SHIRES v. GLASCOCK, 2 Salk. 688, Dunmore Cas. Wills, 135. 35 In re Ksh's Will, 88 Hun, 56, 34 N. Y. Supp. 536. See, also, In re Nie- man (Tex. Sup.) 14 S. W. 25. 3 6 Calkins v. Calkins, 216 111. 458, 75 N. E. 182, 1 L. R. A. (N. S.) 393, 108 Am. St Rep. 233 ; Mendell v. Dunbar, 169 Mass. 74, 47 N. E. 402, 61 Am, St Rep. 277; Town of Pawtucket v. Ballou, 15 R. I. 58, 28 Atl. 43, 2 Am. St. Rep., 868 ; Moore v. King, 3 Curt. 243 ; Chase v. Kittredge, 11 Allen, 49, 87 Am. Dec. 687; In re Downie's Will, 42 Wis. 66. 3 7 Goods of Haddock, L. R. 3 P. & D. 169; Home v. Featherstone, 73 Law T. 32. ^ In re Karrer's Will, 63 Misc. Rep. 174, 118 N. Y. Supp. 427 (decided under New York statute which does not require a signing in the presence of testa- tor); In re Phillips' Will (Sur.) 34 Misc. Rep. 442, 69 N. Y. Supp. 1011; Her- rick V. Snyder (Sup.) 27 Misc. Rep. 462, 59 N. Y. Supp. 229. And see Parra- more v. Taylor, 11 Grat. (Va.) 220. 39 SHIRES V. GLASCOCK, 2 Salk. 688, Dunmore Cas. Wills, 135. *o Stewart v. Stewart, 56 N. J. Eq. 761, 40 Atl. 438; Ayres v. Ayres, 43 N. J. Eq. 565, 12 Atl. 621. *i Lamb V. Girtman, 26 Ga. 625; Watson t. Pipes, 32 Miss. 451. 214 EXECUTION OF WILLS (Ch. 8 same house at the time of attestation. Thus, where the testatrix signed her will while sitting in her carriage, outside her attorney's office, and the witnesses signed it inside the office, but within range of the testatrix's vision from where she sat, the attestation was treated as sufficient.*^ And where there was a broken window in the room to which the witnesses had retired, through which the testator might have seen the attestation, it was held sufficient.*' While there is much apparent and some actual conflict as to what constitutes the physical presence of the testator for purposes of at- testation, yet there is no question but that there is sufficient pres- ence if the rule as stated in the black-letter text is complied with; and it is believed that, by weight of authority, the test therein stated must be met, to render the attestation valid.** Thus, where the curtains were drawn at the foot of the bed to screen the testator from the fire, and one of the witnesses signed the will on a table standing between the bed and the fire, the attestation was held valid.* ° But where, after the testator had signed the will, the wit- nesses retired to an adjoining room, where they subscribed upon a table so situated that the testator could not have seen them, there was no attestation in his presence.*" But where, by sitting up in *2 Casson v. Dade, 1 Bro. C. O. 99. • *8 SHIKBS V. GLASCOCK, 2 Salk. 688, Dunmore Cas. Wills, 135. ** Many decisions on this point are collected in note to MandevlUe v. Park- er published in 31 N. J. Eq. 242, and in note to Healey v. Bartlett, 73 N. H. 110, 59 AtL 617, published in 6 Ann. Cas. 413. *5 NEWTON V. CLARKE, 2 Curt. 320. Here the testator could have re- moved the obstacle. So where a will was signed by a witness in a room joining that where the testatrix was lying in bed, but at a table directly in front of the door, so that the testatrix might have seen the witness sign, had she looked, the at- testation was in the presence of the testatrix. HOPKINS v. WHEELER, 21 R. I. 533, 45 Atl. 551, 79 Am. St. Rep. 819, Dunmore Gas. Wills, 70. See, also, Campbell v. McGuiggan (N. J. Prerog.) 34 Atl. 383 (where the ta- ble was about four feet from the bed on which the. testatrix lay); Wallcer v. Walker, 67 Miss. 529, 7 South. 491 (where the testator, by turning his head, could have seen the act of attestation). 4 8 Goods of Colman, 3 Curt 118. Accord: Carter v. Seaton, 85 Law T. 76. So, also, where the testator lay in bed, with his back to the witnesses, un- able to see them sign or to turn himself over, the attestation was invalid. Nell V. Neil, 1 Leigh (Va.) 6. The same case holds that it would not have been enough, could he have been moved by others, had he so desired. Contra, in this respect, OrndorfC v. Hummer, 12 B. Hon. (Ky.) 619. Accord: Tribe V. Tribe, 1 Robert. 775. See, also, Mendell v. Dunbar, 169 Mass. 74, 47 N. E. 402, 61 Am. St. Rep. 277 (where no part of the room to which the witnesses withdrew was visible from the room where the testator was) ; Witt v. Gard- iner, J58 111. 176, 41 N. E. 781, 49 Am. St. Rep. 150 (Where the testatrix could not, without danger to her life, have changed her position so as to see the at- § 75) ATTESTATION IN THE PEESENCB Off THE TESTATOB 215 bed, as he was able to do, the testator might have seen the attes- tation, it was valid.*^ Where a testator drew a will in his private office, and it was at- tested in an adjoining room at a desk which was not in the line of vision of the table at which the testator sat during the attestation, the latter was invalid, though the testator knew that the act was going on, and the connecting door was open all the while.** Contrary Rule But while the last case and others cited represent the prevailing rule, there are certain Americari cases which go to the length of holding that it is immaterial whether the testator could actually have seen the attestation, in the place where he was, or not, pro- vided that he was able to move to a place where he might have seen, and he afterwards examined the signatures of the witnesses and expressed himself as satisfied.*' And it has been held that an attes- tation signed by witnesses within four feet of a testator obliged, by reason of an accident to lie upon his back, and unable to turn his head so that he might see the witnesses sign, was sufficient, where the instrument was handed to the testator immediately after the attestation, and he read the names as signed,"" and a will has been held to have been properly executed under similar circumstances even when attested in another room across the hall from where tes- tator lay.°^ testation) ; Goods of Ellis, 2 Curt. 395; Doe dem. Wright v. Manifold, 1 M. & S. 294; Jones v. Tuck, 48 N. C. 202; Schofleld v. Thomas, 236 111. 417, 86 N. E. 122. " Goods of Trimmell, 11 Jur. (N. S.) 248. Accord: Raymond v. Wagner, 178 Mass. 315, 59 N. E. 811. *8 Norton v. Bazett, Deane, 259. 4 9 Cunningham v. Cunningham, 80 Minn. 180, 83 N. W. 58, 51 L. R. A. 642, 81 Am. St. Rep. 256. This case is squarely in conflict with Norton v. Bazett, Deane, 259. In principle, it seems sound, however. If the failure of a testa- tor, sick in bed, to turn his head and see the attestation, does not affect the validity of a will, the failure of an able-bodied testator to take the few steps necessary to bring him in sight of the witnesses ought not to have this effect. He is constructively in the presence of the witnesses in both cases. See, also. Smith V. Holden, 58 Kan. 535, 50 Pac. 447. RIGG» V. BIGGS, 135 Mass. 238, 46 Am. Rep. 464, Dunmore Cas. Wills, 136; Cook v. Winchester, 81 Mich. .581, 46 N. W. 106, 8 L. R. A. 822 ; Sturdi- vant V. Birchett, 10 Grat. (Va.) 67. These cases are, in principle, sound, though they are against the current of authority as to what constitutes presence of the testator. The cases are likened to those involving the wiUs of blind testators, and the analogy is cer- tainly complete. "Healey v. Bartlett, 73 N. H. 110, 59 Atl. 617, 6 Ann. Cas. 413 (where testator unable to change bis position because of a broken leg). 216 ) EXECUTION OF WILLS (Ch. 8 Ability to See What The requirement that witnesses subscribe in the presence^ of tes- tator has been construed as meaning that the witnesses must sign where the testator can see the document to enable him to see, if he chooses, that the paper signed by them is identical with that signed by him, and a signing where testator was able to see only the backs of the witnesses has, therefore, been held insufficient."^" However, when a testator, conscious that witnesses are subscribing their names, is in the room where his will is attested and is physically able to move, it is difficult to see why attestation is not in his pres- ence merely because he cannot see the document at the time it is- being subscribed."' Blind Testators There is considerable authority for the view that the same rules regarding attestation in the presence of testators apply to blind testators as to others ; "* i. e., the attestation must be such as would ' have been valid if the testator could have seen. It is said, however, by way of dicta, that, if the subscription be made where a blind testator may take cognizance of the act by his other senses, that is enough."" It is evident, however, that he hcfs no means of taking, cognizance of the iact of attestation, for the purpose for which cog- nizance is required ; and the serious argument of the cases "" to- show that a man may be in the presence of a blind man is hardly in point. Viewed in the light of why presence is required, it is clear that witnesses cannot be in the presence of a blind man for purposes of attesting a will. Yet, it being settled that a blind testator may make a will, there seems no intrinsic reason why, in regard to- attestation, he should be put upon a better footing than other testa- tors. 62 In re Snow's Will, 128 N. C. 100, 38 S. E. 295; Burney v. Allen, 125 N. C. 314, 34 S. E. 500, 74 Am. St. Rep. 637; Graham v. Graham, 32 N. C. 219. He need not, however, be able to see the letters as they are formed. Ayres- V. Ayres, 43 N. J. Eq. 565, 12 Atl. 621. '3 It is submitted that the decision in Bynum v. Bynum, 33 N. C. 632, hold* ing a will sufficient when attested under the circumstances suggested, is pref- erable to that of other decisions from that jurisdiction cited in preceding note. See, also, In re Tobin, 196 111. 484, 63 N. E. 1021; Nock v. Nock, 10 Grat. (Va.) 106. 5* Goods of Piercy, 1 Robert. 278; In re Arneson's Will, 128 Wis. 112,. 107 N. W. 21. 05 Ray V. Hill, 3 Strob. (S. C.) 297, 49 Am. Dec. 647; RIGGS v. RIGGS, 135 Mass. 238, 46 Am. Rep. 464, Dunmore Gas. Wills, 136; Schoul. Wills, § 343.. 66 See RIGGS v. RIGGS, 135 Mass. 238, 46 Am. Rep. 464, Dunmore Cas. Wills, 136. g 76) EVIDENCE OF EXECUTION 217 Attestation Clause The validity of a will is not affected by the fact that the attesta- tion clause does not state the facts necessary to a proper execution of the will,''^ or by the entire absence of an attestation clause."' Residence of Witnesses Although generally there is no requirement that a witness append to his signature a statement as to his residence/* in several jurisdic- tions the witnesses are required by statute to write their addresses opposite their signatures. It is usually provided that a failure to write address shall not invalidate will, but shall subject witness to the payment of a penalty.'" EVIDENCE OF EXECUTION 76. The burden of proving the due execution of a will is upon the proponent. This proof is effected, if possible, through the attesting witnesses, whose attestation is largely for this purpose. Due execution is required by statute. The proponent must prove that all statutory requirements are met. Hence the unquestioned rule of the black-letter text.*^ The question as to what formalities B7 Schofield V. Thomas, 236 lU. 417, 86 N. B. 122; Barrlcklow v. Stewart, 163 Ind. 438, 72 N. E. 128; In re Cornell's Will, 89 App. Div. 412, 85 N. T. Supp. .920. 6 8 Williams v. Miles (1903) 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, 62 U R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306; In re Akers" Will (1903) 173 N. Y. 620, 66 N. E. 1103 ; Robinson v. Brewster, 140 111. 649, 30 N. E. 683, 33 Am. St. Rep. 265; Olerick v. Ross, 146 Ind. 282, 45 N. E. 192; In re Hull's WUl, 117 Iowa, 738, 89 N. W. 979; Berberet v. Berberet, 131 Mo. 399, 33 S. W. ■61, 52 Am. St. Rep. 634 ; Allaire v. Allaire, 37 N. J. Law, 312 ; In re Crane's Wm, 68 App. Div. 355, 74 N. Y. Supp. 88; Ward v. Board 12 Okl. 267, 70 Pac. -378. For significance of attestation clause, see post, p. 220., 6 » In re Sandmann's Will (N. J. Prerog. 1908) 68 Atl. 754. 6 See Dodge v. Findlay, 40 App. Div. 18, 57 N. Y. Supp. 791, quoting New York statute. «i Bamewall v. MurreU, 108 Ala. 366, 18 South. 831; Craig v. Southard, 162 111. 209, 44 N. B. 393 ; Egbers v. Egbers, 177 111. 82, 52 N. E. 285 ; Morell v. TMorell, 157 Ind. 179, 60 N. E. 1092; In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Goldthorp v. Goldthorp, 115 Iowa, 430, 88 N. W. 944; Barlow v. Waters (Ky.) 28 S. W. 785; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506; ^Gordon v. Burris, 141 Mo. 602, 43 S. W. 642; Murry v. Hennessey, 48 Neb. ^08, 67 N. W. 470; Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650; In re Hitchler's Will, 25 Misc. Rep. 365, 55 N. Y. Supp. 642; Luper v. Werts, 19 Or. 122, 23 Pac. 850 ; In re Simcox's Estate, 11 Pa. Co. Ct. R. 545; Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308. Contra: In re Latour, 140 Cal. 414, 73 Pac. 1070, 74 Pac. 441 (because California Code places burden on contestant on all 'the issues). 218 EXECUTION OF WILLS (Ch. 8 are essential to the execution of the will is one of law."'' The ques- tion whether these formalities have been actually complied with is one of fact."^ The amount of proof of proper execution in con- formity to the particulars required by statute need only be such as is reasonably sufficient to satisfy the jury,"* and an instruction that if there is a doubt left in the minds of the jurors as to any one or all of these particulars they must find against the will, is wrong, as requiring too high a degree of proof.*^ The burden of proof as to due execution does not shift to con- testant merely because proponent has introduced evidence sufficient to make out a prima facie case.°° It is sometimes said that the burden of proof may be increased by circumstances, as where the will of a testator who could write was signed by a mark, and was witnessed by relatives of a beneficiary, who induced the testator to make the will ; *^ but probably this is to be understood as meaning that the amount of evidence required to be produced by the proponents under such circumstances is greater than would be required under others. While the general rule is that the proponent of a will must ex- amine the attesting witnesses, who are placed about the testator to ascertain and judge of his capacity, and to see that no fraud is practiced upon him in its execution, °' yet he is not confined to, nor bound by, evidence from this source,"* but the will is entitled to «2 Harp V. Parr, 168 111. 459, 48 N. E. 113; In re Grossman's Estate, 75 111. App. 224. 6 3 In re Laudy's Will, 161 N. X. 429, 55 N. E. 914; In re HuU's Will, 117 Iowa, 738, 89 N. W. 979. 64 Snider v. Burks, 84 Ala. 53, '4 South. 225. .60 Brown v. Walker (Miss.) 11 South. 724. 66 Goodfellow V. Shannon, 197 Mo. 271, 94 S. W. 979. 6T Donnelly v. Broughton (1891) App. Cas. 435. '6 8Apperson v. Oottrell, 3- Port, (Ala.) 51, 29 Am. Dec. 239; Field's Appeal, 36 Conn. 278; Rash v. Purnel, 2 Har. (Del.) 448; McKeen v. Frost, 46 Me. 239; Brown v. Wood, 17 Mass. 72; Brock v. Luckett's Bx'rs, 4 How. (Miss.) 482; Bailey v. Stiles, 2 N. J. Eq. 231; Fetherly v. Waggoner, 11 Wend. (N. Y.) 599; Jones v. Arterburn, 11 Humph. (Tenn.) 97; Nalle's Representatives V. Fenwick, 4 Band. (Va.) 585; Lord Carrington v. Payne, 5 Ves. 404 (Per- kins' Ed.) and cases in note A. Secondary evidence with regard to execution of the will by the testator cannot be received when the memory of two of the witnesses to the will has wholly failed as to the facts attending the execution, and the nonproduction of the third witness is not accounted for. Elwell v. Convention, 76 Tex. 514, 13 S. W. 552. 6 9 In re Buckley's Will (Sur.) 2 N. T. Supp. 24; Hobart v. Hobart, 154 111. 610, 39 N. E. 581, 45 Am. St. Rep. 151; Webster v. Xorty, 194 111. 408, 62 N. E. 907; Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107, 30 L. R. A. 143, 51 Am. St. Rep. 121; Hopf V. State, 72 Tex. 281, 10 S. W. 589; Stephenson v. Stephenson, 6 § 76) EVIDENCE OF EXECUTION 219 probate where the attestation clause and all the surrounding cir- cumstances show due execution, though in direct opposition to the testimony of both subscribing witnesses.^" And it is not necessary that each witness should be able to testify that all the formalities required for the attestation of the will were complied with.'^ It is frequently provided by statute, and is sometimes established by usage, that the execution of the will may be proved by calling one only of the attesting witnesses, particularly when there is no contest over the probate.'''' And the positive testimony of one wit- ness as to the facts of the execution is ordinarily sufHcient to make out a prima facie case for the proponent, though the menfory of the other witnesses has entirely failed/* It is sometimes required by statute, however, that, on the appli- cation for probate, two, at least, of the subscribing witnesses shall be produced, if they are accessible/* This requirement is regarded as met if the witnesses are present and examined when the will is propounded, though the proponent himself may not have called them both as witnesses.' ° Neither does such a statute reqtiire that each or any of the witnesses to the will must testify that the re- quirements of the statute respecting execution have been complied with.'« Where no witnesses are required to a will, it is sufficiently proved by the testimony of two witnesses that the entire paper is in the handwriting of the testator.'" Tex. Civ. App. 529, 25 S. W. 649, distinguishing Elwell v. Convention, 76 Tex. 521, 13 S. W. 552. Proponent may Introduce evidence of previous statements, made by attest- ing witness out of court, which are at variance with his testimony when will is offered for probate, Thompson v. Owen,' 174 111. 229, 51 N. E. 1046, 45 L. R. A. 682, or he may impeach such witness in any other manner. Wigmore on Ev. § 917. TO In re Cottrell, 95 N. Y. 329; In re Van Houten's Will, 15 Misc. Rep. 196, 37 N. Y. Supp. 39; Lowe v. JoUiffe, 1 Wm. Bl. 365; Dayman v. Day- man, 71 Law T. 699. TiNewhouse v. Godwin, 17 Barb. (N. Y.) 236; Jauncey v. Thorne, 2 Barb. Ch. CN- Y.) 40, 45 Am. Dec. 424; Weir v. Fitzgerald, 2 Bradf. Sur. (N. Y.) 42. T2l Wms. Ex'rs, 394; Field's Appeal, 36 Conn. 277; Dan v. Brown, 4 Cow. (N. Y.) 483, 15 Am. Dec. 395 ; Upton v. Bernstein, 76 Hun, 516, 27 N. Y. Supp. 1078; McKeen v. Frost, 46 Me. 247; Farley v. Farley, 50 N. J. Eq. 434, 26 Atl. 178 ; Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883 ; Morton V. Heidom, 135 Mo. 608. 37 S. W. 504. T8 In. re Buchan's Will, 16 Misc. Rep. 204, 3S N. Y. Supp. 1124; In re De Haas, 19 App. Div. 266, 46 N. Y. Supp. 189. T4 Code Civ. Proc. N. Y. § 2611. TB In re Stewart's Will, 59 Hun, 618, 13 N. Y. Supp. 219. T6 In re Graham, 56 Hun, 640, 9 N. Y. Supp. 122. TT Franklin v. Franklin, 90 Tenn. 44, 16 S. W. 557 (under a statute dispens- 220 EXECUTION OF WILLS (Ch. 8- Where both witnesses have testified to the due execution of a. ■will before the register, its execution cannot be subsequently dis- proved by the unsupported testimony of one of the witnesses, con- tradicting that given by him before the register.'" THE SIGNIFICANCE OF THE ATTESTATION CLAUSE 77. When the signatures of the witnesses are accompanied by an^ attestation clause setting forth compliance with the statu- tory requirements regarding execution, such clause is, on proof of the signatures of testator and subscribing wit- nesses, prima facie evidence of the facts stated therein. While it is true that proof of the signatures of the witnesses- animo attestandi is generally deemed sufficient to raise a presump- tion that the statutory requirements have been complied witlu" yet this presumption will not be so strong as that afforded by a. clear attestation clause, reciting the performance of all the necessary acts.". The value of the attestation clause is particularly apparent when^ the attesting witnesses fail to recollect the circumstances attending the execution. It is the law that when, from the lapse of time, the- witnesses cannot recall these facts, the existence of this clause, cor- rectly reciting the various acts as they should have been done, will be accepted as evidence of a valid execution ; *^ and this is true- Ing with witnesses to wills of personalty when such will is in the handwrit- ing of the testator). T8 In re Rice's Estate, 173 Pa. 298, 33 Atl. 1100. T9BIg. Wills, 58; 1 Jar. Wills, 123. See, also, Woodruff v. Hundley, 12r Ala. 640, 29 South. 98, 85 Am. St. Kep. 145; More v. More, 211 111. 268, 71 N. E. 988; In re Johnson, 2 Curt. 341 ; Moale v. Cutting, 59 Md. 510; Ela v. Ed- wards, 16 Gray (Mass.) 91 ; In re Phillips, 98 N. Y. 267 ; Eobinson v. Brew- ster, 140 111. 649, 30 N. E. 683, 33 Am. St. Eep. 265; Goods of Thomas, 1 Sw. & Tr. 255 ; Goods of Malins (1887) 19 Ir. Oh. Div. 231. In a few cases- the courts have refused to presume that will was executed in conformity with statutory requirements upon proof that witnesses signed animo attes- tandi. In re Tyler's Estate, 121 Cal. 405, 53 Pac. 928; Swain v. Edmunds,. 53 N. J. Eq. 142, 32 Atl. 369. 80 Big. WiUs, 58; Elkinton y. Brick, 44 N. J. Eq. 154, 15 Atl. 391, 1 L. B. A. 161 ; Woolley v. Woolley, 95 N. T. 231; In re O'Hagan's WiU, 73 Wis. 78,. 40 N. W. 649, 9 Am. St. Eep. 763. Where, however, it appears that the attestation clause was not read over to- the attesting witnesses, nor read by them, its recitals are without weight. Ih' re Hitchler's Will, 25 Misc. Eep. 365, 55 N. T. Supp. 642. 81 Will of Harkins (Sur. Ct. N. Y.) Chaplin, Wills, 283; Will of Mor- rison, Id. 282; In re Tyler's Estate, 121 Cal. 405, 53 Pac. 928; Under- wood V. Thurman, 111 Ga. 325, 36 S. E. 788 ; Gould v. Seminary,' 189 111. 282^ § 77) THE SIGNIFICANCE OF THE ATTESTATION CLAUSE 221 though the final result of the witnesses' recollection is rather hostile to due execution than otherwise.'" A similar rule prevails when there is conflict in the testimony of the witnesses as to whether there was sufficient execution,'* and circumstances may be such that the will may be admitted to probate even though all the wit- nesses deny that there was a valid execution.'* Such denials are naturally viewed with suspicion, in view of the prior solemn attes- tation." Still, the attestation clause is by no means conclusive of what it recites, and execution may be disproved in spite of it. "Ex- ecution cannot be presumed in opposition to positive testimony, merely upon the ground that the attestation clause is in due form, and states that all things were done which are required to be done to make the instrument valid as a will." '* It is sometimes provided by statute that if the subscribing wit- nesses have forgotten the circumstances, and testify against the execution of the will, it may nevertheless be established on proof of the handwriting of the testator and of the subscribing witnesses, and of such other circumstances as would tend to prove due execu- tion." 59 N. E. 536; Hennes v. Huston, 81 Minn. 30, 83 N. W. 439; Craig v. Craig, 156 Mo. 358, 56 S. W. 1097; In re Alpaugh's Will, 23 N. J. Eq. 507; Miller v. Van Dyk (N. J. Prerog.) 9 Atl. 372 ; In re Hunt's Will, 110 N. Y. 278, 18 N. B. 106; In re Carey's Will, 24 App. Div. 531, 49 N. Y. Supp. 32 ; In re Sears' Estate, 33 Misc. Rep. 141, 68 N. Y. Supp. 363 ; In re Brissell's Will, 16 App. Div. 137, 45 N. Y. Supp. 122: In re Johnson's Will, 7 Misc. Rep. 220, 27 N. Y. Supp. 649; In re Laudy's Will, 78 Hun, 479, 29 N. Y. Supp. 136 ; In re Schweigert's Estate, 17 Misc. Rep. 186, 40 N. Y. Supp. 979; In re Buel's Will, 44 App. Div. 4, 60 K. Y. Supp. 385 ; In re Sanderson, 9 Misc. Rep. 574, 30 N. Y. Supp. 848; Skinner v. Lewis, 40 Or. 571, 62 Pac. 523, 67 Pac. 951; Gable v. Ranch, 50 S. C. 95, 27 S. E. 555 ; In re Claflin's Will, 73 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. 693 ; Goods of Holgate, 1 Sw. & Tr. 261. 82 wm of Harkins (Sur. Ct. N. Y.) Chaplin, Wills, 283; In re O'Hagan's Will, 73 Wis. 78, 40 N. W. 649, 9 Am. St Rep. 763. 83 Farley v. Farley, 50 N. J. Eq. 434, 26 Atl. 178; McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566; In re Bemsee's Will, 141 N. Y. 389, 36 N. E. 314 ; In re Bedell, 2 Con. Sur. 328, 12 N. Y. Supp. 96; In re Stillman, 2 Con. Sur. 207, 9 N. Y. Supp. 446. 8* See ante, p. 219. SB See Matter of Cottrell, 95 N. Y; 329; Orser v. Orser, 24 N. Y. 51. 8 8 Allen, J., in Lewis v. Lewis, 11 N. Y. 220. See, also, Bogert v. Batemen, 65 Atl. (N. J. Prerog.) 238; Berdan's Case, 65 "N. J. Eq. 681, 55 Atl. 728; Orser V. Orser, 24 N. Y. 51; Tarrant v. Ware, 25 N. Y. 425, note; Keithley v. Staf- ford, 126 111. 507, IS N. E. 740; In re Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591; Glover v. Smith, 57 L. T. 60; In re Sarauw's Will (Sur.) 2 N. Y. Supp. 629. 8 7 Code Civ. Proc. N. Y. § 2620. For cases construing this portion of the sec- tion, see In re WUcox's Will, 59 Hun, 627, 14 N. Y. Supp. 109 ; In re Briggs' Will, 47 App. Div. 47, 62 N. Y. Supp. 294; In re Townley, 1 Con. Sur. 400, 4 N. Y. Supp. 455. 222 EXECUTION OF WILLS (Ch. 8 When a witness, or all the witnesses, to a will apparently exe- cuted in due form are dead, a presumption of proper execution arises upon proof of the handwriting of the testator and the de- ceased witnesses, and statutes have occasionally been enacted to that effect.'* The testimony of the surviving witnesses, if there are any, must, however, be procured.*' Signatures are proved in the usual manner — commonly by witnesses who are familiar with the handwriting of the deceased.*" Proof of the testator's signature may be made by a surviving witness,"^ even where he signs by mark."^ But where the alleged signature is by mark, and one wit- ness is dead, while the other remembers nothing about the circum- stances of the execution, there is not sufficient proof of the testator's signature, although the will contains a complete attestation clause.** When the witnesses are beyond the jurisdiction, the will may generally be proved in the same manner as when they are dead.°* DECLARATIONS OF THE TESTATOR AS EVIDENCE OF EXECUTION 78. The declaratiqns of the testator are receivable to show the ex- ecution of the will only when they are so closely associated with the act as to be a part thereof. The rule that the declarations of the testator, to be admissible as bearing upon the question of due execution, must be a part of the 8 8 Barnewall v. Murrell, 108 Ala. 366, IS South. 831; Woodruff v. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145 (where the will bore the word "witness" to the left of the signatures) ; Scott v. Hawk, 107 Iowa, 723, 77 N. W. 467, 70 Am. St. Rep. 228 ; Robinson v. Brewster, 140 111. 649, 30 N. B. 683, 33 Am. St. Rep. 265 ; Hobart v. Hobart, 154 111. 610, 39 N. E. 581, 45 Am. St. Rep. 151; In re Klett's Will, 3 Misc. Rep. 385, 24 N. Y. Supp. 721; In re Kane, 2 Con. Sur. 249, 20 N. T. Supp. 123 ; In re Smith, 61 Hun, 101, 15 N. X. Supp. 425; In re Thomas, 111 N. C. 409, 16 S. E. 226; Harris v. Harris, 10 Wash. 556, 39 Pac. 148. This presumption Is not one of law, but of fact, which the jury may make in determining the question of due execution. Woodruff v. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145. 8» Barnewall v. Murrell, 108 Ala. 366, 18 South. 831. 90 Snider v. Burks, 84 Ala. 53, 4 South. 225; In re Berg's Estate, 173 Pa. 647, 34 Atl. 234. 81 Hobart V; Hobart, 154 111. 610, 39 N. B. 581, 45 Am. St. Rep. 151. 82 In re Dockstader, 6 Dem. Sur. (N. Y.) 106 ; In re Wilson's WiU, 76 Hun, 1, 27 N. Y. Supp. 957. 93 Worden v. Van Gieson, 6 Dem. Sur. (N. Y.) 237. See, also. In re Porter's Will (Sur.) 1 Misc. Rep. 262, 22 N. Y. Supp. 1062; In re Phelps, 1 Con. Sur. 463, 5 N. Y. Supp. 270. 94 In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; In re Allison's Estate, 104 Iowa, 130, 73 N. W. 489; In re Dates, 58 Hun, 608, 12 N. Y. Supp. 205. § 78), testator's declaration as to EXEcnTioN 223 res gestae, is supported by the weight of authority.*" But it has been held that where the subscribing witnesses are dead or inac- ciessible, and there are no persons living known to have been pres- ent at the execiition/and the will contains no recitals of what oc- curred at the time, declarations of the testator as to the manner in which it was executed are admissible." Other Relevant Matters The fact that the scrivener who had charge of the execution had been a probate judge, and had had much experience in preparing wills, is relevant upon the question of due execution." The ordinary principles control in proof of handwrititag. Expert evidence may be received, and also that of parties who are ac- quainted with the writing of the person whose signature is in ques- tion.*' So, where the body of a will was written in different inks and at different times, an expert may testify as to the approximate ages of inks when appearing on paper, and may give his opinion that certain parts of the will were written after execution.** Where, to impeach a subscribing witness, he was shown to have said, a^ter the testator's death, that he would fabricate a will, it is competent to prove, in rebuttal, that, prior to the testator's death, he had said that the testator had made a will.^"* Where a codicil to a will which is improperly executed, recites the ■ execution of the will, and is itself properly executed, the due execution of both is thereby effe9ted.^°^ 85 Stevens v. Van Cleve, 4 Wash. O. O. 262, Fed. Cas. No. 13,412; Oomstock V. Society, 8 Conn. 254, 20 Am. Dee. 100 ; Walton v. Kendrlck, 122 Mo. 504, 27 S. W. 872, 25 L. R. A. 701; In re Gordon, 50 N. J. Eq. 397, 26 Atl. 208; Lane V. HUl, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591 ; Kennedy v. Upshaw, 64 Tex. 411. And see Waterman v. Whitney, 11 N. T. 157, 62 Am. Dec. 71, and Wlgmore on Ev. § 1736. » a In re Oliver's Will (Sur.) 13 Misc. Rep. 466, 34 N. Y. Supp. 706. When the testator's knovrledge that the instrument was a will is in issue, subsequent declarations showing that he was aware of its character are ad- missible, as showing his state of mind. Nelson's Will, 141 N. Y. 152, 36 N. E. 3. 97 Gable v. Rauch, 50 S. C. 95, 27 S. E. 555. And this fact may be decisive of the question of due execution. In re Merriman, 62 Hun, 621, 16 N. Y. Supp. 738. 98 In re Berg's Estate, 173 Pa. 647, 34 Atl. 234. 9 9 In re Wait's WUl (Sur.) 1 N. Y. Supp. 784. 100 In re Hesdra's Will, 119 N. Y. 615, 23 N. E. 555. 101 In re Murfield's Will, 74 Iowa, 479, 38 N. W. 170. 224 BBVOCATION AND BEiPUBLICATION OF WILLS (Ch. 9 CHAPTER IX EBVOCATION AND REPUBLICATION OF WILLS 79-80. Revocation Defined — ^How Effected. 81. Mutilation as Effecting Revocation. 82. Intent to Revoke Essential. 83-85. Effect of Alterations and Interlineations. 86. . Revocation by a Subsequent Writing. 87-88. Revocation by Change of Circumstances. 89. Evidence of Revocation — Burden of Proof. 90-S2. Republication Defined— How Effected. REVOCATION DEFINED— HOW EFFECTED 79. A will-may be revoked at the pleasure of the testator. Revoea- tioti is an act of the mind, terminating the potential capac- ity of the will to operate at the death of the testator, mani- fested by some outward and visible act or sign, symbolic thereof. , 80. The methods by which this act of the mind may be effectually manifested are prescribed by statute. They are ordinarily : (a) Mutilation. (b) A subsequent writing revoking the will, either in terms or by implication. (c) Certain well-defined changes in the circumstances and condi- tion of the testator, from which a revocation will be im- plied by law. Revocability is a leading characteristic of wills,^ and, prior to the enactment of the statute of frauds, an intent to revoke adequately manifested, as by oral declarations, was sufficient to this end.* Owing to the opportunities for fraud thus afforded, this statute pro- vided that no written will should be orally repealed or altered, and further fenacted the precise methods by which revocation of Wills disposing of realty might be effected,' and similar provisions were subsequently extended to wills of all sorts of property.* This legis- lation has, with minor modifications, been generally follo'yved in the 1 Ante, p. 17. 2 Brooke v. Ward, Dyer, 310b. See Card v. Grlnman, 5 Conn. 164. » 29 Oar. II, §§ 6, 22 (1677). * 1 Vict c. 26, S 20 (1837), §§ 79-80) EBVOCATION DEFINED — HOW EFFECTED 225 United States, and the substantial methods of revocation are those indicated in the black-letter text.'' A revocation, then, to be effectual, must take one or another of the statutory forms. An oral attempt to revoke is inoperative, how- ever unquestionable the intent to that end may be,* as is the mere intention to revoke in the future,' or even in the present, unat- tended by the requisite statutory manifestations. This view ;s em- phasized by the doctrine, supported by the decided weight of au- thority, that no revocation results where the testator's unquestioned intent to destroy his will is thwarted by the fraud of a beneficiary, or of any party. Thus, where X. brought a will to a blind testator at the latter's request, who, after feeling of the seals of the envelope in which it was inclosed, requested X. to throw it into the fire, and X. pretended to do so, substituting, however, another^ paper for the will, and calling the testator's attention to the odor and the crackling of the burning paper, in consequence of which the testator died in the belief that his will had been revoked, it was held that there was no sufificient revocation.* "The law will not permit the formalities of the execution of a will to be dispensed with because of fraudulent interference, and the same rule must be applied in re- spect to the statutory requisites of revocation." " This doctrine is absolutely sound in principle, if one bears in mind the fact that 5 The words used in the statutes relative to revocation clearly apply only to wills in writing. On principle, therefore, it is evident that a valid oral will still may be revoked by any expression of the testator indicating that he does not wish such will to operate at his death. 8 Slaughter v. Stephens, 81 Ala. 418, 2 South. 145; Perjue v. Perjue, 4 Iowa, 520 ; Wittman v. Goodhand, 26 Md. 95 ; Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; In re Hammond's Will (Sur.) 4 N. Y. Supp. 456; Kent v. MahafEey, 10 Ohio St. 204 ; Hylton v. Hylton, 1 Grat. (Va.) 161 ; Schouler, Wills, § 382. Neither can a written will be revoked by a subsequent nuncupative wUl. McCune's Devisees v. House, 8 Ohio, 144:, 31 Am. Dec. 438. 1 Rife's Appeal, 110 Ps.. 232, 1 Atl. 226 ; Belshaw v. Chitwood, 141 Ind. 377, 40 N. E. 908; Succession of Hill, 47 La. Ann. 829, 16 South. 819. The subsequent recognition of the legitimacy of a child disinherited on the alleged ground that the testator was not her father does not effect a revoca- tion of the will. In re Padelford's Estate, 190 Pa. 35, 42 Atl. 381. ■ 8 Kent V. MahafCey, 10 Ohio St. 205. Accord: Bohleber v. Bebstock, 255 lU. 53, 99 N. E. 75, 41 L. E. A. (N. S.) 105, Ann. Gas. 1913D, 307; Boyd v. Cook, 3 Leigh (Va.) 32 ; Hise v. Eincher, 32 N. O. 139, 51 Am. Dec. 383 ; Gra- ham V. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St. Eep. 339; Silva's Estate (1915) 169 Cal. 116, 145 Pac. 1015. See, also, Malone's Adm'r v. Hobbs, 1 Bob. (Va.) 346, 39 Am. Dec. 268; Clingan v. Mitcheltree, 31 Pa. 27; Gains v. Gains, 2 A. K. Marsh. (Ky.) 190, 12 Am. Dec. 375 ; Doe dem. Eeed v. Harris, 6 Ad. & El. 209. » Vanderburgh, J., in Graham v. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St Rep. 339. Gabd. Wills (2d Ed.)— 15 226 REVOCATION AND EEPUBLICATION OF WILLS (Ch. 9 revocation is purely a question of complying with the requirements of the statute/" and the few courts which have reached a contrary conclusions^ have thereby furnished conspicuous instances of judi- cial legislation. So fraud on the part of a beneficiary in falsely representing to the testator that his desire to have his will destroyed had been carried out, whereby he was prevented from destroying the will or execut- ing another, does not result in a revocation of the will.^* If any remedy is to be obtained against a beneficiary who has fraudulently prevented a revocation, it should be sought by a bill in equity asking that beneficiary be decreed a constructive trustee for those who lose by his wrongful act.^" MUTILATION AS EFFECTING REVOCATION 81. Mutilation includes any impairment, however slight, of the ma- terial upon which the will is written, by which the physical Integrity of the docxmient as an entirety is affected, or any obscuration or interference with the writing, accompanied by an intent that the instrument, as a whole, or a particu- lar part thereof, shall be revoked. To effect a revocation, the act of mutilation must be done by the testator, or by a person in his presence and by his direction. Statutes usually provide for the revocation of a will in the man- ner above indicated, and, as in the case of execution, the act must be done by the testator, or in his presence and at his express direc- tion. He cannot delegate such authority to another, to be executed 10 No doubt, were the statutes silent on this point, every court in the land would agree that there was a sufllcient revocation in Kent v. Mahaffey, 10 Ohio St. 205. 11 Pryor v. Coggin, 17 Ga. 444; Ford v. Ford, 7 Hijmph. (Tenn.) 92 ; Smiley V. Gambill, 2 Head (Tenn.) 164. See, also, RIGGS v. PAIiMER, 115 N. X. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, Dunmore Gas. Wills, 77. 12 Mundy v. Mundy, 15 N. J. Eq. 290; Trice v. Shipton (Ky.) 67 S. W. 377. The same rule prevails when the testator has been prevented from revok- ing his will by undue influence. Floyd v. Floyd, 3 Strob. (S. O.) 44, 49 Am. Dec. 626 ; Smith v. Fenner, 1 Gall. 170, Fed. Gas. No. 13,046. 18 A few courts have intimated that such a remedy is available. Trice v. Shipton, 67 S. W. (Ky. 1902) 377; Gains v. Gains, 2 A. K.^ Marsh. (Ky.) 190, 12 Am. Dec. 875 ; Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62. But, in Kent V. MahafEey, 10 Ohio St. 204, 220, in answer to such a suggestion, Peck, J., says: "The fraudulent prevention of its revocation could not well be tor- tured into a promise to hold for the heir at law ; and to hold the legatee a trustee in such case would seem to nullify the statute prohibiting revocations except in a specified manner." § 81) MUTILATION AS EFFECTING EEVOOATION ^ 227 elsewhere, or after his death.^* It should follow that there can be no subsequent ratification of an act of mutilation not previously authorized.^^ Where, however, a will has been defaced and muti- lated by vermin, the adoption of this defacement by the testator with intent to revoke is sufficient.^* What Mutilation is Sufficient It is not necessary that the mutilation result in the destruction of the instrument, or that it be torn in pieces.^^ The cases abun- . dantly support the statement in the black-letter text. Any visible burning of the paper upon which the will is written, if caused animo revocandi, is enough. Thus, where the testator threw the will into a fire, with intent to destroy it, and it was snatched — only slightly singed — from the flames by another, the revocation was complete.^* But an unsuccessful attempt to burn effects no revocation ; neither does a burning of the envelope containing th^ will, the latter docu- ment remaining unscathed.^' 1* Appeal of Miles, 68 Confl. 237, 36 Atl. 39, 36 L. R. A. 176; Cheerer v. North, 106 Mich. 390, 64 N. W. 455, 37 L. B. A. 561, 5S-Am. St. Rep. 499; In re Ackels' Estate, 23 Misc. Rep. 321, 52 N. Y. Supp. 246; In re Hopkins' Will, 35 Misc. Rep. 702, 72 N. Y. Supp. 415, Id., 73 App. Div. 559, 77 N. Y. Supp. 178; Dower v. Seeds, 28 W. Va. 113, 57 Am. Rep. 646; Stockwell v. Bither- den, 12 Jur. 779. And see McCarn v. Bundall, 111 Iowa, 406, 82 N. W. 924 ; 1 Jar. Wills, 114. Destruction of the will without the consent of the testator Is of course in- operative. Trevelyan v. Trevelyan, 1 PhUlim. 149. 15 Mundy v. Mundy, 15 N. J. Eq. 290; Olingan v. Mitcheltree, 31 Pa. 25; Gill V. Gill (1909) Prob. 157, 2 B. R. O. 544. See, also, Mills v. MUlward, 15 Prob. Div. 20. It is sometimes intimated that there may be a ratification of an unau- thorized destruction of a wiU. See Steele v. Price, 44 Ky. (5 B. Mon.) 58 ; Ap- peal of Deaves, 140 Pa. 242, 21 Atl. 395 ; Parsons v. Balson, 129 Wis. 311, 109 N. W. 136. IS Cutler V. Cutler, 130 N. O. 1, 40 S. E. 689, 57 L. B. A. 209, 89 Am. St. Rep. 854. Of course no question of ratification is here involved. It is possible that any injury inflicted upon the will, regardless of its origin, might be adopted by the testator for purposes of revocation. 17 1 Wms. Ex'rs, 173 ; Bibb dem. Mole v. Thomas, 2 W. Bl. 1043. 18 Bibb dem. Mole v. Thomas, supra. Though somewhat criticised (see Reed v. Harris, 6 Ad. & El. 209), this case remains unshaken; it is thoroughly sound, in principle. For a simUar case, see White v. Casten, 46 N. C. 197, 59 Am. Dec. 585, wherein the court say : "The principle * * * is that, where the revocation of a will is attempted by burning, there must be a present in- tent on the part of the testator to revoke, and this intent must appear by some act or symbol, appearing on the script itself, so that it may not rest upon mere parol testimony, and if the script is in any part burnt or singed it is sufficient to revoke the will." Consequently the destruction of a document incorporated by reference into the will does not destroy the will. Paige v. Brooks, 75 Law T. R. 455. i» Doe dem. Reed v. Harris, 6 Ad. & El. 209. 228 REVOCATION AND REPUBLICATION OF WILLS (Ch. 9 So any tearing of the material upon which the will is written, however slight, whether it affects a material or immaterial portion of the writing,*" is sufficient to revoke, if accompanied with an in- tent to that end. And cutting is equivalent to tearing.*^ The re- moval of the fastening, such as a pin, by which the separate sheets on which a will is written are attached, is not a tearing apart, for purposes of revocation ; '^^ neither is the cutting off of matter added after the execution of the will, though the cut passes through the name of one of the attesting witnesses, in the absence of proof that the mutilation was made with intent to revoke."* The tearing away of a seal, with intent to revoke, is sufficient, though no seal be necessary to the due execution of the will,** as is also the drawing of lines through the signature,*" though it remains visible,** and though they be drawn with a lead pencil.*' Cutting off the signature,** or scratching it away with a penknife,** is a sufficient mutilation to satisfy the statute. All Mutilation Intended must be Accomplished Be the mutilation much or little, all that the testator intended to effect must be accomplished, before the act of revocation is com- plete. If testator changes his mind, and turns aside from his pur- ^ pose while in the act of accomplishing it, there is no revocation. Thus, where a testator, after a quarrel with the principal beneficiary, in a ''rage tore the will twice through, but was induced to desist from further mutilation, and he retained the document and expressed his pleasure that it w^s no worse, the question was left to ,the jury as to whether the testator had desisted before completing all he in- 20 In re Jones' Estatfe, 2 Ohio, N. P. 209; Goods of Lewis, 1 Sw. & Tr. 31; Brown's Will, 1 B. Mon. (Ky.) 56, 35 Am. Dec. 174. 21 Burton v. Wylde, 261 111. 397, 103 N. E. 976; Hobbs v. Knight, 1 Ourt 768 ; In re Cooke, 5 Notes Cas. 390; Clarke v. Scripps, 2 Robert. 563. 22 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Eep. 145. 23 In re Taylor's Goods, 63 Law T. 230. 2* Price V. Powell, 3 H. & N. 341; Avery v. Pixley, 4 Mass. 460; In re White's WiU, 25 N. J. Eq. 501. And see Johnson v. Brailsford, 2 Nott & McO. (S. O.) 272, 10 Am. Dec. 601. 25Townshend v. Howard, 86 Me. 285, 29 Atl. 1077; In re Brookman (Sur.) 11 Misc. Rep. 675, 33 N. Y. Supp. 575. 2 8 Baptist Church v. Robbarts, 2 Pa. 110. 2 7 WoodflU V. Patton, 76 Ind. 575, 40 Am. Rep. 269 (under a statute provid- ing for revocation by destruction or mutilation); Townshend v. Howard, 86 Me. 285, 29 Atl. 1077. 2 8 Sanders v. Babbitt, 106 Ky. 646, 51 S. W. 163; Francis' WiU, 73 Misc. Rep. 148, 132 N. Y. Supp. 695. 2 8 In re Morton, 12 P. D. 14. But where the signature, under such circum- stances, remained legible, it was held that there was no revocation, within 1 Vict, c, 26, § 21 (see post, p. 229) ; In re Godfrey, 1 Reports, 484, 69 Law T, 22. § 81) MUTILATION AS EFFECTING REVOCATION 229 tended to do, and a verdict for the will was sustained." But the fact that testator was prevented by another from the complete de- struction of his will, as he had intended, did not prevent a revoca- tion, where testator did not change his intention and sufficiently mutilated the will to comply with the statutory requirements.'* Mutilation of Will Executed in Duplicate If a will be executed in duplicate, and the testator keeps one copy and deposits the other elsewhere, a mutilation by him of the part in his own custody is a revocation of both.** The presumption in such a case is that the mutilation of the one duplicate was done with in- tent to revoke as to both, though such presumption may be rebut- ted." Cancellation Under statutes which provide that no alteration or obliteration, unattested, shall be valid, except in so far as the former language of the will is not apparent in consequence thereof, no revocation can be effected by cancellation unless the will is thereby rendered illegible by natural means. Sjach is the case under the English stat- ute of wills,'* and in a number of American jurisdictions. But in the absence of provisions of this character, any interfer- ence with the writing of a will, as by drawing crossed lines there- 30 Perkes v. Peijkes, 3 B. & Aid. 489; Elms v. Elms, 1 Sw. & Tr. 155 (ac- cord). 31 BIBB V. THOMAS, supra. See, also, Sweet V. Sweet, 1 Bedf. Sur. (N. X.) 451 (where will held revoked after a tearing by testator, although fragments sewed together by testator's wife in such a way as to make instrument per- fectly legible). 82 Schofield's Will, 72 Misc. Rep. 281, 129 N. Y. Supp. 190; Colvin v. Fra- ser, 2 Hagg. 266; Onions v. Tyrer, 1 P. Wm. 346; Eickards v. Mumford, 2 Phillim. 23; Burtenshaw v. Gilbert, Cowp. 49; 1 Wms. Ecs'rs, 191. A presumption to revoke both was also said to arise, in Pemberton v. Pem- berton, 13 Ves. Jr. 290, upon a destruction of one of two duplicates by testa- tor when both were In his possession. ' ssManagle v. Parker, 75 N. H. 139, 71 Atl. 637, 24 L. R. A. (N. S.) 180; Ann. Cas. 1912A, 269; 1 Wms. Ex'rs, 192. 8*1 Vict. c. 26, § 21; 1 Jar. WUls, 116; In re Horsford, L. R. 3 P. & D. 211; Stephens v. Taprell, 2 Ourt. 458; Hobbs v. Knight, 1 C?urt. 779; In re Brewster, 6 Jur. N. S. 56; In re Godfrey, 1 Reports, 484, 69 Law T. 22. A testator pasted strips of paper over certain passages In his will. In 1874 probate of the will was granted, with these passages blank ,on the as- sumption that they could not be ascertained by inspection. In 1893 it was found that these passages were legible, and could be read without artificial means. Held, that they must be admitted to probate. Finch v. Oombe, 6 Re- ports, 545; Id. (1894) Prob. 191. Glasses may be used to discover what the words obliterated originally were. In re Ibbetson, 2 C?urt. 337; Lushington v. Onslow, 6 Notes Cas. 187. 230 ' RB3VO0ATI0N AND REPUBLICATION OF WILLS (Ch. 9 on,*' or straight lines through clause's thereof, whether with ink or lead pencil,^^ is sufficient, if accompanied with intent to revoke. But the cancellation of the words "last will and testament" upon the envelope containing the will does not effect a revocation.*'' While there is some authority for the view that the writing of the words. "This will is hereby canceled," or others of similar import, upon the paper containing the will, though not upon any portion of the language of the will, is to be treated as a cancellation,*' yet on principle and by weight of authorhy this can have no such effect. Such a writing merely amounts to an unattested instrument of revo' cation, and is inoperative.*' Partial Revocation Under statutes which provide for the revocation of the whole or any part of a will by mutilation, a part only may be thus revoked, if such be the testator's intent, provided that the change has a revocatory effect only, and does not effect a new testamentary dis- position.*" A partial revocation, which merely enlarges the residu- ary gift, is usually held not to create a new disposition.*^ Where 3 Warner v. Warner's Estate, 37 Vt. 356; In re Alger's Will (Sur.) 38 Misc. Rep. 143, 77 N. X. Supp. 166; Dammami v. Dammann (Md.) 28 Atl. 408. 3 8 Bigelow V. Gillott, 123 Mass. 102, 25 Am. Rep. 32; Glass v. Scott, 14 Oolo. App. 877, 60 Pac. 186; Frothingliam's Will (1908) 75 N. J. Eq. 205, 71 Atl. 695 ; Gooas of Harris, 3 Sw. & Tr. 485 ; In re Tomlinson's Estate, 133 Pa. 245, 19 AtL 482, 19 Am. St. Rep. 637; Succession of Batchelor, 48 La. Ann. 278, 19 South. 283 ; In re Olmstead's Estate, 122 Oal. 224, 54 Pac. 745. In England cancellations in pencil are regarded as presumptively deliber- ative. Mence v. Mence, 18 Ves. 348 ; In re Hull, L. R. 2 P. & D. 256. But this doctrine has generally been repudiated in the American cases. Woodfill v. Patton, 76 Ind. 575, 40 Am. Rep. 269 ; , Hilyard v. Wood, 71 N. J. Eq. 214, 63 Atl. 7; TomUnson's Estate, 133 Pa. 245, 19 Atl. 482, 19 Am. St Rep. 637. 37 Grantley v. Garthwaite, 2 Russ. 90. 38' Warner v. Warner's Estate, 37 Vt. 356. And see Evans' Appeal, 58 Pa. 238; Billington v. Jones, 108 Tenn. 234, 66 S. W. 1127, 56 L. R. A. 654, 91 Am. St. Rep. 751. s» Ladd's WUl, 60 Wis. 187, 18 N. W. 734, 50 Am. Rep. 355; Matter of MU- ler, 50 Misc. Rep. 70, 100 N. Y. Supp. 344 ; Lewis v. Lewis, 2 Watts & S. (Pa.) 455 ; HOWARD v. HUNTER, 115 Ga. 357, 41 S. E. 638, 90 Am. St. Rep. 121, Dunmore Gas. Wills, 139 ; Oetjen v. Oetjen, 115 Ga. 1004. 42 S. E. 387. See 1 Redf . WiUs, 318, note. 40 Larkins v. Larkins, 3 B. & P. 16; Swinton v. Bailey, 4 App. Cas. 70; In re Leach's Goods, 63 Law T. Ill; Tudor v. Tudor, 17 B. Mon. (Ky.) 383 ; Wheeler v. Bent, 7 Pick. (Mass.) 61; In re Pennlman's Will, 20 Minn. 245 (Gil. 220), 18 Am. Rep. 368 ; Stover v. Kendall, 1 Gold. (Tenn.) 557 ; Hub- bard V. Hubbard, 99 111. App. 555 ; In re Hull's Will, 117 Iowa, 738, 89 N. W. 979; Varnon v. Vamon, 67 Mo. App. 534; In re Ramsey's Estate, 13 Pa, Co. Ct. R. 135; In re Oberdorf's Estate, 2 Lack. Leg. N. (Pa.) 43; Brown v. Brown, 91 S. O. 101, 74 S. E. 135. "Bigelow V. Gillott, 123 Mass. 102, 25 Am. Rep. 32; OoUard v. CoUard § 82) INTENT TO REVOKE ESSENTIAL 281 the statute is silent with regard to revocation of part by mutilation, the tendency is to regard such revocation as impossible, and to give no effect thereto if the part remains legible,*^ though there is au- thority the other way.*' The destruction of a codicil on a separate paper will not effect a revocation of the will, though such was the testator's intent,** but when a codicil on the same sheet of paper as the will, which made an insignificant change in the provisions thereof, was canceled, a revocation of both will and codicil was, in view of all the circum- stances, regarded as intended.*' The destruction of a will does not necessarily revoke a codicil to it, when the codicil is capable of standing alone as an independent disposition.*^ In several states, however, the statutes provide that the revocation of a will revokes all of its codicils, and in the ab- sence of such a statute, a codicil should be admitted to probate, without the will to which it refers, only when proponent shows that testator intended that it shoi^ld operate separately from the will.*^ The question largely turns upon the contents of the will and codicil. If the dispositions in the two instruments are so involved the one with the other as to be incapable of a separate and independent ex- istence, the destruction of one necessarily revokes the other.*' INTENT TO REVOKE ESSENTIAL 82. The mutilation of a will, unaccompanied by an intent to thereby revoke it, is a nullity. A revocation, to be effectual in this form, must be made by or under the direction of a com- petent testator, and must not be the offspring of a mistake either of law or fact. (N. J. Prerog. 1907) 67 Atl. 190. Contra: MUes' Appeal, 68 Conn. 237, 36 Atl. 39, 36 L. E. A. 176. 42 Law V. Law, 83 Ala. 432, 3 South. 752; Lovell v. Quitman, 88 N. T. 377, 42 Am. Rep. 254 ; Eschbacli v. Collins, 61 Md. 478, 48 Am. Rep. 123 ; Giffin V. Brooks, 48 Ohio St. 211, 31 N. E. 743. , 43 Bigelow V. Gillott, supra. *i Malone's Adm'r v. Hobbs, 1 Rob. (Va.) 346, 39 Am. Dec. 263. See, also, Osbum V. Rochester Trust & Safe Deposit Co., 152 App. Div. 235, 136 N. X. Supp. 859. *o In re Brookman (Sur.) 11 Misc. Rep. 675, 33 N.. Y. Supp. 575. *8 Black T. Jobling, L. R. 1 P. & D. 685; Goods of Savage, L. R, 2 P. & D. 78; Goods of Turner, L. R. 2 P. & D. 403 ; Gardiner v. Courthope, 12 P. D. 14. 4 7 Youse V. Forman, 68 Ky. (5 Bush) 337; In re Pepper's Estate, 148 Pa. 5, 23 Atl. 1039. 48 1 Jar. Wills, 125. See Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Crafts T. Hunnewell, 129 Mass. 220. 232 REVOCATION AND RBPUBLIOATION OF WILL3 (Ch. 9 Slibstantially as much capacity is required' to revoke a will as to make one; *° i. e., the testator must mentally retraverse the ground he went over in constructing the will, and determine to undo it. Hence the destruction of a will by an insane testator is nugatory.'" So is an accidental or inadvertent disfiguration, as where a testator unintentionally threw ink, instead of sand, upon his will.'^ And mutilation is equally ineffective if made under a mistake of fact, as where a testator who had executed two wills wished to revoke one of them, and by mistake destroyed the wrong document ; °- or un- der a mistake of law, as where a testatrix caused a codicil to be torn up under the mistaken belief that an inadvertent reversing of the day and the month in the blank spaces left for the date invalidated it," or where a will is canceled under a mistake in law that a second will, complete in its execution, operates upon the property contained in the first, when it really does not,"* or under a mistake as to the legal effect of a deed."* , Mutilation induced by undue influence is inoperative, "* as is also that occasioned by a third person in the lifetime, but without the consent, of the testator,"' or after his death."* Doctrine of Dependent Relative Revocation The rule is established that where the act of destruction is con- nected with the making of another will, so as fairly to raise the in- ference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction ; and if, for any rea- son, the will intended to be substituted is inoperative, the revoca- *» In re Olmsted's Estate, 122 Cal. 224, 54 Pac. 745; Llnkmeyer v. Brandt, 107 Iowa, 750, 77 N. W. 493; Rich v. Gilkey, 73 Me. 595; In re GoldsUcker's Wm, 192 N. X. 35, 84 N. E. 581, 18 h. R. A. (N. S.) 99, 15 Ann. Gas. 66; Idley V. Bowen, 11 Wend. (N. Y.) 227; Goods of Hine (1893) Prob. 282. 00 Brunt v. Brunt, L. R. 3 P. & D. 37; Scruby v. Fordham, 1 Ad. 74; Bor- lase T, Borlase, 4 Notes Cas. 139; In re Shaw, 1 Curt. 905; In re Downer, 18 Jur. 66; Ford v. Ford, 7 Humph. (Tenn.) 92; Forman's Will, 54 Barb. (N. Y.) 274. 51 Illustration of Lord Mansfield in Burtonshaw v. Gilbert, Cowp. 52. 52 Burns v. Burns, 4 Serg. & R. (Pa.) 295. 6s Goods of Thornton, 14 P. D. 382. Here the last clause of the codicil, as executed, read: "In witness whereof I have hereunto set my hand this March day of 21st, 1899." Accord: Giles v. Warren, L. R. 2 P. & D. 401; Beardsley y. Lacey, 67 Law J. Prob. 35, 78 Law T. (N. S.) 25. 6* Lord EUenborough in Perrott v. Perrott, 14 East, 440. 6 5 Goods of James, 19 Law T. 610. »« Rich V. Gilkey, 73 Me. 595; Laughton v. Atkins, 1 Pick. (Mass.) 535. t^^ Bennett v. Sherrod, 25 N. C. 303, 40 Am. Dec. 410; MiUs v. Mill ward, 15 P. D. 20. B8 Haines v. Haines, 2 Vern. 441; Goods of Leigh (1892) Prob. 82. §§ 83-85) ALTERATIONS AND INTERLINEATIONS 233 tion fails, and the original will remains in full force."' Thus, where a testator, after signing the draft of a second will, tore all the seals, save one, from the former, when, on being informed that the sec- ond will would not operate upon his lands in its then condition, he desisted, and died before the new will was complete, the original was held to be unrevoked.*" So, if the later of two inconsistent wills is destroyed on the erroneous supposition that the earlier will is thereby revived, the later will remains unrevoked.*^ For there is here merely a revocation conditioned upon the revival of the former will, aiid the failure of the condition defeats the operation of what would otherwise have been a revocation. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. Thus, where a testator canceled his signatures and those of the subscribing wit- nesses, accompanying the act with the memorandum, "In conse- quence of the death of my wife it becomes necessary to make an- other will," and died before such will was made, the revocation of the will was absolute and complete."* EFFECT OF ALTERATIONS AND INTERLINEATIONS 83. When the cancellation or erasure of a part of a will is followed by the addition of new matter," either by interlineation or otherwise, or when such matter is added by interlineation, vrithoufcancellation or erasure, if such additions are made previous to the execution of the will, and by the testator, they operate as parts thereof. e» 1 Jar. Wills, 119; Goods of Applebee, 1 Hogg, 143; Goods of Beles, 2 Sw. & Tr. 600; APPEAL OF STRONG, 79 Conn. 123, 63 AtL 1089, 6 L. B. A. (N. S.) 1107, 118 Am. St. Kep. 138, Dunmore Cas. Wills, 143;' Frotliingham's Will (1908) 75 N. J. Eq. 205, 71 Ati. 695. 60 Hyde v. Hyde, 1 Eq. Ab. 409, 3 Ch. Rep. 155. This case might have gone upon the ground that the contemplated act, of revocation was not complete. But In Onions v. Tyrer, 2 A''ern. 742, it was held that when there was evidence that the testator tore up one will upon the execution of another, which was void by reason of vnot being attested in the testator's presence, the first wUl, which had been executed la duplicate, might be established In equity. 81 Powell V. Powell, L. R. 1 P. & D. 98, 209. See, also, Eckersley v. Piatt, L. R. 1 P. & D. 281; In re Weston, 1 P. & D. 633. 82 Semmes v. Semmes, 7 Har. & J. (Md.) 388. Accord: Mclntyre v. Mc' Intyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Rep. 71, 1 Ann. Cas. 606 ; Emer- necker's Estate, 218 Pa. 369, 67 Atl. 701. In Dixon v. Solicitor to the Treasury [1905] Prob. 42, 2 B. B. C. 534, the doctrine of dependent relative revocation was applied in a case where the document intended to be substituted for that which was destroyed was non- existent and never existed as a valid testamentary paper. 234 REVOCATION AND REPUBLICATION OF WILLS (Ch. 9 84. If made after execution, additions are inoperative, unless the will is re-executed, or unless there is a further execution witji reference to the particular alterations. 85. In the absence of such execution, the canceled matter usually takes effect, as though no revocation had been attempted, when an endeavor is made to substitute new provisions for those canceled, by virtue of the doctrine of dependent rela- tive revocation, or by express statutory provision. There is substantial agreement as to these propositions. Altera- tions and interlineations made before execution are obviously a part of the will itself, and are probated as a part thereof; ** and it is equally clear that, if made after execution, they can have, of them- selves, no dispositive force,°* unless duly executed. So, when a portion of the will is altered, and matter substituted therefor, inoperative by reason of lack of due execution, the doctrine of conditional cancellation is recognized to its full extent. The validity of the cancellation is presumed to be conditional upon the operation of the substitution, in view of whose failure the will is given effect as though no change had been attempted. Thus, where the executor, at the request of the testator, subsequent to the ex- ecution of the will, and for the purpose of revoking a legacy, drew a line through tlife name of B., and wrote that of A. above, it was held that B. would take."" And when the erasuce completely ob- »3 Tyler -V. Merchant Tailors' Co., 15 Prob. Div. 216. 84Hesterberg v. Clark, 166 111. 241, 46 N. E. 734, 57 Am. St. Rep. 135; Vamon v. Varnon, 67 Mo. App. 534; In re Simrell's Estate, 154 Pa. 604, 26 Atl. 599, 35 Am. St Rep. 864. «sWolf V. Bpllinger, 62 111. 368. See Locke v. James, 11 M. & W. 901 (where the figure "6" was canceled, and the figure "2" written above, at- tempting to reduce a legacy from £600 to £200). For other cases enunciating and applying the principle, see Hesterberg v. Clark, 166 111. 241, 46 N. E. 734, 57 Am. St. Rep. 135; Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 Am. St. Rep; 639; In re Wilcox's Will (Sur.)' 20 N. Y. Supp. 131; Gardiner v. Gardiner, 65 N. H. 230, 19 Atl. 651, 8 I/. R. A 383 ; In re Simrell's Estate, 154 Pa. 604, 26 Atl. 599, 35 Am. St. Rep. 864; In re Knapen's Will (1903) 75 Vt. 146, 53 AO. 1003, 98 Am. St. Rep. 808; Goods of Greenwood (1892) Prob. 7. And see Maule v. Maule, 62 Law T. 702. It is clear that, when the change is in the amount bequeathed, the principle of dependent relative revocation cannot be applied logically in every case. $10000 Suppose two items in a will read thus: "First. I give ^;S0C0 to A. Second. ?5 I give $5S3S to B." Suppose that it is proved that the alterations were made by testator and that there was no re-execution. It is evident that A. should receive $5,000, since testator only cancelled to give him a larger bequest. But in B.'s case it is also evident that the revocation is not dependent upon §§ 83-85) ALTERATIONS AND INTERLINEATIONS 235 scures or removes the original matter, for which new matter is sub- stituted, parol evidence may be received to show the original con- tents, which, thus proved, will be given effect.'* If, however, testator intends to revoke, and the cancellation and interlineations are made with a view to the making of another will, the interlineations to serve as memoranda therefor, the revocation is then complete.'^ Alterations in a will by a stranger to it without the knowledge of the testator are without effect.*' An erasure or alteration fraudu- lently made by a beneficiary therein avoids the provisions of the will in his favor,** though the evidence that alterations were thus made must be clear and satisfactory.'" But an innocent alteration in immaterial particulars by such beneficiary does not affect the will." Presumption as to When Alterations were Made The cases abound in the statement that where unattested altera- tions appear upon the face of the will, and no information can be given, and there are no circumstances, one way or the other, to show when the alterations were made, the presumption is that they were made after its execution.^'' What this means, or at least should mean, is that the proponent of the will must show what it contained at the time of execution, and that commonly, when altera- tions or interlineations are present, the will, of itself, does not ade- quately indicate this. No presumption is really entertained either way, but the proponent, who alleges the contents to be so and so at the time of execution, should furnish satisfactory proof thereof.'* the new lUsposition, and, in a jurisdiction permitting a partial revocation by cancellation, B. should receive nothing. 88 Goods of Parr, 6 Jur. N. S. 66 (where a change was made in the execu- tors) ; Goods of McCabe, L. R. 3 P. & D. 94 (where the name of a legatee had been erased). 6 7 Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631. 6 8 Diener's Estate (1907) 79 Neb. 569, 113 N. W. 149, 14 L. E. A. (N. g.) 259. «» Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 Am. St. Rep. 639. See, also, Doane v. Hadlock, 42 Me. 72 ; Wilson's WUl, 8 Wis. 171 ; Jackson v. Malin, 15 Johns. (N. T.) 293. 70 Id. 71 Mclntire v. Mclntire, 19 App. D. C. 482. 72 Camp V. Shaw, 52 111. App. 241 ; In re Lang's Will (Sur.) 9 Misc. Rep. 521, 30 N. Y. Supp. 388; In re Oberdorf's Estate, 2 L?ick. Leg. N. (Pa.) 43; Cooper V. Bockett, 4 Notes Cas. 685; Simmons v. Rudall, 1 Sim. N. S. 115; Williams v. Ashton, 1 Johns. & Hern. 115; Goods of Horsf ord, \Jj. R. 3 P. & D. 211. See article, "Written Evidence and Alterations," 25 Har. L. R. 691, at 699. Contra: WikofCs Appeal, 15 Pa. 281, 53 Am. Dec. 597. 7 3 Wilton T. Humphreys, 176 Mass. 253, 57 N. E. 374; Wigmore on Ev. § 2525. 236 BBVOCATION AND RBPUBLIOATION OP WILL3 (Ch. 9 The alteration would commonly cause uncertainty, which the pro- ponent must dispel. And it seems to be admitted that interlinea- tions which complete an otherwise imperfect sentence or expression raise no doubt as to the time of their insertion which requires to be removed.'* So the presumption apparently fails, in a proceeding to set aside a will, already probated on the ground, of alteration after execution.'" And there is authority for the view, which is sound in principle, that where an interlineation or erasure in a will is fair upon its face, with no circumstance whatever to cast suspicion upon it, although wholly unexplained, there is no presumption that it was made after execution.'* A material alteration, effected by the use of a chemical, is, under this doctrine, sufficiently suspicious to require satisfactory explanation from the proponent." Whatever presumption there may be in this matter is readily overcome. A certificate in the attestation clause to the effect that the changes were made prior to execution is admissible for this purpose," as are, also, declarations of the testator, made before or at the time of execution," but not those made thereafter.** REVOCATION BY A SUBSEQUENT WRITING 86. A will may be revoked by a subsequent instrument executed solely for that purpose, by a subsequent will containing a revoking clause or provisions inconsistent with those of the previous will, or by a subsequent absolute conveyance of the property disposed of by the will. The statute of frauds'^ required all written revocations of wills of real property to be executed in substantially the same manner as testamentary dispositions, and the same requirements were ex- tended to wills of personalty by the wills act of 1837.'" This legis- lation has been generally followed in the United States. It Goods of Ann Cadge, L. R. 1 P. & D. 543. TB WUton V. Humphreys, 176 Mass. 253, 57 N. E. 374. T6 GROSSMAN V. GROSSMAN, 95 N. Y. 145, Dumnore Cas. Wills, 12; In re Voorheei 6 Dem. Sur. (N. Y.) 162 ; In j-e Garver's Estate (Sur.) 3 Misc. Rep. 567, 23 N. Y. Supp. 753 ; In re Tighe's Will (Sur.) 24 Misc. Rep. 459, 53 N. Y. Supp. 718; In re Potter's Will (Sur.) 12 N. Y. Supp. 105. TT In re Dwyer's Will (Sur.) 29 Misc. Rep. 382, 61 N. Y. Supp. 903. 78 1 Greenl. Ev. § 564; GROSSMAN v. GROSSMAN, 95 N. Y. 145, Dunmore ■Cas. Wills, 12. 10 Doe ex dem; Shalleross v. Palmer, 16 Q. B. 747; In re Hardy, 30 L. J. Prob. 142; In re Sykes, L. R, 3 P. & D. 26; Dench v. Deneh, 2 P. D. 60. 80 Doe ex dem. Shalleross v. Palmer, supra. 81 29 Car. II, c. 3, § 6 (1677). •» 1 Vict c. 26, § 20. Prior to this statute, a will of personalty might be § 86) EEVOOATION BY A SUBSEQUENT WBITINQ 237 Formal Instrument of Revocation Statutes commonly provide for revocation by an instrument de- signed for that purpose only, executed as above indicated. No mat- ter how strongly such a document may express the testator's in- tention to revoke, it is ineffectual, unless executed with the same for- malities with which the will itself is required to be executed.*^ Revocation by Subsequent Will or Codicil A will may be revoked by a subsequent will containing an ex- press clause of revocation, and the revocation will not be affected by the fact that its other dispositions are void ** for any reason not connected with the execution of the will, as where the second will disposes of property for charity, and is not made a sufficient time previous to the testator's death,*^ or because the will has been lost, and none of its contents can be proved, save the revoking clause.** The revoking clause may, by its terms, be limited in operation to a revoked by any iBstrument, however informal in matter or execution (1 Wms. Ex'rs, 197), and, previous to the statutes of frauds, by parol (Brooke v. Ward, Dyer, 310b). For valid revocation by letter (construing the statute of frauds), see Wal- cott V. Ochterleny, 1 Curt. 580. 88 Nelson v. Public Adm'r, 2 Bradf. Sur. (N. T.) 210; In re Akers' Will <1903) 173 N. X. 620, 66 N. E. 1103. See, also, Castens v. Murray, 122 Ga. 896, 50 S. E. 131, 2 Ann. Cas. 590; Succession of Seymour, 48 La. Ann. 993, 20 South. 217 ; Keid v. Borland, 14 Mass. 208; In re Voorhis' Will, 54 Hun, 637, 7 N. Y. Supp. 596; Morey v. Sohier, 63 N. H. 507, 3 Ati. 636, 56 Am. Kep. .538; Noyes' WiU, 61 Vt. 14, 17 Atl. 743; Brook v. Chappell, 34 Wis. 405 (holding that a nuncupative will could not revoke a prior written will). In New York a will may be revoked by a written instrument expressly set- ting forth the intention to revoke, and executed in the manner in which wills are required to be executed. Thus a will may be revoked by a deed of trust containing a clause of revocation, and executed in the manner prescribed for the execution of such deed. In re Backus' Will, 49 App. Div. 410, 63 N. Y. Supp. 544 (construing 2 Rev. St. [1st Ed.] pt. 2, pp. 64, 65, c. 6, tit. 1, §§ 42, 43, 47, 48). But where it appears that the beneficiary under a prior will has suppressed a later will containing a revoking clause, the law will presume the later will to have been duly drawn and executed. In re Lambie's Estate, 97 Mich. 49, 56 N. W. 223. ' 84 Bums V. Travis, 117 Ind. 44, 18 N. E. 45; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; In re Scott's Will, 88 Minn. 386, 93 N. W. 109; Tupper V. Tupper, 1 K. & J. 665. See, however. Security Co. v. Snow, 70 Conn. 288, 39 AtL 153, 66 Am. St. Hep. 107. 8 B In re Teacle's Estate, 153 Pa. 219, 25 Atl. 1135. aoWallis v. Wallis, 114 Mass. 510; Williams v. Miles (1903) 68 Neb. 463, 94 N. W. 705, 96 N, W. 151, 62 L. K. A. 383, 110 Am. St Bep. 431, 4 Ann. Cas. 306; IN KE CUNNINGHAM, 38 Minn. 169, 36 N. W. 269, 8 Am. St. Kep. 650, Duumore Cas. Wills, 145. 238 REVOCATION AND REPUBLICATION OF WILLS (Ch. 9, part only of the prior will.'^ A will containing a clause of this i , character may operate as a revoking instrument, without probate.'* To be effectual, however, the clause of revocation must indicate ,an actual and present intention to revoke the prior will. If it is merely declaratory of a future design, it is not sufficient; *° and a will, obtained by undue influence, which revokes a prior will, is in- effectual to that end.»° A revocation of "all former wills" extends to all former codicils, since a codicil is a will within- the common understanding of the term.'^ The fact that the will contains a revoking clause does not effect a revocation if the entire language of the will and the circumstances attending its execution show that no actual or complete revocation was intended.'^ Revocation by Will Containing Inconsistent Provisions A prior will may be revoked by a subsequent will or codicil to the extent that its provisions are so inconsistent with those of the prior will as to be incapable of standing together with them. If the sec- ond will be partly inconsistent with one of an earlier date, the for- 87 Nelson's Estate, 147 Pa. 160, 23 AU. 373; In re Fence's Estate (1895) 2 Ch. 778. 88 Blacliett V. Ziegler (1911) 153 Iowa, 344, 133 N. W. 901, 37 Z>. E. A. (N. S.) 291, Ann. Cas. 1913E, 115; MATTER OF CUNNINGHAM, 38 Minn. 169, 36 N. W. 269, 8 Am. St. Kep. 650, Dunmore Cas. Wills, 145 ; In re Bames' Will, 70 App. Div. 523, 75 N. T. Supp. 373. In a few jurisdictions, a revocation by will takes effect only when the will of which it forms a part becomes effective at the testator's death. Bates v. Hacking (1907) 28 R. I. 523, 68 Atl. 622, 14 L. R. A. (N. S.) 937, 125 Am. St. Rep. 759. See, also, Sewall v. Robbins, 139 Mass. 164, 29 N. E. 650. 89 1 Jar. Wills, 134; Cleobury v. Beckett, 14 Beav. 588; Brown v. Thorn- dike, 15 Pick. (Mass.) 388 ; Ray v. Walton, 2 A. K. Marsh. (Ky.) 71. 9 Lyon V. Dada, 127 Mich. 395, 86 N. W. 946. 91 Smith V. McChesney, 15 N. J. Eq. 359; Coffin v. Otis, 52 Mass. (11 Mete.) 156. 92 Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Watt's Estate, 168 Pa. 422, 32 Atl. 42. So when a will making the testatrix's illegitimate son her universal legatee was followed by another, containing a printed revoking clause, bequeathing a part of her furniture to her sister, and it appeared that the revoking clause was not read over to the testatrix, though the rest of the will was, and there was no evidence to show that she knew of such clause, the second wiU. was probated as a codicil of the first, omitting the clause of revocation. Goods of Moore (1892) Prob. 378. Accord: In re Purdy's Will (Sur.) 20 N. Y. Supp. 307 (though here the testator was aware of the presence of the printed re- voking clause). So, where the printed revoking clause of the second will was struck through with a pencil, both instruments were probated. Goods of Tonge, 66 Law T. (N. S.) 60. § 86) REVOCATION BY A SUBSEQUENT WRITING 239 mer instrument revokes the latter as to those parts only wherein they are inconsistent.®' In such cases both instruments are pro- bated, as making together the whole will of the testator.'* A duly executed later will disposing of testator's entire estate is a revocation of an earlier will.®° But the courts incline to hold against revocation when such a holding would result in partial in- testacy, and, where the second will disposes only of a. part of the property, it will not wholly revoke the previous will, though it is described as his "last will." " Much the same rule applies to codicils as to subsequent wills, though, inasmuch as the former are ordinarily made with a view to the partial modification of the will, rather than to its revocation, and they are regarded as parts of the will, rather than as separate instruments, the rule that all parts of an instrument shall be. con- strued so as' to give effect to each, if possible, is applied; and the terms of the codicil are given effect as revoking the will either in whole or in part only when such is the plain intent of the instru- ment.*^ Thus, where a will contained a bequest of 500 shares of 93 Williams v. Miles, 68, Neb. 463, 94 N. W. 705, 96 N. W. 161, 62 L. R. A. ♦§83, 110 Am. St. Eep. 431, 4 Ann. Cas. 306 ; Lemage v. Goodban, L. R. 1 P. & D. 57, citing' 1 Wms. Ex'rs, 199; Freeman v. Freeman, .5 De G., M. & G. 704; Floyd V. Floyd, 7 B. Mon. (Ky.) 290; Succession of Bobb, 42 La. Ann. 40, 7 South. 60; Johns Hoplans University v. Pinckn6y, 55 Md. 365; McGehee y. McGehee, 74 Miss. 386, 21 South. 2 ; Laughton v. Atkins, 1 Pick. (Mass.) 535 ; Lane v. Hill, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591; Brant v. Wilson, 8 Cow. (N. Y.) 56; In re Baby, 1 Con. Sur. 317, 4 N. Y. Supp. 182; Fleming V. Fleming, 63 N. C. 209; Price v. Maxwell, 28 Pa. 23; HoUey v. Larrabee, 28 Vt. 274. 9* Knox V. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; Nelson's Estate, 9 Pa. Co. Ct. R. 552. ' 9B Sehillinger v. Bawek (1907) 135 Iowa, 131, 112 N. W. 210; Gilman's Es- tate, 65 Misc. Rep. 409, 121 N. Y. Supp. 909. 96 SIMPSON V. FOXON (1907) Prob. 54, Dunmore Cas. Wills, 147; Lemage V. Goodban, L. R. 1 P. & D. 57, citing Cutto v. Gilbert, 9 Moore, P. C. 131, and Stoddart v. Grant, 1 Macq. H. L. 171, which the court regards as overrul- ing Plenty v. West, 1 Robert. 204, 9 Jur. 458 ; Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. 97 Vestal V. Garrett, 197 111. 398, 64 N. E. 345; Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Bringhurst v. Orth, 7 Del. Oh. 178, 44 Atl. 783; Govan v. Wiley, 15 App. D. C. 233; Terhune v. Commercial Nat. Safe Deposit Co., 245 lU. 622, 92 N. E. 532; Thomas v. Leverinig, 73 Md. 451, 21 Atl. 367, 23 Atl. 3; Halsey v. Episcopal Church, 75 Md. 275, 23 Atl. 781 ; Chapin v. Parker, 157 Mass. 63, 31 N. E. 713; In re WUlets, 112 N. Y. 289, 665, 19 N. E. 690; Griggs V. Griggs, 80 App. Div. 339, 80 N. Y. Supp. 724 ; Viele v. Keeler, 129 N. Y. 190, 29 N. E. 78,' reversing 59 Hun, 617, 13 N. Y. Supp. 196; In re Van Beuren's Estate (Sur.) 13 N. Y. Supp. 261 ; Rhyne v. Torrence, 109 N. 0. 652, 14 S. E. 95; In re Manner's Estate, 22 Pa. Co. Ct. R. 577; In re Watt's Estate, 168 Pa. 422, 32 Atl. 42; In re Leonard's Estate, 10 Pa. Co. Ct R. 437. 240 EEVOOATION AND BEPUBLICATION OF WILIJl (Ch. 9 Stock to the testator's brother for life, together with ^ ratable por- tion of the residue of such stock, and by codicil the testator "re- ; voked and canceled, for reasons growing out of his late unbrotherly conduct towards me, the legacy of 500 shares of stock * * * given in the aforesaid will," the codicil was held not to affect the brother's interest in the residuary stock."* But the whole question is one of intent, and, that appearing, a will may be revoked in whole or in part as well by a codicil as in any other method.®" A prin- ciple much quoted in this connection is that, when the will contains a clear and unambiguous disposition of property, such a gift will not be revoked by doubtful expressions in a codicil.^ If two inconsistent wills be found, of the same date, or without any date, and there is no evidence as to the time of execution of either, both are void, by reason of uncertainty as to which is the will of the testator.* But if any consistent testamentary scheme can be gathered from them both, this will be done.^ The execution of a duplicate containing a revocation clause precisely like its proto- type has no effect upon the validity of the latter.* And the execu- tion of a will, the testator supposing it to be an exact copy of an earlier one, but where certain essentials are omitted, does not effect »8 Colt V. Colt (C. C.) 48 Fed. 385. 89 See Kelly v. Richardson, 100 Ala. 584, 13 South'. 785 (where the will gave to M. all testator's personal property, except certain specific articles which were given to H. and B., and the codicil gave to M. all testator's personal property, except a stock of merchandise, which it gave to C, and the lega- cies to H. and B. were held thei:eby revoked) ; In re Soher, 78 Cal. 477, 21 Pac. 8 ; Blakeman v. Sears, 74 Conn. 516, 51 Atl. 517 ; Giddings v. Giddings, 65 Ctonn. 149, 32 AtL 334, 48 Am. St. Rep. 192; Sturgis v. Work, 122 Ind. 134, 22 N. E. 996, 17 Am. St. Rep. 349 (where the will made two sons of the testator residuary legatees, and the codicil which' revoked and changed cer- tain dftvises of the will, but ^hich made no new specific devises, gave to all his chlldi-en the residue of the estate not therein specifically devised, and all the children took as residuary legatees, Tinder the codicil) ; Newcomb v. Webster, 113 N. Y. 191, 21 N. E. 77 (where the codicil made a new disposition of all the testator's property, revoking all portions of the will inconsistent therewith) ; Ross v. Gleason, 115 N. Y. 664, 22 N. E. 348 ; Hard v. Davison, 53 Hun, 112, 6 N. Y. Supp. 69; Bradhurst v. Field, 59 Hun, 621, 13 N. Y. Supp. 60; Jackson v. Shinnick, 6 Ohio Dec. 37; In re Richard's Estate, 4 Pa. Dist. R. 264, 36 Wkly. Notes Oas. 264; Home for Incurables v. Noble, 172 U.. S. 383, 19 Siip. Ct. 226, 43 L. Ed. 486 ; Goods of Carritt, 66 Law T. (N.^ S.) 379; Law V. Acton (Can.) 14 Man. R. 246 ; Read v. Backhouse, 2 R. & My. 546. iDominici's Estate (1907) 151 Cal. 181, 90 Pac. 448; 1 Jar. Wills, 145; Johns Hopkins University v. Pinckney, 55 Md. 365; Lovering v. Balch, 210 Mass.. 105, 96 N. E. 142; Joiner v. Joiner, 55 N. O. 68; Goblet v. Beechey, 3 Sim. 24; Gordon v. Hoffman, 7 Sim. 29; Bunny v. Bunny, 3 Beav. 109. 2 1 Wms. Bx'rs, 203; Phipps v. Anglesea, 7 Bro. P. O. 43. « 1 Wms. Ex'rs, 203 ; 1 Jar. Wills, 175. * Odenwaelder v. Schorr, 8 Mo. App. 458. § 86) REVOCATION BY A SUBSEQUENT WRITING 241 a revocation of the prior will as to such parts, but both instruments are entitled to probate." Subsequent Will Lost There is no presumption, from the fact that a second will was made, that it either, in terms, revokes or is inconsistent with the prior will.' Hence, when a will which cannot be found is relied upon as revoking an earlier will, satisfactory proof must be made that such will was properly executed, and that its tenor was such as to effect the revocation claimed for it.' Effect of Revocation of Revoking Will upon Prior Will The question a's to the effect of the revocation of a second will upon a prior will with which it was inconsistent has been much mooted, and the difiference of opinion is marked and not wholly ex- plicable. At common law the rule seems to have been that, upon the destruction of the second will, the first "revived," regardless of , the intention of the testator, providing he had kept his first will undestroyed and uncanceled.* But the rule in the ecclesiastical courts was that it was to be regarded as a question of intention, to be collected from all the circumstances of the case, and that the lega^ presumption was neither adverse to, nor in favor of, the re- vival of a former uncanceled will upon the cancellation of a later revocatory will. The matter was open to a decision either way, 5 Blrks V. Birks, 34 L. J. 90. « 1 Wms. Bx'rs, 201 ; Hitchins v. Bassett, 3 Mod. 203; Dunahugh's Will, 130 Iowa, 692, 107 N. W. 925; In re Sternberg's Estate, 94 Iowa, 305, 62 N. W. 734; Nelson v. McGiffert, 3 Barb. Ch. (N. Y.) 158, 49 Am. Dec. 170; Hyl- ton V. Hylton, 1 Grat. (Va.) 161. And see Cheever v. North, 106 Mlcb. 390, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499. Where the later will has been destroyed or is withheld by the proponents of an earlier will, there is a presumption that the later will contained words of revocation. Jones v. Murphy, 8 Watta & S. (Pa.) 275, 301. 7 McKenna v. McMichael, 189 Pa. 440, 42 Atl. 14 ; West v. West, 144 Mo. 119, 46 S. W. 139 ; Hylton v. Hylton, 1 Grat. (Va.) 161 ; Gbodrlght v. Har- wood, Cowp. 87; Hellier v. HelUer, L. R. 9 P. D. 237; Cunnion's Will, 201 N. Y. 123, 94 N. E. 648, Ann. Gas. 1912A, 834 ; In re Williams' WUl, 34 Misc. Rep. 748, 70 N. Y. Supp. 1055. In Alabama, a will legally executed revokes a prior wUl without any proof of the contents of the subsequent will. Bruce V. Sierra, 175 Ala. 517, 57 South. 709, Ann. Gas. 1914D, 125. 8 Goodright v. Glazier, 4 Burr. 2512 (it did not appear whether the second will contained a revoking clause or not) ; Harwood v. Goodright, 1 Cowp. 91 (in which Lord Mansfield said that "If a testator makes one will, and does not destroy it, though he makes another at any time, virtually or expressly re- voking the former, if he afterwards destroy the revocation the first will is still in force and good"). See James v. Marvin, 3 Conn. 576; Bohanon v. Wal- cot, 1 How. (Miss.) 336, 29 Am. Dec. 631; Taylor v. Taylor,' 2 Nott & McC. (S. C.) 482; Lively v. Harwell, 29 Ga. 509. Gabd. Wills (2d Ed.) — 16 242 REVOCATION AND EEPUBLIOATION OF WILLS (Ch. 9 solely according to facts and circumstances." The question was settled in England by statute," under which it has been steadily held that after the execution of a subsequent will containing a re- voking clause, or provisions inconsistent with those of a prior will, such former will cannot be revived by the simple cancellation or de- struction of the later will.^^ In the United States, in the absenc^ of legislation, the influence of the differing points of view of the common law and the ecclesi- astical courts is abundantly manifest. When the second will con- tains no revoking clause, there is strong authority for the view, which seems correct on principle, that its destruction "revives" a prior uncanceled will.^^ These cases go upon the ground that, while the inconsistent provisions of the second will clearly manifest an intent on the part of the testator to revoke the prior will, yet this intent, being purely testamentary in its character, can have no effect until the death of the testator, and, if the instrument containing it is destroyed before that time, this revocatory intent is, for legal pur- poses, as though it had never been, and the first will, bemg uncan- celed, takes effect.^* Where the second will contains a revoking clause, there is a line of cases holding that the destruction of such a will is followed by the same result as attends the destruction of a second inconsistent . will, without such clause, and for the same reason.^* This view, it » 1 Wms. Ex'rs, 215. 10 1 Vict., c. 26, § 22 (183T), enacting that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed as required by the act, and showing an intention to revive the same. 11 Schouler, Wills, § 414; Major v. Williams, 3 Ourt. 432; Brown v.' Brown, 8 El. & Bl. 876 ; Dickinson v. Swatman, 30 L. J. (N. S.) 84 ; Wood v. Wood, L. R. 1 P. & D. 309. 12 Cheever v. North, 106 Mich. 390, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499 ; Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685 ; Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235 ; Blackett v. Ziegler (1911) 153 Iowa, 344, 133 N. W. 901, 37 L. E. A. (N. S.) 29, Ann. Cas. 1913E, 115. 13 It is clear that an actual intent of the testator immediately to revoke is not given efCect under this view. If a revocation once becomes efCective, it is difficult to see how a destruction of the revoking will indicates an Intention to revert to an earUer testamentary plan. "The case is this: He had a scheme and abandoned it for another, and thus abandoned the second. All, so far, is - clear and satisfactory; but can you go further and say that when he aban- doned the last he returned to the first? If these two schemes comprehended all the possible dispositions of his property, then the conclusion would be a logical one that, when he abandoned the one, he returned to the other." Per curiam in Harwell v. Lively, 30 Ga. 315, 320, 76 Am. Dec. 649. 1* Diament's Estate (1915) 84 N. J. Bq. 135, 92 Atl. 952 ; Randall v. Beatty, 31 N. J. Eq. 643; Taylor v. Taylor, 2 Nott & McC. (S. O.) 482; Linginfetter y. § 86) REVOCATION BY A SUBSEQUENT WRITING 243 will be observed, is that of Lord Mansfield, and, assuming the re- voking clause to be purely testamentary in its character, is con- vincing. A third line of cases holds that, where the second will contains a revoking clause, this clause is not testamentary in its character, but operates to revoke the prior will instanter upon the execution of the will containing it, as it would do were it so executed as a sepa- rate revocatory document, and that the subsequent revocation of the second will, no matter with what intent, can have no effect to revive the former will, which has become a legal nullity.^'' - Grant- ing that the revoking clause can thus be severed from the will (and there seems no reason why it may not be), this position is, it is be- lieved, logically unanswerable. A fourth view is that where the second will contains a revoking clause, in the absence of evidence as to the testator's intension, the prior will will not be revived by the cancellation of the latter, but, upon due proof that by such cancellation there was an intent on his part to "revive" the earlier will, this intent will be effectuated.^' This is substantially the position of the ecclesiastical courts and is sustained by the greater number of authorities. While it effectuates the intentions of the testator, it apparently does so either in disre- gard of the fact that a will is wholly inoperative until the testator's death, or of the true nature of a revocatory clause." Linginfetter, Hardin (Ky.) 119; Stetson v. Stetson, 200 111. 601, 66 N. E. 262, 61 L. E. A. 258 ; Bates v. Hacking, 29 R. I. 1, 68 Atl. 622, 14 L. R. A. (N. S.) 937. IB Lones v. Lones, 108 Cal. 688, 41 Pac. 771; Danley v. Jefferson, 150 Mich. 590, 114 N. W. 470, 121 Am. St. Eep. 640, 13 Ann. Cas. 242; Hawes v. Nicho- las, 72 Tex. 481, 10 S. "W. 558, 2 U R. A. 863 ; In re Noon's Will, 115 Wis. 299, 91 N. W. 670, 95 Am. St. Rep. 944. 18 Blackett v. Ziegler (1911) 15a. Iowa, 344, 133 N. W. 901, 37 L. R. A. (N. S.) 29, Ann. Cas. 1913B, 115 ; Pickens v. Davis, 134 Mass. 252, 256, 45 Am. Rep. 322 ; Chaplin, WUls, 370 ; WUliams v. WilUams, 142 Mass. 515, 517, 8 N. E. 424 ; Williams v. MUes, 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 ; Lane v. Hill, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591 ; Moore's Will (1907) 72 N. J. Eq. 371, 65 Atl. 447 (limiting Randall v. Beatty, supra, to cases where circumstances indicate intent to revive); In re Gould's Will, 72 Vt. 316, 47 Ati. 1082. IT It is peculiarly hard to understand the logic of Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322, the leading case which supports this view, though the actual decision is satisfactory. The court clearly demonstrates that the destruction of a second wUl indicates, of Itself, no intention to revert to an earlier testamentary scheme, and fuUy indorses the doctrine that a revoca- tory clause is not necessarily testamentary in its character. This being true, it is difficult to perceive any intermediate ground that can logically be taken between the second and third doctrines, as stated in the text. The revoking clause is either testamentary or it is not. If the former, it can have no effect untU the testator's death, and, if the will containing it be destroyed before 244 REVOCATION AND REPUBLICATION OF WILLS (Ch. 9 To obviate the uncertainty prevailing in this matter, statutes of various sorts have been enacted, s6me following substantially the English legislation,^* and others providing that the destruction of a second will shall not revive the first unless it appears by the terms •of the revocation that it was the testator's intent to revive the for- mer will.^" Statutes of the latter class clearly refer only to a revo- ■cation in writing and, to revive a former will under such statutes, there must be either a republication of the former will before the witnesses to the original execution or a writing, executed with the' •same formalities as a will, in which testator expressly declares his intention to revive his former will.'"' Revocation Made under Mistake Where a testaitor revokes by will a devise or bequest in a previ- ous will, expressly grounding such revocation on the assumption of a fact which turns out to be false, the revocation does not take effect; it being considered conditional, and dependent upon a con- tingency which fails.''^ Thus, where a testator revoked certain lega- cies to grandchildren, "they being all dead," when in fact they were alive, the legacies were treated as not revoked.^^ The fact with re- gard to which the mistake was made must, however, appear upon that time, the clause Is wholly ineffectual for any purpose. If not testamen- tary in its character, it is submitted that it must be immediately revocative in its character. Say the court in Pickens v. Davis, supra: "It is more nat- ■ural and reasonable to assume that such revocatory clause shows emphati- cally and conclusively that he has abandoned his former intentions, and sub- stituted therefor a new disposition of his property." But must we not go further, and say that not only does such clause show an abandonment of for- mer intention, but also that it absolutely revokes the instrument in which that Intention was embodied? This clause is something more than mere evidence •of intention. By virtue of that change of intention, it works, under the stat- ute, an absolute revocation of the prior will as completely as its physical de- struction would do. That being the case, a mere revocation of the revoking document cannot give life to the former will. Nothing short of re-execution •can do that 18 See ante, p. 242. 19 New York: 2 Rev. St. ~ (1st Ed.) p. 66, pt. 2, c. 6, tit. 1, § 53 (Birdseye's Ed. p. 4022, § 21), construed in Re Forbes' Will (Sur.) 24 N. Y. Supp. 841 ; In re Brewster's WUl, 72 App. Div. 587, 76 N. Y. Supp. 283 ; In re Stickney's Will, 31 App. Div. 382, 52 N. Y. Supp. 929 ; In re Barnes' Will, 70 App. Div. 523, 75 N. Y. Supp. 373. Indiana: Bums' Rev. St. 1894, § 2729, construed in Kern v. Kern, 154 Ind. 29, 55 N. E. 1004. 20 In re Stickney's Will, 161 N. Y. 42, 55 N. E. 396, 76 Am. St Rep. 246. 21 Jar. WUls, 147; Mendinhall's Appeal, 124 Pa. 387, 16 Atl. 881, 10 Am. St Rep. 590. ' 2 2 Campbell t. French, 3 Yes. 32J.; Doe dem. Evans v. Evans, 2 Per. & D. 57S (eemble). § 86) BEYOCATION BT A SUBSEQUENT WBIIING 245 the face of the instrument."* And if the legacy or the revocation be made dependent merely upon information received by the testator, or his belief or opinion, the will or revocation is valid, although the testator may have been misinformed, or may have formed his belief under a misapprehension.''* Whether, on principle, this distinction is sound, may be doubted. Where the facts alleged by the testator are pecuharly within his knowledge, the revocation is absolute whether his allegations are true or false. Thus, revocations were held to be absolute where re- voking instruments declared, as a reason for revocation and con- trary to the actual facts, that certain property had been sold,"° that testator had given the former beneficiary certain property,^" or that he had provided the legatee with a permanent home.^^ Dependent Relative Revocation This doctrine is recognized as applying fully to a revocation by a subsequent instrument. Thus, where a will is destroyed with the sole intention of thereby effectuating a prior will, and such destruc- tion does not, under a statute, have this effect, the destruction of the second will is regarded as conditional on the prior will's thereby coming into effect; and, this condition failing, the destruction of the second will is inoperative, and, upon proof of its contents, pro- bate may be had.^* So, where a second will revoked^ a first will, containing, among oth^r things, an appointment of certain funds, comprised in a settle- ment made on his first marriage, among the issue of such marriage, the testator being under the erroneous impression that the settle- ment, by its own force, would give the property to such issue, and that the prior will was therefore useless, and really intending to 23 GifEord v. Dyer, 2 R. I. 99, 57 Am. Dec. 708; Sklpwith v. Cabell's Ex'r, 19 Grat. (Va.) 758. See, also, Dunham v. Averill, 45 Comi. 61, 29 Am. Hep. 642. So a ■win containing a revoking clause, of which' the testatrix was aware, cannot be avoided, as to such clause, by showing that it was allowed to re- main In the will under a misapprehension, the fact regarding which such mis- apprehension existed not appearing on the face of the v^. OoUins v. Elstone, 1 Rep. 458 (1893) Frob. 1. 2* 1 Redf. 358, cited and followed in Sklpwith v, Cabell's Ex'r, 19 Grat. (Va.) 758 (where a testatrix, acting upon a belief that the Sequestration Acts might have a certain operation, revoked certain bequests). And see Attorney Gen- eral V. Lloyd, 3 Atk. 553, 10 Ad. & El. 228; Willett v. Sandford, 1 Ves. 178, 186. • 25 Glddings v. Giddings, 65 Conn. 149, 32 Atl. 334, 48 Am. St. Rep. 192. 2 Mendlnhall's Appeal, 124 Pa. 387, 16 Atl. 881, 10 Am. St. Rep. 590. t^ Hayes v. Hayes, 21 N. J. Eq. 265. 28 Cossey v. Cossey, 82 Law X. (N, S.) 203, 64 J. P. 89; Powell v. PoweU, L. B. 1 P. & D. 209. 246 EBVOOATION AND REPUBLICATION OF WILLS (Ch. 9 benefit such issue to the extent that they were beneficiaries under the earlier will, the case was one of dependent relative revocation, and the first will was admitted to probate."' So a codicil, void as offending the statute against perpetuities,'" or a statute against accumulations,^^ by virtue of the same doctrine, does not effect a revocation of those portions of the will which it ostensibly and in terms revokes. And a revocation may be, in terms, conditional, as where a codi- cil revoked the first of two wills on condition that the testator should die after a certain date, providing, however, that the second should be revoked and the first treated as operative in event of his death before that date."^ Revocation by Subsequent Conveyance By the common law, alterations in the estate of the testator were followed by consequences which have largely been abrogated by stat- ute both in England and in the United States.'^ By 1 Vict. c. 26,^^ 2 8 Stamford v. White, 70 Law J. Prob. 9, (1901) Prob. 46, 84 Law T. 269. so Altrock V. Vandenburgh (Sup.) 25 N. Y. Supp. 851. 31 In re Lutz's Estate, 9 Pa. Oo. Ct R. 294. Where, however, testator by a codicil revoked a bequest in his will to carry out a bequest to a charity, the revocation was effective, although the chari- table bequest failed because testator died within thirty days after execution of codicil. Melville's Estate, 245 Pa. 318, 91 Atl. 679. 8 2Bradish v. McOlellan, 100 Pa. 607; In re Hamilton's Estate, 74 Pa. 69. S3 As the common law has thus been rendered largely obsolete, it may be summarized adequately in this note: "At common law, it was essential to the validity of a devise of freehold lands that the testator should be seised there- of at the making of the wUl, and that he should continue so seised, without interruption, until his decease. If, therefore, the testator, subsequent to his will, aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in the same lands, such newly acqrjired estate did not pass by the devise, which was necessarily void." 1 Jar. Wills, 128. And the same doctrine is applied to equitable estates, the devise of such an interest being subject to revocation by a conveyance similar to that which would have revoked a devise at law. Id. There were, however, two common-law exceptions to this rule. Both at law and equity, a partition between tenants in common and coparceners was not such a change in the estate of the devisor as would defeat the devise. Luther v. Kidby, 3 P. Wms. 169, note; Elsley v. Baltinglass, T. Eaym. 240; Barton v. Oroxall, Tamlyn, 164;' Attorney General v. Vigor, 8 Ves. 256, 261; Ward V. Moore, 4 Madd. 368; Eawlins v. Burgess, 2 Ves. & B. 382 ; Walton V. Walton, 7 Johns. Ch. (N. Y.) 267, 11 Am. Dec. 456; Ashburner v. Macguire, 2 Br. O. C. 108 ; Basan v. Brandon, 8 Sim. 171. If, in the partition, the tes- tator becomes seised of the whole estate in severalty, it will not revoke the devise, but the additional title acquired does not pass under the will. Duffel's Lessee v. Burton, 4 Har. (Del.) 290. Also, in equity, a will was only partially 8^1 Section 23 (1837). § 86) REVOCATION BY A SUBSEQUENT' WEITINQ 247 it is provided that no conveyance of real estate made after the exe- cution of a will, or other act in relation to such estate, shall prevent the operation of the will upon such portion of the estate as the tes- tator may have power to dispose of at his death ; and similar legis- lation has been generally enacted in the United States, or its prin- ciples adopted on the ground of their reasonableness and conformity to the probable intent of the testator.^ = Absolute alienation of the property, both at common law and under modern statutes, defeats the will, to the extent that the conveyance operates upon the sub^ ject-matter of the will.^* And such alienation defeats the will, revoked by a subsequent mortgage of the devised land. Hall v. Dencb, 1 Vem. 329, 352; Perkins v. Walker, Id. 97. So where the testator contracts for an estate, and after going into posses- sion, with suflcient part performance to take the case out of the statute of frauds, devises the same, and subsequently accepts a conveyance, precisely ac- cording to the contract, the will will take effect ; otherwise, if the estate con- veyed be different in any essential particular from that provided for in the contract 1 Redf. Wills, 335. In all cases where the estate was varied in any essential particular by the testator, as by a conveyance in fee reserving a ground rent (Mullock v. Bon- der, 5 Watts & S. [Pa.] 198), or a conveyance of the equitable estate retaining the legal title (Ourre v. Bowyer, 5 Beav. 6), the devise was defeated, although no such effect was anticipated or Intended. See, also, Ward v. Moore, 4 Madd. 368; BuUin v. Fletcher, 1 Keen, 369. But the leasing of a term for years out of the fee did not work a revocation. Lamb v. Parker, 2 Vem. Ch. 495. A change of title to the legal estate did not affect a devise of the beneficial interest. Parsons v. Freeman, 3 Atk. 749. So an assignment in trust for the benefit of creditors did not defeat the assignor's will as to such portions of the property as remained after the purpose of the conveyance had been ef- fected. See Vernon v. Jones, 2 Freem. 117. 35 1 Redf. Wills, 334. These statutes, however, differ largely In minute de- tails, and decisions in one jurisdiction have little significance in another, un- less the statutes involved are substantially identical. It is, however, safe to say that the common-law rule that a will could not operate upon subsequently acquired lands has been changed throughout the United States, and that the question is now one of testamentary intent, with regard to whose manifesta- tion, however, the statutes vary somewhat. See 1 Jar. WiUs (Big. Ed.) 129, note 1 ; Gregg v. McMillan, 54 S. O. 378, 32 S. E. 447. s« Phillippe V. Clevenger, 239 111. 117, 87 N. E. 858, 16 Ann. Cas. 207; In re Sprague's Estate, 125 Mich. 357, 84 N. W. 293 ; Lansing v. Haynes, 95 Mich. 18, 54 N. W. 699, 35 ^Am. St., Bep. 545. Emery v. Society, 79 Me. 334, 9 AU. 891; Jacob v. Jacob,' 82 Law T. (N. S.) 270; Herrington v. Budd, 5 Denio (N. Y.) 321; In re Forney's Estate, 161 Pa. 209, 28 Atl. 1086; 1 Redf. Wills, 336. So a devise of property in trust for the testator's daughters is defeated by the placing of property in the hands of a third party in trust for them, the in- strument manifesting an intent to revoke the provisions of the wiU. Offutt V. Divine's Ex'r (Ky.) 53 S. W. 816. It is- common to speak of such an alienation as working a revocation of the wilL But while the result is equivalent to that of revocation, no actual revo- 248 EEVOOATION AND EBPDBLICATION OP WILLS (Ch. 9 though the deed be not recorded during the life of the testator.'' Delivery, however, is essential, to enable the subsequent deed to defeat the prior devise.** A conversion by the trustees of trust funds disposed of by the will of the cestui que trust into real estate, title to which was taken in the name of the cestui, will not defeat the will, and the legatee is entitled to an equitable lien upon the prop- erty to the amount of the fund.'° It is sometimes provided by stat- ute that an executory agreement for the sale of land shall not de- feat a prior will, but that such land shall pass to the devisee subject to a right of specific performance,*" or that such a contract shall . not revoke a devise unless the whole of the purchase money has been paid.*^ An exercise of a power of appointment by will will be defeated by a subsequent exercise of a power of appointment regarding the same fund by deed.*'' A frequent statutory provision is that an alteration in the tes- tator's interest in the property devised, not amounting to an en- tire divestiture, shall not revoke a prior will, unless the conveyance declares such alteration to be a revocation, or is itself wholly in- consistent with the previous devise.** A will revoked by a con- veyance of this character properly executed is not effective as to after-acquired property.** The effect of an invalid deed upon a prior devise of the same sub- ject-matter depends upon the language of the statute.** At com- mon law, the English courts, construing the statute of frauds, held that any attempt to convey the estate devised, which showed a clear intent to revoke, should have that effect, though the deed failed through the incapacity of the grantee, or from want of some cation Is effected. The will remains unaltered. Its complete or partial oper- ation may be defeated, however, by the lack of a subject-matter upon which to operate. If, therefore, property devised and later alienated Is subsequently acquired by the testator, It passes under the original will. Ridenour v. Calla- han, 29 Ohio Cir. Ct. R. 65. See, however, PhlUippe v. Clevenger, 239 111. 117, 87 N. E. 858, 16 Ann. Oas. 207. 3 7 Collup v. Smith, 89 Va. 258, 15 S. E. 584. 8 8 Leach v. Burr, 17 App. D. O. 128. 8 8 Clements v. Horn, 44 N. J. Bq. 595, 18 Atl. 71. 40 See Prob. Prac. Act Mont. §§ 461, 463, construed In Chadwick v. Tatem, 9 Mont. 354, 23 Pac. 729. *i Code Ala. 1876, § 2287, construed in Slaughter v. Stephens, 81 Ala. 418, 2 South. 145. *2 Paine v. Forpaith, 86 Me. 357, 30 Atl. 11. *3 2 Rev. St. N. Y. (1st Ed.) p. 65, pt. 2, c. 6, tit. 1, §§ 47, 48, is a typical stat- ute of this sort See Saville v. Steer, 60 Hun, 576, 14 N. Y. Supp. 398; Burn- ham V. Comfort, 108 N. Y. 535, 15 N. B. 710, 2 Am. St Rep. 462. ** In re Backus' Will, 49 App. Div. 410, 63 N. Y. Supp. 544. *s See Bennett 7. Gaddis, 79 Ind. 347. §§ 87-88) i EEVOOATION BY CHANGE OF 0IBCUMSTANCB8 249 indispensable ceremony, such as livery of seisin in the case of a feoffment.** But a deed of one under disability, as that of a mar- ried woman, did not operate to revoke a devise.*" And a deed ex- ecuted for an immoral consideration has been held not to revoke a devise of the same land.** A deed adjudged invalid because procured by fraiid and undue influence of the grantee does not work a revocation of a prior will disposing of the same land,** and a deed by an insane person to one with knowledge of grantor's incapacity does not revoke a valid will previously made by the grantor. "• REVOCATION BY CHANGE OF CIRCUMSTANCES 87. At common law, the will of a woman was revoked by her sub- sequent marriage; that of a man, by marriage and the birth of issue. Neither of these events, alone, affected his will. 88. In many jurisdictions, statutes have materially modified the common law in these respects. Marriage, at common law, worked an absolute revocation of a woman's will,°^ and such is still the rule in the absence of legis- lation to the contrary; and the subsequent restoration of her tes- tamentary capacity by her surviving her husband does not revive the will."^ Marriage produced this effect for a twofold reason: It destroyed testamentary capacity ; "' and to have regarded the will as still valid would have given it an unchangeable character *8 1 Kedf. Wills, 343. See Shove v. Plncke, 5 T. R, 124; Vawser v. Jeffrey, 2 Swanst. 274. *7 Eiibeck v. Wood, 1 Russ. 564. *» Ford V. De Pontes, 30 Beav. 572. 49 Graham v. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St Rep. 339. Bethany Hospital Co. v. PhUlppl, 82 Kan. 64, 107 Pac. 530, 30 L. R. A. 4 N. E. 120, construing section 10.568, Gen. Code 1910. »8 Buckley v. Gerard, 123 Mass. 8; Wilson v. Fosket, 6 Mete. (Mass.) 400, 39 Am. Dec. 736 (construing a statute providing that children shall take un- less provided for by the testator in his lifetime, or unless it shall appear that such omission was intentional, and not occasioned by mistake). See, also, Lorieux v. Keller, 5 Iowa, 196, 68 Am. Dec. 696; Whittemore v. Russell, 80 Me. 297, 14 Atl. 197, 6 Am. St. Rep. 200; Miller v. Phillips, 9 R. I. 141 ; Coulam v. DouU, 133 U.' S. 216, 10 Sup. Ct 253, 33 L. Ed. 956. 256 EBVOCATION AND REPUBLICATION OF WILLS (Ch. 9 must appear on the face of the will, and that extrinsic evidence can- not be received either to prove or disprove its existence."* The question largely turns upon the language of the statutes under con- struction,^ but unless the statute expressly requires that intention to omit appear from the will alone, extrinsic evidence should be admitted to show intent.^ Where the intent to exclude must appear in the will, no par- ticular formula need be used to manifest this intent. It must be made to appear in clear terms or by implication.* A neglect to mention the child at all does not show that the omission was intentional.* While it is sometimes held that a will of all of the testator's property to others than children, without naming the latter, sufficiently manifests an intent to disinherit them," yet the weight of authority is quite the other way.' While, as a question of abstract logic, the former view is probably correct (for, where a testator, with full knowledge of all the facts, in terms disposes of all his property to a wife, for instance, he must be fully aware that his children take nothing from him, and must intend this con- sequence), yet it is hardly in accord with the spirit of legislation of this character, whose purpose is to prevent the disherison of the children unless the language of the will makes this result inevitable. Adoption of Child Whether the adoption of a child, is attended with the same con- sequences as the birth of issue depends wholly upon the language of the statutes respecting revocation of wills and the adoption of children. When an adopted child is given the status of one born in wedlock, for purposes of succession and inheritance, his adop- 99 1 TJnderhill, Wills, § 243; In re Stevens' Estate, 83 Cal. 322, 23 Pac. 379, 17 Am. St. Rep. 252; Peet v. Peet, 229 111. 341, 82 N. E. 376, 13 L. R. A. (N. S.) 780, 11 Ann. Cas. 492; Lurle v. Eadnitzer, 166 111. 609, 46 N. E. 1116, 57 Am. St. Rep. 157; CARPENTER v. SNOW, 117 Mich. 489, 76 N. W. 78, 41 L. R. A. 820, 72 Am. St. Rep. 576, Dunmore Cas. Wills, 150 ; Thomas v. Black, 113 Mo. €6, 20 S. W. 657; Bresee v. Stiles, 22 Wis. 120. 1 Statutes sometimes provide, in terms, that no evidence shall be received to rebut the presumption of revocation arising from the birth of a child who is unprovided for by the will, and who is not mentioned so as to show an intention not to provide for him. See Gen. Code Ohio 1910, § 10561. 2 Wigmore on Ev. § 2475. 8 Merrill v. Hayden, 86 Me. 133, 29 Atl. 949. * In re Stevens' Estate, 83 Cal. 322, 23 Pac. 379, 17 Am. St. Rep. 252 ; In Barker's Estate, 5 Wash. 390, 31 Pac. 976. B Hawhe v. O. & W. I. R. R. Co., 165 111. 561, 46 N. E. 240. « Sutton V. Hancock, 115 Ga. 857, 42 S. E. 214; Bancroft v. Ives, 3 Gray (Mass.) 367; CARPENTER v. SNOW, 117 Mich. 489, 76 N. W. 78, 41 L. R. A. . 820, 72 Am. St. Rep. 576, Dunmore Cas. Wills, 150 ; Thomas y. Black, 113 Mo. €6, 20 S. W. 657. §§ 87-88) BEVOCATION BT CHANGE OP CIRCUMSTANCES 257 tion has been held to revoke a prior will as effectually as would issue of the marriage.' But the mere creation of the legal relation of parent and child as a result of adoption apparently does not have that effect,* and an adopted child is not "issue," within the purview of a statute providing for the revocation of a will by marriage and birth of issue." Illegitimate Children The effect of the birth of illegitimate children upon a prior will depends wholly upon their statutory status. As a rule, if not recog- nized or in some way rendered legitimate under the statute, their birth subsequent to the execution of the will has no effect, not even upon the will of the mother.^" If legitimated, under the statute, so as to become an heir, the birth of such child subsequent to the ex- ecution of the will has the same effect as that of a legitimate child. ^^ Where an illegitimate child was born before the execution of a will by its father, a subsequent legitimation of such child by the marriage of its parents was insufficient to avoid the will under a statute which made a will void as to after-born children.^^ Divorce Revocation of a previously executed will is not implied by law from the fact that testator obtains a divorce from his wife.^' But where the divorce is accompanied by a settlement of the property rights between husband and wife, it is sometimes held that the change of circumstances is sufficient to cause an implied revqcation of a prior will,^* although, on principle, there seems to be no war- rant, either because of policy or because of a supposed change of I Flannigan v. Howard, 200 111. 396, 65 N. E. 782, 59 L. R. A. 664, 93 Am. St Bep. 201 ; Hilpire v. Claude, 109 Iowa, 159, 80 N. W. 332, 46 L. K. A. 171, 77 Am. St Rep. 524 ; Glascott v. Bragg, 111 Wis. 605, 87 N. W. 853, 56 L. B. A. 258. Contra: Davis v. Togle, 124 Ind. 41, 23 N. E. 860, 7 L. R. A. 485. 8 In re Gregory's Estate (Sur.) 15 Misc. Bep. 407, 37 N. Y. Supp. 925. » In re Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. B. A. 414. 10 Kent V. Barker, 2 Gray (Mass.) 535 (where illegitimate child would have taken, had mother died intestate) ; In re Bunce, 6 Dem. Sur. (N. Y.) 278. II Milbum V. Milbum, 60 Iowa, 411, 14 N. W. 204. 12 Mcculloch's Appeal, 113 Pa. 247, 6 Atl. 253. IS Card V. Alexander, 48 Conn. 492, 40 Am. Bep. 187; Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303; Charlton v. Miller, 27 Ohio St 298, 22 Am. Bep. 307; IN BE JONES' ESTATE, 211 Pa. 364, 60 Atl. 915, 69 L. R. A. 940, 107 Am. St Rep. 581, 3 Ann. Cas. 221, Dunmore Cas. Wills, 154. 1* Wirth V. Wirth, ,149 Mich. 687, 113 N. W. 306; Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699, 35 Am. St. Bep. 545; In re Hall's Estate, 106 Minn. 502, 119 N. W. 219, 20 I* B. A. (N. S.) 1073, 130 Am. St Bep. 621, 16 Ann. Cas. 541; In re Battis, 143 Wis. 234, 126 N. W. 9, 139 Am. St Bep. 1101. Gabd.Wills (2d Ed.)— 17 . 258 KEVOOATION AND REPUBLICATION OF WILLS (Ch. 9 intention, for a court to introduce the doctrine of implied revocation as a matter of law under such circumstances.^" No Revocation by Other Change of Circumstances No change in the circumstances of the testator, other than those heretofore discussed, will work an implied revocation of his will. No matter how long a man may live after making his will — even though he should become insane — or how much his wealth may increase or diminish, or what objects of his bounty may die' before him, his will, as such, remains unrevoked; and it will operate to the extent that, there is subject-matter on which it may act, and beneficiaries alive who may taloe.^* A change in the feelings and intentions of the testator cannot operate as a revocation. Thus, a will made to disinherit a child because testator was unfriendly to her is not revoked by the testator becoming reconciled to such child and stating that he wished all his children to share equally.^^ EVIDENCE OF REVOCATION— BURDEN OF PROOF 89. The party who seeks to defeat a will by showing that it has been revoked must establish such revocation by a prepon- derance of the evidence. Assuming that proof of execution has been duly made, so that, in the absence of a contest, probate would be allowed, the allegation that the will has been revoked is obviously in the nature of a plea of confession and avoidance, and the burden of establishing it is upon the contestant.^* When a written revocation is set up, it must be established by the same kind and measure of evidence as are required for the establishment of a will.^' i« In re Brown's Estate, 139 Iowa, 219, 117 N. W. 260; Baacke v. Baacke, supra. 16 See 1 Wms. Ex'rs, 187, 188; Wamer v. Beach, 4 Gray (Mass.) 162 (hold- ing a will not revoked by implication through lapse of time, increase in the value of the property, and Insanity of testator). 17 Jones V. Moseley, 40 Miss. 261, 90 Am. Dec. 327. IS In re Olmsted's Estate, 122 Gal. 224, 54 Pac. 745 ; Webster v. Torty, 194 111. 408, 62 N. E.'907. See In re Hammond's Will (Sur.) 4 N. "£. Supp. 456; In re Wood, 2 Con. Sur. 144, 11 N. Y. Supp. 157. 19 In re Noyes' Will, 61 Vt. 14, 17 Atl. 743. Oral evidence of the contents of the revoking document cannot be received until its destruction is proved, or its absence accounted for. Minor v. Guthrie (Ky.) 4 S. W. 179. § 89) EVIDENCE OP EEVOOATION — BURDEN OF PEOOF 259 Presumption in Aid of Contestant The contestant is often aided by the presumption of fact that a will which was under the control of the testator during his lifetime, and which cannot be found at his death, was destroyed by him with intent to revoke.'"' But the mere presumption of destruction by the testator is readily overcome, as by proof that the testator did not have access to the will after its execution,^^ or that he never in- tended revocation and died supposing the will to be in existence,^^ or that the testator's feelings towards the beneficiaries never changed, accompanied by proof that the will might have been lost, or destroyed without his knowledge,^' or that the will was destroyed without the knowledge of the testator."* So when the testator was insane during a part of the time be- tween the execution pf the will and his death, while there is a pre- sumption that it was destroyed by the testator, in whose possession it remained, in event of its not being found, yet there is no presump- tion as to when it was destroyed, and the party asserting its revoca- tion must show that it was destroyed by the testator during the period of sanity." ° 20 Scott V. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St. Eep. 263 ; Stetson V. Stetson (1903) 200 lU. 601, 66 N. K. 262, 61 L. E. A. 258; Boyle v. Boyle, 158 111. 228, 42 N. E. 140; Minor v. Gutirie (Ky.) 4 S. W. 179; In re WlUitt'a Estate (N. J. Prerog.) 46 Atl. 519; In re Kennedy's Will, 167 N. Y. 163, 60 N. E. 442 ; Hard v. A^ey, 88 Hun, 103, 34 N. T. Supp. 583 ; Belirens v. Belirens, 47 Ohio St. 323, 25 N. E. 209, 21 Am. St. Kep. 820; Gardner v. Gardner, 177 Pa. 218, 35 Atl. 558; Deaves' Estate, 140 Pa. 242, 21 Atl. 395; Appeal of Clark, 149 Pa. Ill, 24 Atl. 174; Mcintosh v. Moore, 22 Tex. Civ. App. 22, 53 S. W. 611; Goods of RadcUfife, 65 Law T. 165. 21 Schultz V. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Lane v. Hill, 68 N. H. 275, 44 Atl. 393, 73 Am. St Eep. 591. So no presumption of revocation by the testator arises where a will was received by the register of wills, through the mail, more than a year after the death of the testator, and more than twenty-two years after its execution, where the will, when received, is mutilated, and there is no evidence as to its whereabouts after its execution, and there is proof that no such document was found among the testator's papers, in his house, after his death. Throck- morton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663, reversing 12 App. D. O. 552. 22 Foster's Appeal, 87 Pa. 67, 30 Am. Eep. 340. 2s Patten v. Poulton, 1 Sw. & Tr. 55. 2* Goods of Gardner, 1 Sw. & Tr. 109. See, also, In re Hopkins' 'Will, 35 Misc. Rep. 702, 72 N. Y. Supp. 415. The language in Allan v. Morrison, 69 Law J. P. C. 141 (1900) App. Cas. 604, to the effect that the presumption aris- ing from the will's being traced to the possession of the testator, and its non- production at his death, that it was destroyed by him animo canceUandi, can only be rebutted by such evidence as produces moral conviction that it was not so destroyed, whUi perhaps justified by the facts of the case, is unques- tionably too strong a statement of the general doctrine. 2B Sprigge v. Sprigge, L. E. 1 P. & D. 608. 260 EBTOCATION AND EBPUBLIOATION OF WILLS , (Ch. 9 Presumption Regarding Mutilation ' Where a will has been duly executed and left with the testator, if it be mutilated in his lifetime while in his possession, or if, upon his death, it be found among his repositories, canceled or defaced, in such cases, in the absence of proof, the testator is presumed to have done the act with intent to revoke ; " and the same holds true of mutilation occasioned during the testator's life, though others than he had access to the place where the will was deposited.^' But the presumption fails when there is nothing to show that mutila- tion occurred during the lifetime of the testator, and there are sus- picious circumstances connected with the conduct of a person who had access to the will subsequent to the death of the testator, and who was interested to defeat the will."* Evidence Relevant to Prove Revocation While there is substantial authority for the view that declara- tions of the testator, to be admissible on the question of revocation, must accompany the alleged act of revocation so closely as to be a part thereof,'" yet the sounder and more modern view is that, when the state of the testator's mind regarding the existence or revoca- tion of a will is material, his declarations may be proved, not as evi- dence of what they recite, but as indicative of the testator's mental state.'" But such declarations are not sufficient evidence of the 26 Bennett v. Sherrod, 25 N. O. 303, 40 Am. Dec. 410; Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 Am. St Bep. 639; Christmas v. Whlnyates, 3 Sw. & Tr. 81 ; Stephens v. Taprell, 2 Curt. 458. " Bennett v. Sherrod, supra ; COLLTER v. COIiLYEB, 110 N. T. 481, 18 N. E. 110, 6 Am. St Rep. 405, Dunmore Cas. Wills, 158; In re Philp, 64 Hun, 635, 19 N. X. Supp. 13. The facts may be such as to show that the mutilation occurred before the will was executed. In re Homes' Will (Sur.) 11 N. Y. Supp. 898. 28 Bennett v. Sherrod, supra. 2 » Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct 474, 45 L. Ed! 663 ; Glass v. Scott, 14 Colo. App. 377, 60 Pac. 186; Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620; In re Colbert's Estate (1904) 31 Mont 461, 78 Pac. 971, 80 Pac. 248, 107 Am. St. Rep. 439, 3 Ann. Cas. 952. And see Jackson v. Betts, 6 Cow. (N. Y.) 377; Doe v. Perkes, 3 B. & Aid. 489; Bibb v. Thomas, 2 W. Bl. 1043. a Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460 (where declarations, oral and written, of the testatrix that sl^e had destroyed her will, were held ad- missible); Law V. Law, 83 Ala. 432, 3 South. 752; Burton v. Wylde, 261 111. 397, 103 N. E. 976 ; Behrens v. Behrens, 47 Ohio St. 323, 25 N. E. 209, 21 Am. St Rep. 820; In re Steinke's Will, 95 Wis. 121, 70 N. W. 61 (holding declara- tion of the testatrix that the wUl was in existence admissible) ; Patterson v. Hickey, 32 Ga. 156; Ford v. Ford, 7 Humph. (Tenn.) 92; Boudlnot v. Brad- ford, 2 Yeates (Pa.) 170. And see In re Weston, L. R, 1- P. & D. 633 ; CoUagan V. Burns, 57 Ma 449; Pickens v. Davis, 134 Mass. 252, 45 Am. Kep. 322. See, also, Wlgmore on Ev. i 1737, and cases there citpd. §§ 90-92) BEPUBUCATION DEFINED — HOW EFFECTED 261 fact of revocation/^ and some a'ct capable of being regarded as an act of revocation must be shown before they can be received."^ The declarations of a beneficiary, admitting a revocation of the will, may be received, as against interest, in so far as the interest of other beneficiaries will not be affected thereby."^ And on the issue whether the testator had destroyed a will which he retained, but which could not be found, evidence may be given of the testa- tor's character, condition, and acts, as well as of the conduct of those around him after the making of the will.** While the placing of his will by the testator among worthless papers, in a secure place, is probably a fkct to be considered, yet from it alone no intention to revoke can be inferred, when the will is undefaced and intact.*" Testimony as to why the testatrix re- voked her will is immaterial, when there is no question as to the fact of revocation.*' Will Executed in Duplicate Where a will is executed in duplicate, the testator retaining one copy and giving the other to his wife, the instrument offered for probate is presumed to be the one retained by the testator, although it does not appear what became of the other, and no presumption of revocation based on the possibility of his having destroyed the copy retained by him arises.*' REPUBLICATION DEFINED— HOW EFFECTED 90. Republication is the method by which a will which has been imperfectly executed, or revoked, is given or restored to potential efficiency. 91. Republication is either express or constructive. Express repu]> lication occurs when the testator executes the will anew with a view of giving it effect as his will. 92. Constructive republication occurs when the testator executes a codicil referring to the prior will, which is therewith incor- porated and given effect as of the date of the codicil. 81 Haines v. Stewart, 2 Sw. & Tr. 320; Stevens v. Stevens, 72 N. H. 360, 56 AtL 916. 32 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St Bep. 145. » 8 In re Lambie's Estate, 97 Mich. 49, 56 N. W. 223. 84 Gardner v. Gardner, 177 Pa. 218, 35 Atl. 558. *B Succession of Blakemore, 43 La. Ann. 845, 9 South. 49S. 8« Scoggins V. Turner, 98 N. C. 135, 3 S. B. 719. 8' Snider v. Burks, 84 Ala. 53, 4 South. 225. 262 REVOCATION AND REPUBLICATION OF WILLS (Ch. 9 The term republication, in so far as it suggests a declaration of the instrument in question as a will, is inaccurate, for, as has been seen, in the absence of an express statutory Tequirement to that effect, publication in this sense is not essential to the due execution of a will. The term signifies the restoration to potential efficiency as a will of a document whose original power has been destroyed by revocation, or which never had such power by reason of defec- tive execution. The Law Prior to 1838 Under the statute of frauds,'' no will of lands could be repub- lished except by re-execution or a duly executed codicil. But the^ law relating to wills of personalty remained unaffected, and such wills might be republished not merely by an unattested codicil or other writing, but even by parol declarations of the testator.^" And the mere conservation of a will for a long time might, under circumstances sufficient to clearly indicate the intent, amount to a republication.*" This principle applied whether the revocation was by the execu- tion of a subsequent will or by cancellation.*^ In the case of two wills, however, some direct and unequivocal act of republication was required to set up the will of earlier date, there being a strong presumption in favor of the last-dated will, which remained uncan- celed.*" The Present Law By statute 1 Vict. c. 26,*° it was provided that no will or codicil, or any part thereof, which shall be revoked shall be revived other- wise than by the re-execution thereof, or by a codicil executed in accordance with the requirements for the execution of wills, and showing an intention to revive the same. Similar legislation has 3 8 29 Car. II, c. 3, § 5 (1677). 38 Beckford v. Parnecott, Cro. El. 493 ; Havard v. Davis, 2 Bin. (Pa.) 406; Cogdell's Bx'rs v. Cogdell's Heirs, 3 Desaus. (S. C.) 346 ; Miller v. Brown, 2 Hagg. 209, 1 Wms. Ex'rs, 245. Before the statute of frauds, anything which showed an intent that a will of lands should be of subsequent date was a sufficient republication. 1 Roll. Abr. 618, pi. 7; Barnes v. Crowe, 1 Ves. Jr. 497; Anon., 2 Show. 48. *o Long V. Aldred, 3 Add. 48; Braham v. Burchell, 3 Add. 264. *i 1 Wms. Ex'rs, 250. 42 1 Wms. Ex'rs, 248 ; Stride v. Cooper, 1 Phillim. 336. There is said to have been no case wfiere a later will, with a revocatory clause remaining uncanceled, and in the same repository with a former will, was Bet aside on the ground of the republication of the prior will by mere declarations. 1 Wms. Ex'rs, 248 (citing Daniel v. Nockolds, 3 Hagg. 777. And see Witter v. Mott, 2 Conn. 67; Battle v. Speight, 31 N. C. 288; Dunlap V. Dunlap, 4 Desaus. [S. C] 305, 321). 4 3 Section 22 (1837). §§ 90-92) EEPUBLICATION DlEFlNED — HOW EFFECTED 263 been enacted in most, if not all,** of the states of the United States, so that revival must now be had by one of these methods, or not at all.*" When a will is republished by re-execution, the principles already discussed regarding the execution of wills obtain,*" and require no further reference here. Republication by Codicil While the language of the statutes varies somewhat, it may.be said that a codicil, duly executed, will effect a republication of a prior will, when such effect was intended.*^ The codicil need not set forth in express terms the testator's intent to republish the will.** Any reference which makes such intent obvious is suffi- ciefit,*" as a reference to "my will," "" or to the will by date,"^ or to ** In Pennsylvania there are several cases vsfhich intimate that republica- tion may still be had by parol. See In re Jacoby's Estate, 28 Pittsb. Leg. J. (N. S.) 17; In re Gillespie's Will, 26 Pittsb. Leg. J. (N. S.) 222; Forquer's Es- tate, 216 Pa. 331, 66 Atl. 92, 8 Ann. Cas. 1146. But in a recent case. In re Holmes Estate, 240 Pa. 537, 87 Atl. 778, the court expressed doubt as to the possibility of a parol republication. 46 Thus the refiling of a revoked vyill with the county judge effects no re- vival, though such may have been the testator's Intent. In re Noon's WUl, 115 Wis. 299, 91 N. W. 670, 95 Am. St. Rep. 944. Neither does a parol declara- tion by the testator that he veishes the revoked will to stand. In re Stickney's Will, 161 N. Y. 42, 55 N. E. 396, 76 Am. St Rep. 246 ; Danley v. JefEerson, 150 Mich. 590, 114 N. W. 470, 121 Am. St Rep: 640, 13 Ann. Cas. 242. And a por- tion of a will revoked by erasure cannot be re-established merely by restoring the words erased. Safe Deposit & Trust Co. v. Thorn, 117 Md. 154, 183 Atl. 45. *e Sanders v. Babbitt, 106 Ky. 646, 51 S. W. 163 ; Stewart v. MulhoUand, 88 Ky. 38, 10 S. W. 125, 21 Am. St Rep. 320. See, however, In re Brock's Estate, 247 Pa. 365, 93 Atl. ,487, L. R^ A. 1915D, 1140 (where rewriting of signature held a republication). Although it has been held that the subscribing witnesses iieed not sign a second time in order to give validity to a dispositive clause inserted in the vnll, in their presence and in that of testator, a few days after its execution (Wright V. Wright, 5 Ind. 389), it is submitted that this view cannot be sus- tained either on principle or by the authorities (Hesterberg v. Clark, 166 111. 241, 46 N. B. 734, 57 Am. St Rep. 135). *7 Pope V. Pope, 95 Ga. 87, 22 S. E. 245 (where the codicil referred to the will by date, and mentioned provisions therein); McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566 (where codicil expressly confirmed the will); Cook v. White, 167 N. Y. 588, 60 N. E. 1109 (where codicil ratified will) ; Illensworth V. lUensworth, 39 Misc. Rep. 194, 79 N. Y. Supp. 410; In re Knapp's WUl (Sur.) 23 N. X. Supp. 282; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391; In re Walton's Estate, 194 Pa. 528, 45 Atl. 426; In re Lee's Estate, 15 Mont Co. Law R. (Pa.) 70. *8 Francis v. Marsh, 54 W. Va. 545, 46 S. E. 573, 1 Ann. Cas. 665. *B Blackett v. Ziegler (1911) 153 Iowa, 344, 133 N. W. 901, 37 L. R. A. (N. S.) 29, Ann. Cas. 1913E, 115. 6 In re Nisbet, 5 Dem. Sur. (N. Y.) 287. A codicil will refer to the last in date of several wills, if no date is named. Crosble v. McDoual, 4 Ves. 610. 01 Payne v. Payne, 18 Cal. 291. 264 REVOCATION AND EEPUBLIOATION OF WILLS (Ch. 9 "another codicil" by a second codicil."* And the codicil need not be attached to the will."* The due execution of the codicil by a com- petent testator gives effect to the prior instrument incorporated therein, though the latter be improperly executed,"* or executed by a testator under undue influence,"" or under a disability, as cover- ture ; "' and the same result follows as regards wills executed by in- fants or insane persons, when the subsequent instrument is executed after the disability has been removed."^ A codicil expressly referring to a will revives it, although the will referred to had been revoked by a later subsisting will, and parol evidence is not admissible to show that testator intended to refer to the later will."* Consequences of Republication The republication of a will brings it down to the date of the re- publishing, as though originally executed at that time. A will thus Republished is substantially a new will."' But the effect of republication can never extend further than to give the words the same force and operation that they would have had, had the will been executed at the time of republication. It cannot invest with a dispositive efficacy expressions which originally had none, or alter the construction of the will so as to cure any defect of expression therein.'" If the will refer expressly to the date of its own execu- tion, it will not speak as of the date of the codicil republishing it.°^ »2 Ingoldby v. Ingoldby, 4 Wlrty. Notes Gas. (Eng.) 493. »8 Van Cortlandt v. Kip, 1, HiU (N. Y.) 590; Pope v. Pope, 95 Ga. 87, 22 S. E. 245 ; Appeal of Wikoff, 15 Pa. 281, 53 Am. Dec. 597. B* In re Walton's Estate, 194 Pa. 528, 45 Atl. 426; McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566; Skinner v. Society, 92 Wis. 209, 65 N. W. 1037; Mooers v. White, 6 Johns. Ch. (N. T.) 375. BB Farr v. O'Neall, 1 Rich. (S. C.) 80. Bel Wms., Ex'rs, 226; Thomas v. Jones, 1 De G., J. & S. 63; Noble v. Phelps, L. R. 2 P. & D. 276; Braham v. Burchell, 3 Add. 243. BT See 1 Redf. Wills, 374; Brown v. Riggin, 94 111. 560. B 8 IN RE CAMPBELL'S WILL, 170 N. Y. 84, 62 N. E. 1070, Dunmore Cas. Wills, 160; NefE's Appeal, 48 Pa. 501; Walpole t. Orford, 3 Ves. 402. BO Barker v. Bell, 46 Ala. 216; In re Hayne's Estate, 165 Cal. 568, 133 Pac. 277, Ann. Cas. 1915A, 926; Miles v. Boyden, 3 Pick. (Mass.) 213; Brimmer V. Sohier, 1 Cush. (Mass.) 118; Murray v. OliTer, 41 N. C. 55; Jack v. Shoen- berger, 22 Pa. 416; Van Kleeck v. Dutch Reformed Protestant Church, 20 Wend. (N. Y.) 457; SnowhlU v. Snowhill, 23 N. J. Law, 447. «o 1 Jar. Wills, 159, citing Lane v. Wilkins, 10 East, 241. ^ "To give a codicil the effect to republish a will so as to pass estates ac- quired^ between the date of the will and the date of the codicil, the words of the will must be of such a character as, if used at the date of the republica- tion, would include the estate In controversy. If the language of the original •1 Stilwell V. Mellersh, 20 L. J. Ch. 356. "" §§ 90-92) REPUBLICATION DEFINED— HOW ErFEOTED 265 In accordance with this principle, it was held that a will dispos- ing of all the testator's real estate, and republished by a codicil, operated to pass real estate acquired subsequent to the execution of the will.** This doctrine is of less consequence than formerly, in view of the general statutory change in the common-law rule, in consequence of which change wills may operate upon subsequently acquired lands.** The republication of a will by a subsequent codicil effects a re- publication of prior codicils, inasmuch as they are constructively a part of the will thus republished.** Therefore a testator, by ex- pressly referring to and confirming the will by a codicil, will not be considered as intending to set it up against intermediate codicils which alter, revoke, or make additions thereto.** And the same rule applies, though the codicil by which republication is efifected refers to the prior will by its date.** No intention to exclude in- termediate codicils is to be inferred therefrom. If, however, a codicil has not been duly executed, republication of the will by a subsequent codicil which merely refers to the will by its date will not effect a republication of the first codicil.*^ "The two classes of cases differ essentially. In the one class the question is, does the later codicil revoke the earlier and operative one ? In the other, you inquire, does the later codicil set up the earlier and inoperative one? To one class of cases the principle applies that a clear dis- position is not to be revoked except by clear words. To the other class this principle has no application." ** But the republication of a will by means of a codicil works a com- wlll be such as, If used at the date of republication, would not Include the after-purchased estate in its terms or description, or if the act of republica- tion be accompanied with other provisions indicating that it was the intent of the testator to limit the operation of the will, as republished, to the same estate which was given and would legally pass by the original will, then, notwithstanding such republication, the devise wUl not include the after- purchased estate." Haven v. Foster, 14 Pick. (Mass.) 541. Accord: In re Farrer, 8 Ir. Com. Law R. 370. And see the language of Lord Cranworth in Stilwell V. Mellersh, 20 L. J. Ch. 356, 361. 82 Barnes v. Crow, 4 B. C. C. 2. See Potter v. Potter, 1 Ves. 437; Miles v. Boyden, 3 Pick. (Mass.) 213; Langdon v. Astor's Ex'rs, 16 N. X. 9; Corr v. Porter, 33 Grat (Va.) 278. 83 See ante, p. 148. 84 Manship v, Stewart (1914) 181 Ind. 299, 104 N. B. 505. 8 5Crosbie v. McDoual, 4 Ves. 610; the court remarking that, if a man ratifies ahd confirms his last wUl, he ratifies and confirms it with every codicil that has been added to it. Accord: In re Lee's Estate, 16 Pa. Sniper. Ct 627. 8 8 Green v. Tribe, 9 Ch. D. 231. 8T Burton v. Newbery, 1 Ch. D. 234. 88 Fry, J., In Green v. Tribe, 9 Ch. D. 231. 266 REVOCATION" AND REPUBLICATION OF WILLS (Ch. 9 plete revocation of all other wills which are inconsistent with that republished, there being an obvious difference between wills and codicils in this respect.*" Republication has no effect to revive legacies which ,have been adeemed or satisfied.'" Neither will a holographic codicil, in juris- dictions recognizing holographic wills as valid without attestation, republish an unattested instrument not wholly in the handwriting of the testator.'^ Where the statute renders void a testamentary gift to a charitable use, if made within thirty days of the testator's death, a gift in a will is not rendered invalid by the execution of a codicil to the will within the thirty days.'^ «» Rogers v. Plttis, 1 Add. 38; Walpole v. Cholmondeley, 7 T. R. 138; IN RE CAMPBELL'S WILL, 170 N. Y. 84, 62 N. E. 1070, Dunmore Cas. WUls, 160. 'oTanton v. Keller, 167 111. 129, 47 N. E. 376; Langdon v. Astor's Ex'rs, 16 N. Y. 9. 71 Sharp V. Wallace, 83 Ky. 584. See Love v. Johnston, 34 N. C. 355; Sawyer's Legatees v. Sawyer's Heirs, 52 N. O. 134. »2 In re McCauley's Estate, 138 Cal. 432, 71 Pac. 512; In re Morrow's Es- tate, 204 Pa. 479, 54 Atl. 313. §§ 93-94) CONFLIOT OF LAWS 267 CHAPTER X CONFLICT OF LAWS 93-04. Eeal Property Controlled by Law of Place — Personal Property by Law of Domicile. REAL PROPERTY CONTROLLED BY LAW OF PLACE- PERSONAL PROPERTY BY LAW OF DOMICILE 93. In so far as it affects real property, the mode of execution, and the validity of a will are controlled by the law of the ju- risdiction in which the land is situated. 94. In so far as it affects personal property, the requisites, validity, and construction of a will are controlled by the law of the testator's domicile. The distinction above indicated has been recognized from the earliest times by the English law. It is manifestly appropriate, as well as inevitable, that the method of transmitting title to the territory over which sovereignty is exercised should be controlled by the sovereign ; hence the rule of the black-letter text regarding realty.^ So for the disposition of property of this sort, the place where a will happens to be made, and the language in which it is v/ritten, are wholly unimportant as aflfecting its validity and the ceremonial of its execution.'' Hence a will, attested by two wit- nesses, though valid in the testator's domicile, is inoperative to pass title to land located in a jurisdiction where a greater number of ^ Vamer v. Bevil, 17 Ala. 286 ; Norris v. Harris, 15 Cal. 226 ; Irwin's Ap- peal, 33 Oonn. 128 ; Headman v. Ferguson, 13 App. D. C. 60; Hays v. Ernest, 82 Fla. 18, 13 South. 451 ; KNIGHT v. WHEEDON, 104 Ga. 309, 30 S. EJ. 794, Dunmore Cas. WUls, 168 ; Bland v. Bland, 103 111. 12 ; Evansville Ice & Cold Storage Go. v. Winsor, 148 Ind. 682, 48 N. E. 592 ; Otto v. Doty, 61 Iowa, 23, 15 N. W. 578; Robertson v. Barbour, 6 T. B. Mon. (Ky.) 523; Du Puy v. Min- eral Co., 88 Me. 202, 33 Atl. 976; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472; White V. Howard, 46 N. T. 144; Koppel v. Holm, 23 Misc. Rep. 557, 52 N. Y. Supp. 830; Leake v. Gilchrist, 13 N. C. 73; McCune's Devisees v. House, 8 Ohio, 144, 31 Am. Dec. 438; Boiling v. Boiling, 88 Va. 524, 14 S. B. 67; In re Stewart's Estate, 26 Wash. 32, 66 Pac. 148, 67 Pac. 723; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 5 Am. St Rep. 117 ; Darby's Lessee v. Mayer, 10 Wheat. 465, 6 L. Ed. 367 ; Handley v. Palmer (C. C.) 91 Fed. 948. See; also, note, 48 L. R. A. 133. 2 1 Jar. WUls, 1. 268 CONFLICT OF LAWS (Ch. 10 witnesses is required.* The lex loci rei sitae also determines the effect of an act of revocation upon a will disposing of land ; * and, although the policy of laws, requiring wills disposing of property to charity. to be executed a certain time before testator's death, seems to be to protect the citizens of the state when they are enact- ed," the courts have usually determined the validity of a devise of realty according to the statute in the jurisdiction in which land is situated.' In so far as the manner of execution of a will is concerned, the rules above stated have been very generally changed by statute.^ Interpretation of Wills of Realty In interpreting the language of any will, the thing to be got at is what the testator meant'. When this meaning is clear, it is ef- fectuated, if it can legally be done. When certain language is used in a will which has one meaning in the testator's domicile and an- other in the jurisdiction where the land is situated, it seems only fair to suppose that the language was used in the sense with which the testator was presumably familiar, namely that of the domicile, and such, both on principle and by weight of authority, is the rule.* Many cases hold that the interpretation of a devise must depend upon the law of the place where the land is situated.'* The ap- parent absurdity of this view is pointedly shown by Professor Minor's remark that, if the testator had land lying in different ' 3 E^^IGHT V. WHBEDON, 104 Ga. 309, 30 S. E. 794, Dunmore Gas. WUls, 168. lEvansviUe Ice & Cold Storage Co. v. Wlnsor, 148 Ind. 682, 48 N. B. 592; Ware v. Wisner (O. C.) 50 Fed. 310; Minor, Conf. Laws, S 149. 6 Minor, Conf. Laws, § 144. 8 Huidekoper v. Perry, 7 O. O. D. 326 (where devise of Ohio realty to a charity by one domiciled In Pennsylvania was held invalid because made within year contrary to Ohio statute). 7 See post, p. 270. 8 Ford V. Ford, 80 Mich. 42, 44 N. W. 1057; Ball v. Phelan (1909) 94 Miss. 293, 49 South. 956, 23 L. R. A. (N. S.) 895; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 5 Am. St Eep. 117; Proctor v. Clark, 154 Mass. 45. 27 N. E. 673, 12 L. R. A. 721 ; Lincoln v. Perry, 149 Mass. 363, 21 N. E. 671, 4 L. R. A. 215 (hold- ing that in a devise of land, outside the state, to a beneficiary and her "heirs," the word "heirs" was to be interpreted according to the law of Massachusetts, and that the husband of the beneficiary, being an heir of his wife in the latter ■state, would take, although he was not an heir, in the state where the land was situated). Accord: Keith v. Eaton, 58 Kan. 732, 51 Pac. 271; Guerard v. Guerard, 73 Ga. 506. » Peet V. Peet, 229 111. 341, 82 N. E. 376, 13 L. R. A. (N. S.) 780, 11 Ann. Cas. 492; McCartney v. Osbum, 118 111. 409, 9 N. E. 210; Harlan v. Man- Ington (1911) 152 Iowa, 707, 133 N. W. 367 ; Jacobs v. Whitney, 205 Mass. 477, 91 N. E. 1009, 18 Ann. Cas. 576; Applegate v. Smith, 31 Mo. 166; Ives v. Mc- NiooU, 59 Ohio St. 402, 53 N. K 60, 43 L. R. A. 772, 69 Jun. St. Eep. 780 §§ 93-94) BBAL PEOPEBTT — PERSONAL PEOPEBTT 269 States, it might result in attributing to him an intent to use the same language in as many different senses as there were parcels of land.^" It is possible, however, that this view, historically, may rest upon considerations of policy, independent of the question of the testator's intent Personal Property Since personal property has, broadly speaking, no locus apart from the domicile of its owner, and there being no reason why the sovereign within whose jurisdiction it chances to be physically situated should interfere with the method of its devolution, it is steadily held that in regard to testamentary capacity, method of execution,^^ and construction ^* the law of the state or country in which the testator was domiciled at the time of his death controls. Leaseholds of land situated in one state, and owned by the resi- dent of another, are personal property, and, so far as their trans- mission by will is concerned, are governed by the law of the dom- icile of the lessee.^* ' Where testator changes his domicile after the execution of his will, by the better rule, the law of the testator's domicile at the time of the execution of the will controls its interpretation and con- ■struction.^* The law of the domicile at the time of death determines the for- mal validity of the will, unless the statute provides otherwise. It follows that a will of personal property, executed in accordance with the law of the testator's domicile at the time, may become invalid upon a subsequent change to a domicile whose requirements are different and in which the testator dies.*' As a general rule, 10 Minor,_ Conf. Laws, § 145, note 4. 11 Johnson v. Copeland's Adm'r, 35 Ala. 521; Yore y.^Cook, 67 111. App. 586 ; Dorsey's Ex'r v. Dorsey's Adm'r, 5 J. J. Marsh. (Ky.) 280, 22 Am. Dec. 33; Lawrence v. Kitteridge, 21 Conn. 577, 56 Am. Dec. 385; Irving v. McLean, 4 Blackf. (Ind.) 53 ; Gllm4n v. Gllman, 52 Me. 165, 83 Am. Dec. 502 ; Fellows V. Miner, 119 Mass. 541; Nat v. Coons, 10 Mo. 543; Despard v. Churchill, 53 N.'Y. 192; Chamberlain v. Chamberlain, 43 N. Y. 424. . 12 Rackemann v. Taylor, 204 Mass. 394, 90 N. E. 552; Dammert v. Osbom, 140 N. Y. 30, 35 N. E. 407; Sickles v. City of New Orleans, 80 Fed. 868, 26 ■C. C. A. 204; Ferguson's Will (1902) 1 Ch. 483. 13 Despard v. Churchill, 53 N. Y. 192. 14 Staigg V. Atkinson, 144 Mass. 564, 12 N. B. 354; Minor, Oonf. Laws, S 148. 15 Moultrie v. Hunt, 23 N. Y. 394; Irwin's Appeal, 33 Conn. 128; Nat v. Coons, 10 Mo. 543 ; SHUTE v. SARGENT, 67 N. H. 305, 36 AU. 282, Dun- more Cas. Wills, 170. And see Minor, Conf. Laws, 143. In Moultrie v. Hunt, supra, a testator domiciled in South Carolina exe- ■cuted his will and acknowledged the seal and signature to the witnesses. Under the law of South Carolina, this was sufficient. The testator subse- 270 CONI'LICT OF LAWS (Ch. 10 the validity of the provisions of a will of personalty is determined by the law of the domicile." But vague and tndefinite trusts, whose enforcement in a jurisdiction other than that of the domi- cile is contemplated by the will, may be sustained if such trusts are capable of enforcement in that jurisdiction, though void under the law of the domicile." The tendency of the earlier cases, how- ever, was otherwise.^* So, if the will disposes of property in another state, with the intention that it shall remain there, the validity of the disposition is not affected by the law relating to perpetuities or accumulations in the state of the domicile.^' The validity of a bequest, as involving limitations upon the testator's capacity to bequeath his property to charity, or requiring the will to be exe- cuted a certain period before his death, or as concerning restraints upon testamentary capacity in general, as that of infants or married women, is determined by the law of the domicile.'"' Statutory Changes In consequence of the hardships occasionally resulting from the rules stated in the black-letter text, statutes, affecting alike wills of realty or of personalty have generally been enacted, either adniit- ting to probate all wills which might have been probated in the state or country in which they were made,"* or wills which have been actually so probated.^" ^ quently removed to New York, and died there. In the latter Jurisdiction an acknowledgment of the will as such was necessary. Held, that Jhe will must fail as not being executed in compliance with the law of the testator's domi- cile at the time of his death. 18 Fellows V. Miner, 119 Mass. 541; Dammert v. Osbom, 140 N. X. 30, 35 , N. B. 407 ; Penfleld v. Tower, 1 N. D. 216, 46 N. W. 413 ; Williams v. Saun- ders, 5 Cold. (Tenn.) 60 ; American Bible Soc. v. Pendleton, 7 W. Va. 79. 17 Healy v. Reed, 153 Mass. 197, 26 N. B. 404, 10 L. B. A. 766; Sohier v. Burr, 127 Mass. 221; Hope v. Brewer, 136 N. Y. 126, 32 N. B. 558,' 18 L. R. A. 458. In the last case a wiU was made in New York, establishing a trust for a charity in Scotland, the bequest being valid under the law of Scotland, but too indefinite for enforcement under the laws of New York. The court of the latter state, however, sustained the bequest. 18 See Wood v. Wood, 5 Paige (N. Y.) 596, 28 Am. Dec. 451; Montgomery V. MiUikin, 5 Smedes & M. (Miss.) 151, 43 Am. Dec. 507. 18 Chamberlain v. Chamberlain, 43 N. Y. 424, where it was held that a be- quest by a testator, domiciled in New York, to a Pennsylvania corporation, for charitable purposes, which ofEended the New York statute against per- petuities, depended for its validity upon the law of Pennsylvania. See, also, Gray, Rule against Perpetuities (2d Ed.) § 263b. 20 Minor, Conf. Laws, § 144. ziSlocomb V. Slocomb, 13 Allen (Mass.) 38; Bayley v. Bailey, 5 Cush (Mass.) 245. 22 Green v. Alden, 92 Me. 177, 42 AO. 358, construing Rev. St 1883, c. 64, §§ 13, 14. §§ 93-94) 'seal peopektt — personal pkopektt 271 Lapse — Election The law of the domicile determines the effect of a lapse by the death of a devisee or legatee, whether the property shall pass un- der the residuary clause, or the case be regarded as one of partial, intestacy.^' So where provision is made by a husband's will for his wife, and the instrument is silent as to whether such provision is in lieu of her distributive share of the personalty, the question as to how the will is to be interpreted in this regard is to be de- termined by the law of the domicile,** regardless of where the prop- erty may be. And where a testamentary provision is thus ijiade for the wife, while it cannot affect her dower rights in land situat- ed elsewhere than in the testator's domicile, yet the. courts of the jurisdiction containing the land ^ill put the wife to her election, if such be the law of the domicile, though under the law of their own jurisdiction the widow might take both.'"' If the widov/. is disabled from making an election, as by insanity, the courts of her husband's domicile may make the election for her, and the decree to this end is treated as conclusive in the courts of other states.*^ When a will disposes of all the testator's property, and is opera- tive with regard to the personalty and some of the realty, but in- operative with regard to a portion of the latter by reason of its location, a beneficiary under the will, who is also an heir to the realty upon which the will does not operate, is put to his election between the valid benefit which he takes under the will and the property to which he succeeds as heir."' Revocation of Wills of Personalty The effect of an act of revocation upon a will of personalty, whether express or arising from implication of law, is determined by the law of the testator's domicile."* Since an act of revocation, once accomplished, is final, no subsequent change of domicile can affect its consequences in any way. 2 8 Rockwell V. Bradshaw, 67 Conn. 9, 34 Atl. 758; Lowndes v. Cooch, 87 Md. 478, 39 Atl. 1045, 40 L. R. A. 380; Anstruther v. Chalmer, 2 Sim. 1; Thornton v. Curling, 8 Sim. 310. 21 Slaughter v. Garland, 40 Miss. 172. Where testator changes his domicile after the execution of his will, on principle, the question of interpretation ia this connection should be deter- . mined according to the law of the domicile at "the execution of the wUl. See Stalgg V. Atkinson, 144 Mass. 564, 12 N. E. 354 ; Minor, Confl. Laws, § 148. 2 5 Washburn -v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; Boiling v. Boil- ing, 88 Va. 524, 14 S. B. 67. 28 Slaughter v. Garland, 40 Miss. 172 ; Washburn v. Van Steenwyk, supra. 2T Brodie v. Barry, 2 Ves. & B. 127; Balfour v. Scott, 6 Bro. P. C. 550. 28 Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Price v. Dew- hurst, 8 Sim. 437. 272 CONFLICT OF LAWS ' (Ch. 10 If a will is alleged to have been revoked by a subsequent will, the question as to whether this effeqt is worked is determined by the law of the domicile. If, under that law, the subsequent will effects an immediate revocation, this determination is final; but if, by the law of the domicile, the second will has only a post mor- tem operation, its precise effect will then be determined by the tes- tator's domicile at his death. So the effect of a subsequent mar- riage is determined by the law of the testator's domicile at the time of the marriage.''* If, by the law of the domicile, the birth of a child for whom no provision is made revokes the will, this conse- quence follows, and it cannot be averted by a subsequent cTiange of domicile. But, if revocation results only from the death of the tes- tator whose will leaves the child /unprovided for, then the law of the domicile at the time of his death controls.*' Wills Exercising Powers of Appointment Questions involving the validity of wills exercising a power of appointment over real property in a jurisdiction other than that of the testator are governed by the law of the situs.*^ But a power of appointment by will over personal property offers some peculiar- ities.*'' In this case the law looks behind the will by which the power of appointmeht is exercised to the will of the donor of the power, and the validity of the provisions of the donee's will in the exercise of the power is determined, not by the law of the donee's domicile, but by that of the domicile of the donor,** and the same principle, though perhaps with less reason,** applies to the form of execution,*" and to the interpretation of its language.** In short,. 29 Goods of Eeid, L. R. 1 P. & D. 74; Minor, Conf. I^aws, § 149. 80 Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41. See Minor,. Confl. Laws, § 149. 81 Poison V. Stewart, 167 Mass. 211, 45 N. E. 737, 36 L. E. A. 771, 57 Am.. St Eep. 452; Sewall v. Wilmer, 132 Mass. 131. 82 See note, 19 Harv. L. Eev. 122. , as Sewall v. Wilmer, 132 Mass. 131, 137; In re New York Life Ins. & Trust Co., 209 N. Y. 585, 103 N. E. 315. 8* See Minor, Confl. Laws, § 150. 8 5 Sewall V. WUmer, 132 Mass. 131; Whart. Confl. Laws, § 590; Murphy- V. Deichler (1909) A. C. 446. A power to appoint by will may also be exercised by a will executed in accordance with the law of donee's domicile. D'Huart v. Harkness, 34 Beav. 324. 38 Sewall y. Wilmer, supra; Cotting v. De Sartiges, 17' R. I. 668, 24 AtU 530, 16 L. E. A. 367. Appeal of Bingham, 64 Pa. 345. In Sewall v. Wilmer, supra, the donee of the power lived in Maryland, an* her will gave all her property to which she should be entitled, in law or eq- uity, at the time of her decease, to her husband. Under the laws of Mary- land this was an insufficient execution of the power by reason of absence ot reference to the power or the subject-matter, but it was sufficient to that end §§ 93-94) REAL PEOPEETT — PERSONAL PKOFEETY 273 I for testamentary purposes, the donee of the power is apparently- regarded as an instrumentality of the donor, and as constructive- ly possessed of the latter's domicile so far as the exercise of the power is concerned. Devises to Corporations If the charter of a corporation prohibits it from taking by devise, it is incapacitated from thus taking in a foreign jurisdiction, for its powers are deteirmined by its charter. But a corporation, not thus incapacitated by its charter, may take by devise in another state, though "^disabled from taking by will by the statute of wills of the state of its incorporation."' Though^ a corporation be authorized by the law of its origin to take land by devise, it cannot take land in a state where devises to corporations are forbidden.'* Equitable Conversion , The validity of bequests of property treated as personalty by virtue of the doctrine of equitable conversion is determined by the law of the domicile ; "° whether or no the doctrine operates to pro- duce this effect depends upon the law of the situs of the land.*" Rules as to Domicile Every person has a domicile somewhere, and can have but one, which is presumably at the place of his birth, and this domicile is presumed to continue until a change of domicile is shown.*^ Every natural person, free and sui juris, may change his domicile at pleasure.*'' A change of domicile is effected by a change of resi- dence, coupled with an intent to abandon the former domicile and acquire a iiew one. A change of residence is not of itself suffi- cient, though, if long continued it is strong evidence to show the necessary intention.*' For residence is not identical with domi- in Massaclmsetts. The court of the latter state held the power to have been validly executed. s 7 White V. Howard, 38 Conn. 342; American Bible Soc. v. Marshall, IS Ohio St. 537. Contra: Starkweather v. Society, 72 111. 50, 22 Am. Rep. 133. 8 8 In re Fox's WUl, 52 N. X. 530, 11 Am. Rep. 751. 3 8 Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215 ; Tonnele v, Zabriskie, 51 N. J. m.- 557, 26 Atl. 808. 40 Appeal of Clark, 70 Conn. 195, 39 Atl. 155 ; In re Page's Estate, 75 Pa. 87. *i Crosswell, Ex'rs, 147, citing Somerville v. Somerville, 5 Ves. 750, 786, 787 ; Inhabitants of Abingtdn v. Inhabitants of North Bridgewater, 23 Pick. (Mass.> 170 ; Graham v. Public Adm'r, 4 Bradf. Sur. (N. Y.) 128. 42 Harral v. Harral, 39 N. J. Eq..279, 51 Am. Rep. 17 (holding naturalization in the country one adopts as his domicile unnecessary to effect such a change). 43 Moorhouse v. Lord, 10 H. L. C. 283, 292 ; Hodgson v. De Beauchesne, 12 Moore P. C. 285, 328; Allgood v. Williams, 92 Ala. 551, 8 South. 722; Gilmau V. Gilman, 52 Me. 165, 83 Am. Dec. 502; Hallet v. Bassett, 100 Mass. 170;. Thomdike v. City of Boston, 1 Mete. (Mass.) 245. Gakd. Wills (2d Ed.)— 18 274 OONFLICT OF LAWS (Ch. 10 cile, the latter being the state or country where a person actually or constructively has his permanent home.** Residence abroad in government service does not necessarily result in loss of domicile, though such will be the case if the offi- cial remains there with the intent to make the foreign country his home upon quitting the service.*" So domicile is not lost by a change of residence for the benefit of one's health, if there is an intent to return after being restored.*' Domicile of Married Women and Minors A woman, on marriage, loses her own domicile, and acquires that of her husband.*' After abandonment and judicial separation, she may reacquire a domicile of her own ; ** and even a complete sep- aration, by consent, may have this result.** The domicile of the father of a legitimate minor and of the moth- er of an illegitimate one is the domicile of the minor, '^'* and a change of domicile by such father, or mother, effects a change in that of the minor.°^ Upon the death of the father, the domicile of the minor will change with that of the mother, so long as she remains- unmarried.^^ Upon her remarriage, whereby she acquires her hus- band's domicile, who is under no legal obligation to support his stepchildren, some authorities hold that the children retain the 4* Minor, Confl. Laws, § 23. The courts have said that no exact definition can be given of "domicile," but that its existence must be determined from the facts of each case, taken as a whole. The above definition of Prof. Minor seems less open to objection than any heretofore proposed. 45 Heath v. Sampson, 14 Reav. 441, 445. «B Dupuy V. Wurtz, 53 N. Y. 556; StUl v. WoodvUle Corp., 38 Miss. 646. " Greene v. Greene, 11 Pick. (Mass.) 410; Ames v. Duryea, 61 N. Y. 609; Dalhousie v. McDouall, 7 CI. & Fin. 817. 48 SHUTE V. SARGENT, 67 N. H. 305, 36 Atl. 282, Dunmore Cas. Wills, 170 ; Chapman v. Chapman, 129 111. 386, 21 N. B. 806 ; Barber v. Barber, 21 How. 582, 16 L. Ed. 226. 49 In re Florance, 54 Hun, 328, 7 N. Y. Supp. 578. Compare Wickes' Estate, 128 Cal. 270, 60 Pac. 867, 49 L. K. A. l38. Although generally the wife has been allowed to obtain a separate domicile only for the purpose of securing a divorce, a few of the modem cases have given the wife a right to acquire a domicile for other purposes when she has been unlawfully deserted by her husband. Watertown v. Greaves, 112 Fed. 183, 50 C. O. A. 172, 56 li. R. A. 865; SHUTE v. SARGENT, supra. 50 1 Underbill, Wills, § 35; In re High, 2 Doug. (Mich.) 515; Daly's Settle- ment, 25 Beav. 456 ; Dalhousie v. McDouall, 7 CI. & Fin. 817; Munro v. Mun- ro, 7 CI. & Fin. 842. 51 Marks v. Marks (C. O.) 75 Fed. 321 ; Minor, Confl. Laws, § 37. 5 2 Minor, Oonfl. Laws, § 38; Lamar v. Micou, 112 U. S. 452, 5 Sup. Ot; 221, 28 L. Ed. 751 ; Van Matre v. Sankey, 148 111. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; Inhabitants of Dedham v. Inhabitants of Natiek, 16 Mass. 135. §§ 93-94) BEAL PKOPEBTT — ^PEESONAL PBOPERTT ' 275 domicile which they ' had at their mother's remarriage until she becomes a widow or they become of age and select domiciles of their own."' There is authority, however, for the view that if, aft- er her marriage, the minor actually lives in the stepfather's home, that becomes his domicile; otherwise not.°* 58 Lamar v. Micou, supra; School Directors of Borough' of West Chester v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dea 525 ; Inhabitants of Freetown v. Inhabitants of Taunton, 16 Mass. 52. 4 Minor, Confl. Laws, | 39; Blythe v. Ayres, 96 Oal. 532, 31 Pao. 915, 19 L. R. A. 40; Wheeler v. HoUis, 19 Tex. 522, 70 Am. Dec. 363. 376 PBOBATB OP WILLS (Ch. 11 CHAPTER XI PROBATE OP WILLS 95. Probate Defined. 96. Procedure in Probate Proceedings. 97. Effect of Probate. 98. Probate as Affected by Agreements not to Contest. 99. Probate of Lost or Destroyed Wills. 100. Probate or Record of Foreign Wills. PROBATE DEFINED ^5. Probate is essential to the legal validity of a will. By it is meant the certification, by the court or tribunal clothed with au- thority for that purpose, that the will has been executed by a competent testator in the manner required by law. The courts exercising this jurisdiction and the methods by which probate is effected depend wholly upon local legis- lation. A.t common law no probate was necessary of wills disposing of realty only. The ecclesiastical courts exercised jurisdiction over wills of personal property from an early date.^ This distinction has been almost universally abolished, and the jurisdiction intrusted to courts whose principal business is the settlement of estates of de- ceased persons, and which are variously known as probate courts, courts of ordinary,^ surrogate,' and orphans' courts.* Occasionally this jurisdiction is confided to the county or circuit courts. Courts of chancery had no inherent probate powers," though over questions -of revocation of probate jurisdiction is sometimes conferred by statute. Probate in Common or Solemn Form Two methods of proving a will are generally recognized — either in common form, or by form of law, also called the solemn form, or proving per testes. Proof is made in common form when the execu- lAfter the time of Richard II (A. D. 1378). 2 Bush V. Lindsey, 24 Ga. 245, 71 Am. Dec. 117. sAs in New York. See Redf. Surr. Cts. 130-134. * As in Pennsylvania and Maryland. s Kerrich v. Brausby, 7 Brown, Pari. Gas. 437 ; Lynn v. Beaver, 1 Turn. & B. 63; Oousens v. Advent Church, 93 Me. 292, 45 Atl. 43. •§ 95) PEOBATE DEFINED 277 tor presents it to the judge, and, in the absence of and without citing the parties interested, produces witnesses to prove the will.' This method was employed to save time and expense, when there was apparently no question as to the validity of the document, and All the parties interested were harmonious. Proof in solemn form was made when there was a contest over the will, on petition, after due citation to all parties interested, with ■careful separate and secret examination of the witnesses to the will. In the United States, where the probate of wills is made simple and inexpensive, proof is generally made in what is substantially proof in solemn form, though something akin to probate in common form is occasionally recognized by statute.' Where probate of this sort is recognized, it may usually be contested within a limited time, and probate in solemn form be had.* Jurisdiction in General, and as Determined by Domicile The jurisdiction of the probate of wills is, primarily, exclusive in the probate court for the district in which the testator was domi- ciled at the time of his decease.* Probate in any other jurisdiction is usually held to be inoperative and void,^" and no consent of the parties interested can make it valid.^^ Where, however, a testator owned land in the state where he was domiciled at the time of exe- cuting his will, and had claims against persons residing there, it has been held that probate might properly be allowed in his then domicile, thougJa he was domiciled elsewhere at the time of his 172 Ala. 283, 54 South. 624, 34 L. E. A. (N. S.) 963. 33 Hughes V. Turner, 4 Hagg. 30; Tatnall v. Hankey, 2 Moore, P. O. 342. ssBalme's Estate, Prob. 261 (1897); Willey's Estate, 128 Cal. 1, 60 Pac 471 : Tattle v. Berryman, 94 Ky. 553, 23 S. W. 345. 8r Barton v. Robins, 3 Phillim. 455, note B; Goods of Duane, 2 Sw. & Tr. 590. 38 Plume V. Beale, 1 P. Wms. 388. 39Eastis V. Montgomery, 93 Ala. 293, 9 South. 311; Harrison's Appeal. 48 Conn. 202. *o Varnon v. Vamon, 67 Mo. App. 534 (in which case the contents of the por- tion destroyed may be proved by parol). *i In re Shillaber's Estate, 74 Cal. 144, 15 Pac. 453, 5 Am. St. Rep. 433 ; Mlnot v. Parker, 189 Mass. 176, 75 N. E. 149. § 95) PEOBATE DEFINED 281 Since probate merely determines the validity of the execution of the will, a duly executed instrument may be probated, although some of its provisions are invalid,*^ or even although it contains no provision which ,is valid and enforceable.*' Under the English practice, where alterations are shown to have been made before execution, an engrossed copy of the will as altered . is probated, unless the construction of the will is likely to be affected by the appearance of the paper, when probate is made in fac simile.** When the will is written in a foreign language, a translation may accompany the probate.*" Contested Probate — Parties The discussion thus far has been confined to the probate of wills, to which there is no opposition. But contests are frequent, and the procedure in such cases is largely determined by statute. Under these statutes, any party interested or aggrieved (such are the usual terms) may object to the probate of a will. In general, it may be said that any person whose right to share in property in event of intestacy is unfavorably affected by the terms of the will is a party aggrieved or interested, within the purview of these statutes, such as a disinherited heir,*° or a judgment creditor of such heir,*' or a convict cut off by his wife's will of personalty,*' or a remainderman whose interest was subject to defeat by the will of the life tenant,*' or a judgment creditor of a devisee whos'e judgment is, a lien upon the real estate devised, where the devise is revoked by a subsequent *2 Estate of Pforr, 144 Cal. 121, 77 Pac. 825. 43 Davis' Wm, 182 N. Y. 468, 75 N. E. 530 (admitting wlU to probate, al- though sole devisee, legatee, and executrix named died before testatrix); Mur-' ray's Will, 141 N. C. 588, 54 S. E. 435. Contra: Clearspring Township v. Blough, 173 Ind. 15, 88 N. E. 511, 89 N. E. 369. Probate is not barred by the testator's conveyance, leaving no property on •which the will can operate. Morey v. Sohier, 63 N. H. 507, 3 Atl. 636, 56 Am. Eep. 538. ** 1 Wms. Ex'rs, 331, 332; 1 Woerner, Law Administration, 486; Gann v. Gregory, 3 De G., M. & G. 777. 45 1 Wms. Ex'rs, 386. 48 Murphy's Ex'r v. Murphy (Ky.) 65 S. W. 165 (and this though there was a prior will, excluding him, which had not been probated) ; Reld v. Curtin, 51 App. Div. 545, 64 N. Y. Supp. 833; Murry v. Hennessey, 48 Neb. 608, 67 N. W. 470; Thomas v. Thomas, 9 App. Div. 487, 41 N. Y. Supp. 276; Snow v. Hamil- ton, 90 Hun, 157, 35 N. Y. Supp. 775. 47 In re Langevin, 45 Minn. 429, 47 N. W. 1133 ; BLOOB v. PLATT, 78 Ohio St. 46, 84 N. B. 604, 14 Ann. Cas. 332, Dunmore Gas. Wills, 180. 48 Kenyon v. Saunders, 18 E. I. 590, 30 Atl. 470, 26 L. R. A. 232 (though not ■entitled to administer thereon). 49 In re Coleman's Estate, 4 Pa. Dist. R. 105. 282 PEOBA.TE OF WILLS (Ch. 11 codicil,"* or the mortgagee of a devisee who has foreclosed and bought in the latter's interest/^ or the testator's widow/^ or the state, where the testator left no heirs, under a statute providing for escheat to the state under such circumstances."* But a child not named in the will, who takes the same portion of the estate as if the decedent had died intestate is not interested so as to enable him to contest the will ; °* neither is an executor and trustee who declines to qualify as such ; °^ nor the grantee of a remainder contingent upon no will's being made; '** nor the receiver, in supplenientary proceedings, of a husband whose wife's will deprives him of all in- terest in her estate; ^^ nor a public administrator, whose only iiv- terest is in the fees of administration; "* nor a contingent legatee, who is not otherwise interested in the estate;"' nor an alien in- capable of inheriting ; "^ nor one who is only a creditor of the dece- dent.*^ So a party, unfavorably afifected by one item of a will, can- not object thereto, where, in event of its invalidity, the property mentioned therein is disposed of by another clause. °^ It has been held that a widow, who is an heir at law of the de- ceased testator, may contest the probate of his will, though she 00 In re CoryeU's WUl, 4 App. Div. 429, 39 N. Y. Supp. 508; Watson v. Alderson, 146 Mo. 333, 48 S. W. 478, 69 Am. St. Rep. 615. 51 Mushrush v. Ttiompson, 21 Pa. Co. Ct. R. 566. 02 Dexter v. Codman, 148 Mass. 421, 19 N. E. 517; Moyses v. Neilson, 7 Ohio N. P. 607; Freeman v. Freeman, 61 W. Va. 682, 57 S. B. 292, 11 Ann. Cas. 1013. 6 3 State V. District Court, 25 Mont 355, 65 Pac. 120; State v. Lancaster (1907) 119 Tenn. 638, 105 S. W. 858, 14 L. R. A. (N. S.) 991, 14 Ann. Cas. 953. Contra: Hopf v. State, 72 Tex. 281, 10 S. W. 589. 6 4 Mclntire t. Mclntire, 64 N. H. 609, 15 Atl. 218. So with one who takes more under the will than he would as heir. Biles v. Dean (Miss.) 14 South. 536. 60 Campbell v. Campbell, 130 111. 466, 22 N. E. 620, 6 L. R. A. 167. 6 8 McDonald v. White, 130 111. 493, 22 N. E. 599 (on the ground that the right to contest is not assignable). 6 7 In re Brown, 47 Hun, 360. 6 8 In re Sanborn's Estate, 98 Cal. 103, 32 Pac. 865; In re Hickman's Es- tate, 101 Cal. 609, 36 Pac. 118 ; State v. District Court, 34 Mont. 226, 85 Pac. 1022. 9 In re Ruppaner, 15 Misc. Rep. 654, 37 N. Y. Supp. 429. Nor an attorney to whom a percentage of what he might obtain for his client by a contest of the will was assigned. In re Evans' Will, 171 N. Y. 645. 63 N. E. 1116; nor the relatives of a disinherited heir. Middleditch v. Wil- liams, 47 N. J. Eq. 585, 21 Atl. 290. eo Jele V. Lemberger, 163 111. 338, 45 N. E. 279. 01 Montgomery v. Foster, 91 Ala. 613, 8 South. 349; Hooks v. Brown, 125 Ga. 122, 53 S. E. 583. 62Barkley v. Donnelly, 112 Mo. 561, 19 S. W. 305; CreraT v. WUliams, 145 111. 625, 34 N. E. 467, 21 L. R. A. 454. § 95) PROBATE DEFINED 283 would receive more under the will than as heir; "' and a bequest offending the statute forbidding a testator having husband, wife, child, or parent to give to charity more than one-half of his estate affords any person who would derive benefit from the estate ground of contest, though not one of the relatives designated.^* In Illinois, the right to contest is not assignable ; " neither does it pass to the heir or administrator of a person having such right," ° but the weight of authority favors the survival of the right to contest the validity of a will.*' So it seems that persons having the first right to act as adrriinis- trators in event of intestacy may contest a will appointing an execu- tor, even though their interests are not affected adversely by the will.«« A contestant must, in his application for permission to contest, set forth facts disclosing his interest. The mere allegation that he is "interested" or "would have been an heir or distributee of the estate" is not enough, as being a mere conclusion of law." Estoppel of .Parties Parties may be estopped by their conduct from asserting the right they might otherwise have to contest the will, as by the ac- ceptance and retention of a legacy thereunder," and such acceptance and retention estops, although legatee accepts under a protest that will is invalid.'^ So an estoppel may be effected by a former judg- ment in favor of the will to which the petitioners were parties,^ ^ or by an agreement between ancestor and heir that the latter will 6 3 In re Benton's Estate, 131 Cal. 472, 63 Pac. 775; Dexter v. Codman, 148 Mass. 421, 19 N. B. 517. See Murphy's Ex'r v. Murphy (Ky.) 65 S. W. 165. Compare, Fallon's Will, 107 Iowa, 120, 77 N. W. 575. 6* Jones V. Kelly, 170 N. Y. 401, 63 N. E. 443, affirming 63 App. Div. 614, 72 N. Y. Supp. 24. A contrary holding occurred in Frazer v. Hoguet, 65 App. Div. 192, 72 N. Y. Supp. 840. 8 5 McDonald v. White, 130 111. 493, 22 N. E. 599. 6 6 Selden v. IlUnois Trust & Savings Bank, 239 111. 67, 87 N. E. 860, 130 Am. St. Kep. 180; Storrs v. St. Luke's Hospital, 180 111. 368, 54 N. B. 185, 72 Am. St. Eep. 211. 67 Ralney v. Eidgway, 148 Ala. 524, 41 South. 632; IngersoU v. Gourley, 78 Wash. 406, 139 Pac. 207, Ann. Cas. 1915D, 570. 6 8 Watson V. Alderson, 146 Mo. 333, 48 S. W. 478, 69 Am. St. Rep. 615; Middleditch v. Williams, 47 N. J. Eq. 585, 21 Atl. 290. 68 Montgomery v. Foster, 91 Ala. 613, 8 South. 349. 70 In re Soule, 1 Con. Sur. 18, 3 N. Y. Supp. 259, 22 Abb. N. C. 236; An- drews V. Andrews, 110 111. 223; Kasey v. Fidelity Trust Co. (1909) 131 Ky. 604, 115 S. W. 737 ; Utermehle v. Norment, 197 U. S. 40, 25 Sup. Ct. 291, 49 li. Ed. 655, 3 Ann. Cas. 520. •71 stone V. Cook, 179 Mo. 534, 78 S. W. 801, 64 K R. A. 287. 72 Relchard v. Izer, 95 Md. 451, 52 Atl. 592. 284 PROBATE OF WILLS (Ch. 11 not contest any disposition of property made by the former/' or between heirs that they will not contest the will," or by a release- of all interest in the property of which an ancestor might die seis- ed,'"' or by unexplained laches in asserting the invalidity of the- will." But no estoppel results from the suit of a disinherited heir,, to recover for services rendered, prosecuted to judgment against the executor; " nor from the receipt of property from an executor bequeathed to the legatee, where the same property has been given* to the same legatee by a prior will under which she claims; '* nor from the mere fact that the contestants were parties to the probate proceedings." The fact that an heir consented to a decree probat- ing the will does not estop him later from attacking the validity of the will,*" and one who accepts a beneficial interest imder a will is- not precluded from asserting that a clause therein is void for re- moteness.*^ Limitation upon Actions The period within which actions may be brought to contest a will' admitted to probate is regulated by statute, varying from three years in Pennsylvania '" to one in California.*' It is sometimes- held that the right to contest a will on the ground of fraud is not affected by statutes of this character.'* But more commonly the- probate becomes absolutely conclusive at the end of the statutory period,'* and the parties are not permitted by consent to give the court jurisdiction of a will contest barred by limitations." The r» In re Garcelon's Estate, 104 Cal. 570, 38 Pac. 414, 32 li. R. A. 595, 43 Am. St Hep. 134. 74 Eeichard v. Izer, 95 Md. 451, 52 AtL' 592. And the executor may set up- such a contract, although not a party thereto. 'B Elssler v. Hoppel, 158 Ind. 82, 62 N. E. 692. " Knight V. Hollings, 73 N. H. 495, 63 Atl. 38; Boyer v. Decker, 5 App. Div. 623, 40 N. Y. Supp. 469. The fact that contestant, with full knowledge of proceedings, gave no no- tice of his intention to contest while estate was being administered and prop- erty sold, does not create an estoppel. Foley v. O'Donaghue, 167 Ind. 134, 7T N. E. 352. " Roberts v. Abbott, 127 Ind. 83, 26 N. B. 565. '8 Kostelecky v. Scherhart, 99 Iowa, 120, 68 N. W. 591. '« Gueydan v. Montague, 109 La. 38, 33 South. 61 ; In re Soule, 46 Hun, 661. «o Shea V. Bergen, 59 Misc. Rep. 294, 110 N. Y. Supp. 572. 81 Sohuknecht t. Sehultz, 212 111. 43, 72 N. E. 37. 82 Stewart's Purdon's Dig. 1905, vol. 1, p. 1072. 83 In re Maxwell's Estate, 74 Cal. 384, 16 Pae. 206. 84 Goodell V. Pike, 40 Vt 319. 85 1 Woemer, Law of Administration, 499 ; In re Maxwell's Estate, 74 Cat 384, 16 Pac. 206; Luther t. Luther, 122 111. 558, 13 N. E. 166. 86 Meyer v. Henderson, 88 Md. 585, 41 Atl. 1073, 42 Atl. 241. § 95) PROBATE DEFINED 285' usual exceptions in favor of parties under disability at the time of probate are generally made. The statute of limitations in force at the time when the action to- contest the will is begun controls, and not that in force when the will was probated.*^ Trial by Jury A jury trial in a proceeding to contest a will is not a matter of right,** but is granted in most jurisdictions by rfeason of statutory provisions or established usage. In some states, either party may have a jury trial on demand ; *" in others, the court may call in a jury to aid it in determining disputed questions of fact, though the findings q| the jury are not binding upon the court ; *" and in still others this form of trial is mandatory.*^ But in the latter case the issue need not be submitted to the jury if the court takes the view that, as a matter of law, there is no evidence sufficient to that end.'^ Right to Open and Clo\se Applying the usual rule that the party who has the burden of establishing an issue has the right to open and close, it results that ordinarily the proponents of the will have this right, and there are occasionally statutes to this effect.** But where all the requisites of a statutory will are admitted, and the contest is solely on the ground of undue influence, the contestant is entitled to open and close, as the burden of establishing this issue is upon him.** But when there are a number of issues, including the alleged exercise of undue influence, and the burden of establishing any one of them, as- due execution of the will or test,araentary capacity, is upon the pro* 87 Storrs V. St Luke's Hospital, 180 111. 368, 54 N. E. 185, 72 Am. St. Eep.. 211. 88 Cummins v. Cummins, 1 Marv. (Del.) 423, 31 Atl. 816; Duffield v. Walden,. 102 Iowa, 676, 679, 72 N. W. 278; Rich v. Bowker, 25 Kan. 7; Mueller v. Pew,. 127 Wis. 288, 106 N. W. 840. 89 Code Iowa 1873, § 2840, as amended by Acts 16tli Gen. Assem. p. 8, c. 11 (construed in Smith v. James, 74 Iowa, 462, 38 N. W. 160). ooMedill v. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Hep. 307; Jones' WiU, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883. 81 Walker v. Walker, 14 Ohio St 157, 82 Am. Dec. 474. »2 Philips V. PhiUps, 77 App. Div. 113, 78 N. Y. Supp. 1001, construing Code Civ. Proc. § 2653a. 83 Appeal of Livingston, 63 Conn. 68, 26 Atl. 470;. Rich v. Lemmon, 15 App. D. C. 507; Taylor v. Cox, 153 111. 220, 38 N. B. 656; Bevelot v. Lestrade, 15a 111. 625, 38 N. B. 1056 ; King v. King (Ky.) 42 S. W. 347; Teckenbroch v. Mc- Laughlin, 209 Mo. 533, 108 S. W. 46 ; Patten v. Cilley, 67 N. H. 520, 42 Atl. 47; Bx parte Brock, 37 S. C. 348, 16 S. B. 38 ; Gable v. Ranch, 50 S. C. 95, 27 S. E. 555. Contra: Blume v. Hartman, 115 Pa. 32, 8 Atl. 219, 2 Am. St Rep. 525. •4 Patten v. Cilley (C. C.) 46 Fed. 892; Moore v. Allen, 5 Ind. 521. 286 PROBATE OP WILLS (Ch. 11 ponent, he then may open and close ; °' as is also the case when the will propounded is contested on the ground that a subsequent will was executed, for the last will of a testator is his valid will, and this fact, of course, the proponents must show.°° So a rule of court re- quiring the opponents of a will, admitted to probate by the probate court, on appeal to file in the appellate court the reasons of appeal, does not change the burden of proof so as to entitle the opponents to open and close.®' Evidence in Probate Trials The principal rules of evidence, as applied in probate trials, have already been stated in other connections. The common-law doc- trines regarding the competency of witnesses, as modifie^by stat- ute, prevail here as elsewhere. The statutes, quite geiMally en- acted, which disqualify the adverse party from testifying in actions to which a personal representative is a party, except under certain circumstances, apply in contests over the validity of wills.** The terms of these statutes vary largely, and their interpretation pre- sents no controlling principles of general significance. It not infrequently happens that the attorney, physician, or clergyman of the testator acts as subscribing witness to the will. Communications made to the first are of course privileged at com- mon law, while those made to the other two are occasionally, and with doubtful propriety, made so by statute. By the weight of au- thority, this privilege does not extend to statements made to such persons, who act as subscribing witnesses, or to information ob- tained by them while acting in this capacity.** In a proceeding. to contest a will, it is generally agreed that the privilege which was formerly that of testator may be waived by his executor, heir, next of kin, or by a legatee.^ 96 Rich V. Lemmon, 15 App. D. O. 507. ooMcCutchen v. Loggins, 109 Ala. 457, 19 South. 810; McBee v. Bowman, 89 Tenn. 132, 14 S. W. '481. Contra: Rogers v. Diamond, 13 Ark. 474. When a will is contested ^on the ground that an earlier will is the true will of the testator, it is said to be discretionary with the court as to which party shall open and close. Bardell v. Brady, 172 111. 420,' 50 N. E. 124. 7 Appeal of Livingston, 63 Conn. 68, 26 Atl. 470. »s In many jurisdictions, however, no such disqualification exists. 8» O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202; Mo- Master V. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St. Rep. 828; Kem v, Kern, 154 Ind. 29, 55 N. E. 1004 (the reason, however, given for this decision that the rule regarding the testimony of an attorney applies only during the client's lifetime. Is hardly in accord with the usual view); In re Coleman's Will, 111 N. Y. 220, 19 N. E. 71 ; Wigmore on Ev. §§ 2314, 2315. ' Winters v. Winters, 102 Iowa, 53, 71 N. W. 184, 63 Am. St. Rep. 428; Wigmore on Ev. § 2329, and cases there cited. 96) PSOCEt)OEE IN PROBATE PROCEEDINGS 287 PROCEDURE IN PROBATE PROCEEDINGS 96. In probate proceedings, the principal formal steps in procedure are: (a) The filing of a petition for the probate of the will. (b) The serving of notice of this fact upon the parties interested- (c) Pleadings of some sort by the opponents of the will, in event of its allowance by the probate court. While it is not always necessary to file a written petition for the probate of a will, an oral motion, accompanied by the presentation of the proposed instrument being enough," yet such petition is usual- ly required by statute. This petition is not a very formal document, though printed blanks are sometimes provided for this purpose, and when so provided should be used.* This petition should set forth the interest of proponent and the other facts required to give the court jurisdiction,* such as the testator's death,° though a reference ' to him as the "deceased" is enough,' and his domicile in the county in whose probate court tlie petition is filed,^ and, in the case of a nun- cupative will, that the words were uttered during the last sickness of the deceased.* > Testamentary capacity of the deceased need not be alleged in the petition.* Notice While such is not always the case,^' yet a notice of the filing of the petition, or a citation of the parties interested, is usually requir- 2 SmaU V. McCalley, 51 Ala. 527 ; Miller v. Coulter, 156 Ind. 290, 59 N. E. 853; Peirce's Estate (1911) 63 Wash. 437, 115 Pac. 835. s This, however, is more for convenience in keeping the records of the pro- bate office than for any other purpose. 4 Lucas V. Todd, 28 Cal. 186. The better practice is also to set forth In the petition the names, descrip- tion, and residence of those who would be entitled to the estate as heirs and distributees. Bo^ett v. Kerr, 7 Ala. 15. 5 An error as to the date of this event is, however, usually unimportant. Davis V. Miller, 106 Ala. 154, 17 South. 323. 6 Bradshaw v. Roberts (Tex. Civ. App.) 52 S. W. 574. 7 McDonnell v. Farrow, 132 Ala. 227, 31 South. 475. See Higglns y. Neth- ery, 30 Wash. 239, 70 Pac. 489. 8 Martinez v. De Martinez, 19 Tex. Civ. App. 661, 48 S. W. 532. sHathaway's Appeal, 46 Mich. 326, 9 N. W. 435; Lipdemann v. Dobossy (1908, Tex. Civ. App.) 107 S. W. 111. 10 See Malone v. Cornelius, 34 Or. 192, 55 Pac. 536, holding that under the statute of that state no noti-ce of any kind was necessary; the proceeding to probate the will being purely ex parte, and accomplished by a duly verified 288 PKOBATE OF WILLS (Ch. 11 €d by statute. This is served either personally upon such parties, or by publication in a newspaper, or by posting in one or more public places. The form of the citation is largely regulated by statute, but its most material element is a definite statement as to the time and place of the hearing on the petition,^^ and this is necessary to bind interested parties who do not assent to the subsequent proceed- ings.^^ Proceedings, however, of which due notice is not given, are valid as to persons actually appearing.^' If due citation in every particular is not had, the decree ordering probate may be set aside by parties not duly cited and not appearing.^* An error in the name of one of the parties upon whom notice was served, of such a charac- ter that it could not have misled her^ does not affect the validity of the notice.^" Recitals in the order admitting the will to probate that due notice had been given and citations issued and served as required by previous orders of the court warrant the presumption that orders had been made directing the issuing of citations as re- quired by statute,^" particularly when a long time has elapsed sub- sequent to the probate.^^ The fact that the hearing was two weeks later than the time fixed therefor by the published notice does not, affect the validity of the probate,^* nor does the fact that proof of due publication of notice was made subsequent to such time.^* The petition, followed by proof of execution. See Bent v. Thompson, 5 N. M. 408, 23 Pac. 234, affirmed in 138 U. S. 114, 11 Sup. Ct 238, 34 L. Ed. 902. No notice is necessary where probate in common form is permitted. Hooks V. Brown, 125 Ga. 122, 53 S. E. 583. 11 Beckett v. Selover, 7 Oal. 234, 68 Am. Dec. 237. Unless statute requires personal service, notice by publication is sufficient, €ven though persons entitled to notice reside within county where petition for probate is made. Sieker's Estate (1911^ 89 Neb. 216, 131 N. W. 204, 35 L. K. A. (N.' S.) 1058. 12 Heminway v. Reynolds, 98 Wis. 501, 74 N. W. 350. Here the order of the court fixed Saturday, July 3d, as the day for the hearing, which was held on Friday, July 3d. There was no clear proof as to the contents of the published notice. Held insufficient proof that proper notice was given of the day of hearing. 13 Flood V. Kerwin, 113 Wis. 673, 89 N. W. 845. 1* Herring v. Ricketts, 101 Ala. 340, 13 South. 502 ; In re Dates, 58 Hun, ■608, 12 N. Y. Supp. 205; Duperier v. Bervard, 107 La. 91, 31 South. 653; O'Callaghan v. O'Brien (0. C.) 116 Fed. 934. Notice to an executor who declines the trust is not constructive notice to the beneficiaries, as he dpes not represent them. Feuchter v. Keyl, 48 Ohio St. 357, 27 N. E. 860. 15 In re Hamilton's Estate, 120 Oal. 421, 52 Pac 708 (where the name /'Helen" was used instead of "Ellen"). IS Moore v. Earl, 91 Cal. 632, 27 Pac. 1087. " Porta V. Schantz, 70 Wis. 497, 36 N. W. 249. 18 Field V. Log Driving Co., 67 Wis. 569, 31 Ni W. 17. i» Roberts v. Flanagan, 21 Neb. 503, 32 N. W. 563. § 96) PBOOEDURE IN PROBATE PBOCEEDING8 289 failure properly to serve notice on some of the necessary parties does not necessitate the publication of a new notice, but tlie hear- ing may be postponed for the additional service required.*" The contestant in the probate of a will cannot take advantage of the failure to cite certain of the next of kin," neither can the testa- tor's debtors." Pleadings When the validity of a will is contested, there must be something in the nature of pleadings by the contestant to raise the necessary issue. The form is determined by statute. It is ordinarily a peti- tion or complaint.*' The contestant's pleading must ordinarily set forth clearly and concisely the objections to the probate relied upon, and he is confined at the trial to the matters therein alleged. Thus where there were no allegations that the will was not property sign- ed and attested, a verdict for the contestant cannot be sustained on evidence tending to prove that such was the case.** Ordinarily the pleading must be so drawn that it would withstand a demurrer in a common-law proceeding. Thus an averment that a will was pro- cured by the proponent's falsely representing to the testatrix that he was her lawful husband, when in fact he was not, is insufficient, in the absence of an averment that she was deceived thereby.*" So a general averment that a will was procured by fraud and undue in- fluence is inadequate, since here the facts must be averred with some degree of particularity.*' But matters of proof, such as con- fidential relations between the testatrix and the beneficiaries, need not be alleged in a proper plea of undue influence,*' nor, of course, in any other plea. An averment that the testator, when making the 20 Cfurtls V. Underwood, 101 Cal. 661, 36 Pac. 110. 21 Keese v. Nolan, 99 Ala. 203, 13 South. 677. 22 Rice V. Hosklng, 105 Mich. 303, 63 N. W. 311, 55 Ain. St. Rep. 448. 23 See Lange v. Dammier, 119 Ind. 567, 21 N. B. 749; Summers v. Copeland, 125 Ind. 466, 25 N. E. 555. 24 Piirdy V. Hall, 134 111. 298, 25 N. E. 645. So evidence Is Inadmissible to show that the will was signed by the testa- tor's wife, and not by him, when this fact was not alleged in the petition for contest. Wood v. Carpenter, 166 Mo. 465, 66 S. W. 172. 25 Moore t. Heineke, 119 Ala. 627, 24 South. 374. 26 In re Sheppard, 149 Cal. 219, 85 Pac. 312; Story v. Story, 188 Mo. 110, 86 S. W. 225; BARKSDALE v. DAVIS, 114 Ala. 623, 22 South. 17, Dunmore Cas. WiUs, 181. But an averment that the testatrix was under the domination and control of specified persons, and that the will was the result of undue Influence exer- cised by them over the mind of the testator, is apparently sufficient Ooghill V. Kennedy, 119 Ala. 641, 24 South. 459. And see National Safe Deposit, Sav- ings & Trust Co. V. Sweeney, 3 App. D. C. 401. 2T Coghill V. Kennedy, 119 Ala. 641, 24 South. 459. Gaed. Wills (2d Ed.)— 19 290 PROBATE OF WILLS (Ch. 11 will, was of unsound mind is sufficient,"* as is also the allegation that "the said will was unduly executed," on demurrer, though fol- lowed by a statement of facts insufficient to avoid the will."" De- ceit need not be alleged in a plea of undue influence."" Any number of objections to the validity of the will may be alleg- ed, and the contestant need not elect between them, even though they are all contained in the same paragraph.*^ In jurisdictions where the issue in testamentary contests is fixed by statute, and where it is substantially the common-law issue devisavit vel non, most of the preceding discussion has little application. Here the petition for contest need not allege specific grounds, but it is suffi- cient to assign as the only ground of appeal that the "instrument was not the last will and testament of the said deceased." "" Framing Issues for the Jury Where the right of trial by jury is secured by statute in will con- . tests, the issue between the parties is framed for the determination of that body. In some jurisdictions the question of the submission of an issue to the jury is determined in the first instance by the pro- bate court after hearing the evidence. In such cases, if the evidence is not sufficient to sustain a verdict against the will "* or for it,'* the issue will be -refused. And when the petition attacking the will as- sails the will in its entirety on the ground of undue influence, an issue is properly refused as to what portion of the will was thus im- properly procured.'" Regardless of where the issue originates, the precise point at issue, and that only, should be submitted to the jury. Thus, in a contest over a will and nine codicils, where the parties are agreed as to the status of the will and the first two codicils, it is improper to sub- mit to the jury an issue requiring them to pass on all the papers.'* *So it is error to submit to a jury an issue presenting a question of law.'' Pending the trial of an issue as to the opponent's right to 2s Moore v. Heineke, 119 Ala. 627, 24 South. 374; KUbom's Estate, 158 Cal. 593, 112 Pac. 52. 2 9 Wanning v. Teeple, 144 Ind. 189, 41 N. E. 600. 30 OoghUl V. Kennedy, 119 Ala. 641, 24 South. 459. Such a plea Includes fraud. 31 McDonald v. McDonald, 142 Ind. 55, 41 N. B. 336. 32 Lane v. Hill, 68 N. H. 275, 44 Atl. 893, 73 Am. St. Rep. 591. See, also, Dew V. Eeid, 52 Ohio St. 519, 40 N. E. 718. 33Herster v. Herster, 122 Pa. 239, 16 Atl. 342, 9 Am. St Rep. 95; In re Hoyt's Estate, 10 Kulp (Pa.) 166 ; In re Hemingway's Estate, 7 North. Co. R. (Pa.) 93; In re Rowson's Estate, 175 Pa. 150, 34 Atl. 433; Sharpless' Estate, 134 Pa. 250, 19 Atl. 680. 8* Appeal of Murdy, 123 Pa. 464, 16 Atl. 483. 3 6 Gross V. Burneston, 91 Md. 383, 46 Atl. 993. 88 Ward V. Poor, 94 Md. 133, 50 Atl. 572. bj IcL § 96) PEOCEDUBE IN PROBATE PROCEEDINGS 291 contest the will, new issues cannot be submitted involving the valid- ity of the will, and a judgment based on a verdict found on such issues is invalid.*' The issue should involve ultimate facts alone, and not mere evidentiary facts."" Hence the issues, "Were the pa- pers found among the valuable papers of the deceased ?" "Are they in his handwriting?" "Did he intend them to be his last will and testament?" were improperly tendered, and should be refused.*" So, also, the same question should not be presented in different is- sues.*^ No issue should be allowed when it may be rendered im- material by the determination of a collateral fact, such as the adop- tion by the testatrix of the sole legatee, who, if lawfully adopted, would take the entire property even if the will were disallowed.*'' Where the statutory issue was devisavit vel non, it is held that a question not germane to the issue is presented where the plain- tiff seeks to have probate annulled because, though an only child, he was not mentioned in the will, and that the trial court should not have passed upon it.*' Questions containing different issues should be answered separately by the jury.** A stipulation for the submis- sion of issues to the jury, and that a decree shall be entered in ac- cordance with the findings, subject to the right of appeal, is valid and binding.*" , ' Verdict or Judgment The form of the verdict and of the judgment to be entered there- on is frequently regulated by statute. In such cases the provisions of the statute must be strictly followed. Thus, where a statute pro- vided that, if a will is found to be invalid, probate must be annulled, and, after a finding by the jury that the will was void for lack of 88 Meyer r. Henderson, 88 Md. 585, 41 Atl. 1073, 42 Atl. 241. «o In re Benton's Estate, 131 Cal. 472, 63 Pac. 775. 40 Cornelius v. Brawley, 109 N. O. 542, 14 S. B. 78. *i Keebler v. Shnte, 183 Pa. 283, 38 Atl. 586. Thus, where the issue submitted was whether decedent "was of sound and disposing mind, and capable ol executing a valid deed or contract," a second issue as to whether decedent was "under the influence of any insane mental hallucination, insane delusion, or insane delusion which rendered him incapa- ble of making a valid will," should be refused. National Safe Deposit, Sav. & Trust Co. V. Sweeney, 3 App. D. C. 401. It may be doubted, however, wheth- er the first issue was properly submitted. 42 Fiske V. Pratt, 157 Mass. 83, 31 N. E. 715. 43 Cox V. Cox, 101 Mo. 168, 13 S. W. 1055, overruling Kenrick; v. Cole, 61 Mo. 572. Where the issue Is devisavit vel non, the question of whether the will was properly or improperly admitted to probate is not involved. Stacey v. Cun- ningham, 69 Ohio St. 176, 68 N. B. 1001. 44 Keebler v. Shute, 183 Pa. 283, 38 Atl. 586. 411 Beyer v, Le Fevre, 186 U. S. 114, 22 Sup. Ct. 765, 46 L. Ed. 1080. 292 PROBATE OF WILLS (Ch. 11 testamentary capacity and undue influeiice, judgment was render- ed annulling the will as to the contestant, and decreeing that she should take as though decedent had died intestate, the judgment was held void.*" And a decree is erroneous which declares the whole will invalid as to certain heirs and valid as to others.*" Some- times the verdict on the issue as to whether the writing was a will is made final by statute, in which case no formal judgment need be entered.** The court may direct a verdict in favor of either party** but only when the evidence is wholly insufficient to justify a verdict for the other party."* As a rule the verdict need take no particular form so long as it is responsive to the issue,"^ and it is sometimes held that where the will is assailed on several grounds the verdict for the contestant need not disclose upon which of the grounds it is based."^ Where fraud is defined as acts committed "with intent to deceive another," a finding in a will contest that the testator was contrdlled solely by representations of the proponent, which were false and fraudu- lent, is not sufficiently responsive to the issue, there bfeing no find- ing that they were made "with intent to deceive" the testator,°^ and a judgment on such a finding will be reversed."* If the court frames the form of a verdict, including propositions not in controversy, no error results if the jury is instructed to find only on disputed ques- tions."' Where a will and two codicils are written on the same pa- per, the codicils need not be mentioned separately in a verdict sus- taining the will."* Although special findings usually control a gen- eral verdict in case of inconsistency,"' where there is a general ver- dict that a will was void, but the special verdict was partially favor- 18 In re Freud's Efetate, 73 Cal. 555, 15 Pac. 135. *' McCann v. Ellis (1911) 172 Ala. 60, 55 South. 303. *8 Gordon v. Burris, 141 Mo. 602, 43 S. W. 642. *» Carey's Estate, 56 Colo. 77, 136 Pac. 1175, 51 L. B, A. (N. S.) 927, Ann. Cas. 1915B, 951; Sevenlng v. Smith (1912) 153 Iowa, 639, 133 N. W. 1081; Teckenbroch v. McLanghlin, 209 Mo. 533, 108 S. W. 46. BO Thompson v. Bennett, 194 111. 57, 62 N. E. 321; In re daflin's Will, 73 Vt 129, 50 Atl. 815, 87 Am. St. Rep. 693. 01 Bledsoe's Ex'x v. Bledsoe (Ky.) 1 S. W. 10, holding that, where the valid- ity of a will was involved, the verdict, "We, the jury, find this not to be the will of the testator, Samuel Bledsoe," written on the back of one of the judge's instructions, and signed by the foreman, was sufficiently responsive. 6 2 Underwood v. Thurm'an, 111 Ga. 325, 36 S. E. 788. es In re Benton's Estate, 131 Cal. 472, 63 Pac. 775. Slid. B 5 Adams v, Rodman, 102 Wis. 456, 78 N. W. 588, 759. Be Wilson V. Hays' Ex'r, 109 Ky. 321, 58 S. W. 773. The findings of the Jury must not be actually inconsistent, however. Gwin v. Gwln. 5 Idaho. 271 48 Pac. 295. 6» Gwin V. Gwin, 5 Idaho, 271, 48 Pac. 295. § 96) PEOCEDURE IN PROBATE PBOOEEDINaS 293 able to the proponent, the general verdict will stand if, in view of all the facts, the apparent inconsistency disappears."** And where a verdict in a will contest is merely advisory, irregularities in its form do not afford grounds for reversal."' Irregularities in the form of a verdict in accordance with the terms of a stipulation, which do not affect the substantial rights of the parties, may be disregarded. °° Judgment must be entered on the verdict of the jury, must con- form thereto, and must relate to no matter foreign to the proceed- ings as a result of which the verdict was rendered.®^ An agreement made by the parties in a contest over a will, by which their rights are determined, may be adopted as the judgment of the court."^ But a proceeding by which, on agreement of the parties interested,- the court can modify the terms of a will is sometimes regulated by statute, in which case the requirements of the statute must be strict- ly complied with.** Where, in a contest to set aside a will, the con- testants succeed, a decree, setting aside the probate proceedings and declaring them null and void, is proper.'* Appeal, Error and New Tried After the trial of any issue involving the validity of a will has been had by a jury or by the court to which an appeal lies from the decision of the probate court, appeals are usually provided for by statute, as in the case of other causes. Such appeal may be taken by any of the parties to the proceeding appealed from, who regard thfemselves aggrieved thereby.'" There are ordinarily limitations upon the time within which such appeals may be prosecuted," and B8 Orchardson v. Cofleld, 171 lU. 14, 49 N. B. 197, 40 L. R. A. 256, 63 Am. St Hep. 211. B9 Adams v. Rodman, 102 Wis. 456, 78 N. W. 588, 759. »o King V. Ponton, 82 Cal. 420, 22 Pac. 1087. 81 Woodruff V. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145, holding that, where a verdict was rendered sustaining the will, a motion by the contestant that the court omit from the judgment certain pro'\'isions of the will as being void for uncertainty, and as not constituting a valid charita- ble trust, was properly refused. So where the only issue raised by the pleadings and passed upon by the Jury was as to the forgery of a second will, and the issue is foimd for the contestants, the court properly refused to establish a prior will, alleged to have been lost McDonald v. McDonald, 142 Ind. 55, 41 N. B. 336. 82 Worthington's Ex'rs v. Worthlngton's Devisees (Ky.) 35 S. W. 1039 ; Wilkins v. Huklll, 115 Mich. 594, 73 N. W. 898. 8 3 Elder v. Adams, 180 Mass. 303, 62 N. B. 373. See Bartlett v. Slater, 182 Mass. 208, 65 N. E. 73. «* Moyer v. Swygart, 125 111. 262, 17 N. E. 450. 88 See Hesterberg v. Clark, 166 111. 241, 46 N. E. 734, 57 Am. St Rep. 135; In re Butler's Will, 110 Wis. 70, 85 N. W. 678. • 8 DufC V. Duff, 103 Ky. 348, 45 S. W. 102. 294 PROBATE OF WILLS (Ch. 11 the customary provisions are made for the giving of bonds by the appellant. When no right of appeal is granted by statute, any party ag- grieved is usually given the right to prosecute error proceedings."' New trials may be granted by the trial court in proceedings to es- tablish a will, as in other civil causes,** the matter being largely dis- cretionary with the trial judge."" When the question as to the correctness of the verdict, in view of ,the evidence, is raised in an appellate court, the verdict will not be set aside unless there is clearly a legal insuiEciency in the evidenc?e to sustain a verdict,'" particularly when the trial court has declined "to interfere.'^ And it is sometimes said the verdict will not be dis- turbed on appeal merely as being against the weight of evidence.'^ But the truer statement is that while the verdict demands careful scrutiny before a conclusion contrary thereto caii be reached, yet it has no other effect,'' and it will be set aside when the record shows it to be against the clear preponderance of the evidence.'* When the verdict is for the contestants on two issues, judgment will not be reversed for errors in rulings on one of the issues, when the finding on the other is sufficient to sustain it.'° Revocation of Probate Although, in a few jurisdictions, the court admitting a will to probate has no power to revoke the probate," it is generally held 07 See Gen. Code OMo 1910, § 12086, expressly prohibiting appeals in cases to contest wills, but granting right to prosecute error. 88 Ellis v. Ellis, 104 Ky. 121, 46 S. W. 521; Hayes v. Moulton, 194 Mass. 157, 80 N. E. 215. e» Wood V. Lane, 89 Ga. 78, 14 S. E. 901. 70 In re Hoover's Will, 19 D. C. (8 Mackey) 495 ; Smith v. Henline, 174 111. 184, 51 N. E. 227; Harp v. Parr, 168 111. 459, 48 N. E. 113; White v. Cole (Ky.) 47 S. W. 759; Llschy v. Schrader, 104 Ky. 657, 47 S. W. 611; Coates v. Semper, 82 Minn. 460, 85 N. W. 217; Crossan v. Crossan, 169 Mo. 631, 70 S. W. 136; In re Watson, 131 N. Y. 587, 30 N. E. 56; In re Voorhis' AVill, 125 N. T. 765, 26 N. E. 935 ; In re Elmer's Will, 88 Hun, 290, 34 N. Y. Supp. 406; Rob- inson V. Robinson, 203 Pa. 400, 58 Atl. 253. 71 Petefish V. Becker, 176 111. 448, 52 N. E. 71; In re Allison's Estate, 104 Iowa, 180, 73 N. W. 489. 72 Moore v. McNulty, 164 Mo. Ill, 64 S. W. 159. 7 3 Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710, 49 Atl. 485. 7* Bradley v. Palmer, 193 111. 15, 61 N. E. 856. 7 6 Putt V. Putt, 149 Ind. 30, 48 N. E. 356, 51 N. E. 337. So, when one of two findings is supported by the evidence, and the other is not, the latter fact is no ground for reversal. In re Fenton's Will, 97 Iowa, 192, 66 N. W. 99; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990. 7 8 Delehanty v. Pitkin, 76 Conn. 412, 56 Atl. 881; Butt's Estate, 173 Mich. 504, 139 N. W. 244 ; McAndrew's Estate, 206 Pa. 366, 55 Atl. 1040; Beatty's Es- tate, 193 Pa. 304, 45 Atl. 1057. § 96) PKOOEDUEE IN PEOBATE PKOOEEDING8 295 that, even when no contest is made at the original hearing, or when no appeal is taken from the decree allowing probate, the power to revoke exists in the probate couft itself in all cases where the court acted without jurisdiction, without notice when notice is required by statute, or in disregard of any statutory requirement." So, also, where probate is secured by fraud ''' where a later will is discovered subsequent to the probate of an earlier one." It is sometimes held that no lapse of time will bar an application for the revocation of the invalid probate of a will, in the court which granted it,*° though such application may be barred by laches or estoppel.'^ The power of the probate court to revoke probate is not infre- quently regulated by statute.*^ A petition to revoke probate may be maintained only by a per- son interested in the estate of the decedent,' ° and one who expressly* consents to a decree probating a will, the court having jurisdiction of the subject-matter, cannot thereafter have the decree set aside where no fraud is shown.** While in England the power to revoke probate of a will is exercis- ed by courts of chancery where the probate courts are incapable of TT SoweU V. Sowell's Adm'r, 40 Ala. 243 ; Eoy v. Segrist, 19 Ala. 810; Wright V. Simpson, 200 111. 56, 65 N. E. 628 ; Waters v. Stickney, 12 Allen (Mass.) 1, 9, 90 Am. Dec. 122 ; 1 Woemer, Law of Administration, 497. 's'Parsons v. Balson, 129 Wis. 311, 109 N. W. 136. 7» Waters v. Stickney, 12 Allen (Mass.) 1, 11, 90 Am. Dee. 122; Bowen v. Johnson, 5 B. I. 112, 119, 73 Am. Dec. 49 ; Schultz v. : Schultz, 10 Grat. (Va.) 358, 373, 60 Am. Dec. 335; Vance v. Upson, 64 Tex. 266; Games v. Hennen, 24' How. 553, 567, 16 L. Ed. 770. 80 Clagett V. Hawkins, 11 Md. 381, 387; Bailey v. Osborn, 33 Miss. 128. 81 Whitaker v. McKinney, 134 Ala. 326, 32 South. 695, 92 Am. St. Rep. 37 (where, 38 years after the probate, application was made to set aside the de- cree on the ground that one of the next of kin had no notice of the proceed- ing) ; In re Richardson's Will, 81 Hun, 425, .30 N. Y. Supp. 1008 ; Houston V. Wilcox, 121 Md. 91, 88 Atl. 32; Focha v. Focha's Estate, 8 Cal. App. 576, 97 Pac. 321. 82 Code Civ. Proc. N. Y. § 2481, subd. 6, may be taken as an illustration; providing that a surrogate has power to open, vacate, or set aside a decree or former order of his court for fraud, newly discovered evidence, or other suf- ficient cause, and that this power must be exercised only in a like case, and in the same manner as a court of general jurisdiction exercises the same power. Construed, as applied to revocation of probate of wills, in In re Ham- ilton, 2 Con. Sur. 268, 20 N. T. Supp. 73; In re Donlon, 66 Hun, 199, 21 N. Y. Supp. 114; In re Odell's Estate, 1 Misc. Rep. 890, 23 N. Y. Supp. 143. See, also, Rockwell v. Holden, 22 R. I. 243, 47 Atl. 543, construing Gen. Laws R. I. 1896, C. 209, § 11. 83 Peaslee's Will, 73 Hun, 113, 25 N. Y. Sum?. 940. 84 Camplin v. Jackson, 34 Colo. 447, 83 Pac. 1017. See, however, Matter of Albert, 38 Misc. Rep. 61, 76 N. Y. Supp. 965, reaching a different conclusion under New York statute. 296 PROBATE OF WILLS (Ch. 11 affording adequate relief in consequence of fraud or perjury com- mitted in obtaining probate, such power does not exist in the Unit- ed States unless conferred by statute.'" Expunging Libelous Matter Where a will contains matter which is clearly shown to be libel- ous, as reflections upon the legitimacy of a grandchild, such matter may be expunged in the probate.'" However, the power of the pro- bate court so to expunge has been seriously doubted,'^ and even where the power exists, it is very sparingly exercised.'* EFFECT OF PROBATE 97. Until set aside by direct proceedings to that end, the probate of a will, whether in common or solemn form, is conclusive upon parties to the proceedings and others who have been duly notified thereof, upon questions of testamentary capac- ity, the absence of fraud or undue influence, and due execu- tion of the instrument. It does not preclude inquiry as to the validity of its provisions or their proper construction, or legal effect. Although questioned in a few cases," the proposition as stated in the black-letter text is substantially undisputed, and usually the probate of a will is as conclusive with regard to land devised as it is with regard to personalty. °*' The function of a probate court is to determine whether the instrument propounded contains the will SB state V. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Sharp y. Sharp, 213 111. 332, 72 N. E. 1058; In re Broderick's Will, 21 Wall. 503, 22 L. Ed. 599; 1 Woeriler, JLaw of Administration, 496; 1 Story, Eq. Jur. § 440. And see Smith V. Boyd, 127 Mich. 417, 86 N. W. 953. 88 In re Bomar, 18 N. Y. Supp. 214, 27 Abb. N. C. 425. In this case the legitimacy of the child was fully proved. 8 7 In re Meyer, 72 Misc. Eep. 566, 131 N. Y. Supp. 27, 2 Civ. Proc. E. (N. S.) 364. 88 Goods of Honywood, L. R. 2 P. & D. 251. 89 In the following cases, orders admitting wills to record were held incon- clusive: Portner v. Wiggins, 121 Ga. 26, 48 S. E. 694 (where lack of suffi- cient witnesses appeared on face of instrument) ; Cureton v. Taylor, 89 Ga. 490, 15 S. E. 643; Wall v. Wall, 123 Pa. 545, 16 Atl. 598, 10 Am. St. Rep. 549 (will unsigned when probated). »» Dublin V. Chadbourn, 16 Ma^. 433 ; Opp v. Chess, 204 Pa. 401, 54 Atl. 354. In a few jurisdictions, probate of wills devising real estate furnishes only prima facie evidence of validity in a suit concerning the property devised. See Thomas v. Williamson, 51 Fla. 332, 40 South. 831. § 97) EFFECT OF PROBATE 297 of a competent testator executed in conformity to law, not what the will itself is nor how it is to be interpreted. Hence probate, until set aside, is conclusive as to testamentary capacity,'^ absence of un- due influence '^ or fraud,*' due execution,'* and that the will has not been revoked."" A will properly executed and proved must be ad- mitted to probate, although none of its provisions are valid or capable of execution. The probate does not establish the validity of any of i^ provisions, nor any question of construction."' So the probate court cannot, in proceedings for the probate of a will, determine whether a party had an interest in the property disposed of by the will,'^ nor whether a murderer can take under the will of his victim,"' nor whether the title to real property passes under the will,"" nor* does the probate in any way determine the force and effect of the will upon the title to'^real property claimed under it.^ So the fact that the testator had made a contract to dispose of his property by will in a certain manner does not affect the right to probate of a will making a different disposition thereof, since the 81 In re Oskamp's Will, 7 Ohio N. P. 665; Manship v. Stewart, 181 Ind. 299, 104 N. E. 505 ; Reeves v. Hager, 101 Term. 712, 50 S. W. 760; Vestry of St. John's Parish v. Bostwick, 8 App. D. C. 452; In re Merriam, 136 N. Y. 58, 32 N. B' 621 ; Appeal of Hegarty, 75 Pa. 503 ; Jones y. Roberts, 84 Wis. 465, 54 N. W. 917. 92 Id. »s Hoscheid's Estate, 78 Wash. 309, 139 Pac. 61. »* Burkett v. Whittemore, 36 S. C. 428, 15 S. E. 616; Rumph v. Hiott, 35 S. C. 444, 15 S. B. 235; Loring v. Society, 171 Mass. 401, 402, 50 N. E. 936; Brig- ham V. Fayerweather, 140 Mass. 411, 5 N. E. 265; Holman v. Perry, 4 Mete. (Mass.) 492, 497; Beeves v. Hager, 101 Tenn. 712, 50 S. W. 760; Ware V. Wisner (C. C.) 50 Fed. 310; SUMNER v. CRANE, 155 Mass. 483, 29 N. B. 1151, 15 L. R. A. 447, Dunmore Cas. Wills, 186; Horton v. Barto (1910) 57 Wash. 477, 107 Pae. 191, 135 Am. St. Rep. 999. There are sometimes provi- sions by statute to this effect See Jones v. Roberts, 84 Wis. 465, 54 N. W. 917 ; Dicke v. Wagner, 95 Wis. 260, 70 N. W. 159. 9 5Clapp v. Vatcher, 9 Cal. App. 462, 99 Pac. 549; Delehanty v. Pitkin, 76 Ck)nn. 412, 56 Atl. 881 ; Sutton v. Hancock, 118 Ga. 436, 45 S. E. 504 ; Bowen V. AUen, 113 111. 53, 55 Am. Rep. 398. 88 1 Woerner, Law of Administration, 501; In re Murphy's Estate, 104 Cal. 554, 38 Pac. 543; Appeal of Bent, 35 Conn. 523; Clearspring Tp. v. Blough (1909) 173 Ind. 15, 88 N. E. 511, 89 N. E. 369; SUMNER v. CRANE, 155 Mass. '483, 29 N. B. 1151, 15 L. R. A. 447, Dunmore Cas. Wills, 186 ; Lnsk v. Lewis, 32 Miss. 297; Cox v. Cox, 101 Mo. 168, 13 S. W. 1055; Montrose v. Byrne, 24 Wash. 288, 64 Pac. 534; Bnrkett v. Whittemore, 36 S. C. 428, 15 S. E. 616. 87 Bliss V. Macomb Probate Judge, 129 Mich. 127, 88 N. W. 390. 88 Id. 89 In re Merriam, 136 N. T. 58, 32 N. E. 621. 1 Ware v. Wisner (C. C.) 50 Fed. 310; Trustees v. Denmark, 141 Ga. 390, 81 S. E. 238. 298 PEOBATB OF WILLS (Ch. 11 remedy for breach of contract^ or in the nature of specific perform^ ance ' remains unimpaired. It results that when a copy of a will which has been admitted to probate is offered in evidence there is a presumption that the re- quirements of the statute with regard to execution were complied with, and that the will was properly admitted to probate.* Similar principles apply when a will already probated in one country or state is offered for probate in another jurisdiction. As to all facts necessary to the establishment of the will, and as to the regularity of the proceedings and their conformity to the laws of the country or state where they are had, the judgment of probate is con- clusive. The only proper matters of inquiry in the second jurisdic- tion are whether the record presented is duly authenticated, wheth- er the court in which the will was originally allowed had jurisdic' tion and whether there is any property on which, in event of a sec ond probate, the will may operate." The ancillary probate or record of a foreign will, in its effect upon property within the jurisdiction, is conclusive of the facts which entitle a will to ancillary probate." Probate Binding on Whom While in some jurisdictions probate is a proceeding in rem and binding on all the world,^ in others it binds only parties or persons interested who were duly notified,* while in others it affects parties having actual cognizance of the proceedings, whether made formal parties and duly notified or not.' Judgment of Probate Cannot be Attacked Collaterally The usual rule with regard to judgments rendered by a court of competent jurisdiction applies to the decrees of a competent court 2 SUMNER V. ORANE, 155 Mass. 483, 29 N. E. 1151, 15 L. R. A. 447, Dim- more Cas. Wills, 186; In re Glouchester's Estate (Sur.) 11 N. Y. Supp. 899. s Everdell v. Hill, 58 App. Div. 151, 68 N. Y. Supp. 719, reversing 27 Misc. Rep. 285, 58 N. Y. Supp. 447. * Newman v. Iron Co., 25 C. C.A. 382, 80 Fed. 228; Barbour v. Moore, 4 App. D. C. 535. And the rule applies even when the restoration of a record destroyed by fire only shows one attesting witness. Grand Tower Min., Mfg. & Transp. Co. v. Gill, 111 111. 541. 6 Crosswell, Ex'rs & Adm'rs, 150. And feee Newcomb v. Newcomb, 108 Ky. 582, 57 S. W. 2, 51 %.. R. A. 419; Putnam v. Safe-Deposit Co., 66 App Div. 136, 72 N. Y. Supp. 968. 8 Copley V. Ball, 176 Fed. 682, 100 C. C. A. 234. 7Carpenter>. Bailey, 127 Cal. 582, 60 Paa 162; Davles v. Leete, 111 Ky. 659, 64 S. W. 441; Bonnemort v. Gill, 167 Mass. 338, 45 N. E. 768; First Nat. Bank of Austin v. Sharpe, 12 Tex. Civ. App. 223, 33 S. W. 676. 8 Young V. Wark, 76 Miss. 829, 25 South. 660; Medlock v. Merritt, 102 Ga. 212, 29 S. B. 185. » Young V. HoUoway, [1895] Prob. 87, 11 Rep. 596. § 97) EFFECT OF PEOBATE 299 admitting a will to probate. Sttch decrees can be attacked only by a proceeding immediately directed to that end ; they cannot be as- sailed collaterally,^" as in a suit in ejectment by .the heirs against the devisees/^ or a sui^ by the devisee to quiet title where the defendant undertakes to allege that the devise was procured by fraud.^'' So ancillary probate based on a decree of probate in another state can- not be attacked collaterally.^* Neither can the probate be attacked in a collateral proceeding on the ground that one of the witnesses to the will was incompetent,^* the fact not appearing on the face of the will, nor on the ground that the testator's handwriting was im- properly proved.^" v The same principles control in one state with regard to the decree of a sister state admitting a will to probate.^' But where the probate of a will devising real estate is only pre- sumptive evidence of its validity, it is subject to collateral attack in any action in which it may be offered as evidence.^' And in all cases where the decree of probate is an absolute nullity, as for want of jurisdiction, it may be impeached collaterally.^* The probate of the will of a married woman, under disability to make a will, does not render it valid.^° It is well settled that the appointment of an administrator of the estate of a person who is still alive is void, and may be assailed collaterally,''" and the same rule should apply to the probate of the will of a living testator. locarraway v. Moore, 75 Ark. 146, 86 S. W. 993; Churchill v. Jackson, 132 Ga. 666, 64 S. E. 691, 49 L. R. A. (N. S.) 875, Ann. Cas. 1913E, 1203 ; Leslie v. Maxey (Ky.) 67 S. W. 839 ; Kentucky Land & Immigration Co. v. Crabtree, 113 Ky. 922, 70 S. W. 31 ; Holland v. Holland, 121 Mich. 109, 79 N. W. 1102 ; James White Memorial Home v. Price, 195 111. 279, 62 N. E. 872. 11 Ward V. Board, 12 Okl. 267, 70 Pac. 378. 12 Winslow V. Donnelly, 119 Ind. 565, 22 N. B. 12. 15 St. Joseph's Convent v. Garner, 66 Ark. 623, 53 S. W. 298; Dickey v. Vann, 81 Ala. 425, 8 South. 195; Stanley v. Morse, 26 Iowa, 454; Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372 ; Ward v. Hearne, 44 N. C. 184; In re Mack- in's Estate, 14 Phila. (Pa.) 328; Lovett's Ex'rs v. Mathews, 24 Pa. 330; Acklin V. Paschal, 48 Tex. 147 ; Townsend v. Downer's Estate, 32 Vt. 183. 14 Chicago Title & Trust Co. v. Brown, 183 111. 42, 55 N. E. 632, 47 L. R. A. 798. 16 McClure v. Spivey, 123 N. C. 678, 31 S. E. 857. 10 Garvey t. Guaranty Co., 77 App. Div. 391, 79 N. Y. Supp. 337. 17 Barbour v. Moore, 4 App. D. C. 535; Corley v. McElmeel, 149 N. Y. 228, 43 N. E. 628. isHolyoke v. Holyoke's Estate, 110 Me. 4C9, 87 Atl. 40; Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114. 18 Gregory v. Gates, 92 Ky. 532, 18 S. W. 231. 20 Carr v. Brown, 2D E. I. 215, 38 Atl. 9, 38 L. B. A. 294, 78 Am. St. Rep. 855; Scott V. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896; Jochum- sen T. Bank, 3 Allen (Mass.) 87 ; Morgan v. Dodge, 44 N. H. 255, 82 Am. Dec. 213. ' 300 PROBATE OP WILLS (Ch. 11 Costs and Attorney's Fees The matter of costs is, to a considerable extent, regulated by stat- ute. The rule in equitable cases that costs may be adjudged by the court according to the right and equity of the cause applies where the will is contested by a bill in chancery.^* The question rests largely in the discretion of the court, and this is occasionally pro- vided, in terms,, by statute."'' ' In the exercise of this discretion, if the defeated contestant has carried on the contest in good faith, and the questions involved, whether of fact or law, are worthy of serious consideration, his costs are generally allowed out of the estate.^* But no costs will be allowed an unsuccessful contestant in the ab- sence of good faith on his part,^* or of reasonable ground of opposi- tion."' But sometimes the existence of this discretion is denied, and the unsuccessful contestant is required to pay the costs, as in other cases."' Statutes sometimes determine when the estate shall be thus charged with costs."^ When a court, either by statute or 21 Shaw V. Camt>, 56 111. App. 23. 22 In re McKlnney's Estate, 112 Cal. 447, 44 Pac. 743 ; Cheever v. North, 106 Mich. 390, 64 N. W. 455, 37 L. It. A. 561, 58 Am. St. Hep. 499 ; In re Mon- dorf s Will, 110 N. T. 450, 18 N. E. 256. 23 Seebrock v. Fedawa, 33 Neb. 413, 50 N. W. 270, 29 Am. St Kep. 488; Frost V. Wheeler, 43 N. J. Eq. 573, 12 Atl. 612; In re Drake's Will, 45 App. Div. 206, 60 N. Y. Supp. 1020; In re Keeler, 7 N. Y. Supp. 199, 23 Abb. N. Cj 376; Read v. Franklin (Tenn. Ch. App.) 60 S. W. 215; Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883; In re Healy's Will, 108 Wis. 632, 84 N. W. 835; Roberts v. Roberts, 107 Wis. 213, 83 N. W. 318. . 2* BUMP'S ESTATE (1907) 152 Cal. 271, 92 Pac. 642, Dunmore Cas. Wills, 184; In re Kivlin's WUl, 37 Misc. Rep. 187, 74 N. Y. Supp. 937; In re Tacke's Will (Sur.) 3 N. Y. Supp. 198. 2 5 In re Castle's Estate, 15 Civ. Proc. R. 276, 2 N. Y. Supp. 638; In re Whelan, 6 Dem. Sur. 425, 2 N. Y. Supp. 635. And no reasonable cause is re- garded as existing where probate is resisted upon an immaterial issue, under a misapprehension of the law, which is not disabused by the court, and is shared In by the proponent. Burr v. Burr,^ 53 N. J. Eq. 627, 33 AU. 796. 28 Allen V. Seaward, 86 Iowa, 718, 52 N. W. 557 (under a general statute providing that costs shall be recovered by the successful against the losing party); Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499; Crawford's Heirs v. Thomas, 114 Ky. 484, 54 S. W. 197, 55 S. W. 12; Carter's Adm'r v. Carter (Ky.) 12 S. W. 385. And see Burr v. Burr, 53 N. J. Eq. 627, 33 Atl. 796; Moyer v. Swygart, 125 111. 262, 17 N. E. 450; Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 418. 27 New Jersey: P. L. 1898, p. 789, § 197, when the only evidence offered by the contestant is that of the subscribing witnesses, or there were reasonable .grounds for such contest. Construed in Higgins v. McQuirk, 61 N. J. Eq. 613, 47 Atl. 276. New York: Code Civ. Proc. § 2558, providing that costs shall not be allowed to the unsuccessful contestant on a contested application for probate, unless ihe Is a special guardian, or the executor named in the paper proposed by him In good faith. Construed in COLLYER v. COLLYER, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405, Dunmore Oas. Wills, 15S. § 97) EFFECT OP raOBATB 301 otherwise, has not authority to allow costs out of the estate, no stipulation of the parties to that effect will enable it to do so.''* Since it is the duty of the executor named in a will to propound the instrument for probate, his costs are payable out of the estate, though probate is denied,^' and this though the executor was the only person to be benefited by establishing the will.'" Only the taxable costs can be awarded, however, and not the amount of the actual expense incurred by the executor.*^ And it has been held that, where, a probated will has been pronounced invalid, the costs are properly taxed against a legatee who was the only person seek- ing to maintain it.'^ A party made defendant in a suit for the con- struction of a will and appealing from a judgment against her, which is confirmed, is entitled to costs.*' And where legacies to charitable institutions are successfully assailed by collateral relatives of the testator, the costs of all parties, except those institutions whose legacies were invalid, were held payable out of that part of the es- tate recovered by the relatives.'* The question as to the giving of security for costs is wholly stat- utory. While the right to resist original proceedings without giv- ing bon(^ is generally recognized,'" security is frequently required in contest proceedings subsequent thereto," especially from parties who are nonresidents," though not always." Counsel fees incurred by an executor in connection with the es- -tablishment of the will are usually payable out of the estate.'* Such 2 8 In re Keeler, 7 N. T. Supp. 199, 23 Abb. N. C. 376; In re Derse's Will, 103 Wis. 108, 79 N. W. 46. 29 In re Olmstead's Estate, 120 Cal. 447, 52 Pac. 804; Tuoby v. Hanlon, 18 App. D. C. 225 ; Perkins v. Perkins, 116 Iowa, 253, 90 N. W. 55 ; In re Car- man's Will (Iowa) 48 N. W. 985 ; Delmar v. Delmar, 65 App. Div. 582, 72 N. TC. Supp. 959; Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226. Costs will not be allowed to a proponent named as executor, however, when It is adjudged that he procured the execution of the will by fraud and undue -influence. Deleglise's WUl, 142 Wis. 234, 125 N. W. 452. 30 Lassiter v. Travis, supra. 81 Brilliant v. Simpson, 110 Mich. 68, 67 N. W. 1101. 82 Egbers v. Egbers, 177 111. 82, 52 N. E. 285. 83 Miller v. Von Schwarzenstein, 51 App. Div. 18, 64 N. Y. Supp. 475. 8* Booth V. Baptist Church, 126 N. Y. 215, 28 N. E. 238. SB Harrison v. Stanton, 146 Ind. 366, 45 N. E. 58^. 3 6 Bums V. Travis, 117 Ind. 44, 18 N. E. 45; Lange v. Dammier, 119 Ind. 567, 21 N. B. 749. 87 Tuthill V. Forbes, 160 App. Div. 510, 145 N. Y. Supp. 660. 3 8 Cash V. Lust, 142 Mo. 630, 44 S. W. 724, 64. Am. St. Rep. 576. 8 9 Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590; Tuohy v. Hanlon, 18 App. D. C. 225; Sims v. Birdsong's Adm'r (Ky.) 50 S. W. 993; Miller v, Gehr, 91 Md. 709, 47 Atl. 1032 ; Hazard v. Eugs, 14 B, I. 5; In re Gorkow's JEstate, 20 Wash. 563, 56 Pac. 385. In some jurisdictions, it is not considered as the duty of the one named 302 PROBATE OF WILLS (Ch. 11 fees are not, however, considered as "costs" in the statutory mean- ing of that term.*" And sometimes no allowance of attorney's fees to either party to a will contest, in addition to statutory costs, is held permissible.*^ Where the more usual doctrine prevails, fees paid to attorneys who acted in good faith, in the effort to establish a will, by an executor who knew that the will was void, and which was ultimately declared to be so, cannot be recovered by the es- tate.*^ The amount of counsel fees allowable in behalf of the execu- tor out bi the estate is discretionary with the court.*' Counsel fees are not usually allowed to the unsuccessful contestant out of the estate,** nor to a contestant, though successful,*" nor to such con- testant, where, by compromise agreement, a verdict sustaining the will was taken by consent.*' Counsel appointed to represent ab- sent heirs in a will contest may sometimes, by statute, be paid a rea- sonable fee, to be fixed by the court,*' and such fee may be allowed to a guardian ad litem for minor heirs.*' So where a will is so am- biguous as to justify a suit for its construction, an attorney's fee, payable from the estate, may be allowed an unsuccessful contes- executor to defend the will after probate, and, If he does defend, he must look to the devisees and legatees for his expenses. See Brown v. Vinyard, Bailey Eq. (S. C.J 460, 462; Shaw v. Moderwell, 104 lU. 64, 70; Yerkes' Appeal, 99 Pa. 401; Andrews v. Andrews, 7 Ohio St. 148. Where one named executor unsuccessfully defends a contested wUl, it is difficult to see why the heirs at law should have the burden of paying the expenses incurred in an attempt to deprive them of their property. *o In re Olmstead's Estate, 120 Cal. 447, 52 Pac. 804. *i Fox V. Martin, 108 Wis. 99, 84 N. W. 23, reversing 104 Wis. 581, 80 N. W. 921. In this case the executor had not qualified as such, or received his appointment from the court. In Wisconsin, under Laws 1901, p. 569, c. 397, the court may now, in its discretion, allow to the proponent a reasonable at- torney's fee, to be paid out of decedent's estate. Muellenschlader's Estate, 137 Wis. 32, 118 N. W. 209. *2 ShafCer v. Bacon, 35 App. Div. 248, 54 N. Y. S. 796, affirmed in 161 K. Y. 635, 57 N. E. 1124. *8 Turner's Guardian v. King, 98 Ky. 253, 32 S. W. 941, 33 S. W. 405; Miller V. Gehr, 91 Md. 709, 47 Atl. 1032; Campbell v. McGuiggan (N. J, Prerog.) 34 Atl. 383. ** West V. Place, 4 Misc. Rep. 19, 23 N. Y. Supp. 1089; CLARK v. TURNER, 50 Neb. 290, 69 N. W. 843, 38 L. R. A. 483, Dunmore Cas. WUls, 188; Mc- Clary v. Stull, 44 Neb. 175, 62 N. W. 501. Statutes are sometimes construed as authorizing the allowance of counsel fees to any party when the contest is not without merit. Bioren v. Nesler (1909) 76 N. J. Eq. 576, 74 Atl. 791; Halyard v. Wood, 71 N. J. Ea 214 63 Atl. 7. H . <5 Taylor v. Minor, 90 Ky. 544, 14 S. W. 544. See, also, Quinn's Estate. 179 Mich. 61, 146 N. W. 297. * 6 In re Titlow's Estate, 163 Pa. 35, 29 Atl. 758. 47 In re Roarke's Estate, 8 Ariz. 16, 68 Pac. 527. 48 Wilbur V. Wilbur, 138 lU. 446, 27 N. E. 701. § 98) AGKEEMENTS NOT TO CONTEST 303 tant.*' No counsel fees from the estate can be allowed to creditors of the legatees who employ attorneys to defend the will,"" nor to beneficiaries, when the executor has himself employed counsel to defend the will,"^ though they may be chargeable against the por- tion of the estate devised to such beneficiaries."* PROBATE AS AFFECTED BY AGREEMENTS NOT TO CONTEST 98. Agreements upon consideration between parties interested in and opposed to the probate of a will, that the latter will not contest its probate, if made with full knowledge of all the circumstances, are valid. If made under ordinary circumstances, there seems no objection to the rule as above stated. While it may result in giving effect to the will of an incompetent testator, or of one produced by fraud or undue influence, yet if the parties financially interested are willing, under proper inducement, to accept a disposition thus originating, it amounts substaritially to a determination by them of their prop- erty rights, to which no considerations of public policy stand op- posed. Indeed, "the settlement of controversies by reason of which the harmony of families is destroyed is favored by the law." "" But an agreement to settle pending litigation cannot be urged as a bar to a proceeding for the probate of a will, in the absence of statutory power on the part of the probate court to enforce specific perform- ance of contracts, resort being had in such cases to courts of equity,"* though there is authority the other way." But a contract made by an heir, with him from whom He might inherit, not to con- test the latter's will will estop him from making such a contest." " Ingraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320. eo Hamilton v. Shillington, 19 App. D. O. 268. 51 West V. Place, 4 Misc. Rep. 19, 23 N. T. Supp. 1089; Atkinson v. May's Estate, 57 Neb. 137, 77 N. W. 343. 52 Hinckley v. Stebbins, 3 Cal. Unrep. Cas. 478, 29 Pac. 52 ; Mclntire v. Mc- Intire, 14 App. D. C. 337 ; Smith's Estate, 165 Iowa, 614, 146 N. W. 836. 6 3 1 Underbill, WUls, § 294. 5 4 Shurte v. Fletcher, 111 Mich. 84, 69 N. W. 233. See Pinch v. Finch, 14 Ga. 362. In the absence of fraud, a court of equity will enforce a contract made by an heir, in which he accepts a specific amount in full/ of all his expectancy, even though it turns out to have been a disadvantageous bargain to him'. Eissler v. .Hoppel, 158 Ind. 82, 62 N. E. 692. 5 5 Stringfellow v. Early, 15 Tex. Civ.' App. 597, 40 S. W. 871. 56 In re Garcelon's Estate, 104 Cal. 590, 38 Pac. 414, 32 L. R. A. 595, 43 Am. St. Rep. 134; Gore v. Howard, 94 Tenn. 577, 30 S. W. 730. 304 PROBATE OF WILLS (Ch. 11 An agreement to distribute the estate as the estate of an intestate/' or without reference to the terms of the will which has been pro- bated,"' or in accordance with the terms of the will without pro- bate," is valid. An infant, under the approval of a court of equity, may become a party to a family compromise, though he cannot be compelled to do so.®" A contract between heirs not to contest a will may be set up by the executor, although he is not a party thereto, in defending a contest by a part of such heirs,*^ PROBATE OF LOST OR DESTROYED WILLS 99. In the absence of statutory limitation, a will lost, or mutilated without intent thereby to revoke, may be admitted to pro- bate upon satisfactory proof of its contents and due execu- tion. As has been already indicated,"* a will not found at the death of the test&tor is presumed to have been destroyed by him with intent to revoke. But this presumption may be overcome, and if the tes- tator dies, having once executed a will which he has not revoked in one of the methods heretofore indicated, it is his will, and if the document cannot be produced, its contents and execution may be proved in much the same manner as those of any other instrument, except that, in view of the peculiar opportunities for fraud and temp- tation thereto, the proof of these facts must be clear and convinc- ing."^ But, while the evidence must be full and satisfactory, it need HT Strlngfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871. ssLouisvUle & N. R. Co. v. Sander's Adm'r (Ky.) 44 S. W. 644; Cuthbert V. Chauvet, 20 N. Y. Supp. 336, 65 Hun, 624; Bracken's Estate, 138 Pa. 104, 22 Atl. 20. Knight v. Knight, 113 Ala. 597, 21 South. 407. 80 In re Birchall, L. R. 16 Ch. D. 41. ei.Reichard v. Izer, 95 Md. 451, 52 Atl. 592. 82 Ante, p. 259. 8s Coddlngton v. Jenner, 60 N. J. Eq. 447, 45 Atl. 1090, affirming 57 N. J. Eq. 528, 41 Atl. 874; Scoggins v. Turner, 98 N. C. 135, 3 S. E. 719. So when a paper, offered as a copy of a destroyed will, is read over to a witness at the trial, who testified, "That is right, as near as I can recollect," the proof is insufficient (McCarn v. Rundall, 111 Iowa, 406, 82 N. W. 924), as is also the case where the only evidence was that of a witness 85 years old, who testified that, 68 years before, she had seen the will and heard it read, and who undertook to testify minutely as to its provisions (Apperson v. Dowdy, 82 Va. 776, 1 S. E. 105). So, also, where one of the attesting witnesses swore that the will gave all the decedent's estate to his mother, and the other, § 99) PBOBATE or LOST OB DESTROYED WILLS 305 not be such as to remove all reasonable doubts as to the contents.'* And it is enough to prove the substance of the will, without proving the precise language or terms employed." But it seems that pro- bate of such a will cannot be had on a stipulation of counsel as to its contents.*" It is sometimes provided by statute that a lost or destroyed will cannot be established unless it was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime.*^ Consequently probate is denied when a will is destroyed accidental- ly by its custodian, during the life of the .testator.*^- Under such a statute, fraudulent destruction not being relied upon, the petition to establish a lost will must aver its existence at the testator's death." that the devise was to her heirs, and there was no evidence that there were not other legacies. In re Purdy's Will, 46 App. Div. 33, 61 N. Y. Supp. 430. For further cases Illustrating insufficient proof, see Kahn v. Hoes, 14 Misc. Rep. 63, 35 N. Y. Supp. 273; Keesy v. Dimon,'^37 N. T. Supp. 92, 91 Hun, 642. Proof was held sufficient when a pencil copy, drafted by testatrix's attor- ney, was offered, with testimony that the will, before execution, was com- pared with the pencil copy, and found to agree therewith (Coddington v. Jen- ner, 60 N. J. Eq. 447, 45 Atl. 1090), as was also the case when a witness tes- tified to the execution and contents of the will, and the records of a county court showed how the lands in controversy were devised by the will (Mc- Neely v. Pearson [Tenn. Ch. App.] 42 S. W. 165). See, also, In re De Groot, 2 Con. Sur. 210, 9 N. Y. Supp. 471. But where a will is lost after probate, no greatei: degree of proof is required of its contents than upon any other issue of fact. Rumph v. Hiott, 35 S. C. 444, 15 S. E. 235. 0* Skeggs V. Horton, 82 Ala. 352, 2 South. 110. «5 Jones V. easier, 139 Ind. 382, 38 N. E. 812, 47 Am. St. Rep. 274. 68 In re Ruser, 6 Dem. Sur. (N. Y.) 31. «7 Code Civ. Proc. N. Y. § 1865. Actual fraud must be shown in such cases. In re De Groot, 2 Con. Sur. 210, 9 N. Y. Supp. 471. Declarations of the testator, shortly before his death, showing a belief on his part that his will was in existence, are admissible, as bearing on the ques- tion of its existence at the time of his death. In re Cosgrove's Will, 31 Misc. Rep. 422, 65 N. Y. Supp. 570. See In re Kennedy's Will, 53 App. Div. 105, 65 N. Y. Supp. 879. But the mere fact that the will was in existence six or eight weeks prior to testator's death Is not sufficient to overcome the presump- tion of revocation. In re Kennedy's Will, supra. For similar statute, see Code Civ. Proc. Cal. § 1339, construed in In re Johnson's Estate, 134 Cal. 662, 66 Pae. 847. . In Ohio, under Gen. Code 1910, § 10543, no wUl can be probated unless it is proved to have been in existence after the death of the testator or after he became insane, and a will of a competent testator is not entitled to probate, if destroyed prior to his death, even though destruction was without his knowledge or against his will. Gibson v. Gibson, 25 Ohio'CIr. Ct. B. 698. 6 8 In re Beiff eld's Will,''36 Misc. Rep. 472, 73 N. Y. Supp. 808. 69 Harris v. Harris, 10 Wash. 555, 39 Pac. 148. An averment that said de- ceased left a will is enough (Id.), or that the will was destroyed after his death (Jones v. Casler, 139 Ind. 382, 38 N. B. 812, 47 Am. St. Rep. 274). Gaed.Wills (2d Ed.)— 20 306 PROBATE OF WILLS (Ch. 11 The jurisdiction to establish lost wills is usually determined by- statute, and it is commonly confided to the courts having ordinary probate jurisdiction, sometimes to courts of equity. In the absence of a statute, probate courts have this power, if they have general equity powers, or can frame an issue devisavit vel non, and call a jury to try that issue ; otherwise, resort must be had to equity/" Testator's Knowledge of Destruction Whether a will can be proved if the testator was aware of its de- struction seems doubtful.'^ Strictly, however, it would appear that if the will were not destroyed at his request and under his direc- tion his mere knowledge of the fact and acquiescence therein should not affect the question. Such knowledge and acquiescence are, of course, no revocation. A will, unrevoked, is the testator's will, and should be given effect as such. To hold otherwise is practically to enable a testator to effect a revocation in some other than the stat- utory methods. Procedure Proceedings for the probate of a lost will are generally begun by a petition to the proper court, setting forth the substance of the will or a copy thereof, its due execution, and loss or destruction.'^ The petition may be brought by any party interested in the establish- ment thereof.'" Notice of the pendency of such petition is generally required, and, broadly, the procedure, is substantially the same as in that for the probate of a will under ordinary circumstances.'* Evidence The party undertaking to establish a lost wrill must prove its due execution, as much as though the instrument itself were propounded for that purpose.'" This proof must be effected by the attesting witnesses, if they are available, the number required to be produc- ■") See Thornton, Lost Wills, § 16. Originally, in England, a lost will of personalty could be set up in the ecclesiastical courts, and possibly in the court of chancery. A lost will of realty, however, could only be established in the latter court. Buchanan v. Matlock, 8 Humpli. (Tenn.) 390, 47 Am. Dec. 622 ; Dower v. Seeds, 28 W. Va. 113, 57 Am. Eep. 646. '1 Dawson v. Smith, 3 Houst. (Del.) 385, holds that It cannot. See, also. Parsons v. Balson, 129 "Wis. 311, 109 N. W. 136.' Contra: Toundt v. Youndt, 3 Grant, Cas. (Pa.) 140. * '2 The petition need not allege the time, place, or manner of destruction, or by whom will was destroyed. Gfroerer v. Gfroerer (1910) 173 Ind. 424, 90 N. E. 757. 73 Donlon v. Kimball, 6l'App. Div. 31, 70 N. T. Supp. 252. As to what con- stitutes a party "interested" in the probate of a will, see ante, 281. '* See ante, p. 287. 75 In re Page, 118 111. 579, 8 N. B. 852, 59 Am. Rep. 395; Oollyer v. Collyer, 4 Dem. Sur. (N. T.) 53, 17 Abb. N. O. (N. Y.) 328; In re Lasance's Estate, 5 Ohio N, P. 20. § 99) PBOBATE OF LOST OB DESTROYED WILLS 307 ed being determined by the local practice in regard to the probate of wills in general." If the witnesses are dead, execution may be proved by secondary evidence, as by proof of the handwriting of the witnesses by one who saw and recognized it," or by showing the fact of attestation by the requisite number of persons.''* After satisfactory proof that the will has been lost, or destroyed, without intent to revoke, the proponent has the burden of estab- lishing the contents of the will," by secondary evidence. No par- ticular number of witnesses is required for this purpose, one being enough,*" though two are sometimes required by statute.*^ Proof may be made by copy, or from the recollection of persons acquaint- ed with its contents. Whether, in event of a copy's being shown to exist, the proponent must account for its absence before proceed- ing to offer oral evidence of the contents of the will would depend upon whether or no degrees of secondary evidence are recognized in the jurisdiction.*^ A draft of a will may be used as evidence of its contents,** and also memoranda of the contents made by the tes- tator.** The proponent of a lost will must show that it was not destroyed by the testator with intent to revoke,*" and, if he alleges the inca- '« See ante, p. 218 ; Scott v. Maddox, 113 Ga. 795, 39 S. E. 500, 84 Am. St Eep. 263. 7 7 Tynan v. Paschal, 27 Tex. 786, 84 Am. Dec. 619; Thornton, Lost WillB, §44. 78 Jackson v. Betts, 6 Cow. (N. Y.) 377. 78 Newell V. Homer, 120 Mass. 277; Davis v. Sigourney, 8 Mete. (Mass.) 487. The same kind of evidence may be used as is competent to prove the contents of other lost instruments. McNeely v. Pearson (Tenn. Ch. App.) 42 S. W. 165. 80 Skeggs V. Horton, 82 Ala. 352, 2 South. 110; Varnon v. Vamon, 67 Mo. App. 534 ; Hedgepeth's WUl, 150 N. C. 245, 63 S. E. 1025. 81 New York: Code Civ. Proc. § 1865, construed in In re Purdy's Will, 25 Misc. Kep. 458, 55 N. T. Supp. 644; In re Waldron's Will, 19 Misc. Rep. 833, 44 N. X. Supp. 353; In re Granacher's WiU, 74 App. Div. 567, 77 N. Y. Supp. 748. California: Code Oiv. Proc. § 1339, construed in In re Camp's Estate, 134 CaL 233, 68 Pac. 227, holding that probate may be had, though the witnesses may differ as to the exact language of the wUl. Indiana: Burns' Bev. St. 1914, § 3167, construed in Jones v. Casler, 139 Ind. 382, 38 N. E. 812, 47 Am. St. Rep. 274. Washington: Code Proc. § 879, construed in Harris v. Harris, 10 Wash. 555, 39 Pac. 148. See, also, In re Buechle's Estate, 17 Pa. Co. Ct. B. 449. 82 See 1 Greenl. Ev. (16th Ed.) §§ 582, 563q. 88 WyckofC V. Wyckoff, 16 N. J. Eq. 401 ;; Oolvin v. Fraser, 2 Hagg. 266. 8* Foster's Will, 13 Phila. (Pa.) 567 ; Sugden v. Lord St Leonards, L. B. 1 P. D. 154. SB Mcintosh V. Moore, 22 Tex. Oiv. App. 22, 53 S. W. 611. See Perry v. Perry, 66 Hun, 629, 21 N. Y. Supp. 133. 308 PROBATE OF WILLS (Ch. 11 pacity of the testator to revoke a will destroyed by him, he must prove such incapacity.*' Where there is evidence that the sole devisee under one will fraudulently suppressed a later will which it is sought to prove, the declarations of such devisee are admissible to show the existence and contents of the later will, as against persons claiming under him.'^ Declarations of the Testator as Evidence Where there is other evidence with regard to the contents of a lost will, it is settled by the decided weight of authority that dec- larations of the testatdr, made before or after the execution of the -will, may be received in corroborative proof of its contents.** Ap- parently the contents of the will cannot be shown solely by such ■declarations.** The same principles apply to the proof of a portion of a will which has been destroyed as prevail in case of the destruction of the en- tire document.*" Proof of Part of Lost Will While it seems to be agreed that a revocatory clause in a subse- quent will which has been destroyed may be proved to show the revocation of a prior will,*^ yet there is some authority for the view that, to give effect to a lost will as a testamentary instrument, its entire contents must be proved.*^ But the better view, on principle, and the one sustained by the weight of authority, is that, where the 88 Id. See, also, Shacklett v. Roller, 97 Va. 639, 34 S. E. 492. 87 In re Lamble's Estate, 97 Mich. 49, 56 N. "W. 223. 88 Sugden v. Lord St. Leonards, L. R. 1 P. D. 154 (overruling Quick v. •Quick, 3 Sw. & Tr. 442) ; Schnee v. Schnee, 61 Kan. 643, 60 Pac. 738 ; Muller ■V. Muller, 108 Ky. 511, 56 S. W. 802; In re Lamble's Estate, 97 Mich. 49, 56 N. W. 223; Mann v. Balfour, 187 Mo. 290, 86 S. W. 103; Lane v. HiU, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591 ; CLARK v. TURNER, 50 Neb. 290, 69 N. W. 843, 38 L. R. A. 433, Dunmore Cas. Wills, 188; Wigmore on Ev. § 1736, and cases there cited. 89 Griffith V. Higinbotom, 262 111. 126, 104 N. E. 233, Ann. Oas. 1915B, 250; ■CLARK V. TURNER, 50 Neb. 290, 69 N. W. 843, 38 L. R. A. 433, Dunmore Cas. Wills, 188; Woodward v. Goulstone, 11 App. Cas. 469. 8 Vamon v. Vamon, 67 Mo. App. 534. 81 Ante, p. 237. J 92 Todd V. Rennick, 13 Colo. 546, 22 Pac. 898; In re Ruser, 6 Dem. Sur. ■ 1, 75 N. W. 413; Zabrlskie v. Huyler, 62 N. J. Eq. 697, 51 Atl. 197; Kalish v, Kalish, 166 I«f. Y. 368, 59 N. E. 917 ; Read v. Williams, 125 N. Y. 560, 26 N. E. 730, 21 Am. St. Rep. 748, distinguishing Chipman v. Montgomery, 63 N. Y. 221 ; Eldred v. Meek, 183 111. 26, 55 N. E. 536,- 75 Am. St. Rep. 86. A suit for construction by a trustee is properly brought in the county of testator's residence, where will was probated, although none of the parties re- side in the state. Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33. SI Simmons v. Burrell, 8 Misc. Rep. 388, 28 N. Y. Supp. 625. Contra: Jones V. Richards, 24 Misc. Rep. 62?, 54 N. Y. Supp. 126. See Horton v. Cantwell, 108 N. Y, 255, 15 N.. E. 546. 318 ACTIONS FOE THE CONSTEUCTION OF WILLS (Ch. 12 However, in some jurisdictions courts of equity are regarded as having power to construe wills, independent of the existence of any question of trust,^^ and when the construction of a will is in- cidental to the relief sought by a bill of which the court has juris- diction, the court has jurisdiction to construe the will, although no question of trust is involved.** Parties In nearly all jurisdictions, any person who is interested under the will may bring a suit for the construction of the instrument,** as may a trustee of a beneficiary.*^ Heirs at law or next of kin are sometimes permitted to maintain a suit for the construction of a will;*" but under the New York statute,*^ an heir of the testa- tor, not a beneficiary, who contests the validity of a devise, cannot sue in equity for the construction of the will,*' neither can a party claiming title to land through a devisee. *° In practice, a suit for construction is commonly brought by the executor.*" And in an action by an executor for this purpose a coexecutor must be joined, or be made a party defendant if he withhold his consent.*^ Following the general rule in equity, all persons interested must be made parties defendant,*^ such as life tenants and remainder- 32 Hanna v. Prewitt, 153 Ky. 310, 155 S. W. 726 ; Crosson v. Dwyer, 9 Tex. Ciy. App. 482, 30 S. W. 929 ; Covert v. Sebem, 73 Iowa, 564, 35 N. W. 636. 3 3 King V. King, 215 lU. 100. 74 N. E. 89; Rowley v. Rowley, 143 Wis. 325, 127 N. W. 1002. 34 McCutcheon v. Pullman Trust & Savings Bank, 251 111. 550, 96 N. B. 510; Orerar v. Williams, 145 111. 625, 34 N. E. 467, 21 L. R. A. 454 ; Healy v. Reed, 153 Mass. 197, 26 N. E. 404, 10 L. R. A. 766 ; St. John v. Andrews Institute for Girls,' 192 N. Y. 382, 85 N. E. 143. A few decisions limit the right to bring suit for construction to executors and trustees. Belfield v. Booth, 63 Conn. 299, 27 Atl. 585; Security Co. v. Pratt (C. C.) 64 Fed. 405. 35 Glasscock v. Tate, 107 Tenn. 486, 64 S. W. 715; Davis v. Inhabitants oC Barnstable, 154. Mass. 224, 28 Ni E. 165. 36 Healy v. Reed, 153 Mass. 197, 26 N. E. 404, 10 L. R. A. 766. 3' Code Civ. Proc. § 1866. 3 8 Ruppel V. Schlegel, 55 Hun, 183, 7 N. Y. Supp. 936. See Horton v. Cant- well, 108 N. Y. 255, 15 N. E. 546. 39 Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925. 40 Belfield v. Booth, 63 Conn. 299, 27 Atl. 585 ; StofE v. McGinn, 178 111. 46, 52 N. E. 1048; Parsons v. Millar, 189 111. 107, 59 N. E. 606; Ladd v. Chase, 155 Mass. 417, 29 N. E. 637; In re Batchelder, 147 Mass. 4Go, 18 N. E. 225; Kil- burn V. Dodd (N. J. Ch.) 30 Atl. 868; Balsley v. Balsley, 116 N. O. 472, 21 S. E. 954; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; Thornton v. Zea (Tex;. Civ. App.) 39 S. W. 595. 41 Banner v. Benner, 58 Hun, 609, 12 N. Y. Supp. 472; Sawtelle v. Ripley, 85 Wis. 72, 55 N. W. 156. 42 Davis V. Inhabitants of Barnstable, 154 Mass. 224, 28 N. E. 165; Torrey V. Torrey, 55 N. J. Eq. 410, 36 Atl. 1084 ; Adams v. Becker, 47 Hun, 65. § lOl) ACTIONS TO CONSTRUE — WHO MAT BEING 319 men,*' devisees and legatees,** and parties claiming title under a power conferred upon the executor.*" So, in a suit brought by another than the executor, the latter is a necessary party defend- ant.*® But in a suit brought by the executor, attaching creditors of the devisees are not necessary parties.*^ Heirs at law and next of kin of the testator should be made parties if there is any question whether the will disposes of the property involved.** Procedure — Pleading — Decree Action for the construction of a will is generally brought by bill or petition, the matter being regulated by local statute, as is also the question of notice and service on parties defendant. Reference may be had to a master or referee, under statutes and rules of court for that purpose. No reference should be had, however, for the purpose of stating an account of advancements chargeable to one of the beneficiaries.*® A referee's finding as to the testator's inten- tion is reviewable by the court as a question of law."" The bill or petition asking for construction of a will must set forth the entire will to enable the court to determine testator's in- tention from a consideration of all parts of the will,"^ and there must be an allegation that will has been established in a court of probate."'' The decree or judgment of the court is binding upon the parties to the suit and those claiming urider them," and therefore cannot be attacked collaterally."* Appeal or writ of error will lie when the construction of the court of first instance is deemed wrong by any party thereby aggrieved."" *8 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396. ** Lomerson v. Vroom, 42 N. J. Eq. 290, 11 AtL 13; Read v. Patterson, 44 N. J. Eq. 211, 14 Atl. 490, 6 Am. St. Kep. S77. *B Hill V. Dade, 68 Ark. 409, 59 S. W. 39. 46 LUMPKIN V. LUMPKIN (1908) 108 Md. 470, 70 Atl. 238, 25 L. R. A. (N. S.) 1063, Dumnore Cas. Wills, 200; Duelos v. Banner, 53 Hun, 636, 6 N. Y. Supp. 293. 47 Phelps V. Phelps, 143 Mass. 570, 10 N. E. 452. 48 Lomerson V. Vroom, 42 N. J. Eq. 290, 11 Atl.. 13; McKethan V. Ray, 71 N. C. 165. 49 Marquise De Portes v. Hurlbut, 44 N. J. Eq. 517, 14 Atl. 891. 6 Bills V. Putnam, 64 N. H. 554, 15 Atl. 138. BiClupper V. Clupper, 163 Ind. 418, 72 N. E. 125; Devenney v. Devenney, 74 Ohio St. 96, 77 N. E. 688. 62 Kaplan v. Coleman, 180 Ala. 267, 60 South. 885. 6 3 Luscomb V. Fintzelberg, 162 Cal. 433, 123 Pac. 247; Coghlan v. Dana, 173 Mass. 421, 53 N. E. 890 ; Triba v. Lass, 146 Wis. 202, 131 N. W. 357. s4 Demuth V. Kemp, 159 App. Div. 422, 144 N. I. Supp. 690; Goodloe v. Woods, 115 Va. 540, 80 S. E. 108. 6 6 Stratton v. McKinnie (Tenn. Ch. App.) 62 S. W. 636. An executor, who 320 ACTIONS FOB THE CON8TEUCTION OP WILLS (Ch. 12 Costs In suits for the construction of wills, the matter of costs frequent- ly rests largely in the discretion of the court/* and is sometimes regulated by statute."' Under statutes, costs are sometimes allow- ed to both parties out of the estate,"' and they are occasionally, and perhaps generally, thus allowed, where the suit is brought in good faith, and a genuine question is raised, without the help of a stat- ute."' But where there is no ambiguity costs will be allowed the defendant executor, but not to the claimants.'" A more marked diversity of opinion exists regarding the payment of counsel fees. While such fees are allowed to the executor out of the estate, whether he be plaintiff or defendant,'^ yet it is some- times denied that they can be thus allowed to any other party.*^ Such fees are never allowed when the action is not brought in good faith,'* or is clearly unnecessary.** But where the case is not frivolous or unnecessary, there is considerable authority to the effect that moderate counsel fees may be allowed, even to the de- feated party, from the estate.** brings suit to determine which of two contending legatees Is entitled to a cer- tain fund, has no Interest sufficient to entitle him to appeal from a judgment construing the wlU In favor of one of the legatees. Barth v. Rlchter, 12 Colo. App. 365, 55 Pac. 610. 5 8 Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, Ann. Cas. 1915C, 713; Dili v. Wlsner, 88 N. T. 153. 07 Gen. St. Conn. 1902, | 781, authorizing the taxation of expenses and coun- sel fees as costs In actions for the construction of wills, construed In Horton v. TJpham, 72 Conn. 29, 43 Atl. 492. 08 In re Donges' Estate, 103 Wis. 497, 79 N. W. 786, 74 Am. St. Eep. 885, con- struing St. Wis. 1911, § 2949. 9 Thomas v. Trust Co., 73 Md. 451, 21 Atl. 367, 23 Atl. 3; In re Stuart's WUl, 115 Wis. 294, 91 N. W. 688 ; Woman's Union Missionary Soc. v. Mead, 131 111. 33, 23 N. E. 603; Lombard v. Whitbeck, 173 111. 396, 51 N. E. 61; Tif- fany V. Emmet, 24 R. I. 411, 53 Atl. 281; Howard v. Smith, 78 Iowa, 73, 42 N. W. 585; Heard v. Read, 169 Mass. 216, 47' N. E. 778; AUison v. Allison's Ex'rs, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920. 8 Merrill v. Hayden, 86 Me. 133, 29 Atl., 949. 81 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396; Johnson v. Askey, 190 111. 58, 60 N. E. 76 ; Burney v. Atkinson (Tenn. Ch. App.) 54 S. W. 998 ; Cox V. Wills, 49 N. J. Eq. 573, 25 Atl. 938; Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073, 74 Am. St. Rep. 910; In re Donges' Estate, 103 Wis. 497, 79 N. W. 786, 74 Am. St. Rep. 885; .Lombard v. Whitbeck, 173 111. 36, 51 N. E. 61. 82 Patton V. Ludington, supra; Kimball v. Society. 65 N. H. 139, 23 Atl. 83- 85. See Ensley v. Ensley, 105 Tenn. 107, 58 S. W. 288. «s Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798. On the question of the good faith of the legatee in bringing suit, a contract made by him with Ms attorneys regarding their fees is admissible. Id. 84 Guess V. Strahan, 106 Miss. 1, 63 South. 313. •0 Woman's Union Missionary Soc. v. Mead, 131 111. 33, 23 N. B, 603; Sing- § 101) ACTIONS TO CONSTEUE— WHO MAT BKINO 321 Miscellaneous A legatee cannot be deprived of his right to resort to the courts for the ^construction of a will by a declaration therein that the exec- utors are to define its provisions.'" er V. Taylor, 91 Kan. 190, 137 Pac. 931, Ann. Cas. 19150, 713; Charter v. Charter, L. R. 7 H. L. 0. 364. And see Moore v. Alden, 80 Me. 301, 14 Atl. 199, 6 Am. St. Rep. 203 ; Cooke v. Woman's Medical College of Pa., 82 N. J. Eq. 179, 87 Atl. 131. ^ «« In re Reilly's Estiate, 200 Pa. 288, 49 AtL 939. 6ABD.WIIXS (2d Ed.)— 21 322 CONTROLLING PRINCIPLES (Ch. 13 CHAPTER XIII CONSTRUCTION OF WILLS— CONTROLLING PRINCIPLES 102-103. Construction Defined. 104. General Rules of Construction. 105. Extrinsic Evidence as Affecting Construction — General Rule. 106. Extrinsic Evidence Admissible, When. 107. Equivocations — ^Extrinsic Evidence of Intention. 108. Imperfect Description — Extrinsic Evidence. 109. Extrinsic Evidence Inadmissible, When. CONSTRUCTION DEFINED 102. The will of a competent testator, and every part thereof, pre- sumably expresses an intelligent intent ; i. e., means some- thing. When the language, in view of all the circum- stances, can have but one meaning, there is no room for uncertainty. 103. Construction is the method employed to ascertain the intent of the testator, as expressed in the will, when the language used to that end is susceptible, under the circumstances, of more than one meaning. Its sole function is to remove uncertainty regarding testamenteiry intent. The sole purpose of construction is to ascertain and effectuate the intent of the testator, not as it may have existed in his mind, not as he may have intended to express it, but as it is actually ex- pressed in the language of the will.^ It is very frequently said to 1 In re Willey's Estate, 128 Cal. 1, 60 Pae. 471 ; Hertz v. Abrahams, 110 Ga. 707, 36 S. E. 409, 50 L. R, A. 361; Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274; Engelthaler v. Engelthaler, 196 111. 230, 63 N. E. 669; Phayer v. Kennedy, 169 lU. 360, 48 N. E. 828 ; Vestal v. Garrett, 197 111. 398, 64 N. E. 345 ; Dorsey v. Dodson, 104 111. App. 589 ; Summit v. Yount, 109 Ind. 506, 9 N. E. 582; Wentworth v. Fernald^ 92 Me. 282, 42 Atl. 550; Page v. Mar- ston, 94 Me. 342, 47 Atl. 529; Zimmerman v. Hafer, 81 Md. 347, 32 Atl. 316; Boston Safe-Deposit & Trust Co. v. Coffin, 152 Mass. 95, 25 N. E. 30, 8 L. R. A. 740; Yates v. Shern, 84 Minn. 161, 86 N. W. 1004; Briant v. Garrison, 150 Mo. 655, 52 S. W. 361; Turney v. Sparks, 88 Mo. App. 363; St. James Oi-phan Asylum v. Shelby, 60 Neb. 796, 84 N. W. 273, 83 Am. St Rep. 553; Chick v. Ives, 2 Neb. (TJnof.) 879, 90 N. W. 751 ; Stratton v. Stratton, 68 N. H. 582, 44 Atl. 699; Marshall's Es'rs v. Hadley, 50 N. J. Eq. 547, 25 Atl. 325; Carter v. Gray, 58 N. J. Eq. 411, 43 Atl. 711 ; Hafner v. Hafner, 171 N. Y. 633, 63 N. E. 1117; Adair v. Adair, 11 N. D. 175, 90 N. W. 804; In re Hammer's Estate, 158 §§ 102-103) CONSTBUCTIDN DEFINED 323 be a cardinal rule of testamentary construction that the plain in- tent of the testator, as contained in the language of the will, must prevail, if it does not offend public policy, and many of the cases just cited contain this statement. But this is not in reality a rule of construction- at all. All the rules of construction are aimed at as- certaining the intent. When the intent of the testator is plain, there is no room for ariy rule of construction, cardinal or otherwise, as there is nothing to construe.^ In applying the rules of construction, no effort is really made to get through the will back into the mind of the testator, to learn what intent may have been lurking there, or what intent he would have more clearly embodied in his will, had his attention been called to the uncertainty. As has been well pointed out,* the testator may have been no more able to solve the doubt offhand than are the courts. The question is, "not what the testator meant, but what is the meaning of his words." * Perhaps it might be said that the testator is conclusively presumed to have meant that which his words mean. At all events, it is the language of the will alone which is to be considered." Hence, if the words of the will clearly create one estate, it will have that effect, however much the testator may have designed to create another." So when the testamentary purpose is made known by plain and unambiguous language, it will be effectuated, however unreasonable, unjust, or absurd it may ap- pear to others.'' No document can be fairly construed, when isolat- ed from its surroundings or from the circumstances which gave rise to it. Hence the language of the will must be read and construed in the light of the circumstances of the particular case.* Pa. 632, 28 Atl. 231; Kozell v. Tnomas (Tenn. Ch.) 39 S. W. 350; Rutter v.' Anderson, 48 W. Va. 215, 36 S. E. 357; O'Hearn v. O'Heam, 114 Wis. 428, 90 N. W. 450, 58 L. B. A. 105; Myrick v. Heard (G. C.) 31 Fed. 241. 2 See Burroughs v. Jamieson, 62 N. J. Eq. 651, 53 Atl. 688; Adair v. Adair, 11 N. D. 175, 90 N. W. 804; Holmes v. Walter, 118 Wis. 409, 95 N. W. 380, 62 U B. A. 986. 8 Big. Wills, 155, note 3. * 2 Wms. Ex'rs, 1148. See Martlndale v. Warner, 15 Pa. 471. s Tucker v. Aid Soc, 7 Mete. (Mass.) 205; Wright v. Barrett, 13 Pick. (Mass.) 44; Bond v. Moore, 236 111. 576, 86 N. E. 386, 19 L. B. A. (N. S.) 540; Jackson v. Luquere, 5 Cow. (N. Y.) 228; Walston's Lessee v. White, 5 Md. 304; Bailey v. Bailey, 25 Mich. 185; Edgeworth v. Edgeworth, I* B. 4 H. L. 41; Grey v. Pearson, 6 H. L. Oas. 106^ 6 Hertz T. Abrahams, 110 Ga. 707, 36 S. E. 409, 50 L. B. A. 361. 7 Marshall's Ex'rs v. Hadley, 50 N. J. Eq. 547, 25 Atl. 325. 8 Canfleld v. Canfield, 118 Fed. 1, 55 0. C. A. 169; Elyton Land Co. v. Mo- Elrath, 3 C. C. A. 649, 53 Fed. 763. This topic will be discussed more fully in connection with evidence as an" aid to construction. See post, p. 340. 324 CONTROLLING PRINCIPLES (Ch. 13 GENERAL RULES OF CONSTRUCTION 104. As an aid to the removal of uncertainty in the meaning of the will, read in view of all the facts surrounding the testator, certain general rules of construction have been adopted, their sole aim being to disclose the testator's intent as em- bodied in the language of the will. The more important are as follows: (a) A will is generally presumed to speak from the time of the testator's death. (b) The general intention controls the particular intention. (c) A will once made, there is a presumption against partial in- testacy. (d) Words are utiderstood in their ordinary meaning, if there is nothing to indicate a contrary intent. (e) Technical words are understood as having their legal mean- ing, if there is nothing to indicate a contrary intent. (f) Each part of the will and its codicils is construed in connec- tion with all the other parts, and effect is g^ven to every part, if possible. (g) As between two irreconcilable parts, the latter will prevail, (h) To effectuate a manifest intention, a will may be read as if words were transposed, supplied, rejected, or changed. (i) Where there is any room for construction, that interpretation will be adopted which prefers the blood of the testator to that of strangers. (j) As between two possible constructions, that which discloses a legal or valid purpose wUl be preferred to one disclosing an illegal or invalid purpose. (k) If the language of the will gives rise to a necessary impli- cation that a gift was intended, such intention will be ef- fectuated, though no gift is, in express terms, bestowed. (1) An express gift cannot be controlled by the reasons assign- ed therefor. These rules are resorted to only when there is at least a possible question as to the testator's intent. The following are the more important general rules of construction : First A will is generally presumed to speak from the time of the tes- tator's death,' for the very nature of the testamentary act, which » DOWNING T. GRIGSBY, 251 111. 568, 96 N. E. 513, Dunmore Cas. Wills, 203; Perry v. Perry, 110 Ky. 16, 60 S. W. 855 (by statute); Cox v. Jones (laiC^ 229 Mo. 53, 129 S. W. 495; McNaughton v. McNaughton, .34 N. Y. 201; § 104) GENEKAL RULES OF CONSTRUCTION 325 is expected to take effect only at the decease of the testator, pre- supposes that, so far as facts and circumstances are capable of anticipation by him so a^s to enable him to place himself in the position he will then occupy relative to his property and his ob- ligations to his family, he will have used the language of his will with reference more particularly to the facts and circumstances as existmg at that period." Thus the words, "according to the statute of descents," qualifying a devise over to the testator's heirs, refer to the time the devise to such heirs takes effect, viz., the death of the testator.^^ So, upon probate of will, the title to property de- vised vests as of the death of the testator,^'' even though the tes- tator be domiciled in a state other than that in which the land lies." And a reference in a will to the arrival of the testator's youngest child at the age of twenty-five years applies to the young- est child at the date of the testator's death, though born after thp execution of the will ; ^* and, in general, the provisions of the wijl must be construed with reference to the law in force at the time of the testator's death.^" But the rule is inoperative when the will discloses a contrary intent,^* as where many parts of the will are meaningless if the clause in question is construed with reference to the time of the testator's death, but all are intelligible and sig- nificant under a different construction.^' Coggeshall v. Home for Friendless Children, 18 E. I. .696, 31 Atl. 694; Carney V. Kaln, 40 W. Va. 758, 23 S. E. 650; Hamilton v. Ritchie (1894) App. Cas. 310. 10 Gold V. Judson, 21 Conn. 616; Canfield v. Bostwick, Id. 550. n DE WOLF V. MIDDLETON, 18 R..I. 810, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146, Dunmore Cas. Wills, 269. ■ 12 Graves v. Mitchell, 90 Wis. 306, 63 N. W. 271 ; In re Brown's Estate, 190 Pa. 464, 42 Atl. 890. 13 Green v. Alden, 92 Me. 177, 42 Atl. 358; White v. Keller, 15 O. C. A. 683, 68 Fed. 796. Of course, the will must in such cases be subsequently probated in the state where the land lies, or in some way be made operative under the laws of such state. See ante, p. 309. 1* Louisville Trust Co. v. Dohn (Ky.) 63 S. W. 785. See, also, Gray's Adm'r v. Pash (Ky.) 66 S. W. 1026, and Breidenbach v. Walter's Ex'rs (Ky. 1909) 119 S. W. 204 (where there was a gift over if certain beneficiaries "die or wander off and are not heard from for ten years," and the ten years were held to t)egin to run from testator's death). 15 Meserve v. Meserve, 63 Me. 518, 520; Cushing v. Aylwtn, 12 Mete. (Mass.) 169; Perkins v. George, 45 N. H. ■^53. 18 Bourke v. Boone, 94 Md. 472, 51 Atl. 396; In re Swenson, 55 Minn. 300, 56 N. W. 1115. 17 In re Gerber's Estate, 196 Pa. 366, 46 Atl. 497. So the word "now" or any word expressing present time Is understood as referring to the date of the will. Gold v. Judson, 21 Conn. 616, 622 ; In re Pearsons' Estate, 99 Cal. 30, 33 Pac. 751. So "my present attending physi- cian" means him in attendance at the date of the will. Everett v. Carr, 59 Me. 375. "Descendants now living" means those living at the date of the wUl. 326 OONTKOLLING PRINCIPLES ' (Ch. 13 Second The general intention controls the particular intention, if there ■is an irreconcilable conflict between them^ i. e., where the general intention is clear, and it is impracticable to effectuate all the lan- guage of the instrument as expressive of a special intent, the lat- ter must yield to the former. 'il And it makes no difference which intent is stated first in the will.^* Thus, where testator devised real estate to his son and made a gift over if his son "should die during minority or without issue," the court construed the word ''or" as though it were "and"; it being apparent that the testator's principal object was to provide for his son and whatever family he might have.^" Third A testator, in making his will, presumably intends to dispose of all his property. Hence if the will can be so construed as to effect this result this construction will be resorted .to, when there is any occasion to resort to construction at all. Briefly, there is a pre- sumption against intestacy."^ Thus a will, making the testator's wife 1 Jar. Wills, 318. So with a gift "to the surviving children, not knowing all their names." Morse v. Mason, 11 Allen (Mass.) 36. 18 Thrasher v. Ingram, 32 Ala. 660; Phelps v. Bates, 54 Conn. 11, 5 Atl. 301, I Am. St Rep. 92; Eotch v. Emerson, 105 Mass. 431; Howland v. Rowland, II Gray (Mass.) 469, 476; Everett v. Can-, 59 Me. 332; Brown v. Tuschoff, 235 Mo. 449, 138 S. W. 497; ,famall's Appeal, 70 Pa. 335 ; Kane v. Astor's Ex'rs, 7 N. Y. Super. Ct 533; Workman v. Cannon's Lessee, 5 Har. (Del.) 91 ; Chase v.'Lockerman, 11 Gill & J. (Md.) 206, 35 Am. Dee. 277; Rose v. McHose's Ex'rs, 26 Mo. 590; Robinson v. Rpbinson, 1 Burr. 38; Pierson v. Vlckers, 6 East, 548. In consequence of this principle, a devise in fee, clearly manifested, Is not cut down by subsequent clauses or codicUs, unless the testator's intention to effect this result is clearly inferable from the whole wUl. Parker v. lasigi, 138 Mass. 416, 423 ; Washbon v. Cope, 144 N. Y. 287, 39 N. E. 388 ; Bruce v. BisseU, 119 Ind. 525, 22 N. E. 4, 12 Am. St. Rep. 436; Bedford v. Bedford's Adm'r, 99 Ky. 273, 35 S. W. 926. 19 Cook V. Holmes, 11 Mass. 528; Chase v. Lockerman, 11 Gill & J. (Md.) 185, 35 Am. Dec. 277; Jesson v. Wright, 2 Bligh, 56 ; Price v. Cole's Ex'x, 83 Va. 343, 2 S. E. 200. 20 Phelps V. Bates, supra. 21 Marion v. WilUams, 19 Wash. Law Rep. (D. C.) 532; King v. King, 168 111. 273, 48 N. E. 582 ; Dorsey v. Dodson, 104 111. App. 589; English v. Cooper, 183 111. 203, 55 N. E. 687; Bourke v. Boone, 94 Md. 472, 51 Atl. 396; BATES V. KINGSLEY, 215 Mass. 62, 102 N. E. 306, Dunmore Cas. WUls, 205, 230; Smith V. Secor, 157 N. Y. 402, 52 N. E. 179; Kelley v. Hogan, 71 App. Div. 343, 76 N. Y. Supp. 5 ; In re Lloyd's Estate, 188 Pa. 451, 41 Atl. 733 ; Rey- nolds V. Crispin (Pa.) 11 Atl. 236; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650; Lawrence v. Barber (1903) 116 Wis. 294, 93 N. W. 30; Canfield v. Canfleld, 55 C. C. A. 169, 118 Fed. 1 ; Kenaday v. Slnnott, 179 U. S. 606, 21 Sup. Ct 233. 45 L. Ed. 339. The fact that there is no residuary clause is sometimes said to strengthen § 104) GENEBAL KULES OF CONSTRUCTION 327 executrix and giving her full power to convey all the testator's prop- erty, with remainder over to an adopted son in such property as should not be thus disposed of by her, was construed as giving her a life estate in the property, as otherwise an estate to this extent would be undisposed of by will.^^ So where in one part of a will a certain lot was devised to two daughters and some minor grand- children of the testatrix, T., one of the daughters, being given all the personalty, and in another part of the will she revoked that portion of the will giving any part of the said lot to the other daughter and the minor grandchildren, it was held that she would not be presumed intestate as to any portion of the lot, but that T. took the whole of it.^' But the intention to pass the whole es- tate must be expressed in some form in order to raise the presump- tion against intestacy ^* and the presumption has no controlling effect where the language of the will is plain and unambiguous.^" Fourth Where words have an ascertained, ordinary, and popular mean- ing, and there is nothing in the will indicating that they were not used in this sense, this meaning will be given them -* unless such adherence leads to some absurdity, repugnance, or inconsistency with the rest of the instrument' And such meaning will not be this presumption as applied to the general words used in the dispositions made. Felkel v. O'Brien, 231 111. 329, 83 N. E. 170. See, also. Matter of Rey- nolds, 6 Dem. Sur. (N. Y.) 229. 22 Hammond v. Croxton (Ind.-App.) 61 N. E. 596. 23 Marion v. "Williams, 20 App. D. O. 20. For further illustration, see Trusty v. Trusty (Ky.) 59 S. W. 1094 ; Tebow v. Dougherty, 205 Mo. 315, 103 S. W. 985; Honaker v. Starks, 114 Va. 37, 75 S. E.' 741 (where will bequeath- ing "my stock [one share]" in a bank was held to pass all the shares of stock of testatrix). ," 2* Gallagher v. McKeague, 125 Wis. 116, 103 N. W. 233, 110 Am. St. Rep. 821. • ' 25 Wixon V. Watson, 214 111. 158, 73 N. E. 306; Powell v. Beebe, 167 Mich. 306, 133 N. W. 8; Oldham v. York, 99 Tenn. 68, 41 S. W. 333. Thus, where a testatrix, in her will, stated that she understood that a fund bequeathed to her by her father and payable at her mother's death would descend to her son and daughter in equal amounts, and requested her son, in consideration of prior advances to him, to relinquish his share of the fund to the daughter, she was held to have died Intestate as to this fund. In re Sherman, 2 Con. Sur. 504, 13 N. Y. Supp. 881. 2 8 Fancher v. Fancher (1909) 156 Cal. 13, 103 Pac. 206; Young v. Quimby, 98 Me. 167, 56 Atl. 656; Barrus v. Kirkland, 8 Gray (Mass.) 512, 513; Mc- Murtrie v. McMurtrie, 15 N. J. Law, 276; Liillard v. Reynolds, 25 N. C. 366; Townsend v. Downer, 23 Vt 225; Winder v. Smith, 47 N. C. 327; Abbott v. Mlddleton, 7 H. L. Oas. 114; Grey v. Pearson, 6 H.,L. Gas. 106; Edgeworth v. Edgeworth, L. R. 4 H. L. 37; Hamilton v. Ritchie (1894) App. Gas. 310. 2T Hileman v. Tuthill, 97 111. App. 258, and cases in note 26. ^ 328 CONTROLLING PRINCIPLES (Ch. 13 departed from for the purpose of giving effect to what may be guessed to have been the intention of the testator, though such departure might result in a fairer distribution of the estate.^' But the usual meaning will be departed from when it is necessary for the purpose of effectuating what appears, upon a fitU view of the whole will, to have been the intent of the testator." Thus where the testator devises all of his land lying east of the center line rtm- ning north and south between "sections 8 and 17, in a certain town- ship and range, the court will take judicial notice that these sec- tions lie to the north and south, the one of the other, and, to ef- fectuate the evident intent of the testator, will construe the word "between" as meaning "through." '" While there is no necessary incojisistency in construing the same word in different senses in the same will, if it is apparent that the word was thus used,*^ yet it is prima facie taken as having the same meaning in each instance unless a contrary intent clearly appears.'^ So where, in two clauses of a will, the word "heirs" is used as in- dicating a class, it will be given the/ same meaning in a third clause.'* But the rule does not apply when the same words re- fer to different subject-matters.** Thus, if a technical word is shown by the context of the clause wherein it occurs to have a popular meaning, it will receive in another clause its technical mean- ,ing when there is nothing in the context of that clause to in- dicate a different intent.** And where there is no connection by 2 8 Adams V. Jones, 176 Mass. 185, 57 N. E. 362. See, also, Baker v. Baker (1913) 182 Ala. 194, 62 South. 284. 29 Marshall's Ex'rs v. Hadley, 50 N. J. Eq. 547, 25 Atl. 325 ; In re Ehler's Will, 155 Wis. 46, 143 N. W. 1050. 80 Briant v. Garrison, 150 Mo. 655, 52 S. W. 361. 81 Morrow v. McMahon (Sup.) 71 N. Y. Supp. 961, 35 Misc. Eep. 348. 8 2 Pease v. Cornell, 84 Conn. 391, 80 Atl. 86; Dunshee v. Dunshee, 251 111. 405, 96 N. E. 298; Eliot v. Carter, 12 Pick. (Mass.) 436; Mathes v. Smart, 51 N. H. 438; Carr v. Smith, 161 N. Y. 636, 57 N. E. 1106; Stewart v. Stewart, 61 N. J. Eq. 25, 47 AtL 633 ; In re Birks, 69 Law J. Ch. 124, [1900] 81 Law T. (N. S.) 741. See, also, Madison v. Larmon, 170 111. 65, 48 N. E. 556, 62 Am. St Eep. 356; Allen's Appeal, 69 Conn. 702, 38 Atl. 701; In re Stumpenhousen's Estate, 108 Iowa, 555, 79 N. W. 376; In re Mcintosh's Estate, 158 Pa. 528, 27 Atl. 1044, 1047, 1048 ; McMurry v. Stanley, 69 Xex. 227, 6 S. W. 412. Although testator later repeats words to which he has previously given a definite meaning, the presumption that the words are intended to carry the same meaning gives way to any indication of a different intent by the testa- tor. In re Altdorfer's Estate, 225 Pa. 136, 73 Atl. 1068. 8 3 Preston v. Brant, 96 Mo. 552, 10 S. W. 78. 8 4 Hawley v. Northampton, 8 Mass. 3, 33, 5 Am. Dea 66; Schaefer v. Schae- fer, 141 111. 337, 31 N. B. 136. 80 Lloyd V. Rambo, 35 Ala. 709. See Woerner, Am. Law of Administration, § 104) GENERAL BULES OF CONSTEUOTION 329 grammatical construction, or direct words of reference, or by the declaration of a coirimon purpose, between distinct bequests in a will, the general rule will not justify the resort to one bequest for aid in construing another, although the two may be similar in their general terms and import.^' But the more modern tendency is to read the different clauses in a will referentially to one another, unless they are clearly independent.'^ Fifth While technical legal words are not necessary to give effect to any species of disposition,^* yet, if such words are used, they are read as having their legal sense, unless the will clearly indicates to the contrary.^' But the intention of the testator controls. Where the word "heir" is obviously used as meaning children or descendants it must be given that meaning.*" So it may also be understood as meaning legatee or devisee.*^ So, when the term "devisee" is used in reference to a bequest of personalty, it will be held to mean legatee *^ and the wor.d "legatees" will be held to in- clude both devisees and legatees, if such is intention of testator.** 878. So where a testator devised real and personal estate to A., and If lie should die, and leave no issue of his 'body, then over, the italicized words were held to mean no issue at the time of his death as applied to the personalty, but as applied to the realty an indefinite failure of issue. 1 P. Wms. 667. See 2 Wms. Ex'rs, 1158. 3s Compton V. Compton, 9 East, 267; Pratt v. Leadbetter, 38 Me. 13; Cook T. Holmes, H Mass. 528, 531; 2 Wms. ESx'rs, 1159. 37 2 Wms. Ex'rs, 1160; Ford v. Ford, 6 Hare, 492; Bailey v. Bailey, 25 Mich. 185 ; Lebeau v. Trudeau, 10 La. Ann. 164 ; Lucas v. Duffield, 6 Grat. (Va.) 456. For the effect of the referential words, "as aforesaid," see Walsh V. Peterson, 3 Atk. 194 ; Meredith v. Meredith, 10 East, 503; "as before," Mac- namara v. Lord Whitworth, Coop. 241; "in like manner," Aistrop v. Aistrop, 2 Bl. 1228; Tyndale v. Wilkinson, 23 Beav. 74; "in Inanner aforesaid," Co. Lit 20b ; Bessaub v. Noble, 26 L. J. Oh. 236 ; "on the same terms and con- ditions," Cross V. WoodhuU, Willes, 592. 3 8 Hay V. Coventry, 3 T. R. 86; 2 Wms. Ex'rs, 1149. 3 9 De Bardelaben v. Dickson (1910) 166 Ala. 59, 51 South. 986; Ironside v. Ironside (1911) 150 Iowa, 628, 130 N. W. 414; Malcolm v. Malcolm, 3 Oush. (Mass.) 477; Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Mopre v. Lyons, 25 Wend. (N. Y.) 119 ; Clark v. Mosely, 1 Rich. Eiq. 396, 44 Am. Dec. 229; LEATHERS v. GRAT, 101 N. C. 162, 7 S. E. 657, 9 Am. St. Rep. 30, Dunmore Cas. Wills, 207, 255; In re France's Etetate, 75 Pa. 220; Allison v. Allison's Ex'rs, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920; Collins v. Elstone, 1 Reports [1893] Prob. 1 ; Hodgson v. Ambrose, 1 Doug. 337. *o Canfield v. Fallon, 161 N. Y. 623, 55 N. E. 1093; Plummer v. Shepherd, 94 Md. 466, 51 Atl. 173. 41 Shapleigh v. Shaplelgh, 69 N. H. 577, 44 Atl. 107 (where the will gave to a certain person the portion coming to the testator "as heir of F.," the latter having died testate, making the testator his residuary legatee and executor). *2 People V. Petrie, 191 111. 497, 61 N. E. 499, 85 Am. St. Rep. 268. 48 In re Henderson's Estate (1911) 161 Cal. 353, 119 Pac. 496. 330 CONTROLLING PRINCIPLES (Ch. 13 And the word "revert" may appear by the context to have another than its technical meaning.** In seeking to determine whether or not technical words are to be understood in their technical sense, the court may consider whether the drawer of the will was familiar with the technical meaning of the wor4s used.*' Sixth A will is, presumably, a whole. Each part is therefore to be con- sidered in connection with every other part. Each part also is pre- sumed to have some operative force ; it was not inserted for noth- ing. Hence the construction of the will is to be had with regard to the entire instrument, and each of the parts is to be construed with reference to all the others, so as to harmonize and give ef- fect to all, if possible,*" and the same rule applies to the will and its codicils.*^ Any reasonable construction that will uphold all the provisions of the will will be adopted.*' Thus a devise of land to one, after a life estate in the same land to another, constitutes a devise of the remainder to the former.** So a devise to one daughter and her phildren, and if she died without heirs of her body then to another daughter and her children, followed by a devise of the testator's property to the two daughters and their heirs, is construed as vesting a fee in the first daughter, defeasible on her dying without children."" And where the same land is given in fee to two persons, the prevailing rule is that neither will take to the exclusion of the other, but both take as tenants in common,"^ although, under such circumstances, some courts construe the wilt *« In re Bennett's Estate, 134 Oal. 320, 66 Pac. 370. 45 Hewitt V. Green, 77 N. J. Eq. 345, 77 Atl. 25 ; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786. 48 Benson v. Mitchell, 26 Ala. 369; Bacon v. Nichols, 47 Colo. 31, 105 Pac. 1082; Cook v. "Weaver, 12 Ga. 47; Hubbard v. Hubbard, 99 111. App. 555; Huff V. Browning, 96 111. App. 612; Jackson v. Hoover, 26 Ind. 511; Ernst v. Foster, 58 Kan. 438, 49 Pac. 527 ; Gueydan v. Montague, 109 La. 38, 33 South. 61; Botch V. Elmerson, 105 Mass. 433; Bailey v. Bailey, 25 Mich. 185; Per- kins v. Mathes, 49 N. H. 107; In're Schott's Elstate, 78 Pa. 40; Parker v. Wasley's Ex'r, 9 Grat. (Va.) 477 ; In re Prasser's Will, 140 Wis. 92, 121 N. W. 643. i"! Hubbard v. Hubbard, 99 111. App. 555 ; Adams v. Legroo, 111 Me. 302, 89 Atl. 63; Ward v. Ward, 105 N. Y. 68, 11 N. El 373; In re Noon's Estate (1907) 49 Or. 286, 88 Pac. 673, 90 Pac. 673 ; Vaughan v. Bridges, 61 S. C. 155, 39 S. E. 347 ; Thompson's Adm'r v. Churchill's Estate, 60 Vt 371, 14 Atl. 699 ; Hunt v. Hunt, 18 Wash. 14, 50 Pac. 578. 48 Purbee v. Furbee, 49 W. Va. 191, 38 S. E. 511. 48 Crissman v. Crissman, 27 N. O. 498. so Benson v. Mitchell, 26 Ala. 360; Ramsdell v. Ramsdell, 21 Me. 288. isi Bay v. WaUace, 144 111. 256, 33 N. E. 185, 36 Am. St. Rep. 424 ; McGuire V. Evans, 40 N. C. (5 Ind. Eq.) 269; Sherrat v. Bentley, 2 Mylne & K. 165. It is doubtful whether this doctrine extehds to Indivisible chattels or to a § 104) GENERAL EULE8 OP OONSTKUOTION 331 as passing the whole estate to the devisee named in the clause which appears last in the will." Seventh But where it is impossible to give the will such a construction as will render every part of it effective, as between two irreconcilable and conflicting portions, the latter will prevail; °= this on the ob- viously artificial theory that, as between the two, the later clause is the "last" will of the testator. Thus, where a clause of the will provided that, at the death of the testator's last remaining child, the property should be distributed, and a subsequent clause pro- vided for distribution when all but one child was dead; certain se- curities, however, to be kept, from which an annuity should be paid to such surviving child until his death, the two clauses were held as, partially inconsistent, and, the latter governing, distribu- tion should be made upon the death of the last child but one, ex- cept as regards the securities from which the annuity was to be paid."* But an estate granted in clear terms is not cut down by subsequent words of the will unless they are legally as clear and decisive as those by which the estate was created. °° Hence where a section of a will containing a specific devise of land is followed by a section containing a general devise of all the testator's property to other beneficiaries, there being no apparent intention to revoke the first provision, it was held to be unaffected by the second.''" Care must be taken to distinguish between the case of genuinely irreconcilable provisions, in which the latter governs, and cases where in the absence of any attempt to change the prior disposition ease where the second devise is not contained in the same instrument See- Sherrat V. Bentley, supra, and Bigelow on Wills, p. 222. 5 2 Covert V. Sebern, 73 Iowa, 564, 35 N. W. 636; HoUlns v. Coonan, 9 Gill (Md.) 62. 53 Thrasher v. Ingram, 32 Ala. 645; Rogers v. Highnote, 126 Ga. 740, 56 S. E. 93; Smith v. Curr~y, 52 111. App. 227; Evans v. Hudson, 6 Ind. 293; Heidle- baugh V. Wagner, 72 Iowa, 601, 34 N. W. 439 ; ARMSTRONG v. ORAPO, 72 Iowa, 604, 34 N. W. 437, Dunmore Oas. WUls, 210; Orr v. Moses, 52 Me. 287; Pratt V. Rice, 7 Cush. (Mass.) 209; Homer v. Shelton, 2 Mete. (Mass.) 202; Foster v. Stevens, 146 Mich. 131, 109 N. W. 265 ; Rogers' Ex'rs v. Rogers, 49 N. J. Eq. 98, 23 Atl. 125; 1 Jar. Wills, 472. B 4 In re Bates, 159 Mass. 252, 34 N. E. 266. B5 Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467; Settle v. Shafer (1910) 229 Mo. 561, 129 S. W. 897; Kimble v. White, 50 N. J. Eq. 28, 24 Atl. 400 ; In re Peters' Estate, 69 App. Div. 465, 74 N. Y. Supp. 1028 ; In re Up- ham's Estate, 127 Cal. 90, 59 Pac. 315. An express limitation cannot be removed by a clause of doubtful meaning. So, a life estate previously devised is not converted into an absolute estate by a later clause the meaning of whicH is doubtful. Adams v. Massey, 184 N. Y. 62, 76 N. E. 916. 5 6 Price V. Cole's Ex'x, 83 Va. 343, 2 S. E. 200. 332 CONTROLLING PRINCIPLES (Ch. 13 of the proper.ty an effort is made to impose limitations or exercise a control inconsistent with the prior disposition, as where a fee is given, followed by an attempt to further determine the devolittion of the property." In these instances the subsequent clause is re- pugnant and void, not by reason of any exception to the rule as to the prevalence of the latter of two inconsistent clauses, but be- cause the testator is thereby undertaking to do what, by reason of the nature of the interest created by the earlier clause or the policy of the law, he is incapacitated from doing."* Eighth While matter which has been omitted from his will by the testa- tor cannot be supplied by the courts,"* yet, to effectuate a clear inten- tion, as apparent upon the whole will, a will may be read as if words were transposed,'" supplied,'^ rejected,*'' or changed."' But none oTKUlmer v. Wuchner, 74 Iowa, 359, 37 N. W. 778; Judevine's Ex'rs v. Judevine, 61 Vt 587, 18 Atl. 778, 7 L. R. A. 517; Hall T. Palmer, 87 Va. 354, 12 S. E. 618, 11 L. B. A. 610, 24 Am. St. Rep. 653. OS Thus where a will gave to the testator's five daughters two-thirds of his estate In fee, and a subsequent provision directed that the interest of two of them should be held by the executor "for the sole use and benefit of them during their natural life, and at their death the balance, if any, to their chil- dren," the limitation over was held void for repugnancy, the daughters taking a fee simple. Hall v. Palmer, supra. See, also, other cases cited in note 57. So where a t^tator devises his realty to trustees, and, by a subsequent clause, directs that the vacant land be leased for 99 years, such clause, if mandatory, is repugnant to the absolute estate previously granted, and there- fore void. Blacksherp v. Trustees, 94 Md. 773, 51 Atl. 1056. So where a wUl, after devising certain property to the two sons of the testatrix, provides that none of the property shall be Sold until 10 years after the testatrix's death, the latter provision is void as repugnant to the prior disposition of the prop- erty. Adams v. Berger (Sup.) 18 N. Y. Supp. 33. 59 McFarlan3 It is apparently immaterial at what time these declarations were made.''* By the weight of authority such declarations may be proved to aid construction only in the case of an equivocation.**^ The reason for the exclusion of testator's declarations of intention, except where there is an equivocation, although such declarations would frequently throw much light on the, problem of interpreta-, tion, is to be found in "the rule which prohibits setting up any ex- trinsic utterance to compete with and overthrow the words of a document which solely embodies the transaction." *' Some cases support the rule that, where the description in a will applies exactly to only one person, there is no ambiguity, and that parol evidence cannot be received to show that the testator intend- ed, by the description used, to designate another beneficiary, whom he knew under the description employed. In other words, the equivocation must exist objectively, and not with reference to the state of the testator's mind, subjectively considered. So, if a will gives a legacy to John Smith, Henry Jones cannot take, although you show that the testator always called Henry Jones by the name of John Smith, and that h^ never actually knew a John Smith at all.*' Although testator's declarations of intention are not ad- V. Stevens (Sup.) 20 Misc. Rep. 383, 45 N. Y. Supp. 603; In re Hubbuck's Es- tate (1905) Prob. 129; Wigmore on Ev. § 2472. * 2 Jones V. Newman, 1 W. Bl. 60. *^Grant v. Grant, L. R. 5 C. P. 728 (there were other facts In this case which rendered the testator's intent pretty clear, aside from the evidence of his declarations). Contra: In re Root's Estate, 187 Pa. 118, 40 Atl. 818, on the ground that there was no genuine ambiguity. So where a testator gave a legacy to his farming man, W. R., and he had two employes of that name, declarations ia favor of one of- them were admit- ted'. Reynolds v. Whelan, 16 Law J. Ch. 434. ii Doe dem. Allen v. Allen, 12 A. & E. 451 ; Langham v. Sandford, 19 Ves. 649. See 1 Jar. Wills, 408. The dictum that such declarations can only be received if made contempo- raneously with the execution of the wUl, in Thomas v. Thomas; 6 T. R. 671, 678, is apparently overruled. *5 DOE DEM. HISCOCKS v. HISCOCKS, 5 M. & W. 363, Dunmore Cas. Wills, 220; Charter v. Charter, L. R. 7 H. L. 364; Alexander v. Bates, 127 Ala. 328, 28 South. 415; In re Denfleld, 156 Mass. 265, 30 N. E. 101-8; Hogle v. Hogle, 49 Hun, 313, 2 N. Y. Supp. 172; Patterson v. WUson, 101 N. C. 594, 8 S. E. 341 ; Perea v. Barela, 5 N. M. 458, 23 Pac. 766. See Tomkins v. Merriam, 155 Pa. 440, 26 Atl. 659; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929. 46 Wigmore on Ev. § 2471. " The leading case which goes to this length is Tucker v. Aid Soc, 7 Meta § 108) IMPERFECT DESOEIPTION — EXTEINSIO EVIDENCE 345 missible in cases like the one last suggested,*^ there is no suffi- <;ient reason why other extrinsic evidence should not be admitted to show what testator meant by the words which he uSed.*" IMPERFECT DESCRIPTION— EXTRINSIC EVIDENCE 108. When the language of the will applies but partially or imper- fectly to any subject-matter or object of the testator's bounty, or pa^ially to two or more subjects or objects, evi- dence may be received to show any relevant facts as shed- ding light upon the testator's intention, such as the con- dition of the testator's estate or family, and the circum- stances by which he was surrounded at the time of execut- ing the will. Where a description of the above character occurs, it is some- times described as giving rise to a latent ambiguity,"" and evi- dence is admitted to explain it in much the same way as in the ■case of genuine equivocations. But there is no true ambiguity in such instances, and, as has been pointed out,"^ the use of this term may be wisely avoided. Any material facts relating to the per- son who claims under a will are admissible to identify the person (Mass.) 188, although it is not wholly clear that precisely this point was in- volved. The will contained, legacies "to the Seaman's Aid Society of the City of Boston." The testator intended the bequest for a society in New York, called "The Seamen's Friend Society," but the scrivener inserted the other name; both he and the testator at the time supposing that to be the name of the society intended by the testator. The mistake occurred in consequence of Incorrect inforiflation given the testator by the scrivener, through his imper- fect knowledge of thi' subject. It was held that the will, as written, must prevail, and that the Boston Society would take, although in fact, the testa- tor knew nothing about the latter society. While, in view of all the facts, this decision may be correbt, the case is of doubtful value as enunciating a principle of construction. See Thayer, Prelim. Treat. Ev. pp. 468, 477, note. 48 Dunham v. Averill, 45 Conn. 61, 29 Am. Hep. 642. 49 Wigmore on Ev. §§ 2462, 2463. The case of Powell v. Biddle, 2 Dall. (Pa!) 70, 1 Ji Ed. 293, 1 Am. Dec. 263, is correct, on principle. That was the case of a devise "to Samuel Powell (son of Samuel Powell, of Philadelphia, carpenter).".. It appeared that Samuel Powell had a son named Samuel Pow- ell by a second marriage, with whom the testator had no acquaintance. He also had a son named William Powell by the testator's deceased daughter. This son was well known to the testator, who was in the habit of calling him Samuel. Evidence of these facts was admitted, and it was adjudged that Wil- liam should take the legacy. 5 Vandiver v. Vandiver, 115 Ala. 328, 22 South. 154. See Decker v. Deck- er, 121 111, 341, 12 N. E. 750; Covert v. Sebern, 73 Iowa, 564, 35 N. W. 636 ; •Gordon v. Burris, 141 Mo. 602, 43 S. W. 642. Bi Ante, p. 343. 346 CONTROLLING PRINCIPLES (Ch. 13 intended,"^ when there is conflict among the claimants, as where there was a devise in trust to the "Moravian Church of S.," and there was a denomination known as "the Moravian Church," though having a somewhat different official designation, incorporat- ed and having title to all the churches and schools within its juris- diction, and also a Moravian Church at S.,°° or where there was a devise "to my nephews, J. and W.," and the testator left two grand- sons, J. and W., and a nephew, J., and two grandnephews, J. and W." In general, when a bequest is made to a church or society by a wrong or inaccurate name, it may be shown by extrinsic evi- dence what society was intended/" In such cases, when the de- scription corresponds in part to that of any existing corporation, evidence of the relation of the testator to such corporation is ad- missible as bearing upon his intention to make it a beneficiary,"* and of his knowledge of one of the claimants and his ignorance of the others,"' and of the fact that one of the claimants had a church building in the testator's neighborhood, while the other did not."* 02 Missionary Soc. of M. E. Church v. Cadwell, 69 111. App. 280 ; Wilson v. Stevens, 59 Kan. 771, 51 Pac. 903; In re Gaston's -Estate, 188 Pa. 374, 41 Atl. 529, 68 Am. St. Rep. 874. So where a will contained a bequest "to such of the daughters of my late friend Ignatius Scoles, deceased, as shall be living and unmarried at my de- cease," and Ignatius Scoles was a Jesuit priest, unmarried and living at the death of the testator, but his father, who was a friend of the testator, had a number of daughters, to whom, under accurate descriptions, the testator had made bequests in previous wills, it was held that the daughters of the father would take. In r^ Waller, 80 Law T. 701. See, also, In re Wolverton's Es- tates, 7 Ch. D. 197 ; Second United Presbyterian Church v. First United Pres- byterian Church, 71 iSTeb. 563, 99 N. W. 252. 63 Keith V. Scales, 124 N. C. 497, 32 S. E. 809. 54 Willard v. Darrah, 16S Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468 (hold- ing that evidence might be received showing that the devise was meant for the grandsons, and that the word "nephews" was inserted by mistake. So, where testator designated a named devisee afe his "half-brother," extrin- sic evidence was admitted to show that he had no half-brother, but that he had a brother-in-law of the same name as the designated devisee. Rathjens V. MerriU, 38 Wash. 442, 80 Pac. 754. 05 Wilson V. Stevens, 59 Kan. 771, 51 Pac. 903; Reformed Presbyterian Church of North America v. McMillan, 31 Wash. 643, 72 Pac. 502. Thus a bequest to the "M. E. Church School situated in B.," there being no school by that name, may be shown to have been intended for a school in B. of a different name, controlled by the Methodist Church. Ross' Ex'r v. Kiger, 42 W. Va. 402, 26 S. E. 193. 6 6 In re Amberson's Estate (1903) 204 Pa. 397, 54 Atl. 484; Bristol v. On- tario Orphan Asylum, 60 Conn. 472, 22 Atl. 848; Faulkner v. Sailors' Home, 155 Mass. 458, 29 N. E. 645. 5 7 Fifield V. Van Wyck's Ex'r, 94 Va. 557, 27 S. E. 446, 64 Am. St. Rep. 745. ^ 68 Tilley v. ElUs, 119 N. C. 233, 26 S. E. 29. § 108) IMPERFECT DESCRIPTION — EXTRINSIC EVIDENCE 347 The principle as stated in the black-letter text applies to descrip- tions of the subject-matter of the will. Extrinsic evidence is admis- sible to show that a particular tract constituted a component part of the land intended to be embraced in a devise of "all one's es- tate," or of a certain "plantation" in a county/'" or to identify lands referred to in the will as "speculation" lands/" or devised as "all that tract of land a part of which is known as the 'R. Place/ " «^ or devised as "upland" when it appeared that the testator had strictly no "uplands," but that his land was "bottom" or "second bottom" or "bench" land.'^ So a debt referred to in a will as "N.'s debt" may be shown to have always been so referred to by the testatrix, though in fact it was the debt of another for whom N. acted as agent.®' So when, in view of all the facts and circumstances, a part of the description is wrong or inaccurate, the maxim, "Falsa demonstratio non nocet," applies, the erroneous portions of the description will be rejected, and, if enough remains to identify the property, the devise or bequest will take effect."* Thus, where a devise was made of lot No. 6 in square 403, and the testator did not own that lot, but did own lot No. 3 in square 406, and it was the evident intention of the testator to dispose of all his property, it was held that the misdescription might be rejected, and that enough would still remain to identify the property."" So when property is described in the will as a certain part of a certain sec- tion, township, and range, and the description is inaccurate in any particular, evidence is admissible to show the property owned by the testator, and the will will operate on such portions of the prop- erty as are, in view of all the facts, sufficiently identified by the inaccurate description."" »9Flaimery v. Hightower, 97 Ga. 592, 25 S. E. 371; Thomson v. Thomspn, 115 Mo. 56, 21 S. W. 1085, 1128; Horton v. Lee, 99 N. C. 227, 5 S. E. 404. 60 Brown v. Brown, 106 N. 0. 451, 11 S. E. 647. y 81 Jones V. Quattlebaum, 31 S. C. 606, 9 S. E. 982. 82 Vandiver v. Vandiver, 115 Ala. 328, 22 South. 154. • 68 Scott V. Neeves, 77 Wis. 305, 45 N. W. 421. 8* See Wigmore on Ev. § 2477 (b) where cases illustrating this principle are collected. 86'Patch V. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, 29 L. Ed. 860. Accord: Seebrock v. Fedawa, 33 Neb. 413, 50 N. W. 270, 29 Am. St. Eep. 488. For gen- eral'rule, see Christy v. Badger, 72 Iowa, 581, 34 N. W. 427. So where a devise described the premises as "204 Lexington avenue," and the only premises owned on this avenue at or after the time the will was made were numbered 738, he never having owned number 204, it was held to be testator's manifest intent to devise the premises numbered 738. Govin v. Metz, 79 Hun, 461, 29 N. Y. Supp. 9S8. See, also, Whitcomb v. Kodman, 156 111. 116, 40 N. E. 553, 28 L. R. A. 149, 47 Am. St. Eep. 181; Hawkins v. Young, 52 N. J. Eq. 508, 28 Atl. 511. 6 6 Rogers V. Rogers, 78 Ga. 688, 3 S. E. 451; Stewart v. Stewart, 96 Iowa, 620, 65 N. W. 976 ; Eckford v. Eckford, 91 Iowa, 54, 58 N. W. 1093, 26 L. R. 348 CONTROLLING PBINCIPLES (Ch. IS Declarations of Testator While it is usually said that declarations of the .testator are admissible to show intent only in case of a genuine equivocation, i. e., where the language of the will applies with legal certainty to- two or more persons or things,"^ yet some authorities seem to show that such declarations are competent for that purpose in cases of inaccurate description, regardless of whether the description as used is applicable to one or more objects or beneficiaries, and this seems sound on principle, for such evidence is resorted to, not to- effectuate a testamentary intent, independent of the language of the will, but to give effect to that intent to the extent that it has been adequately^ set forth in the will. Thus, where no one answers- to the description of a legatee in a will, former wills made by the testator are admissible to show his knowledge and state of mind at the time, as a means of aiding the court to find out whonl he intended to benefit.** So when a will contained bequests to the testatrix's "stepson, H. S. Covert," and it appeared that she had no stepson of that name, and no such person was known to exist,, parol evidence was received to show that the testatrix directed the scrivener to bequeath the property to her "stepson, Harvey," and that the scrivener, believing Harvey's initials to be H. S. instead of J. H., wrote those initials to designate him."* A similar difficulty arises in connection with the admissibility of declarations of intention, where there is a misdescription and testator uses words which apply to two persons, 'each of whom ful- fills but one part of the description. For example, suppose testator devises land to A., eldest son of B., and it appears that C. is in fact the eldest son of B., while A. is a younger son. Although testator'^ declarations of intention have usually been excluded in cases like the one suggested,'" on principle, the exception for equivocations- should be extended to render such evidence admissible.'^ A. 3T0; Thomson v. JDhomson, 115 Mo. 56, 21 S. W. 1085, 1128; Cornell v^ Green (C. C.) 88 Fed. 821. Compare: Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 665; Sturgis v. Work, 122 Ind. 134, 22 N. B. 996, 17 Am. St. Kep. 349; HufC- man v. Young, 170 111. 290, 49 N. E. 570;' Decker v. Decker, 121 111. 341, 12 ]S\ E. 750; Pocock v. Redlnger, 108 Ind. 578, 9 N. E. 473, 58 Am. Rep. 71. 8 7 Ante, p. 342. 68 In re Waller, 68 Law J. Ch. 526, 80 Law T. (N. S.) 701. 6» Covert V. Sebern, 73 Iowa, 564, 35 N. W. 636. For further cases Illus- trating the same view, see Gordon v. Burris, 141 Mo. 602, 43 S. W. 642 ; Den- nis V. Holsapple, 148 Ind. 297, 47 N. E. 631, 46 L. R. A. 168, 62 Am. St. Rep. 526; Smith v. Kimball, 62 N. H. 606. See, also, Daugherty v. Rogers, 119^ Ind. 254, 20 N. E. 779, 3 L. R. A. 847. ■"> DOE DEM. HISCOCKS v. HISCOCKS, 5 M. & W. 363, Dunmore Cas. Wills, 220 ; Charter v. Charter, L. R. 7 H. L. 364; Drake v. Drake, 8 H. L. C. 172. " Miller V. Travers, 8 Blng. 244; Wigmore on Ev. § 2474. 109) EXTBINSIO EVIDENCE INADMISSIBLE, WHEN 349' EXTRINSIC EVIDENCE INADMISSIBLE, WHEN 1-09. No extrinsic evidence is admissible to disclose an intent of the testator as a fact, independent of the language of the will; it must be received as explanatory thereof, or not at all. ThiS' principle, though sometimes lost sight of, is yet an obvious one,^* contains a genuine rule of evidence,^' and is abundantly il- lustrated by the authorities.'* Where the provisions of the will are not ambiguous, parol testimony as to the understanding or inten- tion of the testator, or as to the meaning in which the words were used by the person who drew the will, is inadmissible.'" So, where the testator devised property to the "Skin and Cancer Hospital," and in the city where he lived thei'e were tvfo institutions, named respectively "New York Skin and Cancer Hospital" and "New York Cancer Hospital," both doing work of the same character, with neither of which was the testator connected, it was held that the will described the former institution with sufficient accuracy, and that parol evidence was not admissible to show that he meant the latter.'* And where a will contained a bequest to "My niece, Elizabeth Stringer," it was held that a grandniece of that name must take, though the evidence offered, if received, would have made it abundantly clear that another person, deceased at the time of the execution of the will in question, was the beneficiary intend- ed by the testator in prior wills,, and that the bequest to her had been retained in the will in question owing to an oversight." So where a bequest was given "unto the children of my late cousin" extrinsic evidence is inadmissible to show that the four children 72 See Thayer's Cases on Evidence (23 Ed.) 917, note 2. T3 Id. p. 1020. 74 Bishop V. Howarth, 59 Conn. 455, 22 Atl. 432; McAleer v. Schneider, 2 App. D. C. 461; Kaiser v. Brandenburg, 16 App. D. 0. 310; Vestal v. Garrett, 197 111. 398, 64 N. E. 345 ; Foster v. Smith, 156 Mass. 379, 31 N. E. 291 ; De- Ireese v. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 5M; Forbes v. Darling, 94 Mich. 621, 54 N. W. 385; Shapleigh v. Shaplelgh, 69 N. H. 577, 44 Atl. 107; Bradhurst v. Field, 135 K. Y. 564, 32 N. E. 113; Union Trust Co.. of New York v. St. Luke's Hospital, 74 App. Div. 330, 77 N. Y. Supp. 528; Thompson v. Kaufman, 9 Pa. Super. Ct. 305; Peet v. Railway Co., 70 Tex. 522, 8 S. W. 203. " Defreese v. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584. T6 Union Trust Co. of New York v. St. Luke's Hospital, 74 App. Div. 330, 77 N. Y. Supp. 528. 1'' Stringer v. Gardiner, 4 De G. & J. 468, 350 CONTROLLING PRINCIPLES (Ch. 13 by a second husband were meant, and not all the children of the cousin referred to.''* And where a devise was "to Matthew West- lake, my brother, and to Simon Westlake, my brother's son," parol evidence of the testator's declarations to show that he meant by Simon Westlake a son of his brother Richard, and not Simon West- lake, a son of his brother Matthew, was excluded, the testator's intent being regarded as clearly expressed in the will.''" Miscellaneous Where the will is written in characters not easy to decipher, or in a language which the court does not understand, the evidence of persons skilled in deciphering or translating is admissible for the purpose of determining the meaning of the testator.*" And where unusual symbols are used by the testator evidence may be received to ascertain the meaning intended thereby to be conveyed.*^ So persons designated by their nicknames, or by their popular names, or by some familiar term of endearment, may also be identified.*'' rs Hampshire v. Peirce, 2 Ves. 216. 7 8 Doe dem. Westlake v. Westlake, 4 B. & Aid. 57. See DOE DEM. MOR- GAN V. MORGAN, 1 Or. & M. 235; Dunmore Cas. Wills, 218. 80 1 Jar. Wills, 421. 81 Kell V. Charmer, 23 Beav. 192. Here, in making his will, a jeweler used, to indicate the amounts of the bequests, the private marks employed by him to designate the prices of goods, and parol evidence was admitted to show that "i. X. X." and "o. x. x." meant £100 and £200, respectively. 82 Inhabitants of First Parish in Sutton v. Cole, 3 Pick. (Mass.) 232; Beatty v. tFniversaUst Soc, 39 N. J. Eq. 452; Lee v. Pain, 4 Hare, 251. § 110) DESCRIPTION OF SUBJEOT-MATTEK 351 CHAPTER XIV CONSTRUCTION (Continiied)— DESCRIPTION OF SUBJECT-MATTER 110. General Rule— Words Operative to Pass the Entire Estate. 111. Words Operative upon Real Property — General Rule. 112. Words Operative to Pass Personal Property. 113-114. The Residuary Clause as an Instrument of Description. GENERAL RULE— WORDS OPERATIVE TO PASS THE ENTIRE ESTATE 110. The general principles heretofore discussed are applied to the construction .of the description of the subject-matter of the will. In view of the presumption against intestacy, any words which can be reasonably interpreted so as to pass the entire property of the testator will be given this effect. The term "estate," un,Iess restricted in meaning by the context, will include all the property of the testator.^ Thus a devise to a wife of "one-half of all my estate," though followed by a specific be- quest of $3,000 for immediate support, was held to pass one-half of the entire estate to the wife.^ But where the devise is "of all the estate, consisting of the residue of money, plate, jewels, leases, judgments, mortgages," etc., the particulars enumerated restrict the meaning of the term to personal estate.' So, if the testator uses, in connection with the word, the terms "bequest," "bequeath," "legacy," and other words descriptive 1 WARNER V. WILLARD, 54 Conn. 470, 9 Atl. 136, Dunmore Gas. Wills, 224; Chapman v. Chick, 81 Me. 109, 16 Atl. 407; Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178 ; Boston Safe-Deposit & Trust Co. v. Mixter, 146 Mass. 100,' 15 N. E. 141; Hunt v. Hunt, 4 Gray (Mass.) 190; Jackson v. Housel, 17 Johns. (N. X.) 281; Powell v. Wood, 149 N. C. 235, 62 S. E. 1071; Harper v. Harper, 148 N. C. 453, 62 S. E. 553 ; Rossetter v. Simmons, 6 Serg. & R. (Pa.) 456; Smith's ES'r v. Smith, 17 Grat (Va.) 276; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25 ; Barnes v. Patch, 8 Ves. 604 ; Mayor of Hamilton v. Hods- don, 6 Moo. P. O. O. 76. A devise of "all mji estate, both real and personal, that I shall taherit as my portion after my father's death," is sufficiently general to pass all the property of the testatrix, and there is no intestacy as to any part thereof. Graham v. Knowles (Pa.) 21 Atl. 985. 2 Estate of Stewart, 74 Cal.. 98, 15 Pac. 445. 3 Timewell v. Perkins, 2 Atk. 102. See Bullard v. Goffe, 20 Pick. (Mass.) 252; Bebb v. Penoyre, 11 East, 160; Von Phul v. Hay, 122 -Mo. 300, 26 S. W. 965. 352 DESCEIPTION OF SUBJECT-MATTER (Ch. 14 of personalty, the meaning of the word "estate" may be thereby limited.* Similar considerations prevail in the interpretation 6i the term "property," though its scope is naturally, perhaps, somewhat more extended than that of "estate." It will pass both realty and person- alty, if there is nothing in the context to the contrary," and the legal presumption is in favor of this extended meaning of the word.' The term includes choses in action,'' and the phrase "all my prop- erty of every description" covers everything, whether real or per- sonal, vested or in expectancy, belonging to the testator.* But the meaning may be circumscribed by the context. Thus a bequest of , my property, consisting of bonds, mortgages, stocks, "etc.," will in- clude only property of the same sort as that specifically enumer- ated." So the expression "all the property" may be confined, in view of all the language of the will, to personal estate remaining undisposed of after the termination of a life estate.^" ■ Despite some conflict, it is now well settled that the word "ef- fects," is confined to personal estate, and will not include real estate, unless, by the context, an intention appears to the contrary.^^ Un- less thus enlarged or limited, it will include all the personal prop- erty of the testator.^* Thus domestic animals housed on the home * But where a will directs the testator's estate to be divided between cer- tain persons named, and the language of the whole will indicates an inten- tion to dispose of all of his property, such will be the result, though he uses the word "bequeath." Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178. Laing v. Barbour, 119 Mass. 523; Jackson v. Housel, 17 Johns. (N. T.) 281; Dempsey v. Taylor, 4 Tex. Civ. App. 126, 23 S. W. 220; Soulard v. United States, 4 Pet. 512, 7 L. Ed. 938; In re Roberts, 55 Law T. (N. S.) 498. A bequest of all my "undivided interest and property" in the estate of the late C. does not carry money paid to the testator by the executor of C.'s es- tate after the execution of the will, but it does carry that part of the pro- ceeds of land belonging to C.'s estate which remained in the hands of C.'s ex- ecutor at testator's death. Aydlett v. Small, 115 N. C. 1, 20 S. E. 163. 8 1 Jar. Wills, 664. ' ' Fogg V. Clark, 1 N. H. 163 ; Morrison v. Semple, 6 Bin. (Pa.) 94 ; Brown V. Dysinger, 1 Rawle (Pa.) 408. 8 Hurdle v. Outlaw, 55 N. O. 75. » Howland v. Howland, 100 Mass. 223 ; Howe's Appeal, 126 Pa. 233, 17 Atl. 588. 10 West V. Handle, 79 Ga. 28, 3 S. E. 454. For further illustration of re- strictions upon its meaning, see Atty. Gen. v. Wiltseere, 16 Sim. 36 ; Brawley V. Collins, 88 N. C. 605. 11 Andrews v. Applegate, 223 111. 535, 79 N. E. 176, 12 L. R. A. (N. S.) 661, 7 Ann. Cas. 126; Hawkins on Wills, 55; Doe dem. Hick v. Dring, 2 M. & S. 448 ; Doe dem. Haw v. Earles, 15 M. & W. 450 ; Reimer's Estate, 159 Pa. 212, 28 Atl. 186. 12 Miner's Will, 146 N. Y. 121, 40 N. B. 788; Howe's Appeal, 126 Pa. 233, 17 AtL 588; Hogan v. Jackson, 1 Cowp. 304. § 110 WOKDS OPEEATIVE TO PASS ENTIRE ESTATE 353 lot, but worked or pastured on an adjoining tract, are included in a devise of the homestead "with all the personal property and ef- fects in the house and on the lot." ^' But the will may disclose an intention to include real estate under the word, as where the testa- tor speaks of "my said effects," referring to a previous devise of land,^* or where the devise is of all his "furniture, goods, chattels, and effects, whatsoever the same may be, or wheresoever the same may be situated." ^° General Words Coupled with Efvumeration The effect of any general word in a will may be affected by the rule, of universal application in the construction of statutes or docu- ments of any description, that where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly to be understood to cover only things of a like kind with those enumerated.^* Thus where a bequest was made of "all my housekeeping articles, including all my household furniture, beds and bedding, kitchen and table furnishings, books and pictures, all my wardrobe, and all other articles of personal property in the house at the time of my death, belonging to me," it was held not to cover certain promissory notes belonging to the deceased.*' But the rule will give way to the clearly manifested in- tention of the testator to the contrary. Thus, where the will gave to a legatee "all the loose property in, on, or around the homestead, 18 Martin r. Osborne, 85 Tenn. 420, 3 S. W. 647. But a bequest of "all the household furniture and effects" has been limited to "household effects" and held insufficient to convey other personal property. GaUagher v. McKeague, 125 Wis. 116, 103 N. W. 233, 110 Am. St. Rep. 821. 1* Doe V. White, 1 Bast, 33; Den v. Trout, 15 Bast, 394. And see Marquis of Titchfield v. Horncastle, 2 Jur. 610. 10 Hall V. Hall [1892] 1 Ch. 361. In this case testator used the word "de- vise" and the court placed emphasis upon that fact 16 Andrews v. Schoppe, 84 Me. 170, 24 Atl. 805. 17 Id. For further illustrations, see Petre v. Ferrers, 61 Law J. Ch. 426, 65 Law T. (N. S.) 568 ; Webb v. Webb (1914) 111 Ark. 54, 163 S. W. 1167 ; In re Reynolds, 124 N. Y. 388, 26 N. E. 954 (where a devise of a certain building, "including all the furniture and personal property in and upon the same or in any manner connected therewith," was held not to pass title to money and securities contained in a safe in the building, where the will contained a re- • siduary clause); Woodcock v. Woodcock, 152 Mass. 353, 25 N. B. 612 (where testator's gold watch was held not to pass under a clause in his will giving to his wife the homestead, "with the household furniture, silverware, musical instruments, books, pictures, horses, carriages, sleighs, harnesses, etc., used in connection therewith") ; Peaslee v. Fletcher's Estate, 60 Vt. 188, 14 Atl. 1, 6 Am. St. Rep. 103; Capehart v. Burrus, 122 N. C. 119, 29 S. E. 97, 42 L. R. A. 152; Ruffln v. Ruflln, 112 N. C. 102, 16 S. E. 1021; Creamer v. Barns (1914) 90 Ohio St 160, 106 N. E. 967, L. R. A. 1915C, 653; Howe's Appeal, 12b Pa. 233, 17 Atl. 588 ; In re Hammersley, 81 Law T. (N. S.) 150. Gabd.Wills (2d Ed.) — ^23 354 DESCBIPTION OF 8UBJECT-MATTEB (Ch. l4 consisting of one eow, two hogs, and a lot of wood," and "all other property of every kind," the concluding clause carries to the legatee the entire residue of the personalty.^* WORDS OPERATIVE UPON REAL PROPERTY— GEN- ERAL RULE 111. Any words, however untebhnical and informal, which clearly indicate an intention on the part of the testator to pass his interest in the real property possessed by him, will be given that effect. The cases have even gone to the extreme in applying general in- formal words to real estate. Thus the words "All I am worth" have been held to comprise land, in the will of an illiterate testa- tor.^" So the words "whatsoever else I have not before disposed of" may pass a fee in lands,^" as may also the words "whatever I may be possessed of at the time of my decease," ^^ or the words "all of this world's goods of which I may be possessed." ^^ So words intrinsically applicable to personal estate may, by force of the con- text, be made to include land. This frequently happens where an expression is evidently used as referential to and synonymous with an anterior word, clearly descriptive of real estate, in which case its extent of operation is measured, not by its own inherent strength, but by the import of its synonym.^' Even the expression "personal estates" will carry realty, if the testator has clearly shown his in- 18 Taubenhan v. Dunz, 125 111. 524, 17 N. E. 456. See, also, In re Traylor's Estate, 75 Cal. 189, 16 Pac. 774 ; Sites v. Eldredge, 45 N. J. Eq. 632, 18 Atl. 214, 14 Am. St. Rep. 769. 10 Huxtep V. Brooman, 1 B. C. C. 437. 20 Hopewell v. Ackland, Salk. 239. 21 Wllce V. WUce, 5 M. & Pay. 682 ; Evans v. Jones, 46 L. J. Ex. 280; Dav- enport V. Ooltman, 9 M. & W. 481. 22TORRET V. TORRBY, 70 N. J. Law, 672, 59 Atl. 450, Dunniore Cas. WUIs, 225. 2 3 1 Jar. Wills, 697. Thus, where a testator, after devising certain lands to A., B., and 0., and giving pecuniary legacies to B. and 0., provided that, if either of the persons before named died without issue, then the said legacy should be divided equally between them that were alive, it was held that the word "legacy," in this clause, extended to the land before devised. Hope dem. Brown v. Taylor, 1 Burr. 268. Semble: Doe dem. Roberts v. Roberts, 7 M. & W. 382 ; Hughes v. Pritchard, 6 Ch. D. 24; Doe dem. CUiillcott v. White, 1 East, 33; Wright v. Shelton, 18 Jur. 445. § 111) WORDS OPEEATIVE UPON EEAL PEOPERTY 355 tention that it shall do so.^* Words properly descriptive of person- alty only, are not extended to realty by ambiguous expressions.*" And usually words naturally signifying realty or interests pertain- ing thereto are used. "Lands" — "Tenements" — "Hereditaments" These are the most exhaustive words of description applicable to real estate; the two latter including every species of realty, cor- poreal or incorporeal; the terp "land" being more limited, and comprehending the surface of the ground, and everything upon and under it, but not, of itself, comprehending incorporeal heredita- ments.** While, strictly, land cannot be destribed as appurtenant to land, as ordinarily a thing appurtenant to another is of a differ- ent nature from that to which it is appurtenant,*^ yet the intention of the testator governs, and the word "appurtenances" will have the significance which he has obviously given it. Thus a devise of "the house and lot, and appurtenances thereto belonging, wherein I now reside," was held to include three adjoining lots used by the testatrix as a homestead, and not merely the lot on which the house stood.** A devise of "my other land" includes a reversion in land devised by a former clause to the widow for life, when any other construction would result in partial intestacy.*" "Real Estate" This term is apparently substantially as broad as "tenements and hereditaments," as advowsons in gross will pass under the term, although it does not aptly describe such interests.*" A devise of "all my real estate," where the testator owned 260 acres, will not be cut down by a description of the land as containing 160 acres." A devise of "the real estate" derived by the testatrix from her de- ceased son does not include land purchased by her at the foreclosure of mortgages bequeathed to her by her son.** And a devise of all testator's real estate does not pass testator's leaseholds." 2* Doe dem. Tofield v. Tofleld, 11 Bast, 246. 2B Doe dem. Haw v. Earles, 15 M. & W. 450. 28 In re Handley's Estate, 208 Pa. 388, 57 Atl. 755. 2 7 Lister V. Piekford, 34 Beav. 576. 28 Myers v. Norman (Ky.) 46 S. W. 214. Semble: Otis v. Smith, 9 Pick. (Mass.) 293. . „ ,.„ 29 Watson V. Watson, 110 Mo. 164, 19 S. W. 543. 3 In re Hodgson, 67 Law J. Ch. 591, 79 Law T. (N. S.) 345. 81 In re Ehle's Estate, 73 Wis. 445, 41 N. W. 627. 82 Ooles V. Coles (N. J. Oh.) 37 Atl. 1025. 3 3 Orchard v. Wright-Dalton-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Caa 1072. 356 DESCRIPTION OF SUBJECX-MATTEB (Ch. 14 "Premises^' The former term means, strictly, "that which is before mention- ed"; and, in this view, its scope is determined by the expression to which it refers,** but in its more usual sense it refers to a parcel of land, with its appurtenances.*" "House"— "Homestead" The devise of a house carries with it the ground upon which it stands, and everything accessory thereto and needful for its bene- ficial enjoyment, including land cultivated in connection with the occupation of the house,*" and stables and outhouses which have been habitually used in connection therewith.*^ A devise of "the house and lot of land" described as situated on a certain street will pass a double house owned by the testator, and the land on which it stands, although this had originally consisted of two lots.** Similar principles control in the interpretation of the word "homestead." *° Thus, where the testator owned part of a block di- vided into sublots, but without streets and alleys, on one corner of which was a house which he rented, and on another a dwelling house, with outbuildings, occupied by the testator,- a devise of the homestead to his wife was held to include only that portion of the block occupied by the dwelling, and its appurtenances.*" A devise of the "old homestead" will be understood as referring to that owned by the testator in his own right, and occupied by him at the time of his death.*^ And a devise of a homestead to two children, 3*1 Jar. Wills, 734; Doe dem. Biddulph v. Meakln, 1 East, 456. Thus, where a messuage and the furniture in it were devised to A. for life, and on his decease the said messuage and premises were to go to B., the word "premises" was held to include the furniture. Sanford v. Irby, 4 L. J. Ch. O. S. 23. 3 5 Heming v. Willets, 7 C. B. 709; In re Handley's Estate, 208 Pa. 388, 57 Atl. 755. 36 Blackbom v. Edgley, 1 P. Wms. 600; Lanning v. Sisters of St Francis, 35 N. J. Eq. ^2. 37 Dudley v. Town of Milton, 176 Mass. 167, 57 N. E. 355; Bridge v. Bridge, 146 Mass. 373, 15 N. B. 809 ; McKeough's Estate v. McKeough, 69 Vt. 34, 37 Atl. 275; In re Blackmer's Estate, 66 Vt. 46, 28 Atl. 419. 3 8 Webb V. Carney (N. J. Ch.) 32 Atl. 705. 3 9 Unless a contrary Intention is apparent, "homestead" in a will is con- strued as meaning the place where testator lived, and not as meaning the estate of homestead given by the homestead exemption act. Kennedy v. Ken- nedy, 105 111. 350. 40 Smith V. Dennis, 163 111. 631, 45 N. B. 267. The scope of the term may be much enlarged by the use of words of fur- ther description, as by a devise of "the homestead and land and premises thereunto belonging, upon which I now reside." Lord v. Simonson (N. J. Oh.) 42 Atl. 741. *i Moore t. Powell, 95 Va. 258, 28 S. E. 172. § 111) WOEDS OPERATIVE UPON KEA.L PBOPEBTT 357 "to be divided equally between them," means a divisifln equal in value rather than in area.*" A devise of all the testator's mixed property will not pass the homestead, even though partial intestacy thereby results.*' "Farm" While the common-law meaning was radically different,** its modern significance is well known, as that of a tract or tracts of land cultivated as a whole by an agriculturalist. A devise of a "farm" may include outlying tracts of land commonly known and treated by the testator as a part of it.*' And all the land treated by the testator as composing a certain farm will pass under a de- vise of the farm, though a part of it be temporarily in the possession and control of another beneficiary, who was occupying it in con- nection with his occupancy of another farm.** A devise "of the homestead farm on which I reside" passes the farm on which the testator resided at the time the will was made.*^ A devise of, a farm passes all the rights of the owner in the water thereon.** "Emblements"— "Crops" While crops and emblements go to the personal representative, rather than to the heir,*' yet the devisee of the land upon which they are growing takes them as against the executor, in the absence of an expressed intent on the part of the testator to the contrary,"" and the proceeds of the sale of grass growing on his farm when the testator died go to the devisee of the farm for life." A devisee is entitled to the crops growing upon the land devised, although the will contains a bequest to another of all of testator's personal es- tate and effects, since there is no clearly expressed intention to de- prive the devisee of the crops." 42 Sanderson v. Bigham, 40 S. C. 501, 19 S. B. 71. 48 Schorr v. Etling, 124 Mo. 42, 27 S. W. 395. 44 It originally signified "provisions," and came to be used as signifying tlie rent paid by an agricultural tenant for the land occupied by him. 2 Bl. Oomm. 318. ^ ^ ^ . _ . ^^ 45 Scoville V. Mason, 76 Conn. 459, 57 Atl. 114; Gafney v. Kenison, 64 N. H. 354, 10 Atl. 706. 46 Chace v. Lamphere, 148 N. Y. 206, 42 N. E. 580. *T Ayer t. Estabrooks, 2 N. B. Eq. (Can.) 392. 48 In re Fuller's Estate, 71 Vt. 73, 42 AU. 981. 48 Dennett v. Hopkinson, 63 Me. 350, 18 Am. Eep. 227. BO Thornton v. Buich, 20 Ga. 791 ; In re Chamberlain, 140 N. X. 390, 35 N E 602, 37 Am. St. Rep. 568 ; Dunford v. Jackson's Ex'rs (Va.) 22 S. E. 853. siJn re Chamberlain, supra. Semble: Busser v, Walter, 14 York Leg. Rec. 178. S2 Cooper V. Woolfltt,-2 H. & N. 122. 858 DESCBIPTION OF SUBJECT-MATTER (Ch. 14 Further of Description of Realty The general principles governing the admissibility of extrinsic evidence in connection with the description of realty have already been stated."' Some miscellaneous matters in that connection may be referred to here. Any description is sufficient which furnishes the means of identifying the property devised."* Land, instead of being accurately described, is frequently devised under a descrip- tion by which it was commonly knpwn. Evidence is always admis- sible to show the land comprised under such designation, and such land will pass under the will,"" unless a clear intention to the con- trary appears."* According to the prevailing view, a devise of a certain number of acres out of a larger tract, without identifying the particular land devised, gives the devisee the right to select any tract containing the specified number of acres that he chooses,"^ although it is some- times held that under such circumstances the devisee takes an un- divided interest in the entire tract."* A devise of land "to be valued OS, Ante, p. 345. 5* Taylor v. Taylor (1910) 174 Ind. 670, 93 N. E. 9. Thus a will probated In a sister state, devising "tlie 160 acres in Lubbock county, Texas," was sufficient to. pass land there owned by testator. Haney V. Gartin (1908) 51 Tex. Civ. App. 577, 113 S. "W. 166. Where there is nothing to suggest the contrary, a testator is to be under- stood as asserting that he owns the land which he assumes to devise, although he does not refer to it in any way as his land. Cummins v. Riordon, 84 Kan. 791, 115 Pac. 568. Compare: Lomax v. Lomax, 218 111. 629, 75 N. E. 1076, 6 L. B. A. (N. S.) 942. 5 In re Potter, S3 Law T. (N. S.) 405; Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061 ; Chace v. Lamphere, 148 N. Y. 206, 42 N. B. 580; Harper v. Ander- son (1902) 130 N. O. 538, 41 S. E. 1021. 06 Peebles v. Graham, 128 N. 0. 218, 39 S. E. 24, where a devise of "all the lands included under the name of the Arnold, the Geer, and the Jones lands, all east of the K. Road," was held to pass no part of the Arnold land west of the. road. So a devise of land under a general description, whose extent is well defined, such as "all that' tract of land, a part of which is known as the 'R. Place,' " will not be cut down by the words "containing 100 acres, more or less." Jones V. Quattlebaum, 31 S. 0. 606, 9 S. E. 082. Semble: CundifC v. Seaton (Ky.) 49 S. W. 179. 57 Toumans v. Youmans, 26 N. J. Eq. 149; Lore v. Stiles, 25 N. J. Eq. 381; Galbraith v. Bowen, 5 Pa. Dist. R. 352 ; Young v. Young (1909) 109 Va. 222, 63 S. E. 748. Where testator, who possessed three leasehold houses in K. street, be- queathed to P. "two houses in K. street," P. was permitted to elect which one he would take. Tapley v. Eagleton, 12 Ch. D. 683. And where testator owned two freehold closes in R. and devised one to J. and one to G., without designating which close either should take, the case was held to be one for election. Duckmanton v. Duckmanton, 5 H. & N. 219. 68 Byrn V. Kleas, 15 Tex. Civ. App. 205, 39 S. "W. 980. § 111) WOEDS OPERATIVE UPON REAL PEOPERTY 359 at $90 per acre" merely gives the devisee the option of purchasing from the residuary beneficiaries at that price."" A reference, in a will, to a deed, to identify the property devised, is sufficient, as the instrument thus referred to becomes incorpo- rated for that purpose, and the devise only passes title to the land embraced within the description of such deed, although partial in- testacy may result.'" A general description of the property devised, "as the tract of land on which I now live," will prevail over a de- scription by courses and distances.*^ A devise by metes and bounds, and bounding "on the edge" of a pond owned by the testa- trix, carries to low-water mark only, resulting in her intestacy as to the land covered by the lake.'^ A description by metes and bounds generally prevails over other portions of the description,*' but the whole language of the will and extrinsic circumstances may modify this rule somewhat.'* A devise of a lot, and the buildings thereon, locating it on the corner of a street, will pass only the lot as originally numbered, though the testator owns another lot adjacent thereto."'* And where unplatted lots which had never been numbered were devised as lots No. 1 and No. 2, the numbers will be construed as referring to the lots in the order in which they were purchased."" Rents and Profits A devise of the rents and profits "' or of the income "' of land passes both the legal and equitable title to the land itself, in the B8 Wyckoff V. Wyckoff, 48 N. J. Eq. 113, 21 Atl. 287. 80 Oldham v. York, 99 Tenn. 68, 41 S. W. 333. See Ogsburjr v. Ogsbury, 115 N. r. 290, 22 N. E. 219. A bequest of the deed of certain real estate has been held to be only a gift of such instrument. Matter of Lane's Will, 79 Misc. Rep. 71, 140 N. Y. Supp. 602. 61 Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128. 62 Kanouse v. Slockbower, 48 N. J. Eq. 42, 21 Atl. 197. 63 Wales V. Templeton, 83 Mich. 177, 47 N. W. 238; Kilburn v. Dodd (N. J. Ch.) 30 Atl. 868. 64 See Benjamin v. Welch, 73 Hun, 371, 26 N. Y. Supp. 156. 6 UpdegrafE v. McCormick, 199 Pa. 590, 49 Atl. 290. 6 6 McNally v. McNally, 23 R. I. 180, 49 Atl. 699. A devise of lots referred to by the numbers on an assessors' map will pass only the land described on such map. Finelite v. Sinnott, 125 N. Y. 683, 25 N. E. 1089. 67 Mayes v. Kam, 115 Ky. 264, 72 S. W. 1111 ; Co. Litt. 4b; 1 Jar. Wills, 741; Goldin v. Lakeman, 2 B. & Ad. 42 ; Ryan v. Allen, 120 111. 648, 12 N. E. 65; Sammis v. Sammis, 14 R. I. 123 ; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831. The estate taken is only to the same extent that the rents or profits are 6 8 See note 68 on following page. 360 DESCRIPTION OF SUBJECT-MATTEE (Ch. 14 absence of an intention to the contrary, as does also a devise of "one-half the proceeds." °» But a gift of the rents and profits, fol- lowed by a provision for the sale of the real estate from which they are to accrue, shows an intent on the part of the testator not to pass the fee.'" A bequest of the "ground rents of which I shall die seised" passes all such rents as the testator was possessed of at the time of his death,''^ and a bequest of Such rents may be construed as passing the reversionary interest.'" Although it has been held that rent due for the year of the testator's death for land devised by him goe^ to the residuary legatee, and not to the devisee,'^ on principle, by reason of the common-law rule that rent is an incident of the reversion and not apportionable as to time, it seems that any installment of rent falling due after testator's death should pass to the devisee.'* Use and Occupation A devise of the use and occupation of land passes an estate in the land to the extent of the use.'° Under such a devise, the beneficiary may alienate his estate, and he is not confined to the personal us,e or occupancy of the property.'* But directions to trustees to erect a house, which "shall and may be occupied by my daughter free of rent during her natural life," indicates an intention to pass to the daughter merely the right of personal use." After-Acquired Property ^ The common-law rule that a will could not operate upon lano acquired by the testator subsequent, to its execution has been al- glven. Morrison v. Schorr, 197 III. 554, 64 N. E. 545. So, a gift of rents and profits for life creates only a life estate. Simmons v. Morgan, 25 K. I. 212, 55 Atl. 522. ssMannox v. Greener, L. E. 14 Eq. 456; Scruggs v. Yancey, 188 Ala. 682, 66 South. 23; Lorton v. Woodward, 5 Del. Ch. 505; Mettler v. Warner, 243 111. 600, 90 N. E. 1099, 134 Am. St. Rep. 388; Ryan v. Allen, 120 111. 648, 12 N. E. 65 ; Earl v. Rowe, 35 Me. 414, 58 Am. Dec. 714; Beilstein y. Beilstein, 194 Pa. 152, 45 Atl. 73, 75 Am. St. Rep. 692. 8 Hunt V. Williams, 126 Ind. 493, 26 N. E. 177. 70 Collier y. Grimesey, 36 Ohio St. 17. Ti Brady v. Brady, 78 Md. 461, 28 Atl. 515. " Ogle V. Reynolds, 75 Md. 145, 23 Atl. 137. T3 Parker v. Chestnutt, 80 Ga. 12, 5 S. E. 2'89. In this case the court suf^- gests that rent should be treated the same as emblements. 74 Bloodworth v. Stevens, 51 Miss. 475; Allen v. Van Houton, 19 N. J. Law, 47; Tiffany, Landlord and Tenant, p. 1073. 76 Austin V. Hyndman, 119 Mich. 615, 78 N. W. 663 ; Jones v. Jone^, 28 Misc. Rep. 428, 59 N. Y. Supp. 974; Moore v. Moore, 84 N. J. Eq. .39, 92 Atl. 948. 7 6 Wilson V. Curtis, 90 Me. 463, 38 Atl. 365; Talbott v. Hamill (1899) 151 Mo. 292, 52 S. W. 203. 77 Hadlfey V. Simmons (N. J. Ch. 1901) 49 Atl. 816. Accord: Le Breton v. Cook, 107 Cal. 410, 40 Pac. 552. § 111) WORDS OPERATIVE UPON REAL PROPERTY 861 most universally changed by statute. There is a conflict of au- thority as to whether these statutes are retroactive in their opera- tion. As a will speaks only from the death of the testator, it is hard to see how the operation of such a statute upon a will made prior to its passage is a retroactive^ operation.^* The language of these statutes varies, and whatever of conflict exists among the cases is due to this variance. Some provide that subsequently acquired realty may pass, if the testator's intent to that end manifestly ap- pears ; '° others, that words of general import devising all the estate of the testator shall operate to pass subsequently acquired realty, Unless a contrary intention shall appear ; ** others, that a testator shall have power to devise the real estate which he has at his death.' ^ It has been held that a will disposing of "all the estate I now own and possess" applies to realty subsequently acquired,'^ even under a statute authorizing the passing of such realty only when "the intention is clear and explicit." *' But where a will makes no specify ic reference to after-acquired property, and contains no clause un- der which such realty would have passed, even if the testator had owned it when the will was made, as to such realty, the testator dies intestate.^* Subsequently acquired realty, used as appurtenant" to other realty, will pass under a prior devise of such realty, "with Ts Welborn v. Townsend, 31 S. C. 408, 10 S. B. 96, holding that a statute of this character operates upon a will executed prior to Its passage. Contra: Morgan v. Huggins (C. C.) 42 Fed. 869, 9 L. R. A. 540, construing Code Ga. 1873, § 2461. 7 9 Gen. Code Ohio 1910, § 10579, construed In Wright v. Masters, 81 Ohio St. 304, 90 N. E. 797, 135 Am. St. Rep. 790, 18 Ann. Cas. 165. so Code D. C. § 1628, construed in McAleer v. Schneider, 2 App. D. C. 461, holding that the intention need not be declared in express terms, It being enough that it can be reasonably made out from the terms of the will as a whole. Act Pa. April 8, 1833 (P. L. 249), construed In Williams v. Brice, 201 Pa. 595, 51 Atl. 376; Graham v. Grugan, 132 Pa. 79, 19 Atl. 56; Appeal of Price, 169 Pa. 294, 32 Atl. 455. N. J. Comp. St. 1910, p. 5870, construed in Flummerfelt's Ex'rs v. Flummer- felt, 51 li^. J. Eq. 432, 26 Atl. 857. So a will devising all one's estate, real, personal, and- mixed, embraces sub- sequently acquired property, a contrary intent not being visible on the face of -the VTill. Paine v. Forsaith, 84 Me. 66, 24 Atl. 590. 81 Jones & A. Ann. St. 111. 1913, c. 148, par. 11542, construed in Decker v. Decker, 121 lU. 341, 12 N. E. 750 ; Mills' Ann. St. Colo. 1912, § 7868, construed in Clayton v. HaUett, 30 Colo. 231, 70 Pac. 429, 59 L. R. A. 407, 97 Am. St. Rep. 117. 82 Hodgkins v. Hodgkins, 123 App. Div. 110, 108 N. Y. Supp. 173; Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25. 88 Luers v. Luers, 145 Iowa, 600, 124 N. W. 603, 139 Am. St. Rep. 453. 84 Bedell v. Fradenburgh, 65 Minn. 361, 68 Ns W. 41. 362 DESCRIPTION OF SUBJECT-MATTER (Ch. 14 the land, outbuildings, and appurtenances thereto belonging." *' But devises of specific parcels of realty,'" or of specific interests therein,"' do not pass subsequently acquired realty or interests. Personalty acquired by the testator, after the execution of a will disposing of all his property, passes under the will.'* But bequests of specific items of property will not embrace after-acquired prop- erty or laps'ed legacies.'" Community Property In certain jurisdictions, matrimonial gains and acquisitions are treated as community property belonging to the husband and wife. Though the husband has a legal right to exercise control and super- vision over the whole of it, neither party can devise more than one- half. °° So a devise to a wife "of one half of all my property of which I may die possessed," and to the children the remaining half, gives to the wife one-half of the testator's moiety in the community property.'^ A will which nominates executors and expresses the wish that testator's property "be considered and treated as com- munity property," and also states that the will is to protect testa- tor's wife, passes to the wife such property as she would have taken 'under the law of succession, had the property been community property.'^ 85 In re Champion, 62 Law J. Ch. 60, 67 Law T. (N. S.) 344. 86 Flynn v. Holman, 119 Iowa, 731, 94 N. W. 447; Teel v. Hilton, 21 R. I. 227, 42 Atl. 1111. Words descriptive of land then owned do not necessarily prevent after-ac- quired realty from passing. Thus a devise of "all the real estate that I may die seised of, being the land I now live on in said township of L.," was held to pass after-acquired real estate. Cummings v. Lohr, 246 111. 577, 92 N. B. 970. 87 Hale V. Audsley, 122 Mo. 316, 26 S. W. 963. 8 8 Nichols V. Allen, 87 Tenn. 131, 9 S. W. 430; Dalrymple v. Gamble, 68 Md. 523, 13 Atl, 156. Words denoting the present tense, as where gift is of "any other property that I may now possess," pass after-acquired personalty. WagstafC v. Wag- staff, L. R. 8 Eq. 229. 8 8 Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339. 90 Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; Harvey v. Sutton, 94 Tex. 79, 58 S. W. 833; Skaggs v. Deskin (Tex. Civ. App.) 66 S. W. 793. »i In re Gilmore's Estate, 81 Cal. 240, 22 Pac. 655. » 2 In re Claiborne's Estate (1910) 158 Cal. 646, 112 Pac. 278. § 112) WOEDS OPERATIVE XO PASS PERSONALTY 363 WORDS OPERATIVE TO PASS PERSONAL PROPERTY 112. The words "personal property," "effects," "goods," or "chat- tels,? may operate to pass the entire personal estate of the testator, unless they are restrained by the context within narrower limits. The above rule, broadly stated, is unquestioned.'* And the word "things" may be used to include testator's entire personal prop- erty.** A gift of "household furniture, books, linen, wearing ap- parel, and all other goods and chattels," includes the whole of the personal property not otherwise disposed of.°' But these words are readily restricted in meaning by the context.*' Thus, where a will gave to the testator's wife "all my personal property ; also the sum of $50,000," the term personal property was held to apply only to personal effects, such as household furniture and the like.*' So a bequest of "all horses * * * and all other personal property used in my butchering business, including all choses in action," does not pass a bank deposit not used exclusively in connection with the business indicated.** So the term "personal effects," in a bequest of "all my jewelry, wearing apparel, and personal effects," does not include personal property in the testator's house, such as furniture and pictures.** So a bequest of the goods and chattels at OS Personal property: Appeal of Eisk, 110 Pa. 171, 1 Atl. 85; Skinner v. Spann (1911) 175 Ind. 672, 93 N. E. 1061, 95 N. E. 243. Effects: In re Miner's Will, 146 N. T. 121, 40 N. E. 788; In re Price, 169 Pa. 294, 32 Atl. '455; Campbell v. Prescott, 15 Ves. 500; Hogan v. Jackson, 1 Cowp. 304. Goods: Ryall v. RoUe, 1 Atk. 180; Anon., 1 P. Wms. 267; Kendall t. Ken- dall, 4 Russ. C, C. 370. Chattels: Co. Lit. 118b; Kendall v. Kendall, 4~Russ. C. C. 370; Gower v. Gower, 2 Eden, 201; Tilley v. Simpson, 2 T. R. 659, note. The terms "goods" and "chattels" seem substantially synonymous. If there is any distinction, the latter is somewhat broader in its scope. 91 IN RE ARNOLD'S ESTATE, 240 Pa. 261, 87 Atl. 590, Ann. Cas. 1915A, 23, Dunmore Cas. Wills, 227. 96 Swinfen v. Swinfen, 29 Beav. 207. 96 The rule as to the effect of particular enumeration often operates In this connection. See ante, p. 353. 9 7 Tallman v. Talbnan, 3 Misc. Rep. 465, 23 N. Y. Supp. 734. See, also, Dun- can V. Berry's Adm'r, 142 Ky. 178, 133 S. W. 1148, and In re Gibbons' Estate, 224 Pa. 3T, 73 Atl. 183. 98 Koss V. Kastelberg, 98 Va. 278, 36 S. E. 377. 99 In re Lippincott's Estate, 173 Pa. 368, 34 Atl. 58. See, also, B)ackmer's Ex'r V. Blackmer, 63 Vt. 236, 22 'Atl. 600, holding that, in view of the con- text, the expression "other goods and chattels" did not include certain prom- 364 DESCEIPTION OP SUBJEOT-MATTEE (Ch. 14 a particular place is confined to those which "savor of the local- ity."^ Thus, where a bequest consisted of all the "real and per- gonal property situated in G.," and the personal property consisted of notes of residents of G., the debts due from such residents were , held to pass under the will.^ But cotton stored under a buggy house is not in a "barn," within a will bequeathing the contents of the barns to the testator's wife.' Under a clause giving to the wife of the testator "all articles of goods in my house, personal furniture, household furniture, and all that therein exists," money contained in an iron box in the house passes to the wife.* But a safe is not "furniture," where there was a gift of a dwelling house, the furni- ture, and all the contents thereof, and the money and securities therein contained do not pass to the beneficiary." So a gift of a chest and its contents will not carry the land described in an unde- livered deed contained in the chest; the deed not being property, but merely evidence of title.' "Household Goods' This term, with which "furniture" is substantially synonymous, includes everything of a permanent nature used in, purchased, or otherwise acquired by the testator or his house.'' The term "house- hold effects" extends to all that is in the house for use, consump- tion, and ornament, and includes pistols, apparatus for turning, models, pictures, musical instruments, books,* and liquors.' Nei- Issory notes, and Gallagher v. McKeague, 125 Wis. 116, 103 N. W. 233, 110 Am. St. Kep. 821, where a bequest of "all the household furniture and effects" was held to convey only household effects. 12 Wms. Ex'rs, 1179. 2 Ritch V. Talbot, 74 Conn. 137, 50 Atl. 42. 8 Johnson v. Johnson, 48 S. C. 408, 26 S. E. 722. * Perea v. Barela, 5 N. M. 458, 23 Pac. 766. Accord: In re Robson, [1891] 2 Ch. 559; Bromberg v. McArdle (1911) 172 Ala. 270, 55 South. 805, Ann. Cas. 1913D, 855. Fenton v. Fenton, 35 Misc. Rep. 479, 71 N. T. Supp. 1083. Semble: Lud- wlg V. Bungart, 33 Misc. Rep. 177, 67 N. T. Supp. 177 ; Ball v. Dixon, 83 Hun, 344, 31 N. T. Supp. 990. 8 Parrott v. Avery, 159 Mass. 594, 35 N. E. 94, 22 L. R. A. 153, 38 Am. St Bep. 465. 7 2 Wms. Ex'rs, 1181. The term includes the ordinary furnishings of the house, in a strict sense (Ruffin v. Ruffin, 112 N. C. 102, 16 S. E. 1021) ; hric-a- brac and decorative articles (Endicott v. Endicott, 41 N. J. Eq. 93, 3 Atl. 157) ; hooks (Ouseley v. Anstruther, 10 Beav. 462); plate and china (Chase v. Stock- •ett,, 72 Md. 235, 19 Atl. 761). s'Cole y. Fitzgerald, 1 S. & St. 189; Stone v. Parker, 29 L. J. Ch. 874. It .does not include a pony, cow, or fowling piece, unless used for domestic de- fense (Id.); nor articles exclusively of personal adornment (2 K. & J. 635). ■ Brinckerhoff v. Farias, 52 App. Div. 256, 65 N. Y. Supp. 338. § 112) WORDS OPERATIVE TO PASS PERSONALTY 365 ther term covers chattels which form a stock in trade," nor articles of clothing," nor a watch," nor farm equipments," nor a pleasure boat." "Mone'^' This term, in its strict sense, means cash on hand or on deposit.'" So, where a testator disposed of "all his personal property, consist- ing of household goods," and all his real estate, but no mention was made of money, he died intestate in regard to it, although the will expressed a purpose to dispose of all his property." So a bequest to certain persons of "the sum of one hundred each" is held to ob- viously refer to cash, and the word "dollars" will be supplied.''^ But the word is notoriously used in a much wider, more indefinite, and elastic sense, and it may have any meaning which the testa- mentary intent, as manifested^ by the will, read in the light of proper evidence, imparts to it, such as personal property in gen- eral,^* debts due to the testator's trustee," reversionary interests in personalty, ="• ground rents,^' bonds and notes,^'' unsatisfied judg- ments,='* or even real estate." Time deposits in a savings bank at a distance do not pass under a bequest of "money I may have on hand," and "money remaining at my decease," in the absence of 10 Pratt V. Jackson, 2 P. Wms. 302. 11 ScovUle V. Mason, 76 Conn. 459, 57 Atl. 114 ; In re Kimball's Will, 20 R. I 619, 40 Atl. 847. 12 Woodcock V. Woodcock, 152 Mass. 353, 25 N. E. 612; Gooch v. Gooch, 33 Me. 535. 13 Stone V. Parker, 29 L. J. Ch. 874. 1* Dana v. Burke, 62 N. H. 627. 15 In re Hendrickson, 140 App. Div. 388, 125 N. T. Supp. 309; Beck v. Mc- •GiUIs, 9 Barb. (N. Y.) 35, 39; Hancock v. Lyon, 67 N. H. 216, 29 Atl. 638; Parker v. Marcbant, 1 Y. & C. C. 290; In re Levy's Estate, 161 Pa. 189, 28 -Atl. 1068. 18 Meyer v. Rusterholtiz, 23 Ind. App. 569, 55 N. E. 870. 17 In re Schweigert's Estate, 17 Misc. Eep. 186, 40 N. Y. Supp. 979. 18 Mt. Holly Safe Deposit & Trust Co. v. Deacon (1911) 79 N. J. Eq. 120, 81 AtL 356; Sweet v. Burnett, 136 N. Y. 204, 32 N. E. 628; Decker v. Decker, 121 111. 341, 12 N. E. 750; Fry v. Shipley, 94 Tenn. 252, 29 S. W. 6; Goods of JBramley, [1902] P. 106, 85 L. T. N. S. 645, 4 B. R. C. 546, and note. 19 Dillard v. Dillard, 97 iVa. 434, 34 S. E. 60' 2» In re Egan, 68 Law J. Cb. 307, [1899] 1 Cb. 688, 80 Law T. (N. S.) 153. 21 In re Strawbridge's Estate, 18 Pa. Co. Ct. R. 485. 22 Hinckley v. Primm, 41 111. App. 579; Poblman v. Poblman, 150 Ky. 679, 150 S. W. 829; Hamilton v. Serra, 6 Mackey (D. C.) 168. 23 Summerbill v. Hanner, 72 Tex. 224, 9 S. W. 881. 2 4 In re Miller's Estate, 48 Cal. 165, 22 Am. Rep. 422; Appeal of Jacobs, 140 Pa. 268, 21 Atl. 318, U L. R. A. 767, 23 Am. St. Rep. 230. But the word "money" will be construed to include (real estate only when the intention so to ilse it "is clearly manifest on the face of the will, and put ibeyond aU reasonable doubt." Sweet v. Burnett, 136 N. Y. 204, 32 N. E. 628. 366 DESOEIPTION OF 8UBJECT-MATTEB (Ch. 14 further evidence of intention to that end.'" Nor will the testator's interest in money deposited to the credit of a firm of which he was a member, pass under a devise of "all the money in the house and bank or on hand at the time of my death." ** "Stock" The term "stock" means primarily shares in a corporation,^^ but it will be construed as describing the testator's deposits in various savings banks, where he had no shares of stock in any bank or other property in banking associations,^' or loan certificates, when such is its obvious meaning.'" So a bequest of "my shares" in a railroad company may apply to debenture stock,'" and a bequest of "twelve shares in the steam barge J." may be construed as applying to 240 shares of the stock of a company owning and operating the barge, of the par value of $50; it appearing that the testator always re- ferred to his interest as shares of $1,000 each."^ So a bequest of bank stock will include the stock in which the testatrix is benefi- cially interested as well as that standing in her own name.*" The par value of the stock is tq be referred to in determining the amount of stock called for by a bequest of "gas stock to the extent of $6,000," to be delivered six years after the testator's death,'' or by a bequest of "$500 of bank stock." '* But a bequest of "one thousand dollars, either in stocks or money," enables the legatee to elect to take one thousand dollars' worth of stocks at their mar- ket value.'" And a remainderman in the case of stock whose in- come is bequeathed to another for life, is entitled to the actual value of the shares, including the accumulated surplus or undivided earn- ings, at the time of the testator's death." 2» Hancock v. Lyon, 67 N. H. 216, 29 Atl. 638. 2 8 In re Wilkinson's Estate, 192 Pa. 127, 43 Atl. 411. 27 Cfapehart v. Bumis, 122 N. G. 119, 29 S. E. 97, 42 L. R. A. 152, holding a bequest of "all my notes, bonds, stock, and money on hand" could not refer to live stock, and that the fact that the testator had no "stock," but much "live stock," could not be considered to affect the construction. So a bequest of "stocks that I have on interest" does not include a mort- gage bearing interest. In re Bradley's Estate, 238 Pa. 440, 86 Atl. 291. 28 Tomlinson v. Bury, 145 Mass. 346, 14 N. E. 137, 1 Am. St. Rep. 464. Here the bequest was of bank stock. 2 8 In re Conley's Estate, 197 Pa. 291, 47 Atl. 238. 30 In re Weeding, [1896] 2 Ch. 364. See In re Bodman, [1891] 3 Ch. 135. aiOades v. Marsh, ;tll Mich. 168, 69 N. W. 251. 32 Angell V. Home for Aged Women, 157 Mass. 241, 31 N. E. 1064. 83 In re Johnson's Estate, 170 Pa. 177, 32 Atl. 636. 84 Partner v. Citizens' Loan & Trust Co., 163 Ind. 303, 71 N. E. 894. 3 5 Graham v. De Tampert, 106 Ala. 279, 17 South. 355. 86 Lang's Ei'r v. Lang, 56 N. J. Eq. 603, 40 Atl. 278. So a legatee of stock Is entitled to dividends declared after testator's death, where they are not apportionable. In re Kane, 64 ^.pp. Div. 566, 72 N. Y. Supp. 333. § 112) WORDS OPEBATIVE TO PASS PEBSONALTT 367 "Bonds"— "Mortgages"— "Securities' The word "bonds" will include ordinary notes held by the testa- tor, where such a construction effectuates testator's intention.*' A bequest of bonds "left by her late husband" will pass bonds pur- chased by the testatrix with the proceeds of an insurance policy upon her husband's life, where these were the only bonds belonging ' to the testatrix." And the bequest of a bond carries with it an attached overdue interest coupon.*" A direction to trustees to in- vest a certain amount in bonds requires the purchase of bonds of the face value of that amount.*" The bequest of a mortgage, including the obligation secured thereby, includes interest accrued up to the time of the testator's death.*^ And the bequest of a mortgage will ordinarily include the instrument secured thereby.*'' An attempted devise of specific realty by the mortgagee of the property covered by the mortgage shows testator's intention to pass the mortgage and has that ef- fect,** although there is authority for the view that a specific devise of land does not pass a mortgage thereon held by testator.** Although the word "securities" does not include mere debts,*" in its broadest sense it embraces bonds, certificates • of stock, notes, and all other evidences of debt.** Life Insurance A bequest of all of the testator's property carries the money diie on life insurance policies which are payable to his legal representa- tives.*' The common statutory provisions with regard to the dis- tribution of money derived from life insurance do not affect insur- ance derived by the testator as beneficiary undei^ a policy upon the' life of another.** »' Sclioonmaker v. Mitchell's Adm'x, 144 Ky. 794, 139 S. W. 968. 38 In re Bradley's WUl, 73 Vt. 253, 50 AtL 1072. 8» Ogden V. Pattee, 149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401. Sem- ble: Sanborn v. Clough, 64 N. H. 315, 10 Atl. 678. *o wisner v. Kleinhans, 69 Mich. 307, 37 N. W. 290. *iln re dark's Estate, 16 Misc. Rep. 405,, 39 N. Y. Supp. 722. *2 Klock V. Stevens, 20 Misc. Rep. 383, 45 N. Y. Supp. 603. 4 s Weed V. Hoge, 85 Conn. 490, 83 Atl. 636, Ann. Cas. 1913D, 542; Battey V. Battey, 94 Neb. 729, 144 N. W. 786; Woodhouse v. Meredith, 1 Mer. 450. ** Marshall's Ex'rs v. Hadley, 50 N. J. Eq. 547, 25 Atl. 325. A mortgage held by testator at his death does not pass under a devise of the property mortgaged, where testator owned the fee at the time he made the devise. In re Caowes, 1893, 1 Ch. 214, 41 Wkly. Rep. 69. * 5 In re Mason, 34 Beav. 494, 55 Eng. Reprint, 726. 46 Stark's Will (1932) 149 Wis. 631, 134 N. W. 389. 4T Fox V. Senter, 83 Me. 295, 22 Atl. 173. See, also, Aveling v. Northwest- em Masonic Aid Ass'n, 72 Mich. 7, 40 N. W. 28, 1 L. R. A 528. 48 Small V. Jose, 86 Me. 120, 29 Atl. 976. 368 DESCRIPTION OF SUBJECT-MATTEE (Ch. 14 Interest and Income A gift of the interest, income, or product of a fund, without limit as to time, will pass the fund itself.** And where a beneficiary is given an unrestricted interest in the income of a fund during his life, he may, in the absence of a statute, alienate it, either wholly or in part, before the time fixed for payment."" A bequest giving the beneficiary the "use" of a certain fund during life allows her only the interest thereon, and gives her no right to consume any of the principal."^ The bequest of the interest and profits of a certain sum to a beneficiary for life gives her the right to the income from the fund, as increased by advantageous manipulation, but she is not entitled to the increase of the fund as such."* Miscellaneous A .bequest of "other articles" of domestic use or ornament has been held to include valuable orchids which were from time to time brought into the house from the gardens for the purpose of decora- tion."* But "articles of personal use and ornament" do not include a sailing yacht."* The assets of a business include a judgment obtained by the testator for goods sold in such business."" And a bequest of "all securities for money" includes purchase money for which the testator had a vendor's lien."' *» Wilkinson v. Eosser's Ex'r, 31 Ky. Law Rep. 1262, 104 S. W. 1019; Bishop V. McClelland's Es'rs, 44 N. J. Eq. 450, 16 Atl. 1, 1 L. R. A. 551; Lor- ton V. Woodward, 5 Del. Ch. 505, where the bequest was to the beneficiary and his heirs ; In re Thompson's Estate, 234 Pa. 82, 82 Atl. 1108. 60 Caldwell v. Boyd, 109 Ind. 447, 9 N. B. 912. 01 Leahy v. Cardwell, 14 Or. 171, 12 Pac. 307; Diehl v. Middle States Loan, Bldg. & Const. Co. (1913) 72 W. Va. 74, 77 S. E. 549. 6 2 First Nat. Bank v. Lee (Ky.) 66 S. W. 413. See, also, Boardman v. Mans- field, 79 Conn. 634, 66 Atl. 169, 12 L. R. A. (N. S.) 793, 118 Am. St Rep. 178. 6 s In re Owen, 78 Law T. (N. S.) 643. 04 In re Parry's Estate, 188 Pa. 33, 41 AO. 448, 49 L. R. A. 444, 68 Am. St. Rep. 847. In re Quin, 1 Con. Sur. 381, 5 N. T. Supp. 261. A gift of a business and all accounts, claims, and debts belonging thereto does not pass a bank account made up of deposits arising from the receipts of the business,. Wyatt v. Norris, 66 W. Va. 667, 66 S. E. 1016. 8 Callow V. Callow, 42 Ch. Dlv. 550. §§ 113-114) EESIDUABY CLAUSE AS A DESCRIPTION 36& THE RESIDUARY CLAUSE AS AN INSTRUMENT OF DESCRIPTION 113. The residuary clause in a will is that which disposes of prop- erty of the testator not otherwise disposed of. 114. There is a presumption that one who makes a will intends to dispose of all of his property, and a residuary clause will pass all the property not in terms otherwise disposed of, unless it is manifestly insufScient to that end. A general r;esiduary gift of personal estate carries, not only all per- sonalty not in terms disposed of, but personalty that turns out not to be well disposed of. There is ho question as to this doctrine."^ Where the will con- tains a general residuary clause, in order to exclude a particular property belonging to the testator, and not otherwise disposed of, a plain and unequivocal intention on the part of the testator to ex- clude that property from the operation of the clause must be mani- fested.^^ Thus, where a testatrix, by mistake, recited that she had settled a particular property upon a certain person, which was not the fact, the property being still at her disposal, and the will con- tained a residuary bequest, the property mentioned as having been settled was held to pass to the residuary legatee.'* And where the testator bequeathed certain specific legacies, with a residuary clause, and afterwards sold the subject-matter of the specific lega- cies, and invested the proceeds in bonds which he held at the time of his death, the bonds were held to pass under the residuary clause.*" So, where a residuary clause gives the residue of the tes- tatrix's estate to be expended in fixing up her burial lot and erect- ing a "suitable and proper" monument thereon, the requirement that all the residue shall be thus used is not cut down by describing 57 1 Jar. Wills, r 716; BATES v. KINGSLEY, 215 Mass. 62, 102 N. E. 306, Dunmore Cas. Wills, 205, 230. , 68 Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283; In re Bagot, [1893] 3 Ch. 348 ; Prison Association v. Eussell's Adm'r, 103 Va. 563, 49 S. E. 966. B9 In re Bagot, supra. Where testator made no attempt to dispose of certain property in terms, because he did not know that it belonged to hijn, such property passed by a general residuary clause in his will. Smith v. Dugan, 145 App. Div. 877, 130 N. Y. Supp. 649. 60 Hosea v. Skinner, 32 Misc. Rep. 653, 67 N. Y. Supp. 527. For further il- lustrations of this principle, see BoUins v. Haven, 69 N. H. 415, 45 Atl. 141 ; Meeks v. Meeks, 161 N. Y. 66, 55 N. E. 278; Weed v. Scofield, 73 Conn. 670, 49 Atl. 22 ; Bushby v. Newhall (1912) 212 Mass. 432, 98 N. E. 1032. Gaed. Wills (2d Ed.)— 24 370 DESCRIPTION OF SDBJECT-MATTEE ( Ch. 14 the intended monument as suitable and proper."^ But the testa- tor's intention governs. Thus a residuary clause reciting that "all the rest and residue of my property, personal and mixed," shall go to a certain beneficiary, does not serve to carry the testator's realty.'^ A general residuary bequest carries lapsed and void legacies,"' and property which is the subject of a devise which fails by reason of a misdescription.** So a gift of the residue is not defeated by the failure of the primary gift, but will include all the estate re- maining after the payment of debts and administration expenses.'" The most important exception to the comprehensiveness of a gen- eral residuary clause is that it does not include any part of the resi- due itself which fails. °" Thus, where a testator gave the residue of his estate to his sisters and his brother in equal shares, an'd after- wards made a codicil revoking the bequest to the brother, it was held that the share which would have gone to the brother did not pass to the sisters under the residuary clause, but went to the next of kin.°^ This doctrine has been criticised,*' and is sometimes 81 Davis V. Ohase, 181 Mass. 39, 62 N. E. 959. See, also, Rollins v. Haven, 69 N. H. 415, 45 Atl. 141 (where testator was mistaken as to the amount of the residue). 62 Miller v. Worrall, 62 N. J. Eq. 776, 48 Atl. 586, 90 Am. St Kep. 480. See Foster v. Smith, 156 Mass. 379, 31 N. E. 291. 63 Hughes V. Allen, 31 Ga. 489; Drew v. Wakefield, 54 Me. 296; Dexter v. Harvard College, 176 Mass. 192, 196, 57 N. B. 371 ; Firth v. Denny, 2 Allen (Mass.) 471; Burrage v. Briggs, 120 Mass. 103; Lewis v. Lusk, 35 Miss. 422;. Tindall v. Tindall's Ex'rs, 23 N. J. Eq. 244 ; Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283 ; Swinton v. Egleston, 3 Rich. Eq. 204; Easum v. Appleford, 5 Myl. & Cr. 61. 6* Eekford v. Eckford (Iowa) 53 N. W. 345. 65 In re Miller's Will, 161 N. T. 71, 55 N. E. 385. 6 Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831; Beekman v. Bonsor, 23 N. T. 312, 80 Am. Dec. 269 ; In re Wood's Will, 29 Beav. 236 ; Lloyd v. Lloyd, 4 Beav. 231. 67 Wain's Estate, 156 Pa. 194, 27 Atl. 59. See In re Gray's Estate, 147 Pa. 67, 23 Atl. 205; Humble v. Shore, 7 Hare, 247, discussed in Hawkins on Wills, 42. "Residue means aU of which no effectual disposition is made by the will, other than the residuary clause; but, when the disposition of the residue itself fails, to the extent to which it fails the will is inoperative. In the lapsing of a residue given in moieties, to hold that one moiety lapsing should accrue to another would be to hold that a gift of a moiety of t Ive V. King, 16 Beav. 46, 53. See In re Herr's Estate, 28 Pa. 467. 4 8 In re Porter's Trusts, 4 K. & I. 191. *7 Christopherson v. Naylor, 1 Mer. 320. In this case Sir William Grant, M. E.., said: "The nephews and nieces are the primary legatees; nothing what- ever is given to their issue except in the way of substitution. In order to claim imder the will, these substituted legatees must point out the original legatees in whose place they demand to stand. But of the nephews and nieces of the testator none could have taken beside those who were living at the date of the will. The issue of those who were dead at that time can con- sequently show no object of substitution." Accord: In re Morrison's Estate, 139 Pa. 306, 20 Atl. 105T. Semble: Peel v. Cation, 9 Sim. 372; In re Musther, 43 Ch. Div. 569 ; Gray v. Garman, 2 Hare, 268 ; In re Offiler, 83 Law T. 758 ; In re Crawford, 113 N. Y. 366, 21 N. E. 142; DUNN v. CORY, 56 N. J. Eq. 507, 39 Atl. 368, Dunmore Cas. Wills, 231 ; Wescott v. Higgins, 42 App. Div. 69, 58 N. Y. Supp. 938, affirmed without opinion in 169 N. Y. 582, 62 N. E. 1101; In re United States Trust Co., 36 Misc. Rep. 378, 73 N. Y. Supp. 635 ; Tiffany V. Emmet, 24 R. I. 411, 53 Atl. 281. Ohristopherson v. Naylor has been severely criticized as defeating the real Intention of the testator, in Potters' Trust, L. R. 8 Eq. Cas. 52, 39 L. J. Ch. 102, 20 L. T. 649, and this criticism seems to the writer to be a just one. § .116) BENEFICIARIES DESCRIBED AS A CLASS 393 where the limitation over was after the death of a life tenant,*' but this holding has been disapproved.*' In a few American cases, where a substitutional gift has been made to children or heirs, fol- lowing a general gift to a class, the children of parents who died be- fore the will was executed have been permitted, to take."" If the will, however, makes it evident that the testator had in mind the future death of a beneficiary as giving rise to the limitation over, the issue of those who are dead at the time of execution do not come in.°^ It is imperative to distinguish, however, between substitutional gifts, and those which, though such in form, are in reality substan- tive, independent, and original/^ Where the children and the is- sue of children form distinct classes, the latter in no way taking by way of substitution for the former,"* the doctrine of the preceding cases has no application. Thus, if a gift be to the children of A., followed by a proviso that, if any child of A. shall die before the period of distribution, the issue of such child shall be entitled to the share which such child would have taken if living, this may be cpnstrued as a substantive gift to the issue, so as to entitle the is- sue of a child dead at the date of the will, or dying in the testa- tor's lifetime, to share under it.°* The words "shall die," or "shall happen to die," do not necessarily point to a future death, so as to exclude the issue of a child who may have died before the c^ate of the will,"" nor does a direction that the issue shall take- the share which their parents or ancestor would have taken necessarily ren- der the gift substitutional."* 48 Thomhill v. Thornhill, 4 Madd. 377. *8 Smith V. Smith, 8 Sim. (8 Eng. Ch.) 353. BO Anderson v. Wilson (1912) 155 Iowa, 415, 136 N. W. 134 ; Huntress v. Place, 137 Mass. 409; Yates v. Shem, 84 Minn. 161, 86 N. W. 1004. 61 Such is the case when the gift is to a "class or to their issue living at their decease," Congreve v. Palmer, 16 Beav. 435; or "to the children of A. then living and the issue of any of said children.*' In re Thompson, (2 W. R. 218 62 2 Jar. Wills, *1588. B3 Wheeler v. Allan, 54 Me. 233. 54 Hawkins, Wills, 249; Loring v. Thomas, 1 Dr. & Sur. 497; Smith v. Smith, 8 Sim. 353. Semble: Coulthurst v. Carter, 15 Beav. 421; Eust v. Bak- er, 8 Sim. 443; Outcalt v. Outcalt, 42 N. J. Bq. 500, 8 Atl. 532. 5 5 Loring v. Thomas, 1 Dr. & Sur. 497; Christopherson v. Naylor, 1 Mer. 320 ; In re Cochran's Estate (Del, Ch.) 85 Atl. 1070. 5 In re Cochran's Estate, supra; Tytherleigh v. Harbin, 6 Sim. 329; Gites V. Gites, 8 Sim. 360; Jarvis v. Pond, 9 Sim. 549. See Long v. Labor, 8 Pa. 229. ^ These questions are thus briefly summarized in Hawkins, Wills, 251 (from which, as the cases involvtag them are largely English, the writer has already quoted at length): <1) A gift to individuals, as to A. and B. or their issue. Here the issue take by substitution for A. or B., whether the latter die in the 394 DESCRIPTION OF BENEFICIARY (Ch. 15 Where a remainder is limited to a class, with a provision that the children or issue of its members who die prior to the termination of the particular estate shall take the shares to which their parents would have been entitled in event of survivorship, and the will does not indicate whether or no such issue must survive the termination of the particular estate to render their estate absolute, the better and more modern rule is that their estate is not defeasible, but that it becomes absolute upon the death of the parents, and that, upon their death prior to the time for distribution, their interest goes to their heirs or next of kin."^ COMMON-LAW RULE IN EVENT OP LAPSE— AS MODIFIED BY STATUTE 117. At common law, in event of the death of a member of a bene- ficiary class under a will, prior to the vesting of the interest thereby created, his potential interest was defeated. 118. The rule has been largely modified by statutes preventing such lapse in the case of certain beneficiaries. , The common-law rule respecting lapse upon the death of a bene- ficiary prior to that of the testator °* operated upon the death of the member of a class,"* in the absence of provisions in the will to the contrary. The usual statutes, providing ordinarily that in event of a gift to a child or relative of the testator, who dies before the latter, his issue shall take the interest which his ancestor would have taken had he survived the testator,*" are commonly construed testator's lifetime or are dead at the date of the will, whether the gift he im- mediate or in remainder. (2) A gift to the children of A. or their issue. Here, if the ^t be immediate, the issue of a child dying in the testator's lifetime take, but not, apparently, the issue of a child dead at the date of the will. If the gift be in remainder after a life interest, the issue of a child who does not survive the testator are excluded. (3) A gift to the children of A. living at a given period, and the issue of such as shall then be dead. Here the gift to issue is independent, and the issue of a (jhild dying in the testator's lifetime, or dead at the date of the will, may take. 7 Lamphier v. Buck, 2 Dru. & Sur. 484; In re Merrick, L. R. 1 Eq. 551; In re Wildman, 1 Johns. & H. 302; Shaw v. Eckley, 169 Mass. 119, 47 N. E. 609 ; In re Pell, 3 De G., F. & J. 291 ; Crane v. BoUes, 49 N. J. Eq. 373, 24 Atl. 237. Contra: In re Denton, 137 N. Y. 428, 33 N. E. 482. 6 8 Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106; Palmer v. Munsell (N. J. Ch.) 46 Atl. 1094; In re Kimball's Will, 20'e. I. 619, 40 Atl. 847. BoAshhurst v. Potter, 53 N. J. Eq. 608, 32 Atl. 698; GammeU v. Ernst, 19 E. I. 292, 33 Atl. 222. 80 See post, p. 515. §§ 117-118) COMMON-LAW RULE IN EVENT OF LAPSE 395 as applying to gifts to a class.*^ It has sometimes been held, how- ever, that these statutes have no application in such cases — this on the ground that their purpose is to prevent lapse, and that there is no lapse upon the death of a member of a class, since such a gift is to be interpreted as being only to such members as survive the tes- tator ; '" and it has even been held that the statute will not apply to a gift to a class of which there was but a single member.*' Unless the statute preventing lapse expressly extends to persons dead when the will was made, it is generally held that a gift to a class does not include members of the class who were dead when the will was made ** and their issue or relatives cannot take in their stead. The testator not infrequently makes provision for the death of a beneficiary occurring during his own life. Ordinarily a gift over in event of death, wilihout indication as to the period within which the death is to occur, is construed as referring to a death happen- ing during the life of the testator.*" But this rule yields to the manifest intention of the, testator. Thus, where a testator seventy- eight years old devised certain land to his son for life, reinainder to the son's wife and children, share and share alike, "the issue of such as may have died to take the share to which his parent would have been entitled," it was held, in view of the advanced age of the testator as compared with that of his grandchildren, that BiRudolpli V. Rudolph, 207 111. 266, 69 N. E. 834, 99 Am. St. Eep. 211; In re Nicholson's Will, 115 Iowa, 493, 88 N. W. 1064; RufE v. Baumbach, 114 Ky. 336, 70 S. W. 828; Sloan v. Thornton, 102 Ky. 443, 43 S. W. 415; Chenault's Guardian v. Chenault's Estate (Ky.) 9 S. W. 775 ; In re Stockbridge, 145 Mass. 517, 14 N. E. 928; WooUey v. Paxson, 46 Ohio St. 307, 24 N. E. 599; In re Bradley's Estate, 166 Pa. 300, 31 Atl. 96. 82 Trenton Trust & Safe Deposit Co. v. Sibbits, 62 N. J. Eq. 131, 49 Atl. 530; Martin v. Trustees, 98 Ga. 320, 25 S. E. 522. 63 In re Harvey, [1893] 1 Ch. 567. Contra: Cheney v. Selman, 71 Ga. 384. 64 In re Nicholson, 115 Iowa, 493, 88 N. W. 1064, 91 Am. St. Rep. 175 ; White V. Mass. Inst. T., 171 Mass. 84, 50 N. E. 512; Pimel v. Betjemann, 183 N. Y. 194, 76 N. E. 157, 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239 ; In re Harrison's Es- tate, 202 Pa. 331, 51 Atl. 976. Contra: Bray v. PuUen, 84 Me. 185, 24 Atl. 811; Jamison v. Hay, 46 Mo. 546. 6 8 Jackman v. Jackman (Ky. 1903) 73 S. W. 776; Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885; Antioch College of Yellow Springs v. Branson, 145 Ind. 312, 44 N. E. 314; Stratton v. McKinnie (Tenn. Ch. App.) 62 S. W. 636; Brown V. Lippincott, 49 N. J. Eq. 44, 23 Atl. 497; Washbon v. Cope, 144 N. y. 287, 39 N. E. 388; Conkie v. Grisson, 24 Misc. Rep. 115, 52 N. Y. Supp. 500- Stevenson v. Fox, 125 Pa. 568, 17 Atl. 480, 11 Am. St. Rep. 922 ; In re Durfee, 17 R. I. 639, 24 Atl. 50; Lovass v. Olson, 92 Wis. 616, 67 N. W. 605; Patton'v. Ludington, 103 Wis. 629, 79 N. W. 1073, 74 Am. St. Rep. 910. 396 DESCRIPTION OF BENBFICIAET (Ch. 15 the obvious intention was that the period of death included the time subsequent to the death of the testator and before that of the son." TIME OF ASCERTAINING THE MEMBERS OF A CLASS 119. An immediate gift to a class will, in the absence of a testa- mentary intent to the contrary, vest in those of the class who are in existence at the testator's death. 120. When a testamentary disposition is made to a class, and possession is postponed, it includes all persons within the class at the time to which possession is postponed, and excludes those who are not in existence at the time of the distribution. This rule is subject to two limitations : (a) Where the limitation over is to the heirs of the testator, this class is determined as of the death of the testator, in the absence of a testamentary intent to the contrary. (b) Where the limitation over is to children, either of the tes- tator or the first taker, it will embrace both those who are in existence at the death of the testator, and such as may subsequently come into being before the period of distribution. Immediate Gift The rule as regards immediate gifts is well settled,'^ and finds abundant illustration and reiteration in the cases.** Thus a be- 6 8 Lyons V. W^ks, 53 App. Div. 212, 65 N. T. Supp. 818, reversing ^29 Misc. Rep. 714, 61 N. Y. Supp. 441. Accord: Naylor v. Godman, 109 Mo. 543, 19 S. W. 56. Semble: Cooksey v. Hill, 106 Ky. 297, 50 S. W. 235. 87 HOWLAND V. SLADE, 155 Mass. 415, 29 N. E. 631, Dunmore Cas. Wills, 245. The rule in the black-letter text is taken substantially from the language of the court in this case. The courts of Kentucky have, however, refused to apply this rule in gifts to children as a class, and have permitted children born 'after testator's death to share with those living at his death. Barker v. Barker, 143 Ky. 66, 135 S. W. 396 ; Goodridge v. Schaefer (Ky. 1902) 68 S. W. 411 ; Lynn v. Hall, 101 Ky. 738, 43 S. "W. 402, 72 Am. St. Rep. 439. « 8, Lancaster v. Lancaster, 187 111. 540, 58 N. E. 462, 79 Am. St. Rep. 234; Morgan v. Robblns, 152 Ind. 362, 53 N. E. 283; In re Nicholson's Will, 115 Iowa, 493, 88 N. W. 1064, 91 Am. St Rep. 175; Demill v. Reid, 71 Md. 175, 17 Atl. 1014; Hooper v. Smith, 88 Md. 577, 41 Atl. 1095 ; Swasey v. Jaques. 144 Mass. 135, 10 N. B. 758, 59 Am. Rep. 65 ; Clark v. Mack (1910) 161 Mich. 545, 126 N. W. 632 ; In re Ruggles' Estate, 104 Me. 333, 71 Atl. 933 ; Brewster v. Mack, 69 N. H. 52, 44 Atl. 811; Cody v. Bunn's Bx'r, 46 N. J. Eq. 131, 18 AU. «57; In re Watts, 68 App. Div. 357, 74 N. Y. Supp. 75; Jones v. Hunt, 96 Tenn. 369, 34 S. W. 693. §§ 119-120) ASCERTAINING THE MEMBERS OF A CLASS 397 quest to the legal heirs of J.'s children goes to such heirs as are living at the testator's death.' ° A will providing for those "who are the children" of certain relatives is interpreted as limiting the pro- vision to such as are alive when the testator died/" and where there is an immediate gift to a person named and his children, only those children take who are living at the death of the testator/^ So a bequest to a daughter, with a limitation over in event of her dying unmarried, involves her death in that condition prior to that of the testator.''^ And where a devise was made to children, with a proviso that in case of the death of any of the children their in- terest should go over to their children, the interest of the children who survived the testator was treated as absolute, and not de- feasible by their subsequent death.'^ And where a will contained a bequest to each of six grandchildren, payable on their attaining a certain age, with a limitation over to the surviving grandchildren in case any deceased before reaching that age, grandchildren Born after the testator's death cannot share in such limitation.^* Where this principle applies, those members of the class who have died prior to the testator transmit no interest to their heirs or representfitives, unless the gift is saved by the statute to prevent lapse; '" neither can one born subsequent thereto take as a mem- ber of the class.''* A child en ventre sa mere is. sufficiently in esse for this purpose, however.''' This principle applies to immediate gifts to the survivor or sur- vivors of a class.'* Thus, where a will contained devises to trustees for the use of the testator's brothers and sisters, with a provision 69 Healy v. Healy, 70 Conn. 467, 39 Atl. 793. TO Ingraham v. Ingraham, 169 111. 432. 48 N. E. 561, 49 N. E. 320. Ti Moore v. Ennis (Del. Ch.) 87 Atl. 1009 ; Coogler v. Crosby, 89 S. C. 508, 72 S. E. 149; WiUs v..Foltz (1907) 61 W. Va. 262, 56 S. E. 473, 12 L. R. A. (N. S.) 283. 72 In re Jackson's Estate, 179 Pa. 77, 36 Atl. 156. 13 WUls V. Wills, 85 Ky. 486, 3 S. W. 900. T 4 In re Smith, 131 N. Y. 239, 30 N. E. 130, 27 Am. St. Rep. 586. 75 Yates V. Shem, 84 Minn. 161, 86 N. W. 1004; In re Hoopes' Estate, 185 Pa. 172, 39 Atl. 888 ; Chase v. Peckham, 17 R. I. 385, 22 Atl. 285. 7 8 Pierce v. Knight, 182 Mass. 72, 64 N. E. 692 (where a sum was given to each of the children of the testator's nephews and nieces). 7 7 Randolph v. Randolph, 40 N. J. Eq. 73, with note (where gift to grandchil- dren "living at the time of my decease") ; Culp v. Lee, 109 N. C. 675, 14 S. E. 74. 7 8 Arnold v. Alden, 173 111. 229, 50 N. E. 704; Aspy v. Lewis, 152 Ind. 493, 52 N. E. 756; Davis v. Davis, 118 N. Y. 411, 23 N. E. 568 (here, however, the Intention of the testator was unequivocally expressed) ; In re Smith, 59 Hun, 616, 14 N. Y. Supp. 947; Flick v. Oil Co., 188 Pa. 317, 41 Atl. 535; Armistead's Ex'rs V. Hartt, 97 Va. 316, 33 S. B. 616; First Nat. Bank v. De Pauw, 86 Fed. 722, 30 C. C. A. 360. 398 DESCRIPTION OP BENEFICIARY V (Ch. 15 that, if any brother or sister died without issue, the share which he would have taken if living shall "be equally divided among sur- viving brothers and sisters," the words of survivorship relate to the death of the testator.''* But here, as elsewhere, the testator's in- tent controls. Thus a gift to two specified great-grandchildren, with a proviso that, upon the death of either without heirs the de- cedent's share should go to the survivor, was held not to refer to a death in the life of the testatrix, but to the death of one after the interest had contingently vested in both.'" Gift Postponed When a gift to a class is postponed, either to a particular time, or pending the termination of a preceding estate, as a rule, those members of the class, and those only, take who are in existence at the arrival of the time of distribution,*^ as in the case of a limitation over to "daughters who may be unmarried" after a life estate,'^ or to such children of a certain person as may be living,*' or to children "then living" at the death of the testator's widow.'* So generally, where final division is to be made among a class, the gift being contingent upon survivorship, the benefits of the will are confined to those who come within the category at the time when the distribution is directed to be made.*" Thus a lim- 'oArnold v. Alden, 173 111. 229, 50 N. E. 704. 80 In re Cramer, 170 N. Y. 271, 6.3 N. E. 279. 81 Phinizy v. Poster, 90 Ala. 262, 7 South. 836; Ballentlne v. Foster, 128 Ala. 638, 30 South. 481; In re Cavarly's Estate, 119 Cal. 406, 51 Pac. 629; Healy v. Healy, 70 Conn. 467, 39 Atl. 793; Webber v. Jones, 94 Me. 429, 47 Atl. 903; Levering v. Orrick (1903) 97 Md. 139, 54 Atl. 620; Naylor v. God- man, 109 Mo. 543, 19 S. W. 56 ;. Akerman v. Akerman, 71 N. H. 55, 51 Atl. 252 ; Hall v. Blodgett, 70 N. H. 437, 48 Atl. 1085 ; Dutton v. Pugh, 45'N. J. Bq. 426, 18 Atl. 207; Haug v. Schumacher, 166 N. Y. 506, 60 N. E. 245; Cox V. Wisner, 167 N. Y. 579, 60 N. E. 1109; Schwencke t. Haffner, 22 Misc. Eep. 293, 50 N. Y. Supp. 165; In re Allen, 151 N. Y. 243, 45 N. E. 554; In re Den- llnger's Estate, 170 P&. 104, 32 Atl. 573; In re Schuldt's Estate, 199 Pa. 58, 48 Atl. 879; Shanks v. Mills, 25 S. C. 358; Nichols v. Guthrie, 109 Tenn. 535, 73 S. W. 107 ; Webber v. Webber, 108 Wis. 626, 84 N. W. 896. 82 Robertson v. Garrett, 72 Tex. 372, 10 S. W. 96 ; Robinson v. Martin, 200 N. Y. 159, 93 N. E. 488. 83 Hills V. Barnard, 152 Mass. 67, 25 N. E. 96, 9 L. B. A. 211; Cox v. Wis- ner, 167 N. Y. 579, 60 N. E. 1109. 84 Vaughan v. Vaughan's Ex'x, 97 Va. 322, 33 S. E. 603; In re Everitt's Es- tate, 195 Pa. 450, 46 Atl. 1. 85 Schwencke v. Haffner, 22 Misc. Rep. 293, 50 N. Y. Supp. 165; Wilson v. Bull, 97 Md. 128, 54 Atl. 629; In re Lamb's Estate, 122 Mich. 239, 80 N. W. 1081; Jones v. Jones, 46 N. J. Eq. 554, 21 Atl. 950; Coveny v. McLaughlin, 148 Mass. 576, 20 N. E. 165, 2 L. R. A. 448 ; Dutton v. Pugh, 45 N. J. Bq. 426, 18 Atl. S07; In re Valentine, 59 Hun, 619, 13 N. Y. Supp. 444; In re Lewis' Estate, 203 Pa. 219, 52 Atl. 208; Barber v. Crawford, 85 S. C. 54, 67 S. E. 7; Roundtree v. Eoundtree, 26 S. C. 450, 2 S. E. 474; Inderwick v. Tatchell, 71 §§ 119-120) ASCERTAINING THE MEMBERS OP A CLASS 399 itation over to "my surviving legatees" after the termination of a previous estate means the legatees surviving the peri- od of distribution, and not those surviving the testator/" and so with a limitation to the surviving brothers and sisters of the tes- tator.*'' But the rule readily yields to any indication of the testa- tor's intention to the contrary. Thus where, after devising certain real estate to his wife, the testator provided that after her death the property should be sold, and the proceeds divided among his surviving brothers and sisters, and the children of such as might be dead, the term "surviving" was construed as referring to those surviving at the testator's death.^' A limitation over to the surviving brothers of the life tenant in- cludes a brother of the half blood, descended from the testator.*' And a devise to a class or the survivors will carry the interest to a solitary survivor."* Limitation to Heirs Giving the term "heir" its technical significance as the person appointed by law to succeed to the estate, a limitation over to the testator's heirs refers to those who are such at the time of his death, and not those who may be heirs at the termination of the preceding estate,*^ and. the same rule applies to limitations to next of kin,°^ relations °* or representatives.'* But where a bequest to the testator's heirs at law at the time the will was made described his brothers and sisters by the then law, but, by a subsequent change in the law of descent, came to mean his widow, for whom he had amply provided in the will, the words were construed as of Law J. Ch. 1, [1901] 2 Ch. 738, 85 Law T. 432; King v. Frost, L. R. 15 App. Gas. 548. 8 6 Selman v. Bobertson, 46 S. "C. 262, 24 S. E. 187. Semble: Appeal of Woelpper, 126 Pa. 562, 17 Atl. 870. 81 In re Winter's Estate, 114 Cal. 186, 45 Pac. i063. 8 8 Grimmer t. Frlederich, 164 111. 245, 45 N. B. 498; Stone v. Lewis, 84 Va. 474, 5 S. E. 282. Semble: Lee v. Welch, 163 Mass. 312, 39 N. E. 1112; Bryant V. Flanders, 201 Mass. 373, 87 N. B. 574. 89 McNeal v. Sherwood, 24 R. I. 314, 53 AU. 43. 80 Prendetgast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049. 91 Johnson t. Webber, 65 Conn. 501, 33 Atl. 506; Merrill v. Wooster, 99 Me. 460, 59 AtL 596; White v. Underwood,. 215 Mass. 299, 102 N. B. 426; Tuttle V. Wool worth, 62 N. J. Eq. 532, 50 Atl. 445; In re Fitzpatrick's Estate, 233 Pa. 33, 81 Atl. 815, Ann. Cas. 1913B, 320; Allison v. Allison's Ex'rs, 101 Va. 537, 44 S. B. 904, 63 L. B. A. 920 ; Stokes v. Van Wyck, 83 Va. 724, 3 S. E. 387. 92Keniston v. Mayhew, 169 Mass. 166, 47N. E. 612; In re McFlllin's Estate, 235 Pa. 175, 83 Atl. 620; Appeal of Bell, 147 Pa. 383, 23 Atl. 599; In re Nash, 71 Law T. (N. S.) 5. 88 Cnmmlngs v. Cummings, 146 Mass. 501, 16 N. B. 40L 94 Greene v. Huntington, 73 Conn. 106, 46 Atl. 883. 400 DESCRIPTION OF BENEFICIART (Ch. 15 the date of its execution."' And there are cases apparently con- trary to the rule as above stated/" which is merely one of prima facie presumption, yielding at once to the testator's intention. Thus in a limitation over to the person or persons who "shall be" the testator's heirs on the happening of the contingency;"^ or to his "then" heirs," or to the heirs "then surviving," °" the heirs were determined as of the time of the decease of the first- taker. So a devise of land to the testator's wife for life, and after her death to his heirs and her heirs, share and share alike, refers to such of the heirs of the testator as are living at the death of the wife, rather than at the testator's death.^ And where the first' taker is an heir of the testator, and it is manifest that no other benefit is designed for him than that bestowed in the first estate, a limitation over to the heirs of the testator will be construed as to the heirs as of the time of his death, if, under the more usual construction, such taker might further share in the limitation over." Thus, where realty was devised to the testator's two sisters for life, remainder to the survivor for life, and over to his heirs at law, with power in the life tenants to sell the land and use the proceeds for their support, realty undisposed of at the death of the sur\'iving sister was held to go to the testator's heirs living at her death.-'' But, usually, the fact that the one to whom the previous interest was given is a member of the class to which the limitation over is made, is not of itself suificient to take the case out of the rule that the heirs are to be determined as of testator's death.* »" In re Swenson's Estate, 55 Minn. 300, 56 N. W. 1115. 08 FORREST V. PORCH, 100 Tenn. 391, 45 S. W. 676, Dunmore Gas. Wills, 239. »T Welch V. Brimmer, 169 Mass. 204, 47 N. E. 699. 98 Proctor V. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Wood v. Schoen, 216 Pa. 425, 66 Atl. 79. Compare: Boston Safe Deposit & Trust Co. v. Parker (1907) 197 Mass. 70, 83 N. E. 307. 89 Wood V. Bullard, 151 Mass. 324, 25 N. E. 67, 7 L. R. A. 304. Semble: Peck V. Carlton, 154 Mass. 231, 28 N. E. 166.' 1 Bisson v; Railroad Co., 143 N. Y. 125, 38 N. E. 104. Semble: In re Mc- Kee's Estate, 198 Pa. 255, 47 Atl. 993. 2 Cushman v. Goodwin, 95 Me. 353, 50 Atl. 50 ; Fargo v. Miller, 150 Mass; 225, 22 N. E. 1003, 5 L. R. A. 690. See Johnson v. Askey, 190 111. 58, 60 N. E. 76. An intention that heirs shall be determined as of the time of termination of particular estate is sometimes found merely from the fact that the person to whom the particular estate is given Is the only one answering the description of the class to which the limitation over is made. Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699. s Cushman v. Goodwin, supra. *Kellett y. Shepard, 139 IlL 433, 28 N. E. 751, 34 N. E. 254; Abbott v. §§ 119-120) ASCERTAINING THE MEMBERS OP A CLASS 401 Limitation to Children Where there is a limitation over to children, either of the holder of the previous estate or of another, the class includes both children living at the death of the testator and those who subsequently come into being before the arrival of the time for distribution. The re- mainder vests in children alive at the death of the testator, subject to open and let in after-born children.' But the testator's intention that the gift shall be confined to children living at the expiration of the particular estate may be readily indicated, as where an estate is given for life with remainder to the children of a certain person "then" living,^ or to surviving children.'' And where there was a devise to the children of the testator's son, the land to be divided among them after the death of the son, the title was held to pass immediately to the devisees on the death of the testator, and no after-born children could take.' And, in general, where there is an immediate bequest of an aggregate fund, part of which consists of reversions and expectancies, and for this reason not immediately distributable," or where it is not immediately distributable because the property is given in trust for conversion into money and dis- tribution within a reasonable time,^" childrlfen born after the death of the testator will not take. The doctrine as to the right of after-born children in general to take is further modified by the rule that, when a fund is bequeathed - Bradstreet, 85 Mass. (3 Allen) 587; Tuttle v. Woolwortli, 62 N. J. Eq. 532, 50 Atl. 445. See, also, Cushman v. Arnold, 185 Mass. 165, 70 N. E. 43. B INGE V. JONES, 109 Ala. 175, 19 South. 435, Dunmore Cas. Wills, 247; Johnson v. Webber, 65 Conn. 501, 33 Atl. 506; U. S. Fidelity & Guaranty Co. V. Douglas' Trustee (1909) 134 Ky. 374, 120 S. W. 328, 20 Ann. Cas. 993 ; Lom- bard V. Willis, 147 Mass. 13, 16 N. E. 737 ; Aldrldge v. Aldridge, 43 App. Div. 411, 60 N.,Y. Supp. 69; Evan's Estate, 155 Pa. 646, 26 Atl. 739; Franklin v. Franklin, 91 Tenn. 119, 18 S. W. 61; Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S. W. 797, 5 L. E. A. 45 ; Elkins v. Carsey (Tenn.) 3 S. W. 828 ; Cheat- ham V. Gower, 94 Va. 383, 26 S. E. 853. Semble: Toole v. Perry, 80 Ga. 681, 7 S. E. 118. 6 Eingquist v. Young, 112 Mo. 25, 20 S. W. 159 ; Nichols v. Guthrie (1903) 109 Tenn. 535, 73 S. W. 107; Connelly v. O'Brien, 40 App. Div. 574, 58 N. T. Supp. 45; Schwencke v. Haffner, 18 App. Div. 182, 45 N. T. Supp. 937; Patch- en V. Patchen, 121 N. Y. 432, 24 N. E. 695, reversing 49 Hun, 270, 1 N. Y. Supp. 913 ; Dougherty v. Thompson, 27 Misc. Rep. 738, 59 N. Y. Supp. 60S. 7 Coveny v. McLaughlin, 148 Mass. 576, 20 N. E. 165, 2 L. E. A. 448; Stout V. Cook (1911) 79 N. J. Eq. 573, 81 Atl. 821. 8 Wise V. Leonhardt, 128 N. C. 289, 38 S. E. 892. See, also, Sherman v. Baker, 20 E, I. 446, 40 Atl. 11, 40 L. R. A. 717. » Hawkins," Wills, 74; Hoggar v. Payne, 23 Beav. 474; Sherman v. Baker, 20 E. I. 446, 40 Atl. 11, 40 L. E. A. 717. 10 In re Landwehr's Estate, 147 Pa. 121, 23 Atl. 348. Gard. Wills (2d Ed.)— 26 402 DESCRIPTION OF BENEFICIARY (Ch. 15 to children as a class, the share of each child to be payable on at" taining a given age, or marriage, the fund is to be distributed when the first child becomes entitled to receive his share, and hence chil- dren coming into existence after that period are ex;cluded.^^. The reason is that the child first entitled cannot be kept waiting, and, once paid, the money cannot be got back again for the benefit of a subsequently born claimant.^" The rule applies to gifts to grand- children, and apparently to all classes of relatives heretofore dis- cussed in this connection.^' The rule apparently applies, whether the vesting or the payment only be postponed to the given age.^* Where gift is of an aggregate fund, the addition of words of futu- rity, as to "children of A. born or to be born," does not prevent the application of the rule so as to let in children born after the first share has become payable.^" In the absence of an intention to the contrary as disclosed by the context,^* the rule does not apply to the case of gifts to children when the shares are made payable on the youngest attaining a given age, so as to exclude children born after the youngest for the time being has attained that age.^^ All children, whenever born, are 11 Thornton v. Zea, 22 Tex. 01 v. App. 509, 55 S. W. 798; Thomas v. Thom- as, 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Eep. 405 ; Hubbard v. Lloyd, 6 Gush. (Mass.) 523, 53 Am. Dec. 55; Tucker v. Bishop, 16 N. Y. 404 ; Heisse v. Mark- land, 2 Rawle (Pa.) 275, 21 Am. Dec. 445 ; Hawkins v. Everett, 58 N. C. 44; Andrews v. Partington, 3 Bro. C. C. 403 ; Whitbread v. Lord St. John, 10 Ves. 152. 12 Gillman v. Daunt, 3 K. & J. 48. 18 Iredell v. Iredell, 25 Beav. 485; Baldwin v. Rogers, 3 De Gex, M. & G. 649. 14 Hawkins, Wills, 70; Gillman v. Daunt, 3 K. & J. 48 (L e., whether the gift be to "such children of A. as shall attain the age of 21," or "to the chil- dren of A. payable at 21") ; Hawkins r. Everett, 58 N. C. 44; Caywood v. Jones, 32 Ky. Law Eep. 1302, 108 S. W. 888. Compare: Kevern v. Williams, 5 Sim. 171. The general rule also seems to apply to all cases where the share of each child is made payable on an event personal to him or her. Thus, if the fund be given to the children of A., the share of each to be paid on attaining the age of twenty-one, or on death under that age, leaving issue, and a child dies under that age leaving issue, before any child has attained twenty-one, no after-born child can take. Barrington v. Tristram, 6 Ves. 344. 16 Whitbread v. Lord St. John, 10 Ves. 152; Iredell v. Iredell, 25 Beav. 485; Heisse v. Markland, 2 Rawle (Pa.) 275, 21 Am. Dec. 445. 18 Gooch V. Gooch, 3 D. M. G. 366. 17 Hawkins, Wills,- 77; Mainwaring v. Beevor, 8 Hare, 44. The distribution of the eldest child's share being postponed beyond the time when he himself attains the given age, "all the inconvenience is let in, and the eldest may have to wait for an indefinite time, so long as children may continue to be born." Id. § 121) TAKING PEE CAPITA OE PEE STIRPES 403 therefore admitted in general, when the payment is postponed until the happening of an event personal to the youngest.^* The rule admitting after-born children does not apply where sep- arate legacies are given to each of a class of objects, but the gift is confined to those living at the testator's defath.^' Were it not so, the distribution of the personal estate of the testator would have to be postponed until it could be ascertained how many legacies of the given amount would be payable. TAKING PER CAPITA OR PER STIRPES 121. In the case of a gift to a class, where the proportionate share of each member is not determined by the will, distribution per capita, rather than by representation per stirpes, will generally be had. The law favoring equality, a gift to the children of two or more persons, whether expressed as to the children of A. and B., or to the children of A. and the children of B., means, in the absence of any indicated intent to the contrary, that the children shall take per capita, and not per stirpes,'"' and all take ,per capita v/here the gift is to A. and B. and their children as purchasers.^ ^ And where the individuals of a class are specifically named, or are designated by their relation to some ancestor living at the date of the will, wheth- 18 Hawkins, Wills, 78; Fosdick v. Fosdick, 6 Allen (Mass.) 43; Handberry V. DooUttle, 38 111. 206. 18 If a gift be made of £50 each to all and every the children of A., payable at twenty-one, the children living at the testator's death alone are entitled. Blngrose t. Bramham, 2 Cox, 384; Mann v. Thompson, Kay, 638; Butler v. Lowe, 16 Eng. Ch. (10 Sim.)' 317. Semble: Howland v. Howland, 11 Gray (Mass.) 476. 20McIntlre v. Mclntire, 192 U. S. 116, 24 Sup. Ct. 196, 48 L. Ed. 369; De Laurencel v. De Boom, 67 Cal. 362, 7 Pac. 758; Hughes v. Hughes, 118 Ky. 751, 82 S. W. 408, 26 Ky. Law Rep. 625; Dole v.'Keyes, 143 Mass. 237, 9 N. E. 625; HUl v. Bowers, 120 Mass. 135; Post v. Herbert's Ex'rs, 27 N. J. Eq. 540; Farmer v. Kimball, 46 N. H. 435, 88 Ami Dec. 219; Young's Appeal, 83 Pa. 59. So, in a devise, after a life estate, to be "equally divided between the bodily heirs of F. and J.," the children of F. and J. take per capita. Taylor v. Oribbs (1911) 174 Ala. 217, 56 South. 952. 21 Wills V. Foltz (1907) 61 W. Va. 262, 56 S. B. 473, 12 L. R. A. (N. S.) 283; Cunningham v. Murray, 1 De G. & Sm. 366. But a gift to two or more persons, or their children, is substitutional, and the children take only their parents' share. Bartine v. Davis, 60 N. J. Eq. 202, 46 Atl. 577; Guild v. Allen, 28 R. I. 430, 67 Atl. 855. 404 DESCRIPTION OF BENEFICIARY (Ch. 15 er the testator or another, they take per capita.** The testator may frequently make his intention clear by directing an equal division among the members of the class,*' or that they shall take share and share alike.** It is said that the same rule applies in the case of a gift to a per- son and the children of another person who is dead, unless it ap- pears from the context, or circumstances shown by competent ex- traneous evidence, that the testator intended a -distribution per stirpes.*' But while this is clearly the law, it is evident that no ■question of representation per stirpes can here be involved, where the parent would not have taken in event of intestacy, and the will discloses no intention to give the parent any interest to which the children could succeed by representation. The only question here is whether, with regard to distribution, the children are to be 22 2 Jar. Wills, 194, Bigelow's Note; Hardy v. Eoach, 190 Mass. 223, 76 N. E. 720; Cuthbert v. Laing, 75 N. H. 304, 73 Atl. 641; Ridley v. McPherson, 100 Term. 402, 43 S. W. 772 (where land was conveyed in trust for grantor's daughter during life, and on her death to her issue then living. Held, that the life tenant's daughter, her eight children, and two children of a deceased son would each take one-eleventh after the death of the life tenant) ; Dole^. Keyes, 143 Mass. 237, 9 N. E. 625 ; Maguire v. Moore, 108 Mo. 267, 18 S. W. S97 (where the limitation over was to the testator's grandchildren); Pearce v. Eickard, 18 R, I. 142, 26 Atl. 38, 19 L. R. A. 472, 49 Am. St. Rep. 755 Gimita- tion over to "lawful issue" of the beneficiary for life) ; Houghton v. Bell, 23 Can. Sup. 498 (where the limitation was to children living and the children of those who may be dead); Rogers v. Morrell, 82 S. C. 402, 64 S. E. 143, 129 Am. St Rep. 899. So where the testator devised land to his wife for life, and after her death to his heirs and her heirs, their heirs and assigns, share and share alike, and at the wife's death her heirs were sixteen in number, representing three differ- ent stocks, while those of the testator were fourteen in number, representing four stocks, all were held to take as of the same class and per capita. Bis- son V. Railroad Co., 143 N. X. 125, 38 N. E. 104. Accord: Copeland v. Cope- land, 64 111. App. 100. 2 3AImand v. Whitaker, 113 Ga. 889, 39 S. E. 395; Armstrong v. Crutch- field, 150 Ky. 641, 150 S. W. 835; Records v. Fields, 155 Mo. 314, 55 S. W. 1021; West v. Rassman, 135 Ind. 278, 34 N. E. 991; Kliug v. Schnellbecker, 107 Iowa, 636, 78 N. W. 673} Johnston v. Knight, 117 N. C. 122, 23 S. E. 92; Marsh v. Dellinger, 127 N. C. 360, 37 S. E. 494; Ramsey v. Stephenson, 34 Or. 408, 56 Pac. 520, 57 Pac. 195 ; In re Stone, [1895] 2 Ch. 196, 12 Rep. 415. 2* FoUansbee v. Follansbee, 7 App. D. C. 282; McFatrldge v. Holtzclaw, «4 Ky. 352, 22 S. W. 439; Van Callow v. Brandt, 168 Mich. 642, 134 N. W. 1018; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702 ; Budd v. Haines, 52 N. J. Eq. 488, 29 Atl. 170; In re Scott's Estate, 163 Pa. 165, 29 Atl. 877; In re Pen- ney's Estate, 159 Pa. 346, 28 Atl. 255 ; Dukes v. Faulk, 37 S. C. 255, 16 S. E. 122, 34 Am. St. Rep. 745. "Culp V. Lee, 109 N. C. 675, 14 S. E. 74; Whittle v. Whittle's Bx'rs, 108 Va. 22, 60 S. E. 748; Collins v. Feather's Ex'rs, 52 W. Va. 107, 43 S. E. 323, •61 I* R. A. 660, 94 Am. St Rep. 912; Lynn v. Hall, 101 Ky. 738, 43 S. W. 402 72 Am. St Rep. 439. ■I 121) TAKING PER CAPITA OK PEE STIRPES 405 treated as a class or as individuals. In the latter case they, of course, take per capita: in the former, they take, not per stirpes, but as a unit with regard to the other beneficiary, and the portion, com- ing to them as a class unit, or entity, is divided among those who compose the entity. But a tendency to favor a disposition per stirpes is sometimes disclosed by the cases."" Thus where the will provided that prop- erty should be divided between the children of two persons, share and share alijce, they were held to take per stirpes, and not per ' capita." So where the residuum was "to be divided equally be- tween my brothers and sisters, and the children of deceased broth- ers and sisters," the distribution as regards the latter was held to be per stirpes; ^^ and, under a devise to the children of the testa- trix by name, "in equal proportions," and, in the event of either dying before the testatrix, the estate to be "divided among the sur- vivors or their legal representatives, share and share alike," the two children of one of the daughters who died were held entitled to only their mother's share. ^° And it is generally agreed that in a devise to the "heirs" of an indicated person the heirs will take per stirpes, when they would thus have taken by inheritance under the statute of descent ^^ unless the devise is expressed in words in- dicating a different intent, as where, after a devise to "heirs," it is added "equally," or "share and share alike." ^^ And the expressed 2 6 "The law favors that construction of a will which will make a distrlbu- tloii as nearly conform to the general rule of Inheritance as the language will permit, and favors equities rather than technicalities." Rivenett v. Bourquln, 53 Mich. 10, 18 N. W. 537, 4 Am. Prob. Rep. 264. 2 7 Mayer v. Hover, 81 Ga. 308, T S. E. 562. See White v. Holland, 92 Ga. 216, 18 S. E. 17, 44 Am. St. Rep. 87. 28 Henry v. Thomas, 118 Ind. 28, 20 N. E. 519. 2 8 Rivenett v. Bourquln, 53 Mich. 10, 18 N. W. 537. so.Healy v. Healy, 70 Conn. 467, 39 AU. 793; Conklin v. Davis, 63 Conn. 377, 28 Atl. 537; Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106; Maclean v. Williams, 116 Ga. 257, 42 S. E. 485, 59 L. R. A. 125; Mosier v. Bowser, 226 111. 46, 80 N. E. 730; Thomas v. Miller, 161 111. 60, 43 N. E. 848; Johnson v. Bodine, 108 Iowa, 594, 79 N. W. 348; Cummings v. Cummings, 146 Mass. 501, 16 N. E. 401; Eyer v. Beck, 70 Mich. 179, 38 N. W. 20; Preston v. Brant, 9^ Mo. 552, 10 S. W. 78 ; Kirkpatrlck v. Kirkpatrick, 197 111. 144, 64 N. E. 267 ; Bartine v. Davis, 60 N. J. Eq. 202, 46 Atl. 577; Woodward v. James, 115 N. Y. 346, 22 N. E. 150; In re Hoch's Estate, 154 Pa. 417, 26 Atl. 610; Appeal of Fidelity Title & Trust Co., 159 Pa. 545, 28 Atl. 361; Appeal of Alston (Pa.) 11 Atl. 366; In re Swinburne, 16 R. I. 208, 14 Atl. 850; Lott v. Thompson, 36 S. C. 38, 15 S. E. 278; Ross' Ex'r v. Kiger, 42 W. Va. 402, 26 S. E. 193. 81 Doherty v. Grady, 105 Me. 36, 72 Atl. 869; In re Griswold, 42 Misc. Rep. 230, 86 N. X. Supp. 250; Mooney v. Purpus, 70 Ohio St. 57, 70 N. E. 894; Par- rott V. Barrett, 70 S. C. 195, 49 S. E. 563. Heirs are sometimes held to take per stirpes notwithstanding a direction in the will that they are to "share equally." Allen v. Boardman, 193 Mass. 284, 406 DBSCEIPTION OF BENEFICIARY (Ch. 15 intent that the members of a class shall take per stirpes controls.^'' In fact, all the rules in this connection are merely resorted to in the absence of a certain intent on the part of the testator. That dis- closed, it prevails, and rules of construction give way, or, rather, are never invoked. Thus a residue, to be equally divided among all the testator's lawful heirs, will be distributed per capita where the will contained specific bequests to his living children for the purpose of making all "to share alike up to this date." °' And where there was a limitation over a life estate "to my three sons [naming them] during the term of their natural lives, and then to the children that each may have surviving them," the children were held to take per stirpes.'* 79 N. B. 260, 118 Am. St. Rep. 497 ; McClench v. Waldron, 204 Mass. 554, 91 N. E. 126; In re Hoch's Estate, 154 Pa. 417, 26 AU. 610. 8 2 Siders v. Siders, 169 Mass. 523, 48 N. E. 277; Jameson v. Jameson's Adm'x, 86 Ya. 51, 9 S. E. 480, 3 L. R. A. 773 ; Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615 ; Geery v. Skeldlng, 62 Conn. 499, 27 AU. 77. 83 Copeland v. Copeland, 64 111. App. 100. Semble: Blsson v. Railroad Co., 143 N. Y. 125, 38 N. E. 104. 3* Bethea v. Bethea, 116 Ala. 265, 22 South. 561. See, also, Succession of Allen, 48 La. Ann. 1036, 20 South. 193, 55 Am. St Rep. 295; Fields v. Fields, 93 Ky. 619, 20 S. W. 1042; In re High's Estate, 136 Pa. 222, 20 AtL 421, 423; liockwood's Appeal, 55 Conn. 157, 10 Atl. 517. §§ 122-123) NATUEE AND DURATION OF INTERESTS 407 CHAPTER XVI CONSTRUCTION (Continued)— NATURE AND DURATION OF INTERESTS 122-123. Estates In Fee. 124. Estates for Life. 125-126. Joint Tenancy and Tenancy In Common. 127. Interests in Personal Property. ESTATES IN FEE 122. At common law a devise of land, without further indication as to the extent of the interest intended to be created, carried only a life estate. 123. Under nearly all modern statutes, such a devise carries all the interest which the testator has in the land, in the absence of a manifest intention on his peirt to dispose of a lesser in- terest. • At common law a devise of real estate, in order to convey the fee, must either contain words of inheritance, or in some manner the in- tention of the testator to pass an interest of this character must be clearly manifest.^ The technical term "heirs" was not, however, necessary for this purpose, as in the case of deeds." Thus a devise in fee simple,* or to one forever,* or to one and his successors, or to one and his house or family, or to a man and "his," was sufHcient to pass the fee." So, if an -intention to create a fee could be gathered from the whole will, such an interest would pass, even though no words of succession of any nature were used.* And a condition or direction imposed on a devisee to pay a sum of money, such as the testator's debts, or legacies, enlarges the devise to him, without words of limitation, into an absolute fee ; '' this on the ground that 1 Little V. Giles, 25 Neb. 313, 41 N. W. 1S6 ; Wright v. Denn, 10 Wlieat. (U. S.) 204, 6 L. Ed. 303. 2 Snodgrass v. Brandenburg, 164 Tnd. 59, 71 N. E. 137, 72 N. E. 1030; Roth V. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455. s Baker v. Raimond, 2 Jar. Wills, 253. 4 Idle V. Cooke, 2 Ld. Ray. 1144, 1152. B 2 Jar. Wills (Big. Ed.) 283, 284. « Bromley v. Gardner, 79 Me. 246, 9 Atl. 621; McCaferey v. Manogue, 196 U. S. 563, 25 Sup. Ct. 319, -49 L. Ed. 600. ^ Parsons y. Millar, 189 111. 107, 59 N. E. 606 ; McFarland v. McFarland, 177 IlL 208, 52 N. B. 281; Korf v. Gerichs, 145 Ind. 134, 44 N. E. 24; Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998 ; Potts v. Kline, 174 Pa. 513, 34 Atl. 191. The rule, however, has no application when the estate of the devisee is de- 408 NA*rUEB AND DURATION OF INTERESTS (Ch. 16' he might otherwise incur loss by having to pay more than he would receive, it being the presumed intent of the testator to benefit the devisee beyond all question ; hence the disparity between the charge and the value of the estate devised is immaterial, so long as there is- even a remote possibility of loss.* The presumption of an intent to give a fee, under such circumstances, is not, however, conclusive.,^ A devise on condition that the devisee shall convey other lands, in which he has an interest, to third persons, will carry a fee.^" So a. devise over in a particular event is regarded as enlarging a gener- al devise so as to carry a fee,^^ as raising an implication that it shall abide with the devisee in all other contingencies.^* And the use of the words c "estate, property, real effects," etc., when they refer ta interests, and not to the matter in which the interests exist, will pass whatever interest the testator may have therein.^^ So, also, a de- vise in fee, in trust for another, without any words of limitation, will make the equitable estate coextensive with that of the trustee.^* So a trustee will be regarded as having the fee^ when such estate is necessary to effectuate the trusts, though there be no words of limitation.^* And when the same words are used to pass both real and personal property they will be construed to convey the same es- tate in each.^* The word "heirs" is, of course, the usual and proper term to be employed in creating an estate in fee,^^ and this word will be con- fined by the will. Coucli v. Eastham, 29 W. Va. 784, 3 S. B. 23. Nor when an estate is limited over. Brooks v. Kip, 54 N. J. Eq. 462, 35 Atl. 658. 8 2 Jar. Wills, 248. » Lithgow V. Kavenagh, 9 Mass. 165. 10 Gibson V. Horton, 5 Har. & J. (Md.) 177. 11 Uoe V. Coleman, 6 Price, 179. Devise of remainder. "Where land Is devised to one for life and over to another, especially to a son, without words of limitation, or any further words to express his intent, such a devise over is construed to be a fee." Plimpton V. Plimpton, 12 Cush. (Mass.) 458, 463. 12 2 Redf. Wills, 324. 13 Reeves v. Winnington, 3 Mod. 45; Macaree v. Tall, Amb. 18; Pettiward V. Prescott, 7 Ves. 541, 546; Chichester v. Oxendon, 4 Taunt. 176; Bailis v. Gale, 2 Ves. 48; Randall v. Tuclim, 6 Taunt. 410. 14 Challenger v. Sheppard, 8 T. B. 597; .Knight v. Selby, 3 M. & Or. 92; Moore v. Cleghorn, 10 Beav. 423 ; Hodson v. Ball, 14 Sim. 558 ; Hutchinson v. Stephens, 1 Keen, 240. IB Shaw V. Weigh, 2 Str. 798. 18 Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659. 17 Connor v. Gardner, 230 111. 258, 82 N. E. 640, 15 I>. R. A. (N. g.) 73; Red- dick V. Lord, 131 Ind. 336, 30 N. B. 1085; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467; McMeekln v. Smith (Ky.) 21 S. W. 353; Young v. Kinkead's Adm'r, 101 Ky. 252, 40 S. W. 776 ; Smith v. Rice, 183 Mass. 251, 66 N. B. 806; Passman v. Safe Deposit Co., 57 N. J. Eq. 273, 41 Atl. 953 ; Stigers v. Dins- :■§§ 122-123) ESTATES IN FEE 409 strued as one of limitation, and not qi purchase, in the absence of a plain intent to use it in the latter sense. Thus a devise to a daugh- ter, for her benefit during life, "it to be and remain the property of the heirs of her body after her death," " or to a wife and son, and over if "no heirs to them be left," ^^ or to a son, to have the income for life, the property "at his death to descend to his heirs," ="• or to 'One "and so to his heirs and assigns forever," "^ or to a married wo- man free from the control or interference of her husband, and to her heirs,''^ all pass estates in fee simple tolhe first taker. But the intention controls, and a devise to two for life; remainder "to go to their heirs forever," was held to create merely a life estate in the first takers.^* When a devise is made to a person and his children, the latter word is treated as one of limitation, if the devisee had no children at the death of the testator, and children born thereafter take no interest under the wil!.^* But, if children are living at the time of the testator's death or at the date of the will, the word is then treated as one of purchase,"" unless the intention of the testa- tor is manifestly otherwise."" So a devise to a married daughter "and her lineage" creates a fee in the daughter."' When the lan- guage of a devise covers an interest greater than that held by the devisor, it is effectual to pass such interest as he had.^* more, 193 Pa. 482, 44 Atl. 550, 74 Am. St. Rep. 702 1 Gilchrist v. Empfield, 194 Pa. 397, 45 Atl. 46; Lloyd v. Mitchell, 130 Pa. 205, 18 Atl. 599. 18 WUkerson r. Clark, 80 Ga. 367, 7 S. E. 319, 12 Am. St. Kep. 258 (where -estate tail not recognized). Semble: Kendall v. Olapp, 163 Mass. 69, 39 N. E. 773. 19 Hennegar v. Deadrick (Tenn. Ch. App.) 54 S. W. 138; Reimer v. Relmer, 192 Pa. 571, 44 Atl. 316, 73 Am. St. Rep. 833. 2 Curry v. Patterson, 183 Pa. 238, 38 Atl. 594; Georgia, C. & N. Ry. Co. v. Archer, 87 Ga. 237, 13 S. E. 636. Semble: Harris v. McCann, 75 Miss. 805, 23 South. 631. 21 Keniston v. Adams, 80 Me. 290, 14 Atl. 203. 22 Cressey v. Wallace, 66 N. H. 566, 29 Atl. 842. See, also, Roberts v. Crume (1903) 173 Mo. 572, 73 S. W. 662. 2 3 Leake v. Watson, 60 Conn. 498, 21 Atl. 1075 (where rule in Shelley's Case abolished by statute). 2* Lofton V. Murchlson, 80 Ga. 391, 7 S. B. 322; Rothwell v. Jamison, 147 Mo: 601, 49 S. W. 503; Silliman v. Whitaker, 119 N. C. 89, 25 S. E. 742. 25 Lord V. Moore, 20 Conn. 122 ; Hoyle v. Jones, 35 Ga. 40, 89 Am. Dec. 273 ; Allen V. Hoyt, 5 Mete. (Mass.) 324; Fitzpatrick v. Fitzpatrick, 100 Va. 552, -42 S. E. 306, 93 Am. St. Rep. 976. 2 6 Wood V. Baron, 1 East, 259; Tyrone v. Waterford, 1 De G., F. & J. 613. As where a gift is to a person and "his children forever," Hood v. I?awson, 98 Ky. 285, 33 S. W. 75; or where a devise is to a "sister and at her death to her •children or other lineal descendants," Mason v. Ammon, 117 Pa. 127, 11 Atl. ■449. ar Lockett v. Lockett, 94. Ky. 289, 22 S. W. 224. 2 8 Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219. 410 NATURE AND DURATION OF INTERESTS (Ch. 10 Rule under Statute The common law presumption that nothing more than a life es- tate passed under a devise in the absence of a testamentary intent to the contrary has been very generally "^ replaced by the statutory rule that all the testator's interest shall pass in the absence of a clear testamentary intent to the contrary. Thus a devise of real estate to a wife, with power to sell "as she may deem best for her own per- sonal benefit and for my children," '" or to use and manage as she saw fit,'^ or the "allowance of one-third my property" to the wid- ow,*'' or to a daughter for life, with executory devise over, upon her death without issue,*' or "to my brother for the benefit of himself and his family," ** or a devise of property to a wife "for a home," "* or to a wife, "and if she ever wants to leave she is to let" a certain person have it in trust for his children,*" all create fees simple in the first taker. Where, under the statute, the will has clearly given a fee in the realty, the testator is not presumed to have intended by subsequent expressions to reduce the estate, unless an intention to this end is wholly clear.*^ Thus a will giving the testator's wife the whole of his estate, without limitation, does not disclose a purpose 29 Smith V. Greer, 88 Ala. 416, 6 South. 911; Hitch v. Patten, 8 Houst. (Del.) 334, 16 Att. 558, 2 I* R. A. 724; Horn v. Foley, 13 App. D. C. 184; BowUn v. White, 244 111. 623, 91 N. H. 658; Mills v. Franklin, 128 Ind. 444, 28 N. EX 60 ; Morgan v. McNeeley, 126 Ind. 537, 26 N. E. 395 ; Boston Safe Deposit & Trust Co. V. Stich, 61 Kan. 474, 59 Pac. 1082; Harlow v. Scobee's Adm'r (Ky.) 60 S. W. 861; Hutching v. Pearce, 80 Md. 434, 31 Atl. 501; Goodwin v. Mc- Donald, 153 Mass. 481, 27 N. E. 5; Pennington v. Pennington, 70 Md. 418, 17 Atl. 329, 3 L. E. A. 816 ; Johnson v. Planting Co., 77 Miss. 15, 26 South. 360 ; Cook V. Couch, 100 Mo. 29, 13 S. W. 80; Steward v. Knight, 62 N. J. Eq. 232, 49 Atl. 535 ; Sayles v. Best, 140 N. Y. 368, 35 N. B. 636; Dilworth v. Gusky, 131 Pa. 343, 18 Atl. 899; MacConnell v. Wright, 150 Pa, 275, 24 Atl. 517; "Webster v. Wiggin, 19 R. I. 73, 31 Atl. 824, 28 L. R. A. 510; Howze v. Barber, 29 S. C. 466, 7 S. E. 817 ; May v. Town Site Co., 83 Tex. 502, 18 S. W. 959 ; Dulin V. Moore (Tex. Civ. App.) 69 S. W. 94 ; Reeves v. School Dist, 24 Wash. 282, 64 Pac. 752; Morrison v. Coke Co., 52 W. Va. 331, 43 S. E. 102; Mosby v. Paul's Adm'r, 88 Va. 533, 14 S. E. 336. so Brown V. Perry, 51 App. Div. 11, 64 N. Y. Supp. 402. Semble: Snyder v. Baer, 144 Pa. 278, 22 Atl. 897, 13 L. R. A. 359. 31 In re Barrett's WUl, 111 Iowa, 570, 82 N. W. 998. 32 White V. Commonwealth, 110 Pa. 90, 1 Atl. 33. Semble: Schult v. Moll, 132 N. Y. 122, 30 N. E. 377. 33 Kelly V. Williams, 113 N. O. 437, 18 S. B. 693 (held to vest a fee in the daughter, upon her marrying and having Issue). 3* Holder v. Holder, 40 App. Div. 255, 59 N. Y. Supp. 204. Semble: Grain v. Wright, 114 N. Y. 307, 21 N. E. 401. so Wilkinson v. Chambers, 181 Pa. 437, 37 Atl. 569. 38 Johnson v. Johnson, 48 S. C. 408, 26 S. E. 722. 8T Wallace v. Hawes, 79 Me. 177, 8 Atl. 885; Schmaunz v. Goss, 132 Mass. 141; Clay v. Wood, 153 N. Y. 134, 47 N. E. 274. §§ 122-123) ESTATES IN FEE 411 not to give her a fee by the words, "When she is done with it, I give to * * * Church * * * $i_000."»' And where there is a primary gift of property in fee, with a gift over on the happen- ing of a definite event, the first devise will be construed to pass a defeasible fee, subject to be defeated by the happening of the event, rather than as cut down to a life estate,'" unless a contrary inten- tion appears.*" So the subsequent expression of a mere wish or de- sire will not, reduce a prior absolute estate to an estate for life.*^ So an estate given, without words of limitation, and subsequently burdened with a trust in favor of the testator's children, is not thereby reduced to an estate for life, but the beneficiary takes the fee, subject to the trust. ''^ i But, in all cases, the clearly demonstrated intent of the testator controls.*' Thus a gift of the income of lan^ to a daughter until she reached a certain age, she then to have full control and man- agement thereof, with remainder on her death to other devisees, creates a life estate only in the daughter.** So a gift of one-third of the net income of certain property to the testator's widow, upon her death the joint administration of the whole estate to be con- tinued by the children, did not vest a fee in one-third in the wid- ow; *° neither did a devise to her for the support and maintenance of herself iand children, with limitation over to the children upon her death ; *' and a devise to a nephew of "all my real estate to hold 38 Cox T. Anderson's Adm'r (Ky.) 70 S. W. 839. »» Steward v. Knight, 62 N. J. Eq. 232, 49 Atl. 535; Giles v. Anslow, 128 111. 187, 21 N. E. 225; Boling v. Miller, 133 Ind. 602, 33 N. E. 354; Mitchell v. Campbell, 94 Ky. 347, 22 S. W. 549 ; Webster's Trustee v. Webster (Ky.) 22 S. W. 920; Backus v. Association, 77 Md. 50, 25 Atl. 856; Benson v. Linthi- cum, 75 Md. 141, 23 Atl. 133; Moffat v. Cook, 150 Mass. 529, 23 N. E. 236; Mitchell V. Railway Co., 165 Pa. 645, 31 Atl. 67 ; Keating v. McAdoo, 180 Pa. 5, 36 Atl. 218 ; Appeal of Solicitors' Loan & Trust Co., 140 Pa. 253, 21 Atl. 317 ; Barney v. Arnold, 15 R. I. 78, 23 Atl. 45 ; In re Johnson, 23 B. I. Ill, 49 Atl. 695; Williamson v. Tunis, 107 Tenn. 83, 64 S. W. 10. *o King V. Prick, 135 Pa. 575, 19 Atl. 951, 20 Am. St. Rep. 889. *i Mitchell V. Mitchell, 143 Ind. 113, 42 N. E. 465 ; Taylor v. Brown, 88 Me. 56, 33 Atl. 664; Clay v. Wo6d, 91 Hun, 398, 36 N. Y. Supp. 317; Ahl v. Ros- ier, 175 Pa. 526, 34 Atl. 805; In re Bellas' Estate, 176 Pa. 122, 34 Atl. 1003; In re Heck's Estate, 170 Pa. 232, 32 Atl. 413 ; Tabor v. Tabor, 85 Wis. 313, 55 N. W. 702 ; ConUn v. Sowards, 129 Wis. 320, 109 N. W. 91. *2 Forbes v. Darling, 94 Mich. 621, 54 N. W. 385. *3 Griffiths V. Griffiths, 198 111. 632, 64 N. E. 1069; Morrison v. Schorr, 197 IlL 554, 64 N. B. 545 ; In re Nevins' Estate, 192 Pa. 258, 43 Atl. 996. ** Healy v. Eastlake, 152 111. 424, 39 N. B. 260. « 5 In re Steinmetz's Estate, 168 Pa. 171, 31 Atl. 1070. *8 Trout V. Rominger, 198 Pa. 91, 47 Atl. 960; Summers v. Higley, 191 111. 193, 60 N. B. 969. So with a devise "to my wife, to have so long as she re- maps my widow; should she remarry, then the law is' my will." In re 412 NATURE AND DURATION OF INTERESTS . (Ch. 16"- as his own, then to his heirs if any, if not, to his nearest akin" of a certain name, was held to vest in the nephew a life estate only.*^ Estate in Fee — Void Limitation Over Where a will creates an absolute estate in fee simple, a subsequent: clause, which cannot be construed as effecting a change in the na- ture of the estate by curtailment or reduction, but which attempts a further limitation upon the absolute estate already devised, is void,, inasmuch as the prior fee simple involves absolute dominion over the land by the devisee, with which any further control by the tes- tator is incompatible. This principle is concretely recognized and. applied in many cases.** Thus where a gift of the whole estate to a wife "absolutely and forever" was followed by a provision that, if any of the property remained undisposed of it should go to cer- tain relatives, the atteanpted disposition over was void, and the rel- atives took nothing.*' So where the testator devised certain land, to A. and his heirs, subsequently providing that on A.'s death with- out heirs of his body the property should go over, the limitation over was held void, as inconsistent with the prior fee,"" and so where- Brooks' Will, 125 N. C. 136, 34 S. E. 265. Semble: Bennett v. Packer, 70 Conn. ^57, 39 Atl. 739, 66 Am. St Rep. 112. " Miller V. Lamprey, 68 N. H.-376, 44 Atl. 528. *8 Terrell v. Reeves, 103 Ala. 264, 16 South. 54; Bernstein v. Bramble (1907)' 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028, 11 Ann. Cas. 343, citing Gard- ner on Wills; Dalrymple v. Leacb, 61 N. E. 443, 192 111. 51; Lambe v. Dray- ton, 182 111. 110, 55 N. E. 189; Howe v. Hodge, 152 111. 252, 38 N. B. 1083; O'Boyle v. Thomas, 116 Ind. 243, 19 N. E. 112; Hammond v. Croxton (Ind. App.) 61 N. E. 596 ; Langman v. Marbe, 156 Ind. 330, 58 N. E. 191 ; Mulvane- V. Rude, 146 Ind. 476, 45 N. B. 659; Brewster v. Douglas (Iowa) 80 N. W. 304; Garrard v. Kendall (Ky. 1909) 121 S. W. 997 ; Johnson v. WMton, 159 Mass. 424, 34 N. E. 542; Gushing v. Spalding, 164 Mass. 287, 41 N. E. 297; Loosing V. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (K. S.) 920; Dodson v. Se- vars, 52 N. J. Bq. 611, 30 Atl. 477 ; Banzer v. Banzer, 156 N. T. 429, 51 N. E. 291; Felt v. Richards, 64 N. J. Eq. 16, 53 Atl. 824; Patterson v. Madden, 54r N. J. Eq. 714, 36 Atl. 273; Hornet v. Bacon, 126 Pa. r76, 17 Atl. 584; Fenster- maker v. Holman (Ind. App.) 61 N. E. 599; Kaufman v. Burgert, 195 Pa. 274, 45 Atl. 725, 78 Am. St. Rep. 813; Bowen v. Bowen, 87 Va. 438, 12 S. B. 885,. 24 Am. St. Rep. 664; Shaw v. Erwin, 41 S. 0. 209, 19 S. B. 499. Contra: limas V. Neidt, 101 Iowa, 348, 70 N. W. 203. *» Roth V. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455. Ac- cord: Halliday v. Stickler, 78 Iowa, 388, 43 N. W. 228; McNutt v. McComb,. ' 61 Kan. 25, 58 Pac. 965 ; Evans v. Smith, 166 Pa. 625, 31 Atl. 346 ; Pierce v. Simmons, 16 R. I. 689, 19 Atl. 242; Leggett v. Firth, 53 Hun, 152, 6 N. Y. Supp. 158; Trustees of Central Methodist Episcopal Church v. Harris, 62 Conn. 93, 25 Atl. 456; Moran v. Moran, 143 Mich. 322, 106 N. W. 206, 5 L. R. A. (N. S.) 323, 114 Am. St. Rep. 648; Bradley v. Games, 94 Tenn. 27, 27 S. W. 1007, 45 Am. St. Rep. 696; Banzer v. Banzer, 11 Misc. Rep. 310, 32 N. Y. Supp. 266. ooEwing V. Barnes, 156 111. 61, 40 N. B. 325; Burton v. Gagnon, 180 111.. 345, 54 N. B. 279; Galligan v. McDonald, 200 Mass. 299, 86 N. E. 304, 128 Am.. St. Rep. 421. So with a subsequent provision appointing a trustee to controlt §§ 122-123) ESTATES IN FEB 413 there was a limitation in event of the first taker in fee not selling the land to a certain person."^ For the same reason an attempted restraint upon the alienation of an estate given in fee is void/'' as where a fee is given, with the provision that the devisee should not "have power to sell, but may leave the same to her children." " The principle has, of course, no application to a qualified fee.'* General Devise, with Power of Disposition Where a devise is made in general terms, without specifically in- dicating the extent of the interest, and the gift is coupled with an unconditional power of disposition in the devisee, the latter is re- garded as taking an estate in fee,°° and any limitation over is void.°® But a power to dispose of the property with the consent of an- other,"' or a power to dispose of the property by will,"' does not the property for the lives of the persons to whom it had already been given In fee. Dulin v. Moore (Tex. Civ. App.) 69 S. W. 94. 51 Rea V. Bell, 147 Pa. 118, 23 Atl. 349. 62 AUen V. Craft, 109 Ind. 476, 9 N. B. 919, 58' Am. Rep. 425 ; Goldsmith v. Petersen, 159 Iowa, 692, 141 N. W. 60; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Turner v. Savings Institution, 76 Me. 527; Manierre v. Welling (1911) 32 R. 1. 104, 78 Atl. 507, Ann. Cas. 1912C, 1311. es Melntyre v. Mclntyre, 123 Pa. 329, 16 Atl. 783, 10 Am. St. Rep. 529. B4 Godwin v. Banks, 87 Md. 425, 40 Atl. 268. B5 Muhlke V. Tiedemann, 177 111. 606, 52 N. B. 843; Rogers v. Winklespleck, 143 Ind. 373, 42 N. B. 746; Robbins' Ex'r v. Robbins (Ky.) 9 S. W. 254; Con- stantine v. Moore (Ky.) 62 S.W. 1016; Smith v. Smith (Ky. 1903) 72 S. W. 766; Barnett v. Bamett, 117 Md. 265, 83 Atl. 160, Ann. Cas. 1913B, 1284; Veeder v.Meader, 157 Mass. 413, 32 N. E. 358; Clusky v. Bums, 120 Mo. 567, 25 S. W. 585; Knight v. Knight, 162 Mass. 460, 38 N. E. 1131; Foster v. Smith, 156 Mass. 379, 31 N. B. 291 ; .Loosing v. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (N. S.) 920; Rodenfels v. Schumann, 45 N. J. Bq. 383, 17 Atl. 688; Kief el v. Keppler, 173 Pa. 181, 33 Atl. 1043; GOOD v. FICHTHORN, 144 Pa. 287, 22 Atl. 1032, 27 Am. St. Rep. 630, Dunmore Cas. Wills, 250; Bank of Charleston v. Dowling, 52 S. C. 345, 29 S. B. 788; Wooten v. Reed (Tenn. Ch. App.) 53 S. W. 991; Crutchfield v. Greer, 113 Va. 232, 74 S. E. 166. An undefined power to sell means power to sell in fee. Herminger v. Hen- ninger, 202 Pa. 207, 51 Atl. 749; Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct." 945, 38 L. Ed. 747. 06 Wolfor V. Hemmer, 144 111. 554, 33 N. E. 751; Cameron v. Parish, 155 Ind. 329, 57 N. E. 547; Hammond v. Croxton and. App.) 61 N. E. 596; Logan v. Siu's, 28 Ind. App. 170, 62 N. E. 459 ; Hambel v. Hambel, 109 Iowa, 459, 80 N. W. 528; Law v. Douglass, 107 Iowa, 606, 78 N. W. 212; Clay v. Chenault, 108 Ky. 77, 55 S. W. 729; Earth v. Barth (Ky.) 38 S. W. 511; I^rd v. Pearson, 108 Me 565 83 Atl. 1102; Benz v. Fabian, 54 N. J. Eq. 615, 35 Atl. 760; Mc- Clellan v. Larchar, 45 N. J. Eq. 17, 16 Atl. 269; Griswold v. Warner, 51 Hun 12 3 N. T. Supp. C88; In re Gardner, 140 N. Y. 122, 35 N. E. 439; In re Jones, 67 Law J. Ch. 211, 1 Ch. 438, 78 Law T. (N. S.) 74. See, however, Gibson v. Gibson (1912) 239 Mo. 490, 144 S. W. 770. B7 GrefiEet v. Willman, 114 Mo. 106, 21 S. W. 459. Bs Kellers v. Kellers (1912) 79 N. J. Bq. 412, 82 Atl. 94; Morris v. Le Bel, 71 N. J. Bq. 43, 63 Atl. 501. 414 NATUBB AND DTJRATION OP INTERESTS .(Ch. 16 give the first, taker a fee as against a remainderman, and, in some cases, a limitation over js held to reduce what would otherwise be a fee to an estate for life, with power to sell, in consequence bf which the limitation is good, if not defeated by the exercise of the power.'* A devise for the support of the devisee and the testator's chil- dren, with general power of disposition, is not so unqualified as to avoid a limitation over.'" But in no event do the devisees over take any rights in the property as against grantees under a properly ex- ercised power of sale, given to the first taker.*^ Base or Qualified Fee An estate of this character, sometimes termed by the courts a' conditional fee, may be created by will as well as by deed,"^ as in a devise to a daughter, and over to the testator's grandchildren, if she died before either of them,"' or to a daughter, then to such of her children as she may leave surviving,'* or to children, defeasible on their death prior to that of the widow-'' or to a wife with gift over if she remarries." So a devise to a son for life, with no dis- position over except in case the son die without issue, is thereby en- larged to a fee, on issue being born to him, determinable on his dying without issue.*' Far the most numerous class of cases is where an estate is given in fee, defeasible upon the taker's dying without heirs or children or issue. Hete a limitation over takes ef- fect as an executory devise.'' 5» Gruenewald v. Neu, 215 111. 132, 74 N. E. 101. , See Kent v. Morrison, 153 Mass. 137, 26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616; Kellers v. Kel- lers, 80 N. J. Eq. 441, 85 Atl. 340; Fecit v. Henze (1910) 162 Mich. 52, 127 N. W. 26; In re Tyson's Estate, 191 Pa. 218, 43 AtT. 131; Spaan v. Anderson, 115 Iowa, 121, 88 N. W. 200. No really satisfactory reason has been given for the prevailing view that a gift of land in general terms coupled with an unrestricted power of aliena- tion cannot be. cut down 'by an executory devise over. Such a rule frequently defeats the intention of testator and is not rendered necessary on any ground of policy. For a careful discussion of this question, see Gray, Restraints on Alienation (2d Ed.) § 74. 6 Gordon v. Gordon (Tenn. Ch. App.) 46 S. W. 357; King v. Bock, 80 Tex. 156, 15 S. W. 804. Compare Speyer v. McNamara's Adm'r, 144 Ky. 774, 139 S. W. 1092. 61 Hovey V. Walbank, 100 Cal. 192, 34 Pac. 650. 92 Corey v. Springer, 138 Ind. 506, 37 N. E. 322; Burden v. Lipsitz, 166 N. C. 523, 82 S. E. 863. 83 Pulse V. Osborn, 30 Ind. App. 631, 64 N. E. 59. 8* Harrison v. Weatherby, 180 111. 418, 54 N. E. 237. 6 Corey v. Springer, 138 Ind. 506, 37 N. E. 322. 66 Becker v. Becker, 206 111. 63, 69 N. E. 49. er Nott V. Fitzgibbon, 107 Tenn. 54, 64 S. W. 26. esNewsom v. Holesapple, 101 Ala. 682, 15 South. 644; Gay v. Dibble, 72 Conn. 590, 45 Atl. 359 ; Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286, 12 Am. §§ 122-123) ESTATES IN FEB 415 Rule in Shelley's Case According to the rule in Shelley's Case," when the ancestor, by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or imme- diately, to his heirs in fee or in tail, the word "heirs" is a word of limitation of the estate, and not of purchase. This rule of proper- ty, well settled at common law, but wholly indefensible under mod- ern conditions, whatever may be said historically in its defense, still prevails in a number of jurisdictions.''" The rule applies to a devise giving a life estate to the ancestor, and the remainder to the heirs, where it does not appear that the word "heirs" is used in any other than its legal sense, without regard to the intention of the testator,''^ and notwithstanding his expressed intent that the an- cestor should have only a life estate,"* facts which find illustration in numerous cases.'' And the word "issue" has been held equiva- St. Rep. 305 ; Daniel v. Daniel, 102 Ga. 181, 28 S. E. 167; Koeffler v. Koef- fler, 185 111. 261, 56 N. E. 1094 ; Lombard v. Witbeck, 173 111. 396, 51 N. E. 61; Bradsby v. Wallace (1903) 202 111. 239, 66 N. E. 1088; Summers v. Smith, 127 111. 645, 21 N. E. 191 ; Teal v. Richardson (1903) 160 Ind. 119, 66 N. E. 435 ; Pate V. French, 122 Ind. 10, 23 N. E. 673; Jordan v. Hinkle, 111 Iowa, 43, 82 N. W. 426; Wells v. Offutt (Ky.) 53 S. W. 530; Collins v. Thompson (Ky.) 43 S. W. 227; Dorsey's Committee v. Maddox, 103 Ky. 253, 44 S. W. 632; Harper V. Baird (Ky.) 35 S. W. 638; Anderson v. Brown, 84 Md. 261, 35 Atl. 937; Welch V. Brimmer, 169 Mass. 204, 47 N. m. 699; Dunlap v. Eant, 74 Miss. 197, 20 South. 874; Gannon v. Pauk, 200 Mo. 75, 98 S. W. 471 ; In re Barrett's Es- tate, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047; Brooks v. Kip, 54 N. J. Eq. 462, 35 Atl. 658; Steward v. Knight, 62 N. J. Eq. 232, 49 Atl. 535; In re New York, L. & W. Ry. Co., 105 N. Y. 89, 11 N. E. 492, 59 Am. Rep. 478; Morehouse v. Morehouse, 161 N. Y. 654, 57 N. E. 1118; Durfee v. MacNeil, 58 Ohio St 238, 50 N. E. 721 ; Stoner v. Wunderlich. 198 Pa. 158, 47 Atl. 945 ; Powers V. Bullwinkle, 33 S. C. 293, US. E. 971; Thomson v. Peake,'38 S. 0. 440, 17 S. E. 45, 725; First Nat. Bank v. De Pauw (C. O.) 75 Fed. 775; Dent v. Pickens, 61 W. Va. 488, 58 S. E. 1029. 8» 1 Coke, 94b. 7 Winter v. Dibble, 251 111. 200, 95 N. E. 1093; Teal v. Richardson, 160 Ind. 119, 66 N. E. 435 ; Wool v. Fleetwood, 136 N. C. 460, 48 S. E. 785, 67 L. R. A. 444; Steel v. Linn, 232 Pa. 18, 81 Atl. 92 ; Seay v. Cockrell (1909) 102 Tex. 280, 115 S. W. 1160. 71 Lippincott v. Davis, 59 N. J. Law, 241, 28 Atl. 587; Ahl v. Liggett, 246 Pa. 246, 92 Atl. 202. • The rule does not apply ' where it appears that testator used the word "heirs" as meaning children. Rowe v. Moore, 89 S. C. 561, 72 S. E. 468. 72 Van Olinda v. Carpenter, 127 111. 42, 19 N. E. 868, 2 L. R. A. 455, 11 Am. St. Rep. 92 ; Leonard v. Leister, 233 Pa. 475, 82 Atl. 753. A "loan" to one for life, with a devise over to his heirs at his death, passes the fee where the rule in Shelley's Case obtains. Robeson v. Moore, 168 N. C. 388, 84 S. E. 351, L. R. A. 1915D, 496. 78 Holt V. Pickett, 111 Ala. 362, 20 South. 432 ("to be equally divided be- tween the heirs of the body" of the first taker); Sims v. Georgetown College, 1 App. D. C. 72 (to the heirs, "share and share alike") ; Silva v. Hopkinson, 158 416 NATURE AND DURATION OF INTERESTS (Ch. 16 lent to "heirs" for this purpose; ^* so, also, with "nearest heirs." '" When a devisee takes a fee under this rule, a devise over in event of failure of issue is invalid.'* But the rule does not apply when a re- mainder in the legal estate is limited to the heirs over an equitable life estate," nor where the remainder is limited to certain heirs only,'* or to children,'* or to "isstie," when the word is used as meaning children.'" In Indiana, while recognized, it is said that the rule will not be allowed to defeat the plain intention of the testa- Ill. 386, 41 N. E. 1013 (accord); Vangieson v. Henderson, 150 111. 119, 36 N. E. 974; Hageman v. Hageman, 129 lU. 164, 21 N. E. 814 ("to their heirs after them"); Teal v. Richardson (1903) 160 Ind. 119, 66 N. E. 435; Bonner v. Bon- ner, 28 Ind. App. 147, 62 N. E. 497 ; Perkins v. McConnell, 186 Ind. 384, 36 N. E. 121 ("to lawful heirs") ; Leathers v. Gray, 101 N. C. 162, 7 S. E. 657, 9 Am. St. Rep. 30 ("to the begotten heirs or heiresses" of the first taker) ; Shoup v. De Long, 190 Pa. 331, 42 Atl. 680 ("after his death, to his heirs and legal rep- resentatives") ; Little's Appeal, 117 Pa. 14, 11 Atl. 520; Bassett v. Hawk, 118 Pa. 94, 11 Atl. 802; Henderson v. Walthour (Pa.) 15 Atl. 893; Reutter v. Mc- Call, 192 Pa. 77, 43 Atl. 398 ; Serfass v. Serfass, 190 Pa. 484, 42 Atl. 888 ("to her heirs or next of kin"); McCann v. Barclay, 204 Pa. 214, 53 Atl. 767; Hie- ster V. Terger, 166 Pa. 445, 31 Atl. 122 ("unto his then surviving heirs") ; Eby V. Shank, 196 Pa. 426, 46 Atl. 495 ; Simms v. Buist, 52 S. C. 554, 30 S. E. 400; Brown v. Bryant, 17 Tex. Civ. App. 454, 44 S. W. 399; Grant v. Squire, 2 Ont. Law Rep. 131. 7* Grimes v. Shirk, 169 Pa. 74, 32 Atl. 113; Armstrong v. Michener, 160 Pa. 21, 28 Atl. 447. Contra: Boykln v. Ancrum, 28 S. C. 486, 6 S. E. 305, 13 Am. St. Rep. 608. But not when limitation is to "surviving issue." Hill v. Giles, 201 Pa. 215, 50 Atl. 758. Where entails have not been abolished, a devise to A. for life and remain- der to his issue would create an estate taU. Doe d. Cannon v. BuCastle, 8 C. B. (65 E. C. L.) 876. T5 Ryan V. Allen, 120 111. 648, 12 N. E. 65. The words "nearest blood relatives" are not synonymous with "heirs," so as to pass a fee in a devise to A. for life and then to his "nearest blood rela- tives." Miller v. Harding, 167 N. C. 53, S3 S. E. 25. 7 8 Travers v. Wallace, 93 Md. 507, 49 Atl. 415. 77 Appeal of Reading Trust Co., 133 Pa. 342, 19 Atl. 552; Howard v. Trus- tees, 88 Md. 292, 41 AtJ. 156; Gadsden v. Desportes, 39 S. C. 131, 17 S. E. 706; Vogt V. Graff, 222 TJ. S. 404, 32 Sup. Ct. 134, 56 L. Ed. 249. 7 8 In re Kuntzleman's Estate, 136 Pa. 142, 20 Atl. 645, 20 Am. St. Rep. 909; McCann v. McCann, 197 Pa. 452, 47 Atl. 743, 80 Am. St. Rep. 846 ; Jones v. Jones, 201 Pa. 548, 51 Atl. 362 (to "nearest male heirs"); Foxwell v. Van Gnitten, 78 Law T. (N. .S.) 231. So the rule is not applicable where devise is to one for life with remainder "to his lawful heirs, born of his wife." Thompson v. Crump, 138 N. C. 32, 50 S. E. 457, 107 Am. St. Rep. 514. 7 8 Connor v. Gardner, 230 111. 258, 82 N. E. 640, 15 L. R. A. (N. S.) 73; In re Giffln's Estate, 138 Pa. 327, 22 Atl. 91; Foster v. McKenna (Pa.) 11 Atl. 674 ; Collins v. Williams, 98 Tenn. 525, 41 S. W. 1056. But if the limitation be to children, or. In default of children, to his legal heirs, the rule operates. Brintc(n v. Martin, 197 Pa. 615, 47 Atl. 841. 80 Faison v. Odom, 144 N. O. 107, 56 S. E. 793; Peirce v. Hubbard 152 Pa 18, 25 Atl. 231. §§ 122-123) ESTATES IN FEE ■ 417 tor.«^ ^And where the intent of the testator is to create an inde- pendent estate in the remaindermen, not resting or based on any es- tate in their ancestor, the rule is not applicable.*'' In many states, by statute, the rule has been wholly abolished in the case of both wills and deeds, while in others it has been abrogated in so far as it affects the construction of wills. Estates Tail The technical language to be used in creating an estate of this character by will is by a devise to one and the "heirs of his body," " and it may be created by implication, when there is a devise over upon the first taker's dying without heirs of the body when no spe- cific estate is, in terras, given to such taker.** But any language clearly indicating the testator's intent is enough, as in the case of a devise to one and "his heirs, entail," " or by limitation over on fail- ure of "lawful heirs," when it is manifest that the words were used as meaning "lineal heirs," '° or to his issue,* ^ or by implication from a limitation over upon failure of issue understood as indicating in- definite failure,** and so with failure of offspring*' or family.'" 81 Millett V. Ford, 109 Ind. 159, 8 N. E. 917. See Earnhart v. Eamhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St Rep. 652. 82 Wyman v. Jolinson, 68 Ark. 369, 59 S. W. 250. 83 Rhodes r. Bouldry, 138 Mich. 144, 101 N. W. 206; Stansbury v. Hubner, 73 Md. 228, 20 Atl. 904, 11 L. R. A. 204, 25 Am. St. Rep. 584; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796; Boyd v. Weber, 193 Pa. 651, 44 Atl. 1078; Ralston T.Truesdell, 178 Pa. 429, 35 AU.. 813; Shalters v. Ladd, 141 Pa. 349, 21 Atl. 596 ; Pearsol v. MaxweU, 22 C. C. A. 262, 76 Fed. 428. To create an estate tall, some words of procreation to indicate the body from which the heirs are to proceed must be used or necessarily Implied from the language of the will. Webbe v. Webbe, 234 111.442, 84 N. E. 1054, 17 L. R. A. (N. S.) 1079 (where court refused to treat the words "personal and law- ful heirs" as equivalent to "heirs of the body begotten"), 84 Chesebro v. Palmer, 68 Conn. 207, 36 Atl. 42; Bailey v. Hawkins, 18 R. I. 573, 27 Atl. 512, 29 Atl. 65; Holden v. Wells, 18 R. I. 802, 31 Atl. 265; Beil- stein V. Beilstein, 194 Pa. 152, 45 Atl. 73, 75 Am. St. Rep. 692; Crumpe v. Crumpe, 69 Law J. P. C. 7, [1900] App. Cas. 127, 82 Law T. (N. S.) 130. 85 DOTY V. TELLER, 54 N. J. Law, 163, 23 Atl. 944, 33 Am. St Rep. 670, Dunmore Cas. Wills, 252. 86 Titzell V. Cochran (Pa.) 10 Atl. 9. 8T pifer V. Locke, 205 Pa. 616, 55 Atl. 790 ; Cochran v. Cochran, 127 Pa. 486, 17 Atl. 981. 8 8 St John V. Dann, 66 Conn. 402, 34 Atl. 110; Horton v. Upham, 72 Conn. 29, 43 Atl. 492; Hertz v. Abrahams, 110 Ga. 707, 36 S. B. 409, 50 L. R. A. 361; Reinoehl v. Shirk, 119 Pa. 108, 12 Atl. 806; Palethorp v, Palethorp, 194 Pa. 408, 45 Atl. 322 ; Brown v. Addison Gilbert Hospital, 155 Mass. 323, 29 N. E. 625; Stouch V. Zeigler, 196 Pa. 489, 46 Atl. 486; Ray v. Alexander, 146 Pa. 242, 23 Atl. 383. 8 8 Barber v. Railroad Co., 166 V. S. 83, 17 Sup. Ct 488, 41 L. Ed. 925. •0 Beilstein v. Beilstein, 194 Pa. 152, 45 Atl. 73, 75 Am. St Rep. 692. Gard.Wills (2d Ed.) — ^27 418 NATUllE AND DURATION OF INTERESTS (Ch. 16 Where a devise is made to a person and his children, there being no children at the date of the will,°^ or the word being clearly used in the sense of issue or descendants irrespective of their existence,*'' a fee tail results, and it may i also arise from implication from a limita- tion over upon the death of the first taker without children.'' Much of the common-law learning respecting estates tail has be- come obsolete in consequence of the general adoption of statutes whose effect is to substantially abolish estates of this character ei- ther by converting them into fees simple, or enabling the first taker to bar the entail by a conveyance in fee, or converting the estate of such taker into a life'estate with remainder in fee to the persons who would take at his death. ESTATES FOR LIFE 124. Where the common-law rule still holds, a devise of realty passes only a life estate, in the absence of a clear intent to bestow a greater. Under the usual statutes, however, it is provided that every devise shall be construed to pass all the estate in the land which the testator could devise at the time of his death, unless an intention to pass a less estate appears from the will. The common-law doctrine in this regard has already been dis- cussed."* The most natural and apt words with which to create such an estate are by a direct gift to the beneficiary for his natural life.*" Where these words are used, the estate for life is not en- 81 Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Silliman v. WMtaker, 110 N. C. 89, 25 S. E. 742; East v. Gar- rett, 84 Va. 523, 9 S. E. 1112. This is commonly known as the "rule in Wild's Case," 6 Kep. 17. The rule is one of construction only and aims to give effect to the evident intention of testator to provide for unborn children who might otherwise be barred, if not in being at the time of distribution. Although generally followed, it has recently been held to be inapplicable in Pennsyl- vania. Chambers v. Union Trust Co., 235 Pa. 610, 84 Atl. 512. «2 See Hood v. Dawson, 98 Ky. 285, 33 S. W. 75; Sechler v. Eshleman, 222 Pa. 35, 70 Atl. 910; Knoderer v. Merriman (Pa.) 7 AtL 152; Sheeley v. Neid- hammer, 182 Pa. 163, 37 Atl. 939. sscaulk's Lessee v. Caulk, 3'Pennewill (Del.) 528, 52 Atl. 340; Richardson V. Richardson, 80 Me. 585, 16 Atl. 250. »* Ante, p. 407. See, also, McAleer v. Schneider, 2 App. D. O. 461; Mulvane V. Rude, 146 Ind. 476, 45 N. E. 659. |>6 See Holt v. Pickett, 111 Ala. 362, 20, South. 432 ("I lend to my daughter during her natural life," etc.); Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061; Cochran v. Hudson, 110 Ga. 762, 36 S. E. 71 ; Lomax v. Shinn,, 162 111. 124, 44 N. E. 495; Morrison v. Schorr, 197 111. 554, 64 N. E. 545; Rusk v. Zuck, 147 Ind. 388, 45 N. E. 691, 46 N. E. 674 ; Cain v. Robertson, 27 Ind. App. 198, 61 N. E. 26; Smith v. Runnels, 97 Iowa, 55, 65 N. W. 1002; Call v. Shewma'ker 8 124) ESTATES FOE LIFE 419 larged by a limitation over of what remains undisposed of after the death of the first taker/* nor by a power of disposal granted to the life tenant," nor by a charge imposed upon the life estate, such as the payment of legacies or the support of another,** nor by limita- tion over to the life tenant upon the failure of an intermediate vested remainder; »* but a devise of a life estate, coupled with a devise of the remainder to the same beneficiary, vests a fee simple in the dev- isee, there being no intermediate estate.^ Words indicating an intention to create a life estate will not be construed to pass a fee (Ky.) 69 S. W. 749; Webster v. Brown (Ky. 1903) 72 S. W. 774; Montgomery v. Montgomery (Ky.) 11 S. W. 596; Barnes v. Boardman, 149 Mass. 106, 21 N. E. 308, 3 L. R. A. 785; Sanborn v. Sanborn, 62 N. H. 631 ; May v. Lewis (1903) a32 N. O. 115, 43 S. E. 550; Winchester r. Hoover, 42 Or. 310, 70 Pac. 1035; In re Ri,tter's Estate, 148 Pa. 577, 24 Atl. 120; Vaughan v. Bridges, 61 S. C. 155, 39 S. E. 347; Overton v. Trust Co. (1903) 110 Tenn. 50, 72 S. W. 108; Morris v. Eddins, 18 Tex. Civ. App. 38, 44 S. W. 203 ; Robertson v. Hardy'a Adm'r (Va.) 23 S. E. 766 (where- the word "lend" was used); In re Amos [1891] 3 Ch. 159. »6 Pendley v. Madison's Adm'r, 83 Ala. 484, 3 South. 618; Burns v. Bums (1903) 132 Mich. 441, 93 N. W. 1077 ; Walker v. Pritehard, 121 111; 221, 12 N. B. 336; Bradshaw v. Butter, 33 Ky. Law Rep. 531, 110 S. W. 420; Bramell V. Cole, 136 Mo. 201, 37 S. W. 924, 58 Am. St. Rep. 619; Paul v. Dole, 70 N. H. 593, 49 Atl. 572; Jessup v. Fenton, 47 App. Div. 622, 62 N. Y. Supp. 308; ~ Crozier v. Bray, 120 N. Y. 366, 24 N. E. 712; Cox v. Sims, 125 Pa. 522, 17 Atl. 465; Gross v. Strominger, 178 Pa. 64, 35 Atl. 852; Behrens v. Baumann, 66 W. Va. 56, 66 S. B. 5, 27 L. K A. (N. S.) 1092. Here the life tenant is only entitled to the net income of the estate. Stone v. Littlefield, 151 Mass. 485, 24 N. E. 592. 97 Peckham v. Lego, 57 Conn. 553, 19 Atl. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130; Neely v. Boyce, 128 Ind. 1, 27 N. B. 169; Jones v. Jones, 93 Ky. 532, 20 S. W. 604 ; WHITTEMORE v. RUSSELL, 80 Me. 297, 14 Atl. 197, 6 AiQ. St. Rep. 200, Dunmore Cas. Wills, 257; McOarty v. Fish, 87 Mich. 48, 49 N. W. 513; In re Hoyt's Estate, 71 Hun, 13, 24 N. Y. Supp. 577; In re Mm- ton's Trust, 160 Pa. 506, 28 Atl. 847 ; In re DuU's Estate, 137 Pa. 112, 20 Atl. 418 ; Park's Adm'r v. Society, 62 Vt. 19, 20 Atl. 107; Thrall v. Spear, 63 Vt 266, 22 Atl. 414; Lee v. Law (Va.) 19 S. E. 255; Johns v. Johns, 86 Va. 333, 10 S. B. 2. See post, p. 422. So, where a life estate Is given to the testator's adopted son, it is not en- larged to a fee by a subsequent provision that he should not be permitted to sell or incumber the property until he should be 25 years old; these words being intended to prevent the son from selling or mortgaging his interest Metzen v. Schopp (1903) 202 111. 275, 67 N. E. 36. esZavitz V. Preston, 96 Iowa, 52, 64 N. W. 668; Anderson v. Ettridge, 125 Mich. 464, 84 N. W. 613; Brendel v. Hansen, 127 Mich. 396, 86 N. W. 951; Curtis V. Fowler, 66 Mich. 696, 33 N. W. 804; Gaukler v. Moran, 66 Mich. 353, 33 N. W. 513 ; Hinkle's Appeal, 116 Pa. 490, 9 Atl. 938; In re Gerhard's Es- tate, 160 Pa. 253, 28 Atl. 684; Loring v. Arnold, 15 R L 428, 8 Atl. 335; Mims V. Hair, 56 S. C. 4, 33 S. E. 729; Henry v. Pittsburgh Clay Mfg. Co., 80 Fed. 485, 25 O. O. A. 581. 98 Everett v. Croskrey, 92 Iowa, 333, 60 N. W. 732. 1 Spencer v. Kimball, 98 Me. 499, 57 Atl. 793. 420 NATURE AND DURATION OP INTERESTS (Ch. 16 merely because the will does not otherwise devise the remainder after life tenant's death.* ' Where no definite estate is, in terms, given to the first taker, a limitation over upon his death is steadily construed as indicating an intent that such taker shall have a life estate,' and such will be the result when an estate is given to the first taker and his heirs, when the plain intent is to confer a life estate, and not to attempt a limi- tation over a previously created fee.* So a devise of an estate dur- ing widowhood," or "widowerhood," * creates a life estate defeasible 2 Criley t. Cassel (1909) 144 Iowa, 685, 123 N. W, 348; Shaner v. WUson, 207 Pa. 550, 56 Atl. 1086. 8 Stone V. McEickron, 57 Conn. 194, 17 Atl. 852 ; Goodrich v. Pearce, 83 Ga. 781, 10 S. B. 451; Thomas y. Miller, 161 111. ^0, 43 N. B. 848; Schaefer v., Schaefer, 141 111. 337", 31 N. E. 136; Boekemier v. Boekemler, 157 Iowa, 372, 138 N. W. 493; Rice v. Moyer, 97 Iowa, 96, 66 N. W. 94; McGraw v. Miner (Ky.) 15 S. W. 6; Hopper v. Harrod (Ky.) 24 S. W. 870; Defreese v. Lrake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584; Couslno v. Cousino, 86 Mich. 323, 48 N. W. 1084; Eldred v. Shaw, 112 Mich. 237, 70 N. W. 545 ; Greene v. Mallary's Estate, 127 Mich. 119, 86 N. W. 541, 89 N. W. 348; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Schorr v. Carter, 120 Mo. 409, 25 S. W. 538; Harbison v. James, 90 Mo. 411, 2 S. W. 292; Peirsol v. Roop, ,56 N. J. Eq. 739, 40 Atl. 124; Cromwell v. Cromwell, 55 App. Div. 103, 66 N. X. Supp. 1063 ; Ketcham v. Ketcham, 66 Hun, 608, 22 N. Y. Snpp. 8 ; Smathers V. Moody, 112 N. C. 791, 17 S. E. 532; Howell v. Knight, 100 N. C. 254, 6 S. B. 721; Taylor v. Bell; 158 Pa. 651, 28 Atl. 208, 38 Am. St. Rep. 857; Shields v. McAuley (1903) 205 Pa. 45, 54 Atl. 491; Cook v. Dyer, 17 R. I. 90, 20 Atl. 243; Robert v. Ellis, 59 S. C. 137, 37 S. B. 250 ; Nicholson v. Drennan, 35 S. C. 333, 14 S. E. 719; Johnston v. Osmont (Tenn. Ch. App.) 59 S. W. 644; Le Sage v. Le Sage (1903) 52 W. Va. 323, 43 S. E. 137 ; Robinson v. Robinson, 89 Va. 916, 14 S. E. 916; In re Littleworfd's Will, 96 Wis. 608, 71 N. W. 1047; In re Ken- iston's Will, 73 Vt 75, 50 Atl. 558. * See Shalters v. Ladd, 163 Pa. 509, 30 Atl. 283 (where a devise was to the testator's daughter and to her heirs, for her sole use, she to receive the profits thereof, and after her death the same to vest in her lawful issue) ; Appeal of Geiger (Pa.) 16 Atl. 851 (where by the first clause of the Will the testator gave all his property, real and personal, to his wife and her heirs. The executors were authorized to sell any of the property to pay debts, following which was a provision that "after the death of my wife the property, both real and per- sonal, shall be sold, and all my just debts paid, and the remainder of the money to be equally shared among my children." Held, that the wife took a life estate only). ' 6 Fields V. Bush, 94 Ga. 664, 21 S. E. 827; Kratz v. Kratz, 189 111. 276, 59 N. E. 519; Rose v. Hale, 185 111. 378, 56 N. E. 1073, 76 Am. St. Rep. 40; Com- mons V. Commons, 115 Ind. 162, 16 N. E. 820, 17 N. E. 271; Russell v. Werntz, 88 Md. 210, 44 Atl. 219; Fuller v. Wilbur, 170 Mass. 506, 49 N. E. 916; Peck V. Griffis, 148 Mich. 682, 112 N. W. 722; Dubois v. Van Valen, 61 N. J. Bq. 331, 48 Atl. 241; Rausch v. Rausch (Sup.) 31 N. T. Supp. 786; In re McClure, ' 136 N. Y. 238, 32 N. B. 758; In re Brooks' Will, 125 N. C. 136, 34 S. E. 265; Patton V. Church, 168 Pa. 321, .31 Atl. 1079; Vaughan v. Vaughan's Ex'x, 97 Va. 322, 33 S. B. 603. 6 Greenhalgh v. Marggraff, 55 Hun, 605, 7 N. Y. Supp. 728. § 124) ESTATES FOE LIFE 421 by a second marriage ; and the same rule applies to a devise to one so long as she shall remain single,' when such devise is not re- garded as imposing an undue restraint upon marriage.* But a devise of land to children, "allowing my wife the use and mainte- nance of said property * * * so long as she remains a widow," imposes a charge upon the land for the benefit of the widow rather than a life estate therein.* A devise for the use, support, or benefit of the beneficiary creates a life estate in him,^° as does also a gift giving the taker the right to sell and use as much of the estate as is necessary for her comfort, with remainder over,^^ or a gift of a house to a wife "as a homestead for her and my children by her," ^^ or a devise of the possession, use, and management of lands during the devisee's natural life." And a devise to a son, not subject to sale or liability for debts, to descend to his bodily heirs, with limi- tation over, creates in the son a life estate only,^* as does a devise tor the "term of five years or longer." ^° A gift of a "dowry" in real estate,*' or a devise making a "loan in lieu of dower," *' confers , a life estate. And frequently a gift to a husband or wife, with a clear intent that the children shall also have an interest therein, is construed as creating a life estate in the spouse, with remainder in the children, when the will calls for construction at all.** 1 Euggles V. Jewett, 213 Mass. 167, 99 N. E. 1092 ; Maddox v. Toe, 121 Md. 288, 88 All. 225, Ann. Cas. 1915B, 1235; Ferris v. Ferris, 10 Misc. Eep; Sl7, 30 N. Y. Supp. 951; Graham v. Heidrick (1903) 204 Pa. 238, 53 Atl. 1002; Furbee v. Furbee, 49 W. Va. 191, 38 S. E. 511. « See post, p. 464. » Jackson v. Jackson, 56 S. C. 346, 33 S. E. 749. 10 Byrne v. McGratli, 130 Cal. 316, 62 Pac. 559, 80 Am. St. Rep. 127; Koenig v. Kraft, 87 Ky. 95, 7 S. W. 622, 12 Am. St. Rep. 463 ; Mayes v. Earn (1903) 115 Ky. 264, 72 S. W. 1111; Chase v. Ladd, 155 Mass. 417, 29 N. E. 637; Langley v. TUton, 67 N. H. 88, 36 Atl. 610; Oyster v. KnuU, 137 Pa. 448, 20 Atl. 624, 21 Am. St Rep. 890; In re Nevins' Estate, 192 Pa. 258, 43 AU. 996. Semble: AUen v. Boomer, 82 Wis. 364, 52 N. W. 426. n Hatch v. Calne, 86 Me. 282, 29 Atl. 1076. 12 Brand v. Rhodes' Adm'r (Ky.) 30 S. W. 597. Semble: Arrants v. Crumley (Tenn. Oh. App.) 48 S. W. 342. 13 Austin v. Hyndman, 119 Mich. 615, 78 N. W. 663. And so with a will de- vising "to my husband the use and occupancy of the lower half of the store as now occupied by him." Wilson v. Curtis, 90 Me. 463, 38 Atl. 365. 1* Turner v. Hause, 199 111. 464, 65 N. B. 445 (where estate tail not recog- nized). IB Dow V. Abbott, 197 Mass. 283, 84 N. E. 96. 18 Wendler v. Lambeth, 163 Mo. 428, 63 S. W. 684. A life estate Is created by a devise of a "life right," a "dower of use," or of "benefits and profits." Goldsboro Lumber Co. v. Hines Bros. Lumber Co., 153 N. C. 49, 68 S. E. 929. 17 Britt V. Rawlings, 87 Ga. 146, 13 S. E. 336. 18 See Anderson v. Anderson, 191 111. 100, 60 N. B. 810 (where property was 422 NATURE AND DURATION OF INTERESTS (Ch. 16 Life Estate Coupled with General Power of Disposition A general power of disposition includes a power to dispose of the property by deed or will, and practically clothes the donee with all functions of ownership. In view of this fact, it has occasionally been provided by statute, and a few courts have reached the conclu- sion, without the help of the legislature, that the devisee of a life estate, with a general power of disposition, takes a fee simple,^*' and that a limitation over is void.^° But, on principle and by the overwhelming weight of authority, no fee results fro'm the union of the life estate and the power, but both remain distinct, and the limitation over is good unless defeated by the exercise of the power by the life tenant."^ But, in applying the rule against perpetuities, given to the husband, "to hold unto my or our son's, his heirs and assigns") ; Shannon v. Bonham, 27 Ind. App. 369, 60 N. E. 951; Frank v. Unz, 91 Ky. 621, 16 S. W. 712 (where the devise was to a wife "for her own use and the benefit of our children forever") ; Adams v. Adams (Ky.) 47 S. W. 335 (to a daughter "and her children in their exclusive right") ; Swarthout v. Swart- hout, 111 Wis. 102, 86 N. "W. 558 ; Chadwick v. Wilson, 73 Hun, 485, 26 N. T. Supp. 394. 19 Hood V. Bramlett, 105 Ala. 660, 17 South. 105 (under Code Ala. 1886, § 1852, providing that in all cases where an absolute power of disposition is given to the owner of a particular estate, unaccompanied by any trust, and no estate is limited on the estate of the donee of the power, he is entitled to an absolute fee); Byrne v. Weller, 61 Ark. 366, 33 S. W. 421; Deegan v. Wade, 144 N. Y. 573, 39 N. E. 692 (under 3 Birdseye, Bev. St. p. 3036, § 129); Smith V. Floyd, 71 Hun, 56, 24 N. Y. Supp. 610; In re Moehring, 154 N. Y. 423, 48 N. E. 818; Hershey v. Bank, 71 Minn. 255, 73 N. W. 967 (under Gen. St. Minn. 1894, § 4309) ; McKnight v. McKnight (1908) 120 Tenn. 431, 115 S. W. 134; Randall v. Harrison, 109 Va. 686, 64 S. E. 992; Bing v. Burrus, 106 Va. 478, 56 S. E. 222. The decisions which, in the absence of statute, hold that a fee passes when a general power of disposition is coupled with a life estate, seem to be clearly erroneous. They result from a failure to distinguish between a power to dis- pose of another's property, which excludes the idea of ownership, and the power of disposal which is necessarily incident to all ownership in fee. See Burleigh v. Clough, 52 N. H. 267, 271, 13 Am. Rep. 23. 20 Hair v. Caldwell, 109 Tenn. 148, 70 S. W. 610. Compare Young v. Insur- ance Co., 101 Tenn. 311, 47 S. W. 428. 21 MorfEew v. Railroad Co., 107 Cal. 587, 40 Pae. 810; Adams v. LlUi- bridge, 73 Conn. 655, 49 Atl. 21; Mansfield v. Shelton, 67 Conn. 390, 35 Atl. 271, 52 Am. St Rep. 285; Kirkpatrick v. Kirkpatrick, 197 111. 144, 64 N. E. 267; Walker v. Pritchard, 121 111. 221, 12 N. B. 836; SKINNER v. McDOW- ELL, 169 111. 365, 48 N. E. 310, 61 Am. St. Rep. 183, Dunmore Cas. Wills, 255; Waif or V. Hemmer (111.) 28 N. E. 806; Wiley v. Gregory, 135 Ind. 647, 35 N. E. 507; Eubank v. Smiley, 130 Ind. 393, 29 N. E. 919; Rusk v. Zuck, 147 Ind. 388, 45 N. B. 691, 46 N. E. 674; Podaril v. Clark, 118 Iowa, 264, 91 N. W. 1091 ; Ernst v. Foster, 58 Kan. 438, 49 Pac. 527 ; Graham v. Botner (Ky.) 37 S. W. 583; Payne v. Johnson's Ex'rs, 95 Ky. 175, 24 S. W. 238, 609; McCul- lough's Adm'r v. Anderson, 90 Ky. 126, 13 S. W. 353, 7 U R. A. 836 ; Loeb v. Struck (Ky.) '42 S. W. 401; Brady v. Brady, 78 Md. 461, 28 Atl. 515; Collins § 124) ESTATES FOE LIFE 423 such a devisee is regarded as having the absolute estate.*'' The power, properly exercised, conveys to the taker a clear title as against the remainderman.=" The devise of property for life, to be disposed of as the devisee shall deem proper at his decease, bestows an absolute power of ap- pointment by deed or will.^* A power, conferred in terms, may be defeated by other language in the will disclosing the testator's intention, as where a devise was made for life, to be "hers in the full sense of ownership, even so far that she is empowered to sell, mortgage, or divide the same, * * * but this shall not be so understood as that my said wife has the right to divide the property herein named among persons not kindred to me, to the disadvantage of our children, but they shall, after her death, divide the estate among them equally," it being held that the wife took a life estate only.^" 'A power to sell does not include a power to devise.^* A devise of a life estate, the property to be disposed of "at the discretion" of the life tenant, and "at her decease to go to my nearest of kin," limits the power of dis- position to transfers during life and not by will.'" But a power in such life tenant to dispose of the land at her pleasure at her death V. Wickwire, 162 Mass. 143, 38 N. E. 365 ; Sawin v. Cormier, 179 Mass. 420, 60 N. E. 936; Semper v. Coates, 93 Minn. 76, 100 N. W. 662; Evans v. Folks, 135 Mo. 397, 37 S. W. 126; McMillan v. Farrow, 141 Mo. 55, 41 S. W. 890; Kedman v. Barger, 118 Mo. 568, 24 S. W. 177; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52; Shapleigh y. Shaplelgh, 69 N. H. 577, 44 Atl. 107; Eobeson v. Shotwell, 55 N. J. Eq. 318, 36 Atl. 780; Chewning v. Mason, 158 N. C 578, 74 S. E. 357, 39 L. R. A. (N. S.) 805; Kennedy v. Kennedy, 159 Pa. 327, 28 Atl. 241 (distinguishing Forsythe v. Forsythe, 108 Pa. 129) ; In re TUton, 21 R. I. 426, 44 Atl. 223; Sires v. Sires, 43 S. C. 266, 21 S. E. 115 ; Davis v. Kirk- sey, 14 Tex. Civ. App. 380, 37 S. W. 994 ; Parkinson v. Clarke, 135 Wis. 584, 116 N. W. 229 ; In re Sanford, 70 Law J. Ch. 591, [1901] 1 Ch. 939, 84 Law T. 456. 2 2 Mifflin V. Mifflin, 121 Pa. 205, 15 Atl. 525. See, also, Gray, Rule Against Perp. (3d Ed.) § 524. 2 3 Astiton V. Railroad Co., 78 Minn. 201, 80 N. W. 963; Coats' Ex'r v. Rail- road Co., 92 Ky. 263, 17 S. W. 564. Semble: Livingston v. Koenig, 29 Tex. Civ. App. 398, 50 S. W. 463. 2* Todd V. Sawyer, 147 Mass. 570, 17 N. E. 527; Moseley v. Stewart (Tenn. Ch. App.) 52 S. W. 671; Benesch v. Clark, 49 Md. 497. 2B Bowser v. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714. Semble: In re Stumpenhousen's Estate, 108 Iowa, 555, 79 N. W. 376; Kunz v. Puster, 130 Ind. 277, 29 N. E. 1055. 2 8 Kirkpatrick v. Kirkpatrick, 197 111. 144, 64 N. E. 267; Mooy v. Gallagher, 36 R. I. 405, 90 Atl. 663. 2 7 Keniston v. Mayhew, 169 Mass. 166, 47 N. E. 612; Maun v. MarUn, 172 111. 18, 49 N. B. 706. Semble: Minges v. Mathewson,, 66 App. Div. 379, 72 N. T. Supp. 612. 424 NATUEB AND pURATION OF INTERESTS (Ch. 16 gives power to devise the fee.*' The power to devise may be gen- eral, or it may be limited to devises to certain classes or individ- uals.*" Life Estate Coupled with Limited Power of Disposition Except in certain jurisdictions where a life estate coupled with particular powers of disposal comes within the purview of statutes passed to enable creditors of the life tenant to reach, as fees simple, estates for life with power of disposal where there is no limitation over, it is agreed that such an estate, coupled with a limited power of disposition^ is not thereby enlarged to a fee,^" and that a limita- tion over, in event of the non-exercise of the power, is valid.' ^ The most common instance of this character is Where an estate for life is given to a husband or wife, with power to sell the prop- erty, if need be, for the comfortable support and maintenance of the beneficiary.'* When, under these circumstances, the beneficiary is intrusted with power to dispose of the property as he may deem necessary, he is the absplute judge of the necessity,'' but he must act in good faith, and any unreasonable appropriation to his own 28 Dillon v; Faloon, 158 Pa. 468, 27 Atl. 1082. 29 Smith V. Hardesty, 88 Md. 387, 41 Atl. 788. 8 Glover v. Stillson, 56 Conn. 316, 15 Atl. 752; Bergman v. Arnhold, 242 111. 218, 89 N. E. 1000; Kinkenberger v. Meyer, 155 Ind. 152, 56 N. E. 913; Baldwin v. Morford, 117 Iowa, 72, 90 N. W. 487; Hambel v. Hambel (Iowa) 75 N. W. 673; McConnell v. Wilcox (Ky.) 12 S. W. 469; Hoi sen v. Rockhouse, 83 Ky. 233; Degman v. Degman, 98 Ky. 717, 34 S. W. 523; Baker v. Thomp- son, 162 Mass. 40, 37 N. E. 751; Long v. Waldraven, 113 N. O. 337, 18 S. B. 251 ; In re Schmid's Estate, 182 Pa. 267, 37 Atl. 928 ; Bucklin v. Oreighton, 18 R, I. 325, 27 Atl. 221; Watson v. Watson (Tenn. Ch. App.) 57 S. W. 385; Waller v. Martin, 106 Tenn. 341, 61 S. W. 73, 82 Am. St Rep. 882 ; Hood v. Haden, 82 Va. 588; Smythe v. Smythe, 90 Va. 638, 19 S. E. 175; Newman v. Newman (1906) 60 W. Va. 371, 55 S. E. 377, 7 L. R. A. (N. S.) 370. 81 Whittalier v. Gutheridge, 52 111. App. 460; In re Proctor's Estate, 95 Iowa, 172, 63 N. W. 670; Lee v. Vault Co. (Ky.) 57 S. W. 239; Brad way v. Holmes, 50 N. J. Eq. 311, 25 Atl. 196 ; Dye v. Beaver Creek Church, 48 S. C. 444, 26 S. E. 717, 59 Am. St Rep. 724; MiUer's Adm'r v. Potterfield, 86 Va. 876, 11 S. E. 486, 19 Am. St Rep. 919. 8 2 See Rowe v. Rowe (1903) 120 Iowa, 17, 94 N. W. 258; Baldwin v. Mor- ford, 117 Iowa, 72, 90 N. W. 487 ; Rowley v. Sanns, 141 Ind. 179, 40 N. E. 674 ; Morse v. Inhabitants of Natick, 176 Mass. 510, 57 N. E. 996; Jones v. Deming, 91 Mich. 481, 51 N. W. 1119; Glover v. Reid, 80 Mich. 228, 45 N. W. 91; Wood V. Robertson, 113 Ind. 323, 15 N. E. 457; Jenkins v. Compton, 123 Ind. 117, 23 N. E. 1091; Barker v. Clark, 72 N. H. 334, 56 Atl. 747; Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777. A power to consume the principal of both real and personal estate author- izes donee to convey the real estate. Kennedy v. Pittsburg & L. E. R Co 216 Pa. 575, 65 Atl. 1102. BsHosman v. Willett, 32 Ky. La;w Rep. 906, 107 S. W. 334; Small v. Thompson, 92 Me. 539, 43 Atl. 509. § 124) ESTATES FOK LIFE 425 use may be restrained in equity at the instance of any of the re- maindermen.'* The life tenant cannot make gratuitous cc^nvey- ances'° nor remit the interest on a mortgage belonging to the es- tate,'* nor can he make a gift of notes received on the sale of prop- erty under the. power.'' When the necessity for a sale exists, the grantee, under the power, takes the absolute fee,'* or such title as testator had,'* and the entire property may be conveyed in consid- eration of a life support secured to the beneficiary by her grantee, if she acts in good faith.** Where a life estate is devised, a power in the beneficiary to dis- pose of the property, when necessary for her support, is implied from a limitation over of what may be left at the first taker's death.*^ Thus, where land is devised to a wife "to have for her comfort and support if she needs the same," with provision for a legacy "if there is enough of my property left" at the death of the wife, a mortgage by the wife to secure means for her support is valid.*^ Where an estate is devised for life, a further provision that the devisee cannot alienate or incumber his interest, and that it shall not be subject to attachment or levy, is void as repugnant to the estate created.*' But a provision that a devisee of a life estate shall riot alienate the land devised until he reaches a certain age will not be construed to enlarge such estate to a fee.** Si Little V. Geer, 69 Conn. 411, 37 Atl. 1056. See, also, Embry v. Embry, 31 Ky. Law Eep. 295, 102 S. W. 289. 35 Bevans v. Murray, 251 111. 603, 96 N. E. 546; FarUn v. Sanborn (1910) 161 Mich. 615, 126 N. W. 634, 137 Am. St Rep. 525. This rule applies although the donee is given power to dispose of the prop- erty as she may think proper and although the devise is not in terms given for her support Johnson v. Johnson, 51 Ohio St 446, 38 N. E. 61. 3 6 Greene v. Mallary's Estate, 137 Mich. 119, 86 N. W. 5,41, 89 N. W. 348 (where donee given right to use only what is necessary from aggregate estate). • A life tenant usually has the right to" all the income durmg his life, and may dispose of such income by gift or otherwise. Gibbes v. Watson (1907) 92 Miss. 9, 45 South. 5. 87 Bowser v. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714. 3 8 Warren v. Ingram (1910) 96 Miss. 438, 51 South. 888, Ann. Oas. 1912B, 422 ; Larsen v. J9hnson, 78 Wis. 300, 47 N. W. 615, 23 Am. St Rep. 404. 3 9 Goss V. Withers, 153 Ky. 5, 154 S. W. 398. *o Richardson v. Richardson, SO Me. 585, 16 Atl. 250. 41 In re Foster's Will, 76 Iowa, 364, 33 N. W. 135, 41 N. W. 43; Greenwalt v. Keller, 75 Kan. 578, 90 Pab. 233; Champney v. Bradford (1907) 196 Mass. 259, 81 N. E. 993 ; Kendall v. Case, 84 Hun, 124, 32 N. T. Supp. 553; Leg- gett V. Firth, 132 N. Y. 7, 29 N. E. 950; Kenny v. Keplinger, 89 111. App. 570. 42 Swarthout v. Ranier, 143 N. T. 499, 38 N. E. 726. ' 43 McCormick Harvesting Mach. Co. v. Gates, 75 Iowa, 343, 39 N. W. 657; Hunt V. Hawes, 181 111. 343, 54 N. E. 953. 44 Metzen v. SchofC, 202 111. 275, 67 N. E. 36. 426 NATURE AND DURATION OF INTERESTS (Ch. 16 Where a will gave the testator's property to his wife during her natural life or until she might marry, with a general power of dis- position and limitation over, she was held to take a life estate only, without power of disposal.*" A holding that her subsequent mar- riage would defeat a prior conveyance would apparently have been more in accord with the testator's intention.*" JOINT TENANCY AND TENANCY IN COMMON 125. At common law a devise to two or more persons, unaccom- panied by explanatory words, made them joint tenants. 126. By statute joint tenancies have generally been either abol- ished, or two or more persons taking an estate, whether by deed or will, are made tenants in common, unless they are expressly declared to take as joint tenants, or an in- tention to that end is clearly made to appear. At common law a devise "unto my two sons," naming them, makes them joint tenants of the land devised.*^ Under statutes enacted in many jurisdictions they would take in common.*' At common law a devise to one and his children, there being children living at the time of the devise, carried a joint tenancy.** By statute, or by a refusal to follow the earlier common-law holdings, they would now take as tenants in common. ''" So, where husband and wife would formerly have taken by the entirety, they now com- monly, by statute, are tenants in common.'^ But in most jurisdic- 45 Patty V. Goolsby, 51 Ark. 61, 9 S. W. 846; Douglass v. Sharp, 52 Ark. 113, 12 S. W. 202; Giles v. Uttle, 104 U. S. 291, 26 L. Ed. 745. 46 See Hensler v. Senfert, 52 N. J. Eq. 754, 29 Atl. 202; Tetzer v. Brisse, 190 Pa. 346, 42 Atl. 677. 4T Gaunt V. Stevens, 241 111. 542, 89 N. E. 812; Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 613. 48 In re Kimberly's Estate, 150 N. Y. 90, 44 N. E. 945; C!ohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 Am. St. Kep. 772. In some jurisdictions the common-law doctrine of survivorship as between joint tenants has been repudiated without the aid of a statute. Allen v. Almy (1913) 87 Conn. 517, 89 Atl. 205 ; Sergeant v. Steinberger, 2 Ohio, 305, 15 Am. Dec. 553. 40 Moore v. Gary. 149 Ind. 51, 48 N. E. 630; Noble v. Teeple, 58 Kan. 398, 49 Pac. 598. 00 Whitfield v. Means, 140 Ga. 430, 78 S. E. 1067; New England Mortg. Se- curity Co. v. Gordon, 95 Ga. 781, 22 S. B. 706; Kyte v. Kyte, 73 N. J. Eq. 220, 67 Atl. 933; Hampton v. Wheeler, 99 N. 0. 222, 6 S. E. 236; Lewis v. Standi, 154 N. C. 326, 70 S. E. 621. 01 Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St. Rep. 332; Robin- §§ 125-126) JOINT TENANCY AND TENANCY IN COMMON 427 tions a joint tenancy may still be created, as when property is given to devisees and the survivor of them.°^ Where words of severance are necessary to enable the court to find a tenancy in common,"* the words "all and every" the children of a certain individual are not sufficient."* When the property is to be divided among the beneficiaries "share and share" alike °° or "equally," " they take as tenants in common. So a tenancy in common, under the statute, is created by a devise to a husband and three designated daughters so long as any two of the daughters should remain unmarried,"" or to a son and daughter of property "to be joint property," transferable by the joint deed of "the son and daughter, or either of them may sell their interest in the property" after a certain time,"* or to a son and his wife of a farm "for their use * * * during their natural lives." "^^ Where the statute provides that two or more persons taking an estate shall take as tenants in common, unless they are expressly declared to take as joint tenants, the fact that an estate is devised to two or more devisees "jointly" is not sufficient to sh9w that testator intended the entire estate, to pass to the survivor."" A devise to two specified devisees of "one parcel of land * * * to be divided as follows," specifying the manner of division, and reciting that one of the devisees should have a described portion, gives each an estate in severalty.'^ - But a partial bounding of the portion which one of the devisees is to take does not render them other than tenants in common."" son's Appeal, 88 Me. 17, 33 Atl. 652, 30 L. R. A. 331, 51 Am. St. Rep. 367; American Nat Bank v. Taylor, 112 Va. 1, 70 S. E. 534, Ann. Gas. 1912D, 40. B2 Neal V. Hamilton Co., 70 W. Va. 250, 73 S. E. 971. But not a bequest to two persons "and the longest liver of them." Pierce v. Baker, 58 N. H. 531. B3 In re Yates, [1891] 3 Ch. 53. 5* Binning v. Binning, 13 Rep. 654. BO See Gaunt v. Stevens, 241 111. 542, 89 N. B. 812 ; Bishop v. McClelland's Ex'rs, 44 N. J. Eq. 450, 16 Atl. 1, 1 L. R. A. 551; Shattuck v. Wall, 174 Mass. 167, 54 N. E. 488 ; Hornberger v. Miller, 28 App. Div. 199, 50 N. Y. Supp. 1079 ; Clark V. Clark, 17 Can. S. C. R. 376; Dodds v. Winslow, 26 Ind. App. 652, 60 N. E. 458 (to husband and wife, share and share alike). B6 Blaine v. Dow, 111 Me. 480, 89 Atl. 1126; Hazard v. Stevens, 36 R. I. 90, 88 Atl. 980. ST Dana v. Murray, 122 N. Y. 604, 26 N. B. 21. Bs Rodney v. Landau, 104 Mo. 251, 15 S. W. 962. 69 Miner v. Brown, 133 N. Y. 308, 31 N. B. 24. 8 Mustain v. Gardner, 203 111. 284, 67 N. B. 779; Overheiser r. Lackey, 207 N Y 229, 100 N. E. 738, Ann. Cas. 1914C, 229. 81 Mitchell V. Hoggard, 108 N. C. 353, 12 S. E. 844. Semble: Houck v. Pat- terson, 126 N. 0. 885, 36 S. B. 198. 6 2 Midgett V. Midgett, 117 N. O. 8, 23 S. E. 37; McCamant v. Nuckolls, 85 , Va. 331, 12 S. E. 160. 428 NATURE AND DURATION OF INTBEBSTS (Ch. 16 INTERESTS IN PERSONAL PROPERTY 127. A bequest of personal property, in the absence of an express intent to the contrary, gives the absolute title thereto to the beneficiary. The rule which, by statute, has generally been made to apply to devises, has always been recognized in bequests of personal prop- erty. Words of inheritance are not necessary to give absolute title to bequests." Where there is an unqualified bequest of personal property the same rule applies as in the case of absolute devises,'* and all limitations over whose purpose is not to reduce the interest thus given are void as being repugnant to the estate already creat- ed.*" For the same reason, when the first taker under an unlimited bequest of personalty is given an absolute power of disposition, any further limitation is void."' < Estates tail have never existed in personal property," and words which would create an estate tail in real estate pass an absolute 63 Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659 ; Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219 (a bequest of money to be put at usury, or to the best interests of the church, held an absolute gift to the church) ; Loring v. Hayes, 86 Me. 351, 29 Atl. 1093 (a bequest of a certain amount "to my wife, to be paid to her in cash or in such personal securities as she may select from my es- tate") ; Ellis V. Aldrich, 70 N. H. 219, 47 Atl. 95; Kimble v. White, 50 N. J. Eq. 28, 24 Atl. 400 ; Nye v. Koehne, 22 R. I. 118, 47 Atl. 215 (where money was left in trust "for the sole use of the beneficiary," with no remainder over); Martin v. Fort, 27 C. C. A. 428, 83 Fed. 19 (accord); Gallison v. Quinn (1903) 183 Mass. 241, 66 N. B. 961 (where the bequest was to a legatee, for her sole use and benefit); Twiss v. Simpson (1903) 183 Mass. 212, 66 N. EL 795. So the bequest of the interest or produce of a fund, directly or through a trustee, without limitation as to continuance, is a gift of the fund itself. Hartson v. Elden, 50 N. J. Eq. 522, 26 Atl. 561 ; Angell v. Springfield Home for Aged Women, 157 Mass. 241, 31 N. E. 1064. «* See ante, p. 412. 6 6 Wilson V. Turner, 164 HI. 398, 45 N. E. 820 ; Stimson v. Rountree, 168 Ind. 169, 78 N. E. 331, 80 N. E. 149 ; Talbot v. Snodgrass, 124 Iowa, 681, 100 N. W. 500; Snedeker v. Congdon, 41 App. Div. 433,. 58 N. Y. Supp. 885; Cooke V. Bucklin, 18 R. I. 666, 29 Atl. 840; In re Engel's Estate, 180 Pa. 215, 36 Atl. 727; Cox V. Anderson's Adm'r (Ky.) 69 S. W. 953; Rebman v. Dierdorff, 186 Pa. 401, 40 Atl. 517; In re Kimball's Will, 20 R. I. 619, 40 Atl. 847; In re El- liott, [1896] 2 Ch. 353. 6 6 Lord V. Pearson, 108 Me. 565, 83 Atl. 1102; Young v. Robinson, 122 Mo. App. 187, 99 S. W. 20 ; Meacham v. Graham, 98 Tenn. 190, 39 S. W. 12 ; Rob- ertson V. Hardy's Adm'r (Va.) 23 S. E. 766. This rule has, however, been held to be only one of construction and not one of law. In re Tyson's Case, 191 Pa. 218, 43 AtL 131; In re Watson's Estate, 241 Pa. 271, 88 Atl. 433. «T2 Blackstone's Comm. 113. § 127) INTERESTS IN PERSONAL PROPERTY 429 estate in personal property,'* even where the real and personal property are included in the same disposition.*' Where the rule in Shelley's Case is recognized, it is, by analogy, a:pplied to gifts of personalty, if no contrary intent appears." Thus, where a will bequeathed the use and interest of a mortgage on certain lands to the testator's two daughters for their lives, and on their deaths tO their heirs, the two daughters were held to be the absolute owners of the mortgage.''^ A bequest of shares of corporate stock and the income thereof to several legatees, each of whom is to take both income and prin- cipal in equal proportions, creates a tenancy in Common.'^* Life Estate A life estate in personal property may be created, if the testator clearly manifests his intention to that end, as where the property or the interest or income thereof is given, in terms, to a beneficiary, for life,'^ or where the fund is given in trust the income only to be paid over to the beneficiary, without limiting the period, in terms, to his life,^* particularly when there is a renrainder,over.'° The interest of a legatee for life is not enlarged to an absolute es- tate by the fact that he is, by the will,' intrusted with the fund,^* 68 PoweUv. Glenn, 21 Ala. 458; Hughes v. Nicklas, 70 Md. 484, 17 Atl. 398, 14 Am. St. Rep. 377; In re TlUinghast (1903) 25 R. I. 338, 55 Atl. 879. 6 9 Jones V. Jones, 13 N. J. Eq. 236, 239. TO Evans v. Weatherhead, 24 R. I. 502, 53 Atl. 866; Glover v. Condell, 163 111. 566, 45 N. E. 173, 35 L. R. A. 360. ' 71 Knox V. Barker, 8 N. D. 272, 78 N. W. 352 (applying the law of Pennsyl- vania to a will made in that state) ; Hughes v. Nicklas, 70 Md. 484, 17 Atl. 398, 14 Am. St. Rep. 377 (where a leasehold was devised for life, with remain- der to the heirs of the life tenant) ; Seeger v. Leaktn, 76 Md. 500, 25 Atl. 862 (accord). But where a will gave to C. the use of $1,000 and certain real property, and provided that C. "may invest or use all this property as he may, in his discre- tion, think best, during his natural life, and at his death to go to the heirs ■of his body, and to be used for their education, if necessary," the rule was held not to apply, and C. took only a life estate. Crawford v. Wearn, 115 N. ■C. 540, 20 S. E. 724. 72 Steinway v. Stein way, 163 N. Y. 183, 57 N. E. 312. 7 3Watkins' Adm'r v. Watklns' Ex'rs (Ky.) 120 S. W. 341; Foley v. Syer, 121 Md. 79, 88 Atl. 38 ; Peirsol v. Roop, 56 N. J. Eq. 739, 40 Atl. 124; Baldwin V. Tucker, 61 N. J. Eq. 412, 48 Atl. 547; Lee v. Babcock, 45 N. J. Eq. 353, 14 Atl. 473, 19 Atl. 622; In re Eichelberger's Estate, 135 Pa. 160, 19 Atl. 1006, 1014; Appeal of Rhein (Pa.) 8 Atl. 862 ; Harris v. Dawley, 22 R. I. 633, 49 Atl. 29. , 74Wynn v. Bartlett, 167 Mass. 292, 45 N. E. 752; In te Morgan, [1893] 3 ■Ch 222 TB Leake v. Watson, 60 Conn. 498, 21 Atl. 1075 ; In re Noble's Estate, 182 Ja. 188, 37 Atl. 852; In re Shade's Estate, 194 Pa. 599, 45 Atl. 649. T8 Snider v. Snider, 11 App. Div. 171, 42 N. Y. Supp. 613. 430 NATURE AND DURATION OF INTERESTS (Ch. 16 nor by the gift over of the residue remaining at his decease. ^^ But when one is given for life the use of things which are necessarily consumed by their use, the gift is treated as absolute, and any lim- itation over is void.'''' However, in. order to vest in a legatee an absolute property in such chattels as are consumed in their use, it is generally held that they must b'e given as a specific, not a gen- eral, bequest, and not as a part of the residuum/* Lfife Estate, with Power of Disposal A life estate in personal property is not lisually enlarged to a fee by a general power of disposition,'" and a special power, as of disposal for support, never has this effect.'^ It has been held ■It BrameU v. Adams, 146 Mo. 70, 47 S. W. 931 ; In re Skinner (1903) 81 App. Div. 449, 80 N. T. Supp. 1067; Goudie f. Johnston, 109 Ind. 427, 10 N. E. 296; Logue V. Bateman, 43 N. J. Eq. 434, 11 Atl. 259 ; Owens v. Owens, 64 App. Div. 212, 71 N. Y. Supp. 1108. But where a testator bequeathed all his property, "real, personal, and mixed," to his wife for life, and "all of the residue of said property" to his children after his wife's death, and a considerable portion of the personalty consisted of crops, stock, and farming implements, and it appeared that all the personalty was needed for the wife's support, she was held to take the personalty absolutely. In re Markley's Estate, 132 Pa. 352, 19 Atl. 138. Ts Underwood v. Underwood (1909) 162 Ala. 553, 50 South. 305, 136 Am. St. Rep. 61; Seabrook v. Grimes (1908) 107 Md. 410, 68 Atl. 883, 16 L. K. A. (N. S.) 483, 126 Am. St. Rep. 400; WHITTEMORE v. RUSSELL, 80 Me. 297, 14 Atl. 197, 6 Am. St. Rep. 200, Dunmore Gas. Wills, 257 ; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; Merrill v. Emery, 10 Pick. (Mass.) 507, 512. See Gibbens v. Gibbens, 140 Mass. 102, 3 N. E. 1, 54 Am. Rep. 453; German v. German, 27 Pa. 116, 67 Am. Dec. 451. , \ This rule is one of construction only, in aid of the discovery of testator's intention. In re Gourley's Estate, 238 Pa. 62, 85 Atl. 999. 7 9 Covenhoven v. Shuler, 2 Paige (N. Y.) 122, 21 Am. Dec. 73; Henderson v. Vaulx, 18 Tenn. (10 Yerg.) 30; Bartlett v. Patton, 33 W. Va. 71, 10 S. E. 21, 5 L. R. A. 523. The correctness of this requirement may well be doubted, and some courts have refused to distinguish in this connection between a specific bequest and one which is general or residuary. Seabrook v. Grimes (1908) 107 Md. 410, 68 Atl. 883, 16 L. R. A. (N. S.) 483, 126 Am. St Rep. 400, citing Evans v. Igle- hart, 6 Gill & J. (Md.) 171. ,8 Cain V. Cain, 127 Ala. 440, 29 South. 846; Webb v. Webb, 130 Iowa, 457, 104 N. W. 438 ; Park v. McCombs, 146 Ky. 327, 142 S. W. 401 ; Martin v. Barn- hill (Ky.) 56 S. W. 160; Ford v. Ticknor, 169 Mass. 276, 47 N. E 877; Howell V. Shotwell, 55 N. J. E^. 824, 41 Atl. 1115; Bowerman v. Sessel, 191 111. 651, 61 N. E. 369. Semble: Sheets v. Wetsel, 39 111. App. 600; Hughes v. Bank, 86 Md. 418, 38 Atl. 936 ; Seaward v. Davis, 198 N. Y. 415, 91 N. E. 1107 ; Appeal of Lin- Inger, 110 Pa. 398, 1 Atl. 722 ; In re Mercur's Estate, 151 Pa. 49, 24 Atl. 1094. Contra: Robertson v. Hardy's Adm'r (Va.) 23 S. E. 766. See, also. In re Moehring, 154 N. Y. 423, 48 N. E. 818. 81 Mills V. Bailey, 88 Md. 320, 41 Atl. 780; Godshalk v. Akey, 109 Mich. 350, 67 N. W. 336; Hunt v. Smith, 58 N. J. Eq. 25, 43 Atl. 428. § 127) , INTERESTS IN PERSONAL PROPERTY 431 that in a bequest of a fund to a wife for life, "with the right to use and dispose of so much of the principal during her lifetime as she should see fit," the power of disposition was limited to what was in her judgment reasonably necessary for her support." Where a life estate in personalty is given to a wife, with remainder over in what remained after her death, she has the implied power to use so much of the corpus of the property as may be reasonably necessary for her support/* Where money is given to one for life, with remainder over, the fact that no trustee was appointed for the protection of the fund does not establish in the legatee an un- limited power of disposition.^* Security for Subsequent Takers Where there is a limitation over on the termination of the life estate, and no provision is made for the appointment of a trustee to hold the fund, the life tenant is entitled to its possession, and security will not ordinarily be required of him for the benefit of sub- sequent takers until it be shown that there is danger that he will waste, secrete, or remove the property,* ° though sometimes it is held that security must be given as of course, or a trustee ap- pointed,°° and this is occasionally provided for by statute. Annuities An annuity is a sum of money, payable at stated and regular in- tervals, to one and his heirs, or for life orior years.'" An annuity is distinguished from an income in that, when the annuity is pay- able from a specific fund, the fund itself may be applied to its pay- ment when the returns from the fund are insufficient for that pur- pose, while in the case of an income the principal sum, on failure to furnish the required income, cannot be encroached upon.'* 82 Terry v. St Stephen's Protestant Episcopal Church (1903) 79 App. Div. 527, 81 N. T. Supp. 119. Contra: Cain v. Cain, 127 Ala. 440, 29 South. 846. 83 Murray v. Kluck, 87 Wis. 566, 59 N. W. 137. Semble: In re Geist's Es- tate, 193 Pa. 398, 44 Atl. 437 ; Smith v. Beardsley, 2 O. C. A. 118, 51 Fed. 122. See, however, Bramell v. Adams, 146 Mo. 70, 47 S. W. 931. 84 Cook V. Corner (Tenn. Ch. App.) 62 S. W. 658. 86 Bethea v. Bethea, 116 Ala. 265, 22 South. 561 ; In re Garrity's Estate, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485^ Langworthy v. Ohadwick, 13 Conn. 42; Homer v. Shelton, 2 Mete. (Mass.) 194, 206; Lynde v. Estabrook, 7 Allen (Mass.) 68; Chamberlain v. Husel, 178 Mich. 1, 144 N. W. 549 (remainderman may de- mand bond or complain only when life tenant goes "beyond the good faith limits"). Weeks v. Jewett, 45 N. H. 540; Hitchcock v. Peaslee, 145 N. T. 547, 40 N. E. 211 ; Blerce v. Bierce, 41 Ohio St. 241. 86 WHITTBMO'RH v. RUSSELL, 80 Me. 297, 14 AtL.197, 6 Am. St. Hep. 200, Dunmore Cas. Wills, 257. 87 Houtt r. Newman, 253 111. 185, 97 N. B. 208. 8 8 In re Von Keller's Will, 47 App. Div. 625^ 62 N. Y. Supp. 1150; Peck v. Kinney. 74 O. O. A. 270, 143 Fed. 76. If, however, the annuity is. In terms, directed to be paid from the Income of 432 NATURE AND DURATION OF INTERESTS » (Ch. 16 It differs from a rent charge in that the latter is charged upon a particular piece of land, or on land comprised in a general or re- siduary devise, and is payable from the rents and profits of that particular land only. A gift, however, of a yearly sum, to be paid by the trustee out of the net rents of the realty in his possession and devised to him upon certain trusts, creates an annuity, and is not a devise of rents issuing out of land." The duration of an annuity will of course be determined by the intent of the testator. When that is uncertain, as when the an- nuity is given in general terms, it will be presumed to be for the life of the annuitant.'" But, where the will provides for the final dis- tribution of the whole estate at a certain time after the testator's death, an annuity given in an earlier portion of the will will be re- garded as terminating at that time, though in terms given for the liie of the annuitant.*^ An annuity may be granted payable during the life of another,'* or for a term of years,'^ or until the benefi- ciary shall reach a certain age.'* As the right to an annuity vests at the death of the testator, in the absence of a. contrary intention the first payment becomes due one year from the death of the testator,'" in the absence of a statute. A direction to purchase an armuity entitles the beneficiary to re- ceive the principal in lieu thereof, provided the annuity be abso- lute and unqualified," and therefore, where the testator directed a specific fund or estate, the principal cannot then be encroached upon. Ein- beeker v. Binbecker, 162 111. 267, 44 N. & 426. If the original sum set aside by the executors, In accordance with the di- rections of the wiU that a suin sufficient to produce a certain annuity be set. aside by them, prove insufficient for that purpose, the deficiency must be made up as against the residuary legatees. Merritt v. Merritt, 43 N. J. Eq. H, 10- Atl. 835. 8 De Haven v. Sherman, 131 111. 115, 22 N. B. 711, 6 L. R. A. 745. Semble: Gillespie v. Boisseau (Ky.) 64 S. W. 730. ooPierrepont v. Edwards, 25 N. Y. 128; Armstrong's Appeal, 63 Pa. 312;. Cleveland v. Cleveland (Tex. Civ. App.) 30 S. W. 825; Hedges v. Harpur, 3 De G. & J. 128, 137. 81 ARMSTRONG v. CRAPO, 72 Iowa, 604, 34 N. W. 437, Dunmore Cas. Wills, 210. Semble: In re Charlier, 22 App. Diy. 71, 47 N. Y. Supp. 818. 02 In re Ord, L. R. 12 Ch. D. 22, 25. 08 Willcox V. Willcox, 106 Va. 626, 56 S. E. 588. So, where trustees were directed to pay a sum annually to a daughter of tes- tatrix to enable her to maintain the family residences devised to her, pay- ments should be discontinued when the properties devised have lost their res- idential character. Clark v. Goodridge, 51 Misc. Rep. 140, 100 N. Y. Supp. 824. 8* Miller v. Miller, 99 Va. 662, 39 S. E. 597, 86 Am. St. Rep. 919. 05 Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 5S0; In re Eichelberger's Estate, 170 Pa. 242, 32 Atl. 605. 96 Parker v. Cobe (1911) 208 Mass. 260, 94 N. E. 476, 33 L. R. A. (N. S.) 978. 21 Ann. Cas. 1100. § 127) INTEEESTS IN pers6nal pkopebtt 433 the purchase for his wife of an annuity for her life, upon her death a few days after testator, her personal representatives were enti- tled to such a sum as would, at the date of testator's death, have purchased the annuity.*' If the annuitant dies between the days of payment, there is no apportionment of the annuity at common law.'* But the rule is not applied to an annuity to a widow in lieu of dower or for her sup- port,** or to annuities for the maintenance of infants and married women living apart from) their husbands,^ and statutes have generally been passed providing for apportionment in any event.^ Inccme A testator may dispose of the income of his property, separate from and apart from the principal, either expressly or by implica- tion, as where a life estate is given in a fund without power of disposing of the principal, and with limitation over,* and the fact that the limitation over is to the heirs of the beneficiary to whom is bequeathed the income for life does not serve to increase the in- terest of such beneficiary.* When some portion of the estate or the residue is given in trust, the interest to be paid ,to a legatee for life, such interest or income is computed from the testator's death." A gift of the income from property is interpreted as that of the net income, obtained by deducting from the gross income all necessary charges incurred in the management and preservation of the property.* If the fund is invested in stocks, cash dividends, whether ordinary or special, are commonly treated as income.' But »T In re Bobbins (1907) 2 Ch. 8, 76 U J. Ch. N. S. 531, 96 L. T. N. S. 755, 2 B. B. C. 903. 9 8 Heizer v. Heizer, 71 Ind. 526, 36 Am. Eep. 202; Wiggin v. Swett, 6 Mete. (Mass.) 194, 39 Am. Dee. 7165 Chase v. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Bep. 347; Manning v. Eandolph, 4 N. J. Law, 144; Clapp v. Astor^ 2 Edw. Ch. (N.. Y.) 379. 9 9 In re Cushing's Will, 58 Vt. 393, 5 Atl. 186; In re Lackawanna Iron &. Coal Co., 37 N. J. Eq. 26 ; Blight v. Blight, 51 Pa. 420. Semble: Sweigart v. Frey, 8 Serg. & B. (Pa.) 299. 1 Clapp V. Astor, 2 Edw. Ch. (N. Y.) 379; Lackawanna Iron & Coal Co.'s- Case, 37 N. J. Eq. (10 Stew.) 26. 2 Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580. s BuUard v. Chandler, 149 Mass. 532, 21 N. E. 951, 5 L. B. A. 104. * In re Dull's Estate, 217 Pa. 358, 66 Atl. 667. Marsh v. Taylor, 43 N. J. Eq. 1, 10 Atl. 486. « Heard v. Bead, 169 Mass. 216, 47 N. E. 778; Morse v. Morrell, 82 Me. 80. 19 Atl. 97. But where testator bequeathed the "total income" of hi§, estate after de- ducting taxes, the court held that beneficiary was entitled to the "gross in- come" less taxes. Schmidt t. Schmidt, 80 N. J. Eq. 364, 84 Atl. 629. ■: Band v. Hubbell, 115 Mass. 461, 15 Am. Bep. 121; Gilkey v. Paine, 80 Me. 319, 14 Atl. 205; Hopkins' Trusts, L. E. 18 Eq. 696. Gard.Wills (2d Ed.)— 28 434 NATUEB AND DURATION OF INTERESTS (Ch. 16 even here it is necessary to distinguish between a genuine cash dividend and a distribution of long accumulated profits under the guise of a cash dividend. Such accumulations are, in reality, as much a part of the capital as any other portion of the estate, and should be treated as a part of the principal from which the income is to arise.* But all profit arising after the testator's death is un- questionably income.* But the distinction between profits which have accumulated before the testator's death, but which have not been divided, and those subsequently accruing, has sometimes been discarded, it being held that all cash dividends declared from the profits go to the person entitled to the income, regardless of the time when they were earned or the size of the dividend by which they were sought to be distributed.^" In accordance with the sounder rule, if, after the testator's death, the corporation sells a part of its property, and distributes the pro- ceeds in the shape of a cash dividend, that, too, is part of the prin- cipal, and is not income to be paid^ to the life tenant.^^ But the money received by the corporation from the sale of property which it has manufactured for the purpose of sale, and distributed as a cash dividend, is income.' ' With regard to so called stock divi- dends, the decisions are in conflict, but the tendency is to treat them as principal,^' and hence such a dividend would not go as in- come to the beneficiary for life. 8 Earp's Appeal, 28 Pa. 368, 375. ■« Wiltbank's Appeal, 64 Pa. 256, 3 Am. Rep. 585 ; Van Doren v. Olden, 19 N. J. Eq. 176, 97 Am. Dec. 650. 10 Richardson v. Richardson, 75 Me. 570, 46 Am. Rep. 428. See Minot v. Paine, 99 Mass. 101, 96 Am. Dec. 705. 11 Eisner's Estate, 175 Pa. 143, 34 Atl. 577; Vinton's Appeal, 99 Pa. 434, 44 Am. Rep. 116; Wheeler v. Perry, 18 N. H. 307; Gifford v. Thompson, 115 Mass. 478; Taylor, Corp. § 799. 12 Reed v. Head, 6 Allen (Mass.) 174. 18 Minot V. Paine, 99 Mass. 101, 96 Am. Dec. 705 ; Mills v. Britton, 64 Conn. 4, 29 Atl. 231, 24 L. R. A. 536; Spooner v. Phillips, 62 Conn. 62, 24 Atl. 524, 16 L. R. A. 461 ; Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 1057, 34 L. Ed. 525. Contra: Jjowry v. Farmers' Loan & Trust Co., 172 N. T. 137, 64 N. B. 796; McLouth V. Hunt, 154 N. Y. 179, 48 N. E. 548, 39 L. R. A. 230; Simpson v. Moore, 30 Barb. (N. T.) 637; Hite's Devisees v. Hite's Ex'r, 93 Ky. 257, 20 5. W. 778, 19 L. R. A. 173, 40 Am. St. Rep. 189 ; Thomas v. Gregg,. 78 Md. 545, 28 Atl. 565, 44 Am. St. Rep. 310; Prltchitt v. Trust Co., 96 Tenn. 472, 36 S. W. 1064, 33 L. R. A. 856. This is a topic belonging to the law of corporations, rather than of wills. See Clark on Corp. (2d Ed.) pp. 342-346, for a discussion of the rights of one given stock for life or for a term of years. § 127) INTEEESTS IN PERSONAL PROPEETT 435 When an income is given absolutely for the support of the bene- ficiary, he is entitled to the entire income, whether or no it is actually needful for his maintenance.^* But where there is merely a gift for maintenance and support, the beneficiary is only entitled to adequate maintenance, and any surplus goes to the testator's estate.^* 1* Beard v. Jones, 45 S. O. 102, 22 S. E. 748; Craw v. Craw, 210 m. 246, 71 N. E. 450. iBWentworth v. FernaW, 92 Me. 282, 42 ML 550; McKnlght's Ex'rs v. Walsh. 24 N. J. Eq. 498. 436 VESTED AND CONTINGENT INTERESTS (Ch. 17 CHAPTER XVII CONSTRUCTION (Continued)— VESTED AND CONTINGENT INTEEBSTS —REMAINDERS— EXECUTORY DEVISES 12&-130. Vested and Contingent Interests. 131-132. Vested Remainders. 133-134. Contingent Remainders. 135. Executory Devises. VESTED AND CONTINGENT INTERESTS 128. A vested interest is one, the right to whose enjoyment, either present or future, is not subject to the happening of a con- dition precedent. 129. A contingent interest is one, the right to whose enjoyment is subject to the happening of a condition precedent. 130. A devise or legacy will be construed as vested in the absence of a clear intention on the part of the testator to the con- trary. Vested Devises Other than Remainders These definitions are submitted as substantially accurate,* and it has long been an established rule that all estates in land are held to be vested, except estates in the gift of which a condition precedent to the vesting is so clearly expressed that it cannot be treated as vesting, except in direct opposition to the terms of the will ; '■' this because the convenience of the beneficiaries and the interests of society are opposed to the tying up of property and keeping it out of commerce.' Thus a gift of the residue, to be distributed "under the intestate laws" of a certain state,* or a will directing the divi- 1 See Hawkins, Wills, 223. The statement made by Kent, IV, 202, is very frequently quoted. He says: ^'An estate Is vested when there is an immediate right of present enjoyment, ■or a present fixed right of future enjoyment." 2 Duffield V. DuflSeld, 1 Dow. & CI. 311; 2 Redf. Wills, 215; Kellett v. Shep- ard, 139 111. 433, 443, 28 N. E. 751, 34 N. E. 254; Gingrich v. Gingrich, 146 Ind. 227, 45 N. E. 101; Crapo v. Price, 190 Mass. 317, 76 N. E. 1043 ; Bow- ditch V. Ayrault, 138 N. Y. 223, 33 N. E 1067 ; Bigley v. Watson, 98 Tenn. 353, 359, 39 S. W. 525, 38 L. R. A. 679. s Gaston, J., in Vanhook v. Vanhook, 21 N. C. 589, 596. See, al^o, Leighton V. Leighton, 58 Me. 63, 67; Gardiner v. Guild, 106 Mass. 25, 28; Byrnes v. Stilwell, 103 N. Y. 453, 9 N. E. 241, 57 Am. Rep. 760. 4 In re McGovran's Estate, 190 Pa. 375, 42 Atl. 705. i§§ 128-130) VESTED AND CONTINGENT INTEEESTS 437 ' sion of the estate among the testator's children, although it author- ized the executors to collect the rents and profits," or a bequest of a sum of money to a legatee "in consideration of her assistance toward myself and my husband, to be perforiiied by her to us during our lives," the legatee surviving the testatrix, but dying before the' hus- band,' creates interests vesting immediately upon the death of the testator. To effectuate the general rule, words of seeming condition are, if possible, held to have only the effect of postponing the right of pos- session. Thus, if real estate be devised to one when he shall attain a given age, the property to go to another until that age is attained, the first devisee takes an immediate vested estate, not defeasible on his death under the specified age ; ^ and the rule is the same if the devise be to one "at," "upon," or "from and after" attaining a cer- tain age, with a devise in the meantime to another.' But a devise to one when he shall attain a certain age, standing alone and not preceded by any immediate interest, would be contingent,® as would also a gift in the form of a direction to trustees to convey to a bene- ficiary at a certain age.^" Where there is no intermediate beneficial taker, a devise of land providing that it shall be sold upon the maturity of the devisees, and the proceeds equally divided between them, creates a present vested interest in fee.^^ If the devise is clearly conditional, the condition will, if possible, be construed as a condition subsequent, and not precedent, so as to confer an immediate vested estate, subject to defeat on the happen- ing of the contingency.^^ Thus, if land be devised to one if or when he shall reach a certain age, with limitation over in event of his dying under that age, the attainment of the speciiied age is a con- dition subsequent, and the first beneficiary takes an immediate vested estate, defeasible upon his death under the specified age ; " \ s Brown v. Brown, 27 App. Div. 45, 50 N. T. Supp. 185. 8 McCarty v. Fish, 87 Mic^. 48, 49 N. W. 513. 7 Scott V. Logan, 23 Ark. 352 ; Austin v. Bristol, 40 Conn. 120, 16 Am. Eep. 23; Daniels v. Eldredge, 125 Mass. 356; Koome v. Phillips, 24 N. Y. 465; Klnsey v. Lardner, 15 Serg. & R. (Pa.) 196; Boraston's Case, 3 Co. 21a; GoodUtle V. Whitby, 1 Burr. 228; Doe dem. Oadogan v. Ewart, 7 Ad. & El. 636: 8 Hooker v. Bryan, 140 N. C. 402, 53 S. E. 130. 8 In re Francis, [1905] 2 Ch. 295, 74 L. J. Oh. 487; Briscoe's Devisees v, Wickliffe, 6 Dana (Ky.) 161; Bigelow v. Bigelow, 19 Grant, Ch. 549. 10 Walker v. Mower, 16 Beav. 365. 11 Hogan V. Hogan, 102 Mich. 641, 61 N. W. 73. 12 Sherman v. American Congregational Ass'n, 51 C. O. A. 329, 113 Fed. 609. 18 Bowman -V. Long, 23 Ga. 247; Weston v. Weston, 125 Mass. 268; Hersey 438 VESTED AND CONTINGENT INTERESTS (Ch. 17 and the same rule applies to bequests of personalty.^* The rule is the same if the devise be to one "at," "upon," or "from and after" attaining a given age, with limitation over, and when the devise is to a class.^" But where the attainment of the given age is made a part of the description of the beneficiary, as to such child of A. as shall attain twenty-one,^* or to several as they come to be of a cer- tain age,^^ the devise is prima facie contingent, even though there be a gift over in default of the specified children. But a devise to one, provided he attain a certain age, has been held to be vested, defeasible on his death before reaching the specified age.^* Where a devise is made to specified beneficiaries, the postponement of the period of distribution will not render their interests contingent up- on their survivorship to that period, in the absence of a clear intent of the .testator to that end.^® Thus, where the testator created a trust in his property, to be terminated at a fixed time, when it was to be equally divided between a father and his children, and the father died after the testator, but before the termination of the trust, his interest was not defeated, since the devise vested at the death of the testator.'"' Where there is a limitation over in event of the non-survivorship of the beneficiaries .to the period of distribu- tion, they then take a vested, defeasible interest.^^ Where the gift is made to a class, the interest vests in the class at the death of the testator, subject to open and let in njembers of the class who may V. Purlngton, 96 Me. 166, 51 Atl. 865; Phlpps v. Ackers, 9 CI. & F. 583 ; Doe dem. Roake v. Nowell, 5 Daw, 202; Edwards v. Hammond, 1 B. & P. N. R. 324 ; Bromfleld v. Crowder, 1 B. & P. N. R. 313. 1* Von der Horst v. Von der Horst, 88 Md. 127, 41 Atl. 124; Dusenberry v. Johnson, 59 N. J. Ea. 336, 45 Atl. 103. 10 Hawkins, Wills, 241. i« Fasting V. Allen, 12 M. & W. 279; Bull v. Pritchard, 5 Hare, 567; Duf- fleld V. Duffield, 1 Dow & CI. 268; Holmes v. Prescott, 33 L. J. Cb. 264; Campbell v. Robertson, 62 Ga. 709; Webb v. Webb. 92 Md. 101, 48 Atl. 95, 84 Am. St. Rep. 499, 6 Prob. Rep. Ann. 280. 17 In rp Blake's Estate, 157 Cal. 448, 108 Pac. 287. 18 Simmonds v. Cock, 29 Beav. 455. See Rush v. Rush, 40 Ind. 83 ; Foster V. Wick's Lessee, 17 Ohio, 250. Contra: High v. Pollock, 114 Md. 580, 80 Atl. 43. 18 Andrews v. Russell, 127 Ala. 195, 28 South. 703; McConnell v. Stewart, 169 111. 374, 48 N. E. 201 ; Brookhouse v. Pray, 92 Minn. 448, 100 N. W. 235 ; Thomson v. Hill, 87 Hun, 111, 33 N. Y. Supp. 810; Wella v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584. 20 Mitchell V. Mitchell, 73 Conn. 303, '47 Atl. 325. Semble: Safe Deposit & Trust Co. V. Wood, 201 Pa. 420, 50 Atl. 920; Sellers' Ex'r v. Reed, 88 Va. 377, 13 S. E. 754. 21 See Andrews v. Russell, 127 Ala. 195, 28 South. 703; Baxter v. Isaacs (Ky. 1903) 71 S. W. 907. §§ 128-130) VESTED AND CONTINGENT INTERESTS 439 come into being subsequent to the testator's death, and prior to the time of distribution or enjoyment.^^ Vested Legacies Here, as in the case 'of devises, the law favors the vesting of the gift, and will so construe it unless such construction will do vio- lence to the language in which the testator has clothed his intent.^* Still, a bequest of personal property to one "at" a given age or mar- riage,^* or "upon" attaining a given age,^" or "when" or "as" he shall attain a given age,^" is prima facie contingent.''^ In other words, time is here of the substance of the gift, and is referred to as an element in the description of the beneficiary. A party, there- fore, can take nothing under the gift until he brings himself within the description.^* The same rule applies where the bequest is to a class, as to children at or upon attaining, or when or as they shall attain a given age."' But where the gift and the direction as to payment are distinct (i. e., where there is a gift and a direction as to the time of payment),*" the fact that the latter is postponed ob- viously cannot affect the vesting of the former, and the bequest will not fail in case the beneficiary dies before the time of payment, but the interest will pass to his personal representatives in case there is no limitation over. Such a separation of the gift and the time of payment is steadily held to exist when a legacy is given to a bene- 2 2 See Mitchell v. Mitchell, 73 Conn. 303, 47 Atl. 325 (where a trust in the testatoT's property was to terminate at a certain time, and the property was then to he divided between N. and his children. Held, that a child born be- tween the time of the testator's death and the termination of the trust would share In the property) ; Haggerty v. Hockenberry, 52 N. J. Eq. 354, 30 Atl. 88. 28 Foster v. Holland, 56 Ala. 476. 2* Stapleton v. Cheales, Prec. Ch. 317. A gift over on the marriage of the first taker Is sometimes extended by im- plication to take effect at his death unmarried and is then treated as vested. Trenton Trust & Safe Deposit Co. v. Armstrong, 70 N. J. Bq. 572, 62 Atl. 456. 2s Leake v. Kobinson, 2 Mer. 363.; Travis v. Morrison, 28 Ala. 494; In re Ehle (D. C.) 109 Fed. 625. 2 8 Hanson v. Graham, 6 Ves. 239; Leake v. Robinson, 2 Mer. 363; Foster V. Holland, 56 Ala. 474 ; Allen v. Whitaiver, 34 Ga- 6 ; Snow v. Snow, 49 Me. 159; Major's Ex'r v. Major's Adm'r, 32 Grat. (Va.) 819. Contra: Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534. 2 7 Hawkins, Wills, 223. , ^^ „ 28 Adams v. Woolman, 50 N. J. Eq. 516, 520, 26 Atl. 451; Perrine v. Newell. 49 N J. Eq. 57, 23 Atl. 492; Peckham v. Gregory, 4 Hare, 398. As where a bequest Is given to each of the testator's grandsons.who "might live to reach" a certain age. Webb v. Webb, 92 Md. 101, 48 Atl. 95, 84 Am. St. Rep. 499. 2» Hawkins, Wills, 223; Leake v. Robinson, 2 Mer. 363. ao See Bigelow, Wills, 257, and Crawford v. Engram (1907) 153 Ala. 420, 45 South. 584. . ^, ^ ^ 4. "A bequest to A. at twenty-one, and a bequest to A. payable at twenty-one, 440 VESTED AND CONTINGENT INTERESTS (Ch. IT ficiary payable at or to be paid at "^ or after arriving at a certain age.'^ So a legacy to be paid after the death of the testator's wife is a vested legacy,"* as is also one to be paid from the proceeds of a sale of realty,'* though such sale- is not to be had until after the death of certain relatives of the testator," or from the sale of prop- erty held in trust, and to be sold at such time as should seem to the trustees most expedient.*' So words directing distribution among certain specified individuals, not forming a class, when they or one of them shall arrive at a certain age, being equivalent to a direction ' to pay, come within the same rule.'' And in general, where there is no gift except by a direction to divide at a future time, the legacy ' will be construed to be vested if an intent to that end is fairly infer- able from the whole will.'' But all hinges upon the intention of the testator, and though the gift and the direction to pay be, in form, distinct, the context may show that the vesting is to be postponed until the time of payment, do not much differ In expression; yet one is a vested, the other a contingent gift." Hawkins, Wills, 225, cited and approved In Post v. Herbert's Ex'rs, 27 N. J. .Eq. 540, 546. 81 WARD WELL v. HALE, 161 Mass. 396, 37 N. E. 196, 42 Am. St. Eep. 413, Dunmore Cas. Wills, 260; Pox v. Hicks, 81 Minn. 197, 83 N. W. 538, 50 L. R. A. 663 ; ;n re Lehman, 2 App. Dlv. 531, 37 N. Y. Supp. 1086 ; Zartman v. Dit- mars, 37 App. Dlv. 173, 55 N. Y. Supp. 908; Sawyer v. Cubby, 146 N. Y. 192, 40 N. E. 869; Smith v. Parsons, 146 N. Y. 116, 40 N. E. 736; In re Smith's Es- tate, 189 Pa. 587, 42 Atl. 522; In re Murphy, 144 N. Y. 557, 39 N. E. 691; McReynolds v. Graham (Tenn. Oh. App.) 43 S. W. 138; Silvers v. Canary, 114 Ind. 129, 16 N. E. 166; Benton v. Benton, 66 N. H. 169, 20 Atl. 365. 8 2 Webb V. Webb, 92 Md. 101, 48 AU. 95, 84 Am. St. Rep. 499; In re Smith's Estate, 226 Pa. 304, 75 Atl. 425. ' S3 Bryant v. Flanders, 201 Mass. 373, 87 N. E. 574; Owens v. Owens, 64 App. Dlv. 212, 71 N. Y. Supp. 1108; Hall v. Wiggin, 67 N. H. 89, 29 Atl. 671. Semble: Daughters v. Lynch, 93 Md. 305, 48 Atl. 1055. 34 Chanler v. New York El. R. Co., 34 App. Div. 305, 54 N. Y. Supp. 341; Huber v. Donoghue, 49 N. J. Eq. 125, 23 Atl. 495. so Spencer v. Greene, 17 R. I. 727, 24 Atl. 742. s« Bates v. Spooner (1903) 75 Conn. 501,' 54 AU. 305. 8 7 Herriot v. Prime, 155 N. Y. 5, 49 N. E. 142; May v. Wood, 3 Bro. C. C. 471 ; Verrill v. Weymouth, 68 Me. 318 ; Shattuck v. Stedman, 2 Pick. (Mass.) 468; Teele v. Hathaway, 129 Mass. 164; Brown v. Brown, 44 N. H. 281. 38 Armstrong v. Barber, 239 111. 389, 88 N. E. 246; Carr v. Smith, 161 n'. Y. 636, 57 N. E. 1106. Thus, where a will contained no words of gift or devise, but only a direc- tion to pay to the testator's children or grandchildren on the sale of prop- erty after certain stated times, and the other provisions of the will showed that the postponement of the payment was not to await the happening of any event qualifying the legatees, but only to keep the estate undisturbed, that the testator's wife might be assured a comfortable support during life, the legatees acquired a vested interest on the death of the testator. McLaughlin V, Penney, 65 Kan. 523, 70 Pac. 341. §§ 128-130) VESTED AND CONTINGENT INTERESTS 441 as in a bequest to one payable at a certain age if or in case he at- tains that age.'" Even though words be not used which would of themselves vest the legacy, yet a provision that interest shall be payable to the legatee until the time when the legacy itself becomes payable is prima facie indicative of an intent that the latter is to be vested, and not contingent,** as where a sum is bequeathed to a legatee "when he shall arrive at" a certain age, "the said sum to be loaned and the interest thereon" paid to the legatee-*^ The rule is the same where the interest is given to other persons to be used for the benefit of the legatee.*^ But a discretionary power, given to the trustees of a fund, to apply all or any part of the income towards the mainte- nance or education or for the benefit of the legatee, will not serve to vest the principal,*' nor will a gift of a fixed sum for mainte- nance.** If, however, the whole interest is to be paid as mainte- nance, it is none the less interest, whose bestowal indicates an in- tent that the legacy shall be vested.*" A rule much quoted, and whose essence is contained in the pre- ceding discussion, is that if payment be postponed for the conven- ience of the estate, or to let in some other interest, a bequest in the form of a direction to pay or divide at a future period vests immedi- ately ,*° as under a bequest to trustees in trust for one during life, '80 Knight V. Cameron, 14 Ves. 389; Lister v. Bradley, 1 Hare, 12; Colby V. Doty, 158 N. Y. 323, 53 N. E. 35. See Fumess v. For, 1 Cush. (Mass.) 135, 48 Am. Dec. 593. 40 Nixon V. Bobbins, 24 Ala. 669; Dale v. White, 33 Conn. 294; Fuller v. Wintbrop, 3 Allen (Mass.) 51, 60; Appeal of Reed, 118 Pa. 215, 11 Atl. T87, 4 Am St. Rep. 588; Toms v. Williams, 41 Mich. 552, 2 N. W. 814; Christof- lerson v. Pfennig, 16 Wash. 491, 48 Pac. 264; In re Wintle, [1896] 2 Ch. 711. 41 Harris v. Cook (1903) 98 Mo. App. 38, 71 S. W. 1126. 42 Hawkins, WUls, 227; Hanson v. Graham, 6 Ves. 239; Hammond v. Maule, 1 Coll. 281; Roberts' Appeal, 59 Pa. 70, 98 Am. Dec. 312. 43 Hawkins, Wills, 229; Pulsford v. Hunter, 3 Bro. C. C. 146; Leake v. Robinson, 2 Mer. 363. In Kelly v. Dike, 8 R. I. 436, 451, the court quotes with approval 2 Redfield -on Wills 613, where it is said that a gift of a portion of income, especially in the discretion of trustees, afCords "a less conclusive ground of inference In favor of the estate vesting, but still one of very considerable weight." 44 Watson V. Hayes, 4 Jur. 186, 9 L. J. Ch. 49, 5 Myl. & C. 125, 46 Eng. Ch. 114, 41 Eng. Reprint, 319. 45 Bayard v. Atkins, 10 Pa. 20. . „ v. oon 46 Bethea v. Bethea, 116 Ala. 265, 22 South. 561; Armstrong v. Barber, 239 111 389 88 N. E. 246; Cook v. Hay ward, 172 Mass. 195, 51 N. E. 1075; Hall T Wiggin 67 N. H. 89, 29 Atl. 671; Cook v. McDowell, 52 N. J. Eq. 351, 30 Atl 24- In re Murphy, 144 N. T. 557, 39 N. E. 691; Bowditch v. Ayrault, 138 N r 222 33 N E. 1067; Collier v. Grimesey, 36 Ohio St. 22; Appeal of Rit- ter 190 Pa 102 42 Atl. 384; Little's Appeal, 117 Pa. 14, 11 AO. 520; Leem- 442 VESTED AND CONTINGENT INTEKEST3 (Ch. 17 and on his death to pay and divide among his children, the shares of the latter being vested, and passing, in event of their death dur- ing the life of the first taker, to their legal representatives.*^ In such cases the time plainly refers to the time of enjoyment, and cannot well be interpreted as descriptive of the legatees who are to take." The foregoing rules do not apply to legacies charged upon land. Such legacies do not vest before the time of payment unless an in- tention appear to the contrary i.*° hence they lapse if the legatee die before the time of payment."" The rule is the same though in- terest be given in the meantim'e."^ Contingent Interests Other than Remainders But, as has been seen, contingent interests may be created, and the favor shown to vested interests is never pressed so. far as to defeat the intention of the testator."^ The contingency may be the happening of a certain event, such as the defeat of a previous inter- est upon which the limitation over depends,"* or a change in the character of the beneficiary,"* or the exercise of a power by a trus- tee,"" or the survivorship of the testator by the beneficiary,"* or the ing V. Sherratt, 2 Hare, 14; Hallifax v. Wilson, 16 Ves. 171; Packham v. Gregory, 4 Hare, 396. 47 Hawkins, Wills,, 232. *8 See Packham v. Grjfegory, 4 Hare, 398. *» Poulett V. Poulett, 1 Vern. 204; Remnant v. Hood, 2 De G., F. & J. 396; Boberts v. Malin, 5 Iiid. 18; McDowell v. Stiger, 58 N. J. Eq. 125, 42 Atl. 575. In Birdsall v. Hewlett, 1 Paige (N. X.) 32, 19 Am. Dec. 392, the court inti- mates that this rule was adopted for the benefit of the heir at law and should not be extended to the case of a gift to a stranger upon the express condition that he pay a legacy charged thereon. This, however, was denied in Garland V. Smiley, 51 N. J. Eq. 198, 26 Atl. 164. 50 Garland v. Smiley, supra; Spence v. Robins, 6 Gill & J. (Md.) 507, 26 Am. Dec. 587; Harris v. Fly, 7 Paige (N. Y.) 421. 51 Hawkins, Wills, 234; Pearce v. Loman, 3 Ves. 135; Parker v. Hodgson, 1 Dr. & Sm. 568. 52 Wallace v. Foxwell, 250 111. 616, 95 N. E. 985, 50 L. R. A. (N. S.) 632; High V. Pollock, 114 Md. 580, 80 Atl. 48 (where legacy held contingent although legatee entitled to interest until legacy payable) ; Poultney v. Tiffany, 112 Md. 630, 77 Atl. 117. 63 See Calvin v. Springer, 28 Ind. App. 443, 63 N. B. 40; Baird v. Winstead, 123 N. O. 181, 31 S. E. 390; Carr v. Bredenberg, 50 S. C. 471, 27 S. E. 925; In re Kennedy's Estate, 190 Pa. 79, 42 Atl. 459 ; Perkins v. Fisher, 59 Fed. 801, 8 C. O. A. 270. 54 Markham v. Hufford, 123 Mich. 505, 82 N. W. 222, 48 L. R. A. 580, 81 Am. St. Rep. 222. 5 6 Crist V. Schank, 146 Ind. 277, 45 N. E. 190. 5 8 Oetjen v. Diemmer, 115 Ga. 1005, 42 S. E. 388. §§ 131-132) VESTED REMAINDERS 443 profitable character of certain of the testator's investments," or the death of another than the beneficiary without issue."* So the con- tingency may result from uncertainty as to the beneficiary, as in the case of bequests to unborn beneficiaries,"" or to a class whose members are to be ascertained at a future time, as to the children of one, when the youngest child attains a certain age. Here the be- quest vests in all the children who reach the age, to the prima facie exclusion of those dying under that age.'" The gift of the income of the fund for the benefit of the children until the time for distribu- tion does not avoid the rule,°^ which, however, does not apply when the gift is to the children as individuals, and not as a class.*'' VESTED REMAINDER? 131. A vested remainder is one limited? to a certain person on a cer- tain event, viz., the termination of the particular estate, in such manner that the remainderman has present capacity to take possession should the possession become immedi- ately vacant. 132. The tendency of courts to favor vested rather than contingent interests finds marked illustration in the construction of remainders. The present capacity for taking effect in possession, as the above definition indicates," ° is the test generally adopted, though not in every instance inexorably applied^ in distinguishing a vested re- mainder from one that is contingent.'* It is sometimes made, by S7 In re Patterson's Estate, 173 Pa. 185, 34 Atl. 117. «8 Farmers' Loan & Trust Co. v. Ferris, 67 App. Div. 1, 73 N. I. Supp. 475. e» Carney v. Kain, 40 W. Va. 758, 23 S. E. 650. 80 McClain v. Capper, 98 Iowa, 145, 67 N. W. 102 (here, under a clause in a will reciting, "When my youngest child arrives at full age, I desire that the real estate be equally divided between my children, their heirs," it was held that such children took no vested interest in the land until the youngest child attained majority, and that a devise of her interest therein by one who died before that time passed no title); Dohn's Ex'r v. Dohn, 110 Ky. 884, 62 S. W. 1033, 64 S. W. 352; Garman v. Hawley (1903) 132 Mich. 321, 93 N. W. 871; Anderson v. Felton, 36 N. C. 55 ; Jieeming v. Sherratt, 2 Hare, 14; Parker v. Lowerby, 1 Drew. 488; Lloyd v. Lloyd, 3 K. & J. 20; Cooper v. Cooper, 29 Beav. 229. 61 Garman v. Hawley (1903) 132 Mich. 321, 93 N. "W. 871; Cooper v. Cooper, 29 Beav. 229. 62 Cooper V. Cooper, 29 Beav. 229. 88 Crews' Adm'r v. Hatcher, 91 Va. 378, 21 S. E. 811. 64 Feame Cont Rem. 216; Nelson v. Nelson, 36 Ind. App; 331, 75 N. E. 444 VESTED AND CONTINGENT INTERESTS (Ch. IT Statute, the definition of a vested estate." Applying this test, it has been held that where an estate is, in terms, limited over to re- maindermen who shall survive the tenant for life,- the remainder is vested, defeasible on the happening of the condition subsequent,, viz., their death prior to the termination of the life estate.** In. view, however, of the naturally intrinsically contingent character of limitations of this description, courts have usually declined to- treat them as vested." A remainder after an estate tail is vested,^ if it depends on nothing but the termination of the preceding es- tate.'* A child en ventre sa mere is deemed to be in esse for the- purpose of taking a remainder.*' The law presumes that words postponing the enjoyment of an. estate in remainder relate to the beginning of the enjoyment, and not to the vesting of the estate," and words of devise will be so- 679; Archer v. Jacobs, 125 Iowa, 467, 101 N. "W. 195; Dougherty v. Thompson, 167 N. Y. 472, 60 N. B. 760; Moore's Adm'r v. Sleet, 113 Ky. 600, 68 S. W. 642; Allison V. Allison's Ex'rs, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920. A particular estate for life Is not regarded as terminated, where the life- tenant is sentenced to imprisonment for life, and the statute provides that a person so sentenced "shall thereafter be deemed civilly dead," so as to vest the right of possession In the remainderman. Avery v. Everett, 110 N. Y.. 317, 18 N. B. 148, 1 L. E, A. 264, 6 Am. St. Kep. 368 (Earl, J., dissenting). «B 4 Rev. St N. Y. (8th Bd.) p. 2432, pt. 2, tit. 2, art. 1, § 13, construed In re Davis' Estate, 91 Hun, 53, 36 N. Y. Supp. 822 ; Van Axte v. Fisher, 117 N. Y. 401, 22 N. E. 943; In re Traver, 161 N. Y. 54, 55 N. E. 406; CanfieM v. Fal- lon, 44 App. Div. 631, 60 N. Y. Supp. 1134; Minot v. Miuot, 17 App. Div. 521, 45 N. Y. Supp. 554. How. Ann. St Mich. § 5551, construed In Hovey v. Nellis, 98 Mich. 374, 57 N. W. 255. Rev. St Wis. 1878, § 2037, construed in Smith v. Smith (1903) 116 Wis. 570, 93 N. W. 452. 86 Bethea v. Bethea, 116 Ala. 265, 22 South. 561 (where property was be- queathed to the testator's wife for life, then to his three sons for life, "then to the children that each may have surviving him," it being held that the in- terests of the children were vested); Acree v. Dabney, 133 Ala. 437, 32 South. 127; Smith v. Lawrence, 66 Hun, 362, 21 N. Y. Supp. 379; In re Brennan, 21 App. Div. 236, 47 N. Y. Supp. 661; Connelly v. O'Brien, 166 N. Y. 406, 60 N. B. 20, reversing 40 App. Div. 574, 58 N. Y. Supp. 45 (here the estate was given to- the testator's widow for life, "and then to such of my children as may then be alive, share and share alike." Held, that the children took a vested re- mainder) ; In re Seaman's Estate, 147 N. Y. 69, 41 N. E. 401. Semble: Cbace- V. Gregg, 88 Tex. 552, 32 S. W. 520. 8T See post, p. 452. 88 Smith & Dormer v. Parkhurst, 18 Viner's Abr. 413. See, also, Taylor t« Taylor, 63 Pa. 481, 485, 3 Am. Rep. 565. «» Craig V. Rowland, 10 App. D. C. 402. 70 Moore v. Gary, 149 Ind. 51, 48 N. B. 630; Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246. So, where land was devised to one for life and "at his death to his chil- §§ 131-132) VESTED KEMAINDEBS 445 construed as to prevent the title to real estate from remaining con- tingent; and, in the absence of plain indications of a contrary in- tent, the law will treat the entire title as vested in those claiming under the will, rather than in abeyance.''^ ThUs, where land is de- vised for life, with remainder over to specified beneficiaries, the in- terest of the latter vests immediately on the death of the testator; ''^ and, in case a remainderman dies before the termination of the life estate, his heirs or personal representatives will succeed to his in- terest ; '^ and so with a remainder after an estate devised to one sO' long as she may remain a widow/* The gift over is construed as intended to take effect in pbssession upon the marriage of the wid- ow, but not as contingent or dependent upon the marriage.'" The doctrine that vested rather than contingent interests are favored is further illustrated by the rule applied in some cases that, where words of survivorship are used in describing the remainder- men, they are made to refer, in cases of doubt, to the death of the testator, in order to vest the remainder.'" Thus, where an estate was given to the testator's son O. during his natural life, and, in event of his dying, leaving no child of his own, to the testator's "surviving child or grandchildren, in equal parts," the children and grandchildren living at the testator's death were held to take the dren," the word "at" designated the time of enjoyment merely, and not the time of vesting.' Manhattan Real Estate & Bldg. Ass'n v. Cudlipp, 80 App. Dlv. 532, 80 N. Y. Supp. 993. Accord: Burke v. Barrett, 31 Ind. App. 635, 67 N. E. 552. Ti Mettler v. Warner, 243 111. 600, 90 N. E. 1099, 134 Am. St. Rep. 388 ; Will* v. WiUs, 85 Ky. 486, 3 S. W. 900; Hale v. Hobson, 167 Mass. 397, 400, 45 N. E. 913; Knowlton v. Sanderson, 141 Mass.' 323, 6 N. E. 228; Marsh v. Hoyt, 161 Mass. 459, 37 N. E. 454; Peck v. Carlton, 154 Mass. 281, 28 N. E. 166; Gin- grich V. Gingrich, 146 Ind. 227, 45 N. K 101; Stokes v. Weston, 142 N. T. 433, 37 N. E., 515 ; Chapman v. Chapman, 90 Va. 409, 18 S. E. 913 ; Moore'a Adm'r v. Sleet, 113 Ky. 600, 68 S. W. 642. 72 Cody V. Staples, 80 Conn. 82, 67 Atl. 1; Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. B. A. 274 ; Northern Trust Co. v. Wheaton, 249 111. 606, 94 N. E. 980, 34 U R. A. (N. S.) 1150; Hill v. True, 104 Wis. 294, 80 N. W. 462. 7 3 In re Journey's Estate, 7 Del. Ch. 1, 44 Atl. 795; Weil v. King, 31 Ky. Law Rep. 1010, 104 S. W. 380; In re Tucker's Will, 63 Vt 104, 21 Atl. 272, 25 Am. St. Rep. 743. 74 Gillespie v. Allison, 115 N. C. 542, 20 S. E. 627. 7 6 Bamshaw v. Daly, 1 App. D. C. 218 ; Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. B. A. 274 ; McKensey v. McKensey's Ex'r (Ky.) 28 S. W. 782 ; Shangle v. Hallock, 6 App. Div. 55, 39 N. Y. Supp. 619; Sullivan v. Jones, 129 N. C. 442, 40 S. E. 113 ; Savings Bank of Newport v. Hayes, 18 R. I. 464, 28 Atl. 966. Semble: Myers v. Adler, 6 Mackey (D. C.) 515, 1 L. B. A. 432. 7 8 Clanton v. Estes, 77 Ga. 352, 1 S. E. 163; Allison v. Allison's Ex'rs, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920. 446 VESTED AND CONTINGENT INTERESTS (Ch. 17 remainder in fee, defeasible on O.'s dying, leaving legitimate chil- dren.''' But, in the greater number of cases, where there is a gift over in remainder to survivors, the period of survivorship is refer- red to the time of the termination of the particular estate.''' So, where the devise was, "should my wife marry or die, the land then shall be divided among my surviving sons," the moment of sur- vivorship was held to be fixed at the death or marriage of the wife ; and, until that happened, it was contingent who the persons were , to be who could take as surviving sons.''" So, where the testator bequeathed a medal to his wife for life, then to be handed down to the testator's oldest surviving daughter successively, then to his "oldest grandson living," these words were held to refer to the time of the decease of the testator's oldest daughter, and not that of the testator.'" Another important rule in this connection, as formulated by Pro- fessor Bigelow,'^ is that "where the testator has created ai particu- lar estate, and then has gone on to dispose of the ulterior interest expressly in an event which will determine the prior estate, the words descriptive of such event, occurring in the ulterior gift, will, if reasonably possible, be construed as referring merely to the time of the determination of the possession or enjoyment" under the prior gift, rather than as intended to postpone the vesting." Thus, where the gift was in trust for A. during minority, absolutely on his be- coming of age, but, if A. should die before attaining his majority, then to specified beneficiaries, the interests of the latter were held not to be contingent upon A.'s so dying, but they were held to vest, in right, at the testator's death ; '^ and so with a devise of land to C. during his lifetime, "provided he will live on and occupy the same," and, at his death or refusal to occupy, then "to the said C.'s lawful heirs,'' and to a granddaughter," and, in case she should die without T' Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56. For similar cases, see Tin- dall V. Miller, 143 Ind. 337, 41 N. E. 53.5; Evans v. Henderson (Ky.) 68 S. W. 640; Stone v. Bradlee (1903) 183 Mass. 165,-66 N. E. 708; Bldridge v. Eldridge, 9 Cush. (Mass.) 516 ; Moore v. Lyons, 25 Wend. (N. Y.) 119 ; Chew's Appeal, 37 Pa. 23; Manderson v. Lukens,- 23 Pa. 31, 62 Am. Dec. 312; Nichols v. Guth- rie (1903) 109 Tenn. 535, 73 S. W. 107. 78 Ridgely v. Ridgely, 100 Md. 230, 59 Atl. 731; Dary v. Grau, 190 Mass. 482, 77 N. E. 507; 11 Prob. Kep. Ann. 650; Coveny v. McLaughlin, 148 Mass. 576, 20 N. E. 165, 2 L. R. A. 448; SulUvan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605; MuUarky v. Sullivan, 136 N. Y. Ill, 32 N. B. 762. 79 Olney v. Hull, 21 Pick. (Mass.) 311; In re Ryder, 11 Paige (N. T.) 185, 42 Am. Dec. 109. 8 Jaudon v. Hayes, 79 Hun, 453, 29 N. T. Supp. 958. 81 Bigelow, Wills, 246. 82 Barker v. Southerland, 6 Dem. Sur. (N. Y.) 220. 88 Conger v. Lowe, 124 Ind. 368, 24 N. B. 889, 9 L. R. A. 165. Held to create §§ 131-132) VESTED EEMAINDEBS 447 issue, then over to testator's children.** The same principle is il- lustrated by the steadily recognized rule that where a particular estate is given, followed by a limitation over to beneficiaries at the expressly mentioned termination thereof, as where an estate is given to the testator's wife for life, and at her death the property to belong to and be equally divided among his daughters and their heirs,*" the remainder vests upon the death of the testator, and is not contingent until the termination of the particular estate.'* a vested remainder In the children of 0., who at once became entitled to pos- session when O. sold and delivered the property to a stranger. 8* Ramsay v. De Remer, 65 Hun, 212, 20 N. Y. Supp. 143. Semble: Dana V. Sanborn, 70 N. H. 152, 46 Atl. 1053. SB Burton v. Provost (1903) 75 Vt 199, 54 Atl. 189. 8 6 The following cases rigorously apply this rule: In re Fair's Estate, 132 Cal.523. 60 Pae. 442, 64 Pac. 1000, 84 Am. St. Rep. 70; Johnes v. Beers, 57 Conn. 295, 18 Atl. 100, 14 Am. St. Rep. 101; Doe dem. Wuight v. Gooden, 6 Houst (Del.) 397; Hauptman v. Carpenter, 16 App. D. C. 524; Marshall v. Augusta, 5 App. D. C. 183; Chewning v. Shumate, 106 Ga. 751, 32 S. B. 544; Clantonv. Estes, 77 Ga. 352, 1 S. E. 163; Hudgens v. Wilkins, 77 Ga. 555; Crawley v. Blackman, 81 Ga. 775, 8 S. E. 533 ; De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E. 211; Legwin v. McRee, 79 Ga. 430, 4 S. E. 863; Slddons v. , Cockrell, 131 111. 653, 23 N. E. 586; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94; Clark v. Shawen, 1.90 111. 47, 60 N. B. 116; Kelly v. Gonce, 49 111. App. 82 ; Powell v. McDowell, 194 111. 394, 62 N. E. 879 ; Knight v. Pottgieser, 176 111. 368, 52 N. E. 934; Lehnard v. Specht, 180 111. 208, 54 N. E. 315; Kratz V. Kratz, 189 111. 276, 59 N. Bi 519; Hoover v. Hoover, 116 Ind. 498, 19 N. B. 468; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; Moores v. " Hare, 144 Ind. 573, 43 N. E. 870; Davidson v. Bates, 111 Ind. 391, 12 N. B. 687; HAVILAND v. HAVILAND, 130 Iowa, 611, 105 N. W. 354, 5 L. R. A. (N. S.) 281, Dunmore Cas. Wills, 262; Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, 3 L. R. A. 690; Rudd v. Insurance Co. (Ky. 1903) 73 S. W. 759; Gough v. Land Co. (Ky.) 43 S. W. 405; Harmon v. Dyer (Ky.) 12 S. W. 774; Mercantile Bank of New York v. Ballard's Assignee, 83 Ky. 481, 4 Am. St. Rep. 160; Railey v. Milam (Ky.) 5 S. W. 387; Woodman v. Wood- man, 89 Me. 128, 35 Atl. 1037; Straus v. Rest, 67 Md. 465, 10 Atl. 74; Brewer v. Oox (Md.) 18 Atl. 864; Cherbonnier v. Goodwin, 79 Md. 55, 28 Atl. 894 ; Cox v. Handy, 78 Md. 108, 27 Atl. 227, 501; Boyd v. Sachs, 78 Md. 491 28 Atl. 391; Daughters v. Lynch, 93 Md. 305, 48 Atl. 1055; Ball v. Hol- land 189 Mass. 369, 75 N. E. 713, 1 D. R. A. (N. S.) 1005; Dorr v. Lpverlng, 147 Mass. 530, 18 N. E. 412; Swett v. Thompson, 149 Mass. 302, 21 N. B. 382; Loring v. Carnes, 148 Mass. 223,' 19 N. B. 343; Shaw v. Eekley, 169 Mass. 119, 47 N B 609; Dodd v. Wlnship, 144 Mass. 461, 11 N. E. 588; Curtis v. Fow- ler 66 Mich. 696, 33 N. W. 804; State v. Wlllrich, 72 Minn. 165, 75 N. W. 123; McDaniel v. Allen, 64 Miss. 417, 1 South. 356 ; Byrne v. France, 131 Mo. 639, 33 S W 178 ; Burford v. Aldridge, 165 Mo. 419, 63 S. W. 109, 65 S. W. 720; Wiggin V Perkins, 64 N. H. 36, 5 Atl. 904; Snow v. Durgin, 70 N. H. 121, 47 Atl 89- Thyng v. Lane, 69 N. H. 403, 43 Atl. 616; Crosby v. Crosby, 64 N. H. 77 5 Atl 907; Van Giesen v. White, 53 N. J. Eq. 1, 30 Atl. 331; Maxwell v. McCreery 57 N. J. Eq. 287, 41 Atl. 498 ; Cook v. McDowell, 52 N. J. Eq. 351, 30 Atl 24- Howell v. Gifford (N. J. Ch. 1903) 64 N. J. Eq. 180, 53 Atl. 1074; MUler V Worrall, 59 N. J. Eq. 134, 44 Atl. 890; Chambers v. Sharp, 61 N. J. 448 VESTED ANp CONTINGENT INTERESTS (Ch. 17 In such cases this interest goes to his heirs or representatives in event of the remainderman's death before the termination of the' particular estate, if the limitation be to him absolutely." He may assign/* alienate, or mortgage it,*' and it is subject to levy and sale,"" before the death of the first taker. So, where an estate is given to one for life, with remainder to another, "if living," the latter takes a vested remainder, subject to be devested on his dying before the termination of the life estate.*^ Vested Remainder in C/ojj — After-Born Members When a remainder can be construed as to a class, some of whose members are in being at the time of the testator's death, the re- Eq. 253, 48 Atl. 222 ; Adams v. Woolman, 50 N. J. Eq. 516, 26 Atl. 451 ; In re Tienken, 131 N. Y. 391, 30 N. B. 109; Surdam v. Cornell, 116 N. T. 305, 22 N. E. 450; In re Young, 145 N. Y. 535, 40 N. E. 226 ; Haug v. Schumacher, 166 N. Y. 506, 60 N. E. 245; Miller v. Gilbert, 144 N. Y. 68, 38 N. B. 979; Smith V. Allen, 161 N. Y. 478, 55 N. E. 1056; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811 ; Sage v. Wheeler, 158 N. Y. 679, 52 N. E. 1126 ; In re Tompkins' Estate, 154 N. Y. 684, 49 N. B. 135; Hersee v. Simpson, 154 N. Y. 496,^48 N. B. S90; Sharp v. Withington, 154 N. Y. 313, 48 N. E. 537; Nelson v. RusseU, 135 N. Y. 137, 31 N. E. 1008; Lewis v. Howe (1903) 174 N. Y. 340, 66 N. B. 975, 1101; Bolton v. Bank, 50 Ohio St. 290, 33 N. E. 1115; In re Evans* Estate, 155 Pa. 646, 26 Atl. 739; Bitter's Appeal, 190 Pa. 102, 42 Atl. 384; Appeal of Pennsylvania Co. (Pa.) 10 Atl. 130; Yerkes v. Yerkes, 200 Pa. 419, 50 Atl. 186; In re Jeremy's Estate, 178 Pa. 477, 35 Atl. 847 ; In re Snyder's Estate, 180 Pa. 70, 36 Atl. 420; Hinkson v. Lees, 181 Pa. 225, 37 Atl. 338; In re Thomman's Estate, 161 Pa. 444, 29 Atl. 84 ; In re Man's Estate, 160 Pa. 609, 28 Atl. 939 ; . • In re Barker's Estate, 159 Pa. 518, 28 Atl. 365, 368 ; In re Eckert's Estate, 157 Pa. 585, 27 Atl. 781; In re Carstensen's Estate, 196 Pa. 325, 46 Ati. 495; Pond V. Allen, 15 K. I. 171, 2 Atl. 302 ; Caswell v. Robinson, 21 R. I. 193, 42 Atl. 877; In re Kenyon, 17 R. I. 149, 20 Atl. 294; Clarkson v. Pell, 17 R. I. 646, 24 Atl. 110; Chafee v. Maker, 17 R. I. 739, 24 Atl. 773; Tindal v. Neal, 59 S. C. 4, .36 S. E. 1004; Jones v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 L. R. A. 293; Stanley v. Stanley's Adm'r, 92 Va. 534, 24 S. E. 229; McComb v. McComb, 96 Va. 779, 32 S. B. 453 ; Robison v. Asylum, 123 U. S. 702, 8 Sup. Ct. 327, 31 L. Ed. 293; Hickling v. Fair, 68 Law J. P. C. 12, [1899] App. Cas. 15. See, however, Cashman v. Ross, 155 Wis. 558, 145 N. W. 199. 8 7 Moulton V. Chapman (1911) 108 Me. 417, 81 Atl. 1007; Marsh v. Hoyt, 161 Mass. 459, 37 N. B. 454; Lewis v. Howe, 174 N. Y. 340, 66 N. B. 975, 1101; Redmond v. Coles (Tenn. Ch. App.) 52 S. W. 660. 8 8 Chapman v. Chapman, 90 Va. 409, 18 S. E. 913. 8 9 Manhattan Real Estate Ass'n v. Cudlipp, 80 App. Div. 532, 80 N. Y. Supp. 993; Perrine v. Newell, 49 N. J. Eq. 57, 23 Atl. 492. 90 Shipp V. Gibbs, 88 Ga. 184, 14 S. E. 196. 91 McDonald v. Taylor, 107 Ga. 43, 32 S. B. 879; Greene v. Huntington, 73 <:onn. 106, 46 Atl. 883; Harris v. Carpenter, 109 Ind. 540, 10 N. E. 422; But- terfield v. Reed, 160 Mass. 361, 35 N. E. 1128 ; Cochrane v. Kip, 19 App. Div. 272, 46 N. Y. Supp. 148, affirmed in 157 N. Y. 716, 53 N. B. 1124. Semble: Kinkead v. Ryan (N. J. Ch. 1903) 64 N. J. Eq. 454, 53 Atl. 1053; Forsythe v. Lansing's Bx'rs, 109 Ky. 518, 59 S. W. 854. §§ 131-132) VESTED BEMAINDEES 449 mainder will vest in such members, subject to open and let in sub- sequently born members of the class.*^ Thus, where an estate is g^yen to a devisee for life, with remainder to his children, children living at the testator's death have a vested remainder, and, if other children are born after, the estate will open for their benefit ; °' and so with a remainder to his heirs,** heirs of his body,°° or descend- ants,'° whe'n these words are used as meaning children. Vested Remainders Devested by Happening of Condition Subsequent Although the present certainty of the right to enjoy hereafter must exist in every vested remainder, yet this certainty may be de- feated by the happening of' a condition subsequent. Indeed, tfie courts manifest a strong tendency to construe remainders as vested and defeasible, rather than contingent upon the happening of the condition. Common instances are where there is a limitation over upon failure of issue in the first taker,"' and where the interests of the remaindermen are defeated in event of their dying before the expiration of the particular estate." Here the remainders are _ not contingent upon the failure of issue or survivorship, but are 92 Security Co. v. Cone, 64 Conn. 579, 31 Atl. 7; Thomas v. Thomas, 247 lU. 543, 93 N. E. 344, 139 Am. St. Eep. 347; Kllgore v. KUgore, 127 Ind. 276, 26 N. E. 56; Middleton's Heirs v. Middleton's Devisees (Ky.) 43 S. W. 677; Male V. Williams, 48 N. J. Eq. 33, 21 Atl. 854; Clark v. Morehous (1908) 74 N. J. Eq. 658, 70 Atl. 307; In re Wetherill's Estate, 214 Pa. 150, 63 Atl. 406. »s Field V. Peeples, 180 111. 376, 54 N. E. 304. Accord: Dulany v. Middle- ton, 72 Md. 67, 19 Atl. 146; Downes v. Long, 79 Md. 382, 29 Atl. 827 ; Budd v. Haines, 52 N. J. Eq. 488, 29 Atl. 170; Losey v. Stanley, 147 N. Y. 560, 42 N. E. 8, and cases in preceding note. 84 Angus V. Noble, 73 Conn. 56, 46 Atl. 278; Smith v. Smith, 108 Tenn. 21, 64 S. W. 483. 95 Duncan v. De Yampert (1913) 182 Ala. 528, 62 South. 673; Winchell v. Winchell, 259 111. 471, 102 N. E. 823. as Slote V. Reiss, 153 Ky. 30, 154 S. W. 405. 87 Allen V. Almy, 87 Conn. 517, 89 Atl. 205; Boatman v. Boatman, 198 111. 414, 65 N. B. 81; Lepps v. Lee (Ky.) 16 S. W. 346; Buswell v. Newcomb (1903) 183 Mass. Ill, 66 N. E. 592; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Hills V. Barnard, 152 Mass. 67, 25 N. E. 96, 9 L. R. A. 211 ; Lamprey v. White- head (1903) 64 N. J. Eq. 408, 54 Atl. 803; Havens v. Land Co., 47 N. J, Eq. 365, 20 Atl. 497 ; United States Trust Co. of New York v. Wheeler (1903) 173 N. Y. 631, 66 N. El. 1117; Lewis v. Shropshire (Ky.) 68 S, W. 426; Webber v. Jones, 94 Me. 429, 47 Atl. 903; (Jarrison v. Hill, 79 Md. 75, 28. Atl. 1062, 47 Am. St. Rep. 363; Wadsworth v. Murray, 161 N. Y. 274, 55 N. E 910, 76 Am. St. Rep. 265. ' 88 Ducker v. Wear & Boogher Dry Goods Co., 146 111. 9, 34 N. E. 558; Rudd V. Travelers' Ins. Co., 24 Ky. Law Rep. 2141, 73 S. W. 759 ; Kinkead v. Ryan. 64 N. J. Eq. 454, 53 Atl. 1053; Fox v. Fee, 24 App. Div. 314, 49 N. Y. Supp. 292; In re Batione's Estate, 136 Pa. 307, 20 Atl. 572; Chafee v. Maker, 17 R. I. 739, 24 Att. 773 ; Walker v. Alverson, 87 S. O. 55, 68 S. E. 966, 30 L. R. A. (N. S.) 115. Gaed.Wilm (2d Ed.)— 29 450 VESTED AND CONTINGENT INTERESTS (Ch. 17 vested, defeasible on the first taker's leavingfissue or by death. So remainders conditioned on payment of the testator's funeral ex- penses by the remainderman,'" or on his support of the testator's wife, are vested, defeasible on breach of coiftiition.^ So the inter- vention of a power of appointment, general or special, whether the estate be real or personal, will not prevent the vesting of a remain- der given in default of the exercise of the power, if, apart from the existence of the power, the estate would be vested. In such cases the remainder vests, subject to be devested by the exercise of the power,^ as where power to dispose of the property either by sale or by will is given to the life tenant.^ When there are devesting clauses by which a remainder may be defeated, they are to operate so as to vest the estate indefeasibly at the earliest period of time.* Thus, where an estate for life was given, with remainder to the testator's children, the share of any child dying without issue to go to the other children, the share of a . son who died before the life tenant, leaving children who survived such tenant, becomes indefeasible at the death of the latter."* The contingency must literally and completely happen in order to* divest a vested estate. Thus, where testator devised land to his wife for life, with remainder to be divided between such of his three sons as might survive his wife, and all three sons died before the life tenant, it was held that the estate vested in the sons was not divested, since the contingency of the survivorship by one or more of them of the life tenant had not happened.' Vested Remainder by Implication A vested remainder may sometimes be raised by implication or necessary inference, as where a life estate is given to the testator's widow, followed by a direction that the estate shall be divided be- »» PhilUps V. Wood, 16 R. I. 274, 15 Atl. 88. 1 Gingrich v. Gingricli, 146 Ind. 227, 45 N. E. 101; Bryant's Adm'r v. Dun- gan, 92 Ky. 627, 18 S. W. 636, 36 Am. St. Rep. 618. Semble: In re Loucks' Estate, 203 Pa. 278, 52 AH. 191. 2 Sandford v. Blake, 45 N. J. Eq.. 248, 17 Atl. 812 ; Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 589; Hawtbom v. Ulrich, 207 111. 430, 69 N. E. 885; Kirk- patrick'v. Kirkpatrick, 197 111. 144, 64 N. E. 267. 3 Thorington v. Thorington, 111 Ala. 237, 20 South. 407, 36 L. R. A. 385 ; Melton V. Cajnp, 121 Ga. 693, 49 S. E. 690; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94 ; President, etc., of Harvard College v. Baleh, 171 111. 275, 49 N. E. 543; Dana v. Dana, 185 Mass. 156, 70 N. E. 49; Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037; Rhodes v. Shaw, 43 N. J. Eq. 430, 11 Atl. 116; Lantz V. Massie's Ex'x, 99 Va. 709, 40 S. E. 50 ; Hare v. Congregational Soc. of F., 76 Vt. 362, 57 Atl. 964. 4 Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274. - Id. e Acree v. Dabney, 133 Ala. 437, 32 South. 127. §§ 133-134) CONTINGENT BEMAINDEK8 451 tween the children after her death/ or where there is a direction to the Me tenants to save as much of the property as possible for the children born to them.* So, where' the estate was given to trustees for the use of the testator's children in severalty for their lives, with reniainder to the children of each at his death, but no provision was ftiade for the death of a beneficiary without children, the remainder after the life estates of the shares of such of the children of the tes- tator as were without issue at the time of his death was held to vest in the heirs of the testator, defeasible on the subsequent birth of children." Failure of Issue At common law, where there was a limitation over upon fail- ure of issue, the failure was interpreted as an indefinite failure, which would create in the first taker an estate tail, while the limi- tation over was valid as a remainder." Wherever modern statutes substantially convert fees tail into fees simple, such limitation over would be invalid as a remainder, and too remote as an executory devise.^^ But §^enerally, either by statute or decision, where there is a limitation over by way of remainder upon failure of issue in the first taker, such failure is regarded as a definite failure, occur- ring during the life of the first taker," and the remaindermen take a vested defeasible interest.^* CONTINGENT REMAINDERS 133. A remainder is contingent when it is so limited as to take' effect in a person not in being, or not ascertained, or upon an event which may never happen, or may not happen until after the termination of the particular estate. 134. As a general rule, to create a contingent remainder, the intent to that end on thei part of the testator must be so clearly indicated as practically to leave no room for construction. 7 Hellman v. HeUman, 129 Ind. 59, 28 N. E. 310. 8 Peckham v. Lego, 57 Conn. 553, 19 AU. 392, 7 L. R. A. ,419, 14 Am. St. Rep. 130. Van Nostrand v. Marvin, 16 App. Div. 28, 44 N. Y. Supp. 679. Semble: Peterson v. Jackson, 196 111. 40, 63 N. E. 643. 10 Barber v. Pittsburgh, etc., Ry., 166 U. S. 83, 17 Sup. Ct. 488, 41 L. Ed. 925; Brown v. Addison Gilbert Hospital, 155 Mass. 323, 29 N. E. 625. 11 See post,' p. 454. 12 Jones V. Moore, 96 Ky. 273, 28 S. W. 659 ; Stone v. Bradlee, 183 Mass. 165, 66 N. E. 708 ; In re Moore's Estate, 152 N. Y. 602, 46 N. E. 960 (quoting New York statute) ; Dunning v. Burden, 114 N. C. 33, 18 S. Et 969; Anderson V. United Realty Co., 79 Ohio St. 23, 86 N. E. 644, 51 U R. A. (N. S.) 477. 13 See ante, p. 449. 452 VESTED AND CONTINGENT INTERESTS (Ch. 17 The above definition ^* is substantially the one always given in this connection, and the hostile attitude of the courts towards re- mainders of this character has already been sufficiently indicated.^" The contingency may be due either to uncertainty as to the person who is to take, or, in event of his being ascertained, to uncertainty as to his right to take, which is dependent upon some event other than the termination of the particular estate. When the remainder is limited to those who survive or are living at the termination of this estate, it is regarded, by the decided weight of authority, as contingent, by reason of uncertainty as to the remaindermen, they being regarded as incapable of ascertainment until the expiration of the prior estate; ^* and such is the case when an estate is given to two or more for life, remainder to the survivor.^' Even where there are no express words of survivorship, there is considerable recognition of the principle that where an estate is to be divided among certain beneficiaries on the termination of the life estate, and there are no other words of gift to the remaindermen, aside from those directing a division, the remainder will be regarded as contingent on their surviving until the termination of the life es- 1* Eobinson v. Palmer, 90 Me. 246, 38 Ati. 103, 15 See ante, p. 443; Carter v. Carter, 234 111. 507, 85 N. E. 292; Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, 3 L. R. A. 690. 16 Robertson v. Guenther, 241 111. 511, 89 N. E. 689, '25 L. R. A. (N. S.) 887; ' HAWARD V. PBAVEY, 128 IIV 430, 21 N. E. 503, 15 Am. St Rep. 120, Dun- more Cas. Wills, 265; Blrdsall v. Birdsall (1911) 157 Iowa, 363, 132 N. W. 809, 36- li. R. A. (N. S.) 1121; Loeb v. Struck (Ky.) 42 S. W. 401; Weatherford v. Boulware, 102 Ky. 466, 43 S. W. 729 ; Hopkins v. Keazer, 89 Me. 347, 36 AtL 615; Robinson v. Palmer, 90 Me. 246, 38 Atl. 103; Spear v. Fogg, 87 Me. 132, , 32 Atl. 791; Culbreth v. Godwin, 87 Md. 425, 40 Atl. 268; Larmour v. Rich, 71 Md. 369, 18 Atl. 702; Demill v. Reid, 71 Md. 175, 17 Atl. 1014; Mercantile Trust & Deposit Co. v. Brown, 71 Md. 166, 17 Atl. 937; Small v. Small, 90 Md. 550, 45 Atl. 190; Thomson v. Ludington, 104 Mass. 193; Olney v. Hull, 21 Pick. (Mass.) 311; Nash v. Nash, 12 Allen (Mass.) 345; Dove v. Johnson, 141 Mass. 287, 5 N. E. 520; Hills v. Barnard, 152 Mass. 67, 25 N. E. 96, 9 li. R. A. 211; Morrill v. Phillips, 142 Mass. 240, 7 N. E. 771; Denny v. Ket- tell, 135 Mass. 138; Kuhn v. Webster, 12 Gray (Mass.) 3; Holm v. Low, 4 Mete. (Mass.) 190, 201; L'Etourneau v. Henquendt, 89 Mich. 428, 50 N. W. 1077, 28 Ami St. Rep. 310; Armstrong v. Armstrong, 54 Minn. 248, 55 N. "W. 971: Hall T. Wiggln, 67 N. H. 89, 29 Atl. 671; McGUlis v. McGlUis, 154 N. T. 532, 49 N. E. 145 ; Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823 ; Whitesides V. Cooper, 115 N. C. 570, 20 S. E. 295 ; Appeal of Commonwealth Title Ins. & Trust Co., 126 Pa. 223, 17 Atl. 585; Rhode Island Hospital Trust Co. v. Har- ris, 20 R. I. 408, 39 Atl. 750; In re Melcher (1903) 24 R. I. 575, 54 AO. 379; Tingley t. Harris, 20 R. I. 517, 40 Atl. 346; Nicholson v. Cousar, 50 S. C. 206, 27 S. EJ. 628 ; Roundtree v. Roundtree, 26 S. C. 450, 2 S. E. 474; In re Hoad- ley (D. C.) 101 Fed. 233. IT Quarm t. Quarm, [1892] 1 Q. B. 184. |§ 133-134) CONTINGENT EEMAINDER8 453 tate.^* But the cases applying this principle have usually been those in which the direction has required the division among the members of a class and it is sometimes said that the courts hesitate to apply it where the gift is to remaindermen by name.^' A remainder is also contingent, by reason of uncertainty as to the remaindermen, when an estate is devised to one for life, with re- mainder to his heirs, where there is nothing to show that the word "heirs" is not used in its technical sense,^° and the same is the case where the remainder is limited to such of the life tenant's "legal representatives as are related to me by blood." ^^ So, where prop- erty is devised to sons for life, with remainder to their children, and the sons have no children at the testator's deaith, the remainder is contingent until it vests in after-born children."* A remainder may also be contingent by reason of its dependency upon a certain event, as upon the remainderman's attaining a cer- tain age,"' or the death of the life tenant without issue, when made expressly contingent upon this event,"* or the failure of a prior con- is This on the ground that, the direction to divide being future, the gift also is future. In re Crane, 164 N. Y. 71, 58 N. E. 47; Clark v. Oammann, 160 N. y. 315, 54 N. E. 709. The principle is concretely recognized in the following cases: Bates v. 6il- lett, 132 111. 287, 24 N. E. 611 (devise to testator's daughters for life, "and after the death of either of them, their share to be equally divided among their children," held, that the remainder did not vest until the death of the daughter) ; Olsen v. Youngerman (1907) 136 Iowa, 404, 113 N. W. 988 ; Hard- ing V. Harding, 174 Mass. 268, 54 N. E. 549 Qike preceding case) ; Hale v. Hobson, 167 Mass. 397, 45 N. B. 913 (as in preceding case); Lese v. Miller, 33 Misc. Rep. 306, 68 N. Y. Supp. 554; Eobinson v. OstendorfiC, 38 S. 0. 66, 16 S. E. 371 ; In re Albiston's Estate (1903) 117 Wis. 272, 94 N. W. 169. 19 Armstrong v. Barber, 239 lU. 389, 88 N. E. 246. 20 Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71; Jacob v. Howard (Ky.) 22 S. W. 332; Preston v. Brant, 96 Mo. 552, 10 S. W. 78; Eyan v. Monaghan, 99 Tenn. 338, 42 S. W. 144; Cole v. Edwards (Tenn. Ch. App.) 62 S. W. 641; Wal- lace V. Minor, 86 Va. 550, 10 S. E. 423; Walcott v. Eobinson, 214 Mass. 172, 100 N. E. 1109; Wood v. BuUard, 151 Mass. 324, 25 N. E. 67, 7 L. E. A. 304; White V. Stanfleld, 146 Mass. 424, 15 N. E. 919; La very v. Egan, 143 Mass. 389, 9 N. E. 747; Putnam v. Gleason, 99 Mass. 454; Barton v. Bigelow, 4 Gray (Mass.) 353, 357; Eichardson v. Wheatland, 7 Mete. (Mass.) 169. In Hauser v. Murray (1914) 256 Mo. 58, 165 S. W. 376, a devise of land to A. for life, with remainder to her "bodily heirs" was held to create only a contingent remainder. 21 Hartford Trust Co. v. Wolcott (1912) 85 Oonn. 134, 81 Atl. 1057. 22 Hayward v. Spaulding, 75 N. H. 92, 71 Atl. 219; Anthracite Sav. Bank V. Lees, 176 Pa. 402, 35 Atl. 197. 2 sin re Jobson, 44 Ch. Div. 154; Prosser v. Hardesty, 101 Mo. 593, 14 S. W. 628; In re Engles' Estate, 167 Pa. 463, 31 Atl. 681; Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50. 2* Lee v. O'Donnell, 95 Md. 538, 52 Atl. 979; People's Loan & Exchange Bank v. Garlington, 54 S. C. 413, 32 S. E. 513, 71 Am. St Eep. 800; Leppes 454 VESTED AND CONTINGENT INTERESTS ^ (Ch. 17 tingent remainder," or the abandonment of the land by a prior taker/" or upon the remainderman continuing to live with the life tenant utitil the latter's death.^' Where two contingent remainders are limitpd as substitutes or alternatives, the fact that the contin- gency on which one is to take effect is too remote does not affect the validity of the other.^' EXECUTORY DEVISES 135. An executory devise is a limitation by will of a future estate or interest in land, whic^ cannot, consistently with the rules of law, take effect as a remainder. It IS not proposed, in this connection, to discuss in detail the law of executory devises, which, although always created by will, are yet governed by principles belonging almost exclusively to the domain pf real property law. It is hardly necessary to remind the reader that estates of this character required no prior particular estate for their support ; ^^ thalt, when accompanied by such prior estate, they need not vest upon its termination,*" or that they could not be defeated by the act of the first taker, and still be executory devises.'^ One matter may, however, be well enough noted in this connection. One of the most useful purposes served by executory devises was that by them an estate might be limited over a defeasi- ble fee *^ — something that could not be effected by a remainder. V. Lee, 92 Ky. 16, 17 S. W. 146; In re EeifC's Estate, 124 Pa. 145, 16 Atl. 636; Ruddell V. Wren, 208 111. 508, 70 N. E. 751. 2BBeckIey v. Leffingwell, 57 Conn. 163, 17 Atl. 766; In re Moore's Estate, 152 N. T. 602, 46 N. E. 960; Hafner v. Hafner, 171 N. Y. 633, 63 N. E. 1117; Wilson V. White, 109 N. Y. 59, 15 N. E. 749, 4 Am. St. Rep. 420. 2 8 Hanley v. Coal Co. (O. C.) 110 Fed. 62. 2T Adams v. Johnson, 227 Pa. 454, 76 Atl. 174. 28 Walker v. Lewis, 90 Va. 578, 19 S. E. 258. 2B Dean v. Dean, [1891] 3 Ch. 150. Since no livery of seisin was made in passing land by devise, there was ob- viously not the same necessity for requiring a particular estate to support a future devise as existed when a future estate was created by feoffment. so Blackman v. Fish, [1892] 3 Oh. 209. 31 Williams v. Elliott, 246 111. 548, 92 N. E. 960, 188 Am. St Eep. 254; Fisher v. Wister, 154 Pa. 65, 25 AU. 1009. See, however, 16 Harv. Law Rev. 458, where the policy of this rule is ques- tioned. S2 Gannon v. Peterson, 193 111. 372, 62 N. E. 210, 55 L. R. A. 701; Devec- mon V. Shaw, 70 Md. 219, 16 Atl. 645 ; Barney v. Arnold, 15 R. I. 78, 23 Atl. 45; Eountree V. Rountree, 85 S. C. 383, 67 S. E. 471; EandaU v. Josselyn, 59 Vt 557, 10 Atl. 577. § 135) EXECUTORY DEVISES 455 Such limitations were continually made by testators on the failure of issue of the first taker, and this, at common law, was steadily construed as meaning an indefinite failure, and. not a failure during the life of such taker. Hence, when such reference to failure of issue did not result in the giving of an estate tail to the first taker, the limitation over by way of executory devise was void, as oflFend- ing the rule against perpetuities,'' and such would also be the case under statutes by which estates tail are converted into fees simple. But slight circumstances were always laid hold of to justify the view that the expression "failure of issue" was used by the testator as referring to a definite failure, i. e., during the life of the first taker; " and generally, though not always,'" in the United States, it is now the rule, either in consequence of decision or statute, that the phrase means a definite failure of issue in the life of the first taker, or during that of the testator," unless there is an express or implied intention to the contrary," and the limitation over the prior defeasible fee is valid as an executory devise." 88 Merrill v. American Baptist Missionary Union, 73 N. H. 414, 62 Atl. 647, 3 L. R. A. (N. S.) 1143, 111 Am. St. Rep. 632, 6 Ann. Cas. 646. 34 Bedford's Appeal, 40 Pa. 18. 8 6 See Hackney v. Tracy, 137 Pa. 53, 20 Atl. 560 (where it was held that the expression, following the devise of a fee, "if she die without issue," im- ports an indefinite failure of issue, which rendered the limitation over void, and carried the fee to the first taker); In re Hoff's Estate, 147 Pa. 636, 23 Atl. 890; Barber v. Railroad Co., 166 U. S. 83, 17 Sup. Ct. 488, 41 L. Ed. 925 (applying the law of Pennsylvania). But in this state the testator's intent to limit over upon a definite, failure of issue is readily recognized. See In re Miller's Estate, 145 Pa. 561, 22 Atl. 1044; In re Moorhead's Estate, 180 Pa. 119, 36 Atl. 647; McCormick v. McEUigott, 127 Pa. 230, 17 Atl. 896, 14 Am. St Rep. 837. 3 6 In re Barrett's Estate, 85 Neb. 337, 123 N. "W. 299, 27 L. R. A. (N. S.) 1047 ; Benson v. Oorbin, 145 N. Y. 351, 40 N. E. 11 ; Burdge v. Walling, 45 N. J. Eq. 10, 16 Atl. 51; Fowler v. Duhnle, 143 Ind. 248, 42 N. E. 623; Wright V. Charley, 129 Ind. 257, 28 N. E. 706 ; Frank v. Frank (1908) 120 Tenn. 569, 111 S. W. 1119. 8 7 Moore v. Gary, 149 Ind. 51, 48 N. E. 630. 8 8 Crawford v. Clark, 110 Ga. 729, 36 S. E. 404. See St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Summers v. Smith, 127 111. 645, 21 N. E. 191; Smith V. Kimbell, 153 111. 368, 38 N. E. 1029 ; Field v. Peeples, 180 111. 376, 54 N. E. 304; Cain v. Robertson, 27 Ind. App. 198, 61 N. E. 26; Crozier v. Cundall, 99 Ky. 202, 35 S. W. 546; Weybright v. Powell, 86 Md. 573, 39 Atl. 421; Mull- reed v. Clark, 110 Mich. 229, 68 N. W. 138, 989; Naylor v. Godman, 109 Mo. 543, 19 S. W. 56 ; Hitchcock v. Peaslee, 89 Hun, 506, 35 N. Y. Supp. 423; In re Peters' Estate, 69 App. Div. 465, 74 N. Y. Supp. 1028; Trexler v. Holler, 107 N. O. 617, 12 S. E. 288; Wright v. Brown, 116 K C. 26, 22 S. E. 313; Buchanan v. Buchanan, 99 N. C. 308, 5 S. E. 430; DE WOLF v. MIDDLE- TON, 18 R. I. 810, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146, Dunmore Cas. Wills, 269; Bethea v. Bethea, 48 S. C. 440, 26 S. E. 716; Ryan v. Monaghan, 99 Tenn. 338, 42 S. W. 144; Bruce v. Goodbar, 104 Tenn. 638, 58 S. W. 282. 456 VESTED AND CONTINGENT INTERESTS (Ch. 17 A limitation in a will is not construed as an executory devise, when it can take effect as a remainder.'* An executory bequest of personalty, limited upon a definite fail- ure of issue, is valid.*" Conditional Limitations Conditional limitations created in wills are a species of executory devise. Thus, where land was devised to a beneficiary, the posses- sion and use to go to him immediately on the testaitor's death, to be his absolutely if he survived the testator by ten years, otherwise to go to his issue, the first taker took a fee, with conditional limitation to his issue in event of his death within ten years of the testator's death.*^ And when testator devised a fee to A., but provided that, if she did not live on the land for her life, it should become the ab- solute property of T., A.'s estate was subject to a conditional limi- tation, so that, upon her removal from the land, the property vested in T. at once without entry or suit to establish a forfeiture.** 8» Duncan v. De Yampert^ 182 Ala. 528, 62 South. 673. Alsman v. Walters (Ind. App.) 101 N. B. 117. 40 Crawford v. Clark, 110 Ga. 729, 36 S. B. 404; Glover v. Condell, 163 111. 566, 45 N. E. 173, 35 L. R. A. 360. *i Whiting V. Whiting, 42 Minn. 548, 44 N. W. 1030, See, also, Sutton v. Dickerson, 85 S. W. 687, 27 Ky. Law Rep. 504. *2 Tajlor V. McCowen, 154 Cal. 798, 99 Pac. 351, §§ 136-138) • CONDITIONS 457 CHAPTER XVIII CONSTRUCTION (Continued)— CONDITIONS 136-138. Conditions in General 139. Particular Conditiona CONDITIONS IN GENERAL 136. A conditional gift is one whose taking effect or whose con- tinued operation depends upon the happening or not hap- pening of some event, either actually uncertain because it is to occur in the future, or subjectively xmcertain because of the testator's ignorance of the fact, if it be present or past. 137. A condition precedent is one that must be fulfilled before the estate or interest can vest. 138. A condition subsequent is one whose non-performance or breach will defeat an estate or interest already vested. No particular form of words need be employed to create a con- dition.^ Apt words to that end must be used,^ but whenever it clearly appears that it was the testator's intention to make a con- dition the intention will be effectuated.* The words "upon condi- tion" are, of course, most appropriate, but even they do not of ne- cessity create such an estate.* As has already been seen, the law favors the vesting of estates, and while the same rigor is perhaps not displayed in construing estates as unconditional, as appears in the construction of vested and contingent gifts," yet, on an even cast, the tendency undoubtedly is to favor the vested and inde- 1 1 Hop. Leg. (3d Ed.) 645; Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264; Hapgood V. Houghton, 22 Pick. (Mass.) 480 ; Fox v. Phelps, 17 Wend. (N. X.) 393. 2 Quincy v. Attorney General, 160 Mass. 431, 35 N. E. 1066; MeElwain v. Society, 153 Mass. 238, 26 N. E. 692 ; Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122; Attorney General v. Merrimack Mfg. Co., 14 Gray (Mass.) 586, 612. = Egg V. Devy, 10 Beav. 444. • * Episcopal City Mission v. Appleton, 117 Mass. 326, 329; Sohier v. Trinity Church, 109 Mass. 1, 19. Thus a devise "upon the condition" that the devisee pay testator's widow a certain sum was held merely to charge the land with a lien and not to make the title conditional, there being no devise over and no provision for forfei- ture. Ditchey v. Lee (1906) 167 Ind. 267, 78 N. E. 972. B Bigelow, Wills, 265. 458 CONDITIONS (Ch. 18 feasible estate.® Where the testator devised his farm to his wife for life, for a home for herself and children, her life interest was regarded as not conditioned upon the occupancy of the farm as her home.'' So a provision that all timber on devised land should be worked in accordance with an existing contract does not attach a condition to the devise in fee, the vesting not being made to depend on performance of the contract, and the will containing nothing to show that the devisee's estate was defeasible in event of nonperformance.* Although the will can have no operative force until the testator's death, yet it may create a condition which must be performed by the beneficiary during the testator's life, as that he shall live with the testator until his death." Nonperfdrmance of a condition that must be performed in the lifetime of the testator is not excused by the fact that the bene- ficiary was ignorant of the condition.^" Conditions Precedent Although the theoretical distinction between conditions precedent and subsequent is sufficiently obvious, yet, concretely, it is often difficult to determine with certainty whether the condition was to limit the acquisition or the retention of the estate.^^ It is always a question of intention, to be determined by the construction of the language of each particular will,^^ and the fact that testator calls the condition which he imposes a "condition precedent" is hot con- clusive.^* "If the language of the particular clause shows' that the act on which the estate depends must be performed before the estate can vest, the condition is precedent, and, unless it can be performed, the devisee can take nothing." ^* But where a gift is 6 Bge V. Herlng, 108 Md. 391, 70 Atl. 221 (1908); Bell v. Nesmith, 217 Mass. 254, 259, 104 N. B. 721, 723, where court says, "Tlie intention to create a condi- tion precedent which would prevent the vesting of title is not lightly to he inferred, but must clearly appear to have been in the mind of the testator." ^ Talbott V. Hamill, 151 Mo. 292, 52 S. W. 203. 8 Lambden v. West, 7 Del. Ch. 266, 44 Atl. 797. Tilley v. King, 109 N. O. 461, 13 S. E. 936 ; Kanken v. Janes, 1 App. Div. 272, 37 N. Y. Supp. 159. 10 Brennan v. Brennan, 185 Mass. 560, 71 N. B. 80, 102 Am. St Rep. 363; Fisher v. Fisher (1907) 80 Neb. 145, 113 N. W. 1004 (where devise on condition that devisee support testator and devisee ignorant of contents of will) ; John- son v. Warren, 74 Mich. 491, 42 N. W. 74; MERRILL v. WISCONSIN FE- MALE COLLEGE, 74 Wis. 415, 43 N. W. 104,' Dunmore Gas. WUls, 272. 11 Acherly v. Vernon, Willes, 153. 12 De Conick v. De Conick, 154 Mich. 187, 117 N. W. 570, 22 L; R. A. (N. S.) 417 ; Warren' Adm'r v. Bronson, 81 Vt. 121, 69 Atl. 655. 13 Winn V. Tabernacle Infirmary, etc. (1910) 135 Ga. 380, 69 S. B. 557, 32 L. R. A. (N. S.) 512. 14 Marshall, 0. J., in Pinlay v. King, 3 Pet 346, 375, 7 L. Ed. 701; Dyke- man V. Jenklnes, 179 Ind. 549, 101 N. E. 1013, Ann. Cas. 1915D, 1011; Scott §§ 136-138) CONDITIONS IN GENERAL 459 couched in language showing an intent to vest title in 'the bene- ficiary on the will becoming operative, and attached to the devise are certain conditions, the performance of which may accompany or follow the vesting of title, such conditions are conditions sub- sequent.^" ^ No other test to distinguish the two has been suggest- ed, and this test amounts to little more than the remolding and elaboration of the definition, and it is of as little practical use as are most general rules of construction. "The same words may make a condition precedent or subsequent, according to the nature of the thing and the intention." " And the construction placed upon conditions in wills may be different from that which the same lan- guage would receive if contained in a deed.^' A legacy to be paid to the beneficiary at a certain time, provided that he be a reformed man,^' or a devise in fee on the devisee's becoming unmarried,^" or a bequest to one upon her marriage '" or of a term to one if he lived to the age of twenty-five and paid to another a sum of mon- ey,"^ furnish instances of conditions precedent, and numerous oth- er instances^ are given hereafter in the discussion of particular con- ditions. When the will specifies the time for the performance of the con- dition precedent, it must be performed at that time, and the fact that the conditional beneficiary was unaware of the existence of the condition until the time for performance had expired affords him no excuse ; ^^ otherwise performance must be had within a reasonable time, this to be determined upon the circumstances of each case.^* V. Roethlisberger, 178 Mich. 581, 146 N. W. 307; ReuflC v. Coleman, 30 W. Va. 171, 3 S. E. 597. IB Smith V. Smith, 64 Neb. 563, 90 N. W. 560. leBlgelow, Wills, 268; Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151; MEBr RILL V. WISCONSIN FEMALE COLLEGE, 74 Wis. 415, 43 N. W. 104, Dun- more Cas. WiUs, 272. 17 Casey v. Casey, 55 Vt. 518; Taft v. Morse, 4 Mete (Mass.) 523, 525. Words which in a deed would create a condition may in a will be construed as a limitation. Jossey v. Brown, 119 Ga. 758, 47 S. E. 350. 18 Markham v. Hufford, 123 Mich. 505, 82 N. W. 222, 48 L. R. A. 580, 81 Am. St. Rep. 222. 19 Ransdell v. Boston, 172 111. 439, 50 N. E. Ill, 43 L. B. A. 526. 20 McClelland's Ex'x v. McClelland (1909) 132 Ky. 284, 116 S. W. 730; Stimpson v. Murch, 197 Mass. 381, 83 N. E. 1107. 21 Johnson v. Castle, 8 Vin. Ab. 104, pi. 2. Semble: Stark v. Conde, 100 Wis. 633, 76 N. W. 600 ; Campbell v. Clough, 71 N. H. 181, 51 Atl. 668. 2 2 Powell V. Rawle, L. R. 18 Eq. 243; Burgess v. Robinson, 3 Mer. 7; In re Hodges' Legacy, L. R. 16 Eq. 92. See, also, cases cited in note 10, supra. 23 Drew V. Wkkefield, 54 Me. 291 ; Morath's Ex'r v. Wilber's Adm'r, 30 Ky. Law Rep. 284, 98 S. W. 321. The dictum in Finlay v. King, 3 Pet. 346, 7 L. Ed. 701, that, in the absence 460 CONDITIONS (Ch. 18 A condition precedent must be performed in order to permit a devise of land to vest. Hence, if the condition is not fulfilled, re- gardless of the reason, whether it be illegal and therefore void, or impossible of performance,"* and though there be no default or laches on the part of the devisee, the gift must fail.'"' The estate cannot vest when the condition precedent fails of performance for any cause.'* But where a devisee offers to perform a condition precedent, the refusal of others to accept performance cannot de- feat a devise to him.'^ If personal property is bequeathed upon a condition which be- fore the time of performance becomes impossible, the property vests in the legatee, unlfess it appears that the performance of the condition was the sole motive for the making of the bequest."* Although the general rule is that conditions precedent must be strictly performed,"* yet, if there is no limitation over, a perform- ance such as will substantially fulfill the testator's intention is, in equity, sufficient when an adequate reason appears for lack of strict performance.^" Thus where the condition requires a leg- atee to execute a release within a certain time, if the release is ex- of any specified time of performance In the ■will, the party has his lifetime, is probably the case only when such appears to have been the testator's in- tent, either from the nature of the condition or the construction of the will. 2 Jar. (Big. Ed.) 848, note 2. 24 Conant v. Stone, 176 Mich. 654, 143 N. W. 39; Burleyson v. Whitley, 97 N. C. 295, 2 S. E. 450, where a devise was made on condition that the benefi- ciary support testator's mother, who died two hours before the testatrix; In re Gunning's Estate, 234 Pa. 139, 83 Atl. 60, 49 L. R. A- (N. S.) 637. 25 Gofe V. Pensenhafer, 190 111. 200, 60 N. E. 110; Eansdell v. Boston, 172 111. 439, 50 N. E. Ill, 43 L. R. A. 526 ; Harris v. Harris' Ex'r (Ky.) 49 S. W. 196; Robertson v. Mowell, 66 Md. 565, 10 Atl. 671; Stark v. Conde, 100 Wis. 633, 76 N. W. 600. See, also, Robinson v. Wheelwright, 6 De G., M. & G. 535 ; Earl of Shrews- bury V. Hope-Scott, 6 Jur. (N. S.) 452; Poor v. Meal, Madd. & Geld. 32; Ridg- way V. Woodhouse, 7 Beav. 437. 2 8 Roundel v. Currer, 2 Br. C. C. 67; Sprigg v. Sprigg, 2 Vern. 394; Brown V. Ferren, 73 N. H. 6, 58 Atl. 870. 2 7 Jacobs v. Ditz, 260 111. 98, 102 N. E. 1077 (where legatees refused to ac- cept legacies the payment of which was made a condition precedent to the vesting of estate in devisee). See, also, Seeley v. Hincks, 65 Conn. 1, 31 Atl. 533, and Harris v. Wright, 118 N. C. 422, 24 S. E. 751. 2s Morley v. Calhoun, 28 Ohio Cir. Ct. R. 163; Nunnery v. Carter, 58 N. C. 370, 78 Am. Dec. 231; Burdis v. Burdis, 96 Va. 81, 30 S. E. 462, 70 Am. St Rep. 825. So, where a legacy is bequeathed subject to a condition precedent, and the performance is made impossible by the act or default of testator, the bequest Is absolute. Frost v. BlackweU (1913) 82 N. J. Eq. 184, 88 Atl. 176. 2» 2 Wms. Ex'rs, 1267. so Frost V. BlackweU (1913) 82 N. J. Eq. 184, 88 Atl. 176. §§ 136-138) CONDITIONS IN GENERAL 461 ecuted within a reasonable, though not within the specified, time, the legatee will take, the period for executing the release being regarded as merely ancillary to the accomplishment of that ob- ject.*^ Conditions Subsequent Applying the test previously indicated," conditions subsequent were held to exist in a devise of a residence for life, the devisees to occupy and not to underlet the same,»» to a devisee to hold during widowhood,"* in a bequest requiring the legatee to pay an an- nuity to the testator's wife,*° to one for the purpose of a collegiate •education, with limitation over should he fail to carry out this pur- pose,*° and in a devise to an absent son, with devise over if he failed to return within ten years.^^ Numerous other illustrations were noted in the discussioii of remainders,"* and others will be ■given in the course of this chapter. vWhen no time is fixed for its performance, a condition subse- quent must be performed within a reasonable time."" Where an estate or bequest is'made dependent upon the full or continued per- formance of conditions subsequent, if the conditions are illegal, or void for any cause, or are or become impossible of performance, the effect is not to defeat the estate dependent upon them, but, once vested, that continues, as though no condition had ever attached.*" For there obviously can be no breach when performance is impos- sible or wrongful. Thus where property was devised to a daugh- 31 Id. 1268; Taylor v. Popham, 1 Bro. C. C. 168; Paine v. Hyde, 4 Bear. -468; Wilkins v. Knipe, 5 Beav. 273; Burns v. Clark, 37 Barb. (N. Y.) 496. 82 Ante, p. 458. 88 In re Hart, 61 App. Div. 587, 70 N. Y. Supp. 933. 34 Chenault v. Scott (Ky.) 66 S. W. 759. 8 5 Slierman v. American Congregational Ass'n, 113 Fed. 609, 51 C. C. A. 329. 8 8 Ellicott V. EUicott, 90 Md. 321, 45 Atl. 183, 48 L. K. A. 58. 8 7 Connor v. Sheridan, 116 Wis. 666, 93 N. W. 835. 3 8 Ante, p. 449. ' 3 9 Ross V. Tremain, 2 Mete. (Mass.) 495. See Carter v. Carter, 14 Pick. (Mass.) 424; Tilden v. Tilden, 13 Gray (Mass.) 103, 109. 40 Pitts V. Campbell (1911) 173 Ala. 604, 55 Soutb. 500; Parker v. Parker, 123 Mass. 584; Merrill v. Emery, 10 Pick. (Mass.) 507; Conrad v. Long, 33 Mich. 78; In re Vandevort, 62 Hun, 612, 17 N. Y. Supp. 316; Ridgway v. Woodhouse, 7 Beav. 437; Burchat v. Woolward, Turn. & R. 442 ; Thomas v. Howell, 1 Salk. 170 ; LYNCH v. MELTON, 150 N. O. 595, 64 S. E. 497, 27 L. R. A, (N. S.) 684, Dunmore Cas. Wills, 274 (where devisee unable to perform condition that she live with the husband of testatrix because the former be- came insane and was committed to an asylum). Compare: Succession of Thompson, 123 La. 948, 49 South. 651 (where court refused to apply this rule when the performance of the ,condition which proved impossible appeared to have been the prime cause for the making of ^e legacy). 462 CONDITIONS (Ch. 18 ter on condition that she should marry the -^testator's nephew on or before she attained the age of twenty-one, and, the pephew dying young, the beneficiary, then under age, married another, her es- tate was held to be unaffected, the performance of the condition having been rendered impossible by the act of God.*^ So where a gift was made payable on the marriage of the beneficiary, provided the marriage received the approval of the testator's widow, other- wise over, and the beneficiary married after the death of her Moth- er, her estate was not defeated, compliance with the condition hav- ing become impossible ; *" and so with a devise conditioned on the devisee's supporting another person, who dies during the testator's lifetime,** or to pay an annuity to such person.** The same result follows where the condition- subsequent is void 'for uncertainty,*" or unreasonableness.** And where a beneficiary is rendered in- capable of performing a condition subsequent by insanity,*^ or the misconduct of another,*' and there is no limitation over, he takes the property discharged from the condition. Inasmuch as the breach of a condition subsequent may work a forfeiture of a vested estate, the very event must happen, or the act, with all its details, must be done, in order to deprive' the beneficiary of his gift.*" Thus, if legacies be given to two persons, and if either die during the life of A., then to the survivor living at the death of *i Thomas v. Howell, supra. *2 CoUett v. CoUett, 35 Beav. 312. 43 Morse v. Hayden, 82 Me. 227, 19 Atl. 443; Parker v. Parker, 123 Mass. 584; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255. 4* Sherman v. American Congregational Ass'n (C. C.) 98 Fed. 495. *5 Jeffreys v. Jeffreys, 84 Law T. 417, where a codicil provided that a life estate created by the will should be forfeited if the beneficiary "shall in any way associate, correspond, or visit with any of my present wife's nephews or nieces." * 8 In re Vandevort, 62 Hun, 612, 17 N. Y. Supp. 316, where a testator, after making certain absolute bequests, by a codicil declared that he was not in- debted r to any of the legatees, and that, if any leagtee should present any claim against the estate, the bequest to such legatee should become "null and void." 47 Bird V. Cross, 8 Rep. 326. , * 8 Harrison v. Harbison, 105 Ga. 517, 31 S. E. 455, 70 Am. St Rep. 60, where a devise creating a tenancy in common eputained a condition subse- quent that the land should be used only by devisees remaining on it, and one devisee was compelled to leave by the misconduct of a co-devisee. 40 2 Wms. Ex'rs, 1273. So where the rents of certain property were given to beneficiaries, condi- tioned on their residing in the mansion house during a portion of each year, with limitation over in event of the "neglect or refusal" of any of the bene- ficiaries thus to occupy it, an infant beneficiary, not having power to choose his own place of residence, was held not bound by the condition, if he did not reside in the house, the specified time. Partridge v. Partridge [1894] 1 Ch. 351. But see Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S. W. 838, §§ 136-138) CONDITIONS IN GENERAL 463 A., and both the legatees die before A., the personal representatives of each are entitled, since their vested legacies were defeasible in favor of a survivor who might be living at the death of A., and there was no such survivor.^" So a devise in trust for a grandson, to be defeated if any attempt should be made during his minority to withdraw the custody of. his person from the trustees, is not de- feated by the surrender of the child to his father by the trustees.^^ And a devise of a "double house" for life, with a limitation over if devisee charge, by way of anticipation, "the income arising from the real estate," is not forfeited by the devisee so charging the in- come from one side of the house.°^ A breach of condition must be affirmatively shown by those who rely upon it.°' The acceptance of a conditional devise binds the devisee to the performance of the conditions, which he cannot afterwards avoid by disclaiming acceptance/* Thus where property is given in re- mainder, conditioned upon the' payment by the devisee of certain sums to his brothers and sisters, his acceptance of the devise creates an obligation to pay the aniounts indicated.^" The refusal of one of two joint devisees to accept a conditional gift does not abridge the estate, or curtail the other's time for the performance of the conditions."' So where a bequest is made of the amount necessary to constitute certain persons life members of a society, the intention of the testator being to benefit the society, to which membership therein was merely incidental, the society is entitled to the amount, though some of the persons named decline to accept membership." Where a further gift is made, conditioned on the acceptance by the beneficiary of a prior conditional gift, the further gift becomes ab- solute on acceptance, and is not defeated by a breach of the condi- tion of the prior gift." Where the condition subsequent is for the benefit of a third party, the beneficiary may waite its performance by the person taking the conditional gift, either absolutely,^ ° or by accepting some other benefit in lieu thereof,'" whereupon the estate 00 Harrison v. Foreman, 5 Ves. 207. See Page v. May, 24 Beav. 325. ■1 In re White's Estate, 163 Pa. 388, 30 Atl. 192. B2 Carlin v. Harris, 100 Md. 49, 59 Atl. 122. 63 Garman v. Glass, 197 Pa. 101, 46 Atl. 923. 64 Bird V. Hawkins, 58 N. J. Eq. 229, 42 Atl. 588. 66 FuUer v. Fuller, 84 Me. 475, 24 Atl. 946. 6* Pendleton v. Kinney, 65 Conn. 222, 32 AtL 331. 6 7 Shepard v. Shepard, 57 Conn. 24, 17 Atl. 173. 6 8 In re Hart, 61 App. Div. 587, 70 N. Y. Supp. 933. 6 B Alexander v. Alexander, 156 Mo. 413, 57 S. W. 110. 80 Nevius V. Gourley, 95 111. 206, 214. Where testator devised land to his sons on condition that they support his daughters in case they came to a state of want, a daughter's acceptance of 464 CONDITIONS (Ch. 18 is freed from the burden of the condition. So the testator may, by his conduct, waive the performance of a condition, as where a gift is made conditional on the beneficiary's not marrying without the consent of trustees, and she subsequently marries with his con- sent.*^ PARTICULAR CONDITIONS 139. Chief among these are conditions affecting— (a) Marriage and matrimonial relations. Conditions in reason- able and partial restraint of marriage are valid. (b) Power of alienation. Where an estate is devised in fee sim- ple, a condition in general restraint of the devisee's power of alienation is void. (c) Rights of creditors. Except by the intervention of trustees,. property cannot be devised absolutely so as to create in the beneficiary an estate free from liability for his debts. (d) Right to contest will. A condition that a gift shall be void in case the beneficiary shall dispute the will is generally regarded as valid. (e) Right to present claims against the estate. Gifts conditioned on the beneficiary's not presenting any claim against the estate are valid, particularly if there is a limitation over. (f) Death or death without issue. Where there is a limitation over upon the death of the first taker or upon his death without issue, such expressions are construed as referring to a death occurring during the life of the testator. (g) Support and maintenance. Gifts conditioned on the bene- ficiary's rendering support or service to another are valid> the condkion being usually construed as a condition sub- sequent, (h) Matters purely personal to the beneficiary. Conditions Affecting Marriage and Matrimonial Relations One who has an interest in the future marriage and settlement of the person in life may annex any reasonable condition to the bequest of property to such person, although it may operate to de- lay or restrict the formation of the marriage relation, and thus, to some extent, operate in restraint of marriage.®'' Conditions in gen- a sum of money cannot be said, as a matter of law, to be a waiver of the sons' breach of condition. Atkins' Ex'x v. Atkins (1914) 87 Vt 376, 89 Atl. 643. 81 Crommelin v. Crommelin, 3 Ves. 227. 62 2 Eedf. Wills, 290. For a complete collection of cases relating to restraints on marriage, see note in 4 B. K. G. 64. § 139) PARTICULAK CONDITIONS 465 eral restraint of marriage, annexed to a gift to one who has never been married, e. g., a gift to a single daughter with limitation over on her marriage,"' are voi'd ; " those in partial restraint are valid. Of the latter class are conditions against the devisee's marrying a man below her "in social position," " or against marriage into a certain family,** or those restraining marriage until a certain age, as twenty-one,*^ or without thfe consent of those interested in the devisee's welfare.** It is generally held that where the testator's intention was not to impose a condition in restraint of marriage, bu,t simply, by way of limitation, to indicate when the estate de- vised should end, a gift to one to hold "so long as she shall remain unmarried" '* is valid. 8s Morley v. Rennoldson, [1895] 1 Ch. 449, 12 Rep. 158 ; Knost v. Knost (1910) 229 Mo. 170, 129 S. W. 665, 49 L. R. A. (N. S.) 627. «* In re Alexander's Estate, 149 Cal. 146, 85 Pac. 308, 9 Ann. Cas. 1141 (de- cided under Civ. Code, § 710); Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Otis v. Prince, 10 Gray (Mass.) 581; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143; Mad- dox V. Maddox's Adm'r, 11 Grat. (Va.) 804; Carrodus v. Carrodus, [1913} Vict. Ifc R. 1, 4 B. R. O. 1 (declaring such conditions void except where im- posed, not from a general objection to marriage, but for some special reason with reference to the legatee). 8B Greene v. Kirkwood, [1895] 1 Ir. 130. A condition attached to a devise to sons, terminating their interest if they should marry "common women," was held void for uncertainty in Watts v. Griffin, 137 N. C. 572, 50 S. E. 218. 6 6 PHILLIPS V. FERGUSON, 85 Va. 509, 8 S. E. 241, 1 L. R. A. 837; 17 Am. St. Rep. 78, Dunmore Cas. Wills, 276. 6 7 Reuff V. Coleman, 30 W. Va. 171, 3 S. E. 597. 6 8 In re Nourse, 68 Law J. Ch. 15, 1 Ch. 63, 79 Law T. (N. S.) 376; In re Hamilton, 1 Out. Law Rep. 10; Collier v. Slaughter's Adm'r, 20 Ala. 263; Col- lett V. Collett, 35 Beav. 312. If such consent is once given by the person designated, it cannot be with- drawn by mere caprice. In re Brown, [1904] 1 Ch. 120, 1 B. R. C. 39. 6 9 Maddox v. Yoe, 121 Md. 288, 88 Atl. 225, Ann. Cas. 1915B, 1235; Mann V. Jackson, 84 Me. 400, 24 Atl. 886, 16 L. R. A. 707, 30 Am. St. Rep. 358; Rug- gles V. Jewett, 213 Mass. 167, 99 N. E. 1092 ; In re Miller's Will, 159 N. C. 123, 74 S. E. 888; Summit v. Tount, 109 Ind. 506, 9 N. E. 582 ; In re Bruch's Es- tate, 185 Pa. 194, 39 Atl. 813; In re Brotzman's Estate, 133 Pa. 478, 19 Atl. 564. While this doctrine is technically sound, as observing the strict distinction between a condition and a limitation, it yet enables a testator, by a slight variation in language, to defeat that sound public policy which discourages restraint upon marriage. For the practical effect of a gift "so long as" the donee shall remain unmarried cannot well differ from that of a gift "on con- dition that" she remain unmarried. See In re Holbrook's Estate, 213 Pa. 93, 62 Atl. 368, 2 L. R. A. (N. S.) 545, 110 Am. St. Rep. 537, 5 Ann. Cas. 137, for a further criticism of the cases which distinguish in this connection between an estate upon condition and one upon limitation. GABD.WrLLS (2d Ed.) — 30 466 CONDITIONS (Ch. 18 The doctrine of the civil law that all conditions in restraint of marriage, whether general or partial, are void,'" so far influenced the English ecclesiastical courts in the exercise of their jurisdic- tion over wills of personalty, and their successors, as to lead to the holding that conditions subsequent, by which legacies may be de- feated upon marriage of the legatee without the consent of certain persons, are void, unless there be a limitation over,'^ and the rule has received considerable recognition in the United States/^ Such is not the case with a devise.''^ Where the consent of several per- sons is required, that of a majority of them is not sufficient/* Where the consent of executors or trustees is required, that of all those living at the time,'" or who have not renounced their office,'* must be had. It is generally recognized that conditions against the remarriage of the testator's widow are valid," and this whether the property be real or personal, and whether there be an immediate gift over or not,'* and the same is true of conditions against the remarriage of a widower.'" Such conditions against remarriage may be imposed by any one ha;ving a natural interest in the beneficiary, such as a son in the remarriage of his mother,*" or of a parent in that of a ■"> 2 Wms. Ex'rs, 1275. 71 Stratton v. Grimes, 2 Vern. 357; Wheeler v. Bingham, 3 Atk. 367; Mal- colm V. O'Callaghan, 2 Madd. 353; Hogan v. Curtin, 88 N. Y. 162, 42 Am. Kep. 244; Finch's Cases on Law of Property in Land, 546 (containing a full dis- cussion of the English law). 72 Hogan V. Curtin, supra; Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598, 4 Am. Prob. Rep. 57, 66; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Gough v. Manning, 26 Md. 347; Parsons v. Wliislow, 6 Mass. 169, 4 Am. Dec. 107. 78 McCuUough's Appeal, 12 Pa. 197 ; Stahl's Appeal, 2 Pa. 301. 7* Clark T. Parker, 19 Ves. 1. 7isAislavie v. Evans, 1 Sim. & St. 165. 76 Gray don v. Hicks, 2 Atk. 16. 77 Bennett v. Packer, 70 Conn. 357, 39 Atl. 739, 66 Am. St. Rep. 112; Rose v. Hale, 185 lU. 378, 56 N. E. 1073, 76 Am. St. Rep. 40; Slddons v. Cockrell, 131 111. 653, 23 N. E. 586; Beshore v. Lytle, 114 Ind. 8, 16 N. E. 499; J^evengood V. Hoople, 124 Ind. 27, 24 N. E. 373; Collins v. Burge (ICy.) 47 S. W. 444; Best V. Best, 88 Ky. 569, 11 S. W. 600; Knight v. Mahoney, 152 Mass. 523, 25 N. E. 971, 9 L. R. A. 573 ; ' Traphagen v. Levy, 45 N. J. Eq. 448, 18 Atl. 222 ; Appeal of McGulre (Pa.) 11 Atl. 72; Redding v. Rice, 171 Pa. 301, 33 Atl. 330; Squier v. Harvey, 16 R. I. 226, 14 Atl. 862 ; Martin v. Seigler, 32 S. O. 267, 10 S. E. 1073; Overton v. Lea, 108 Tenn. 505, 68 S. W. 250; Wooten v. House (Tenn. Ch. App.) 36 S. W. 932; Littler v. Dielmann (1908) 48 Tex. Civ. Add. 392, 106 S. W. 1137. 78 Chapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Rep. 139. 7 9 Stivers V. Gardner, 88 Iowa, 307, 55 N. W. 516; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548. 80 Overton v. Lea, 108 Tenn. 505, 68 S. W. 250. § 139) PARTIC0LAK CONDITIONS 467 child," and some cases hold valid a condition in restraint of any second marriage, whether of a man or of a woman.^^ A bequest providing for the support of a wife pending a present or contemplated separation from her husband has been held valid,^^ but not so with one conditioned on her remaining separate and apart from him.** So a bequest of the partial income of an estate, conditioned to be increased to its entire extent in event of the bene- ficiary's ceasing to be bound to his wife, carries the whole incomp, the condition being void as tending to encourage divorce.*" But where property was left in trust for a married daughter, to become hers absolutely in event of her widowhood," the provision was held valid.*' And generally, if testator makes a provision which is not intended to cause a separation or divorce, but is intended to take effect and protect the beneficiary in the case of a legal separation or divorce, the provision is valid.*' Conditions Affecting Power of Alienation Where an estate in fee simple is given by will, a general restraint upon the devisee's power of alienation is void, as repugnant^ to the nature of the estate conveyed.** So, in the United States, a condi- 81 Herd v. Catron, 97 Tenn. 662, 37 S. W. 551, 37 L. R. A. 731. 82Allen V. Jackson (1875) 1 Ch. Div. 399 (holding legacy to a man defeated by his second marriage, although- legacy given In will of a relative of the first wife) ; Newton v. Marsden, 2 Johns. & H. 356, 31 L. J. Ch. N. S. 690, 8 Jur.- lif. S. 1034 (where condition imposed in bequest to the widow of testator's nephew). 83 Witherspoon v. Brokaw, 85 Mo. App. 169. 8* Witherspoon v. Brokaw, supra; Cruger v. Phelps, 21 Misc. Rep. 252, 47 N. Y. Supp. 61; WhitoQ v. Snyder, 54 Hun, 552, 8 N. Y. Supp. 119. See Wren v. Bradley, 2 De Gex & S. 49 ; Brown v. Pick, 1 Eden, 140 ; Con- rad V. Jong, 33 Mich. 78. Cqntra: Wright v. Mayer, 47 App. Div. 604, 62 N. Y. Supp. 610. 85 In re Haight, 51 App. Div. 310, 64 N. Y. Supp. 1029; Moores v. Gwynne, 33 Ohio Cir. Ct. R. 463. Semble: Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391. See, however, DaboU v. Moon, 88 Conn. 387, 91 Atl. 646, L. R. A. 1915A, 311. 8 6 Rittenhouse v. Hicks, 23 Wkly. Law Bui. (Ohio) 269. Here the wife se- cured a divorce, and "it was held that she should take the property as though her husband had died. Semble: Ransdell v. Boston, 172 111. 439, 50 N. E. Ill, 43 L. R. A. 526. 87 Coe V. Hill, 201 Mass. 15, 86 N. E. 949 (where gift sustained although conditioned upon the death of husband of beneficiary or her permanent sep- aration from him); Dusbiber v. Melville (1914) 178 Mich. 601, 146 N. W. 208, 51 L. R. A. (N. S.) 367; Snorgrass v. Thomas, 166 Mo. App. 603, 150 S. W. 106; Ellis V. Birkhead, 30 Tex. Civ. App. 529, 71 S. W. 31. See, also. In re Gunning's Estate, 234 Pa. 139, 83 Atl. 60, 49 L. R. A. (N. S.) 637. 8s See ante, p. 413; Jones v. Thresher Co., 171 111. 502, 49 N. E. 700; Al- len V. Craft, 109 Ind. 476, 9 N. B. 919, 58 Am. Rep. 425 ; Fristoe v. Latham (Ky.) 36 S. W. 920 ; Freeman v. Phillips, 113 Ga. 589, 38 S. E. 943 ; McCravey 468 CONDITIONS (Ch. 18 tion that the devisee in fee shall alienate only to specified persons," 3.S to other devisees,"" or to his own family,'^ or the heirs of his father,"^ is generally held to be invalid, though the English rule is apparently otherwise."' But a condition restricting the power of alienation to a certain class may be valid in case there is a limita- tion over to a third person on violation of the restricting clause.'* In such case, however, the true view is to regard the fee, not as absolute, but as defeasible on attempted alienation to one not a member of the specified class. A condition that the devisee shall -not alienate to certain individuals is, however, valid."" Generally, a provision that the devisee in fee shall not alienate during his life "' or for a certain period, as for twenty-five years,"' or until the youngest child of a certain person should reach his ma- jority,"* or while any of the testator's children might become home- less," ° is. void for repugnancy. But if the language be such as to make the interest a fee defeasible on alienation before a certain pe- riod, as that land devised to an infant shall not be sold until he is thirty-five years old, the condition is sometimes held to be valid.^ The same principles apply to gifts of personal as of real property, in this connection." T. Otts, 90 S. C. 447, 74 S. B. 142; ZILLMER v. LANDGUTH, 94 Wis. 607, 69 N. W. 568, Dunmore Cas. Wills, 280. 89 Fowlkes V. Wagoner (Tenn. Ch. App.) 46 S. W. 586. For a more detailed consideration of restraints on alienation qualified as to persons, see Gray, Restraints on Alienation (2d Ed.) §§ 31-44. 8 Schermerhorn v. Negus, 1 Denio (N. Y.) 448. »i Farris v. Rogers (Ky.) 7 S. W. 543. »2 McCullough's Heirs v. Gilmore, 11 Pa. 370, 373. »3 See Doe v. Pearson, 6 East, 173; In re Macleay, U R. 20 Eq. 186. Both •of these cases, however, have been criticized and the English cases are in conflict. See Attwater v. Attwater, 18 Beav. 330, and In re Rosher, 26 Ch. Div. 801, 816. 84 Fowlkes V. Wagoner (Tenn. Ch. App.) 46 S. W. 586. »5 Overton v. Lea, 108 Tenn. 505, 68 S. W. 250. Contra: Morse v. Blood, 68 Minn. 442, 71 N. W. 682. 9s Harkness v. Lisle, 132 Ky. 767, 117 S. W. 264; Wool v. Fleetwood, 136 N. C. 460, 48 S. E. 785, 67 L. R. A. 444. »7 Johnson v. Preston, 226 111. 447, 80 N. E. 1001, 10 L. R. A. (N. S.) 564; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623; Ross v, Ayrhart (1908) 138 Iowa, 117, 115 N. W. 906. 9 8 Smith V. Kenny, 89 111. App. 293; Roosevelt v. Thurman, 1 Johns. Ch. (N. Y.) 220. 9 9 Reynolds v. Crispin (Pa.) 11 Atl. 236. I See Wallace v. Smith, 113 Ky. 263, 68 S. W. 131. "The reasoned weight ol authority is against the validity of such conditions." Gray. Restraints on Alienation (2d Ed.) § 54, citing many cases. » In re Wilcox, L. R. 1 Ch. D. 229 ; Rishton v. Cobb, 3 My. & Cr. 153. § 139) PARTIOULAK CONDITIONS 469 Conditions Affecting Rights of Creditors Except by the intervention of trustees,' property cannot be de- vised absolutely so as to give the beneficiary an estate free from liability for his debts.* But gifts to one until he shall become bank- rupt or insolvent, with limitation over, are steadily held to be valid •conditional limitations." And so limitations over upon the taking of the prof^erty devised on execution or in any way attempting to subject it to the debts of the beneficiary are sustained." And a limitation in unmistakable terms that the estate shall cease upon the insolvency of the beneficiary may be valid, even without a limi- tation over.'' Conditions Affecting Right to Contest Will A condition that a gift shall be void in case the beneficiary shall dispute the will is a condition subsequent.* Generally conditions of this sort are regarded as valid," particularly when there is a limi- tation over.^" But such a condition has been held inoperative where the opposition was made in good faith,^^ and a distinction is some- tiines attempted between bequests subject to this condition, which s Johnson v. Gooch, 116 N. C. 64, 21 S. E. 39; Weller v. Noffsinger, 57 Neb. 455, 77 N. W. 1075 ; First Nat. Bank v. Nashville Trust Co. (Tenn. Ch. App.) 62 S. W. 392. Concerning the validity of so-called "spendthrift" trusts, see Smith v. Tow- ers, 69 Md. 77, 14 Atl. 497, 15 Atl. 92, 9 Am. St. Rep. 398, and cases there cited. * Henderson v. Harness, 176 111. 302, 52 N. E. 68; JLathrop v. Merrill, 207 Mass. 6, 92 N. E. 1019; Van Osdell v. Champion, 89 Wis. 661, 62 N. W. 539, 27 li. R. A. 773, 46 Am. St. Rep. 864. B Lockyer v. Savage, 2 Str. 947 ; Lear v. Leggett, 2 Sim. 479; Townsend v. Early, 34 Beav. 23; Lloyd v. Lloyd, L. R. 2 Eq. 722; Metcalfe v. Metcalfe, [1891] 3 Ch. 1; Nichols v. Eaton, 91 U. S. 716, 727, 23 L. Ed. 254; Campbell v. Foster, 35 N. Y. 361 ; .Leavitt v. Beirne, 21 Conn. 1. 6 Bottom V. Fultz, 30 Ky. Lavr Rep. 479, 98 S. W. 1037; Brandon v. Robin- son, 18 Ves. Jr. 429; Bramhall v. Ferris, 14 N. Y. 41, 67 Am. Dec. 113. T Bochford V. Hackman, 9 Hare, 475, 481. See In re Maclin, 21 Ch. Div. 838. 8 Nevitt V. Woodburn, 190 111. 283, 60 N. E. 500. » In re Hite's Estate, 155 Cal. 436, 301 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993 ; Moran v. Moran, 144 Iov?a, 451, 123 N. W. 202, 30 L. B. A. (N. S.) 898; In re Kirkholder's Bstat^^, 86 Misc. Rep. 692, 149 N. Y. Supp. 87; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Thompson v. Gaut, 14 Lea (Tenn.) 310. 10 Smithsonian Institution v. Meech, 169 TT. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793; Morrison v. Bowman, 29 Cal. 337. 11 Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399; In re Friend's Estate, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447; Chew's Appeal, 45 Pa. 228; Rouse v. Branch, 91 S. C. Ill, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296. Some jurisdictions hold that even a contest on reasonable grounds works a 470 CONDITIONS (Ch. 18 have been held void in the absence of a gift over,^* and devises of realty, whose validity is unaffected by the absence of a limitation over.^° Such conditions are not, however, operative as against an infant,^* unless by the terms of the will the gift to him may be for- feited by the act of other beneficiaries in making a contest." A condition that any devisee who shall contest the will shall pay the expenses of both sides is valid, without limitation over,*" as is also a condition that the costs of probating the will shall be taken from the share of any devisee who shall attempt to prevent the probate of the will ; " but a testamentary provision is void which directs that, in case of any litigation growing out of a construction of the will, all costs, counsel fees, and expenses shall be charged against the person commencing legal proceedings.^* Conditions Affecting Right to Present Claims against the Estate A condition that a gift is to be void if the beneficiary presents a claim against the estate of the testator is valid,^* though such a con- dition has been held to be invalid in the absence of a limitation over.''" Conditions Relating to Death Without Issue , When there is a gift to one person, and in case of his death, or his death without issue, then over, such expressions, when unex- plained by the context of the will, are construed as referring to a death occurring during the lifetime of the testator. If the death does not thus occur, the first beneficiary takes an absolute estate ; if forfeiture. IN RE MILLER'S ESTATE, l56 Cal. 119, 103 Pac. 842, 23 L. E. A. N. S. 868, Dunmore Cas. Wills, 282 ; Moran v. Moran, supra. It Is submitted that a contest, based upon probable cause, should not be permitted to forfeit a gift because of the policy against affording protection to possible fraud or forgery. izDonegan v. "Wade, 70 Ala. 501; In re Wall, 76 Misc. Rep. 106, 136 N. T. Supp. 452; Flfleld v. Van Wyck's Ex'r, 94 Va. 557, 27 S. E. 446, '64 Am. St. Rep. 745; Powell v. Morgan, 2 Vern. 90; Morris v. Burroughs, 1 Atk. 404. ~ Some American courts refuse to recognize this distinction. See Kite's Es- tate, supra, and cases there cited. 13 Violett V. Bookman, 26 Law J. Ch. 308; Cooke v. Turner, 15 M. & W. 727. 1* Bryant v. Thompson, 59 Hun, 545, 14 N. T. Supp. 28. IB Perry v. Rogers (1908) 52 Tex. Civ. App. 594, 114 S. W. 897. 16 Holt V. Hoit, 42 N. J. Eq. 388, 7 Atl. 856, 59 Am. Rep. 43. 17 Kay hart v. Whitehead (1910) 77 N. J. Eq. 12, 76 Atl. 241. 18 In re Vom Saal's Will, 82 Misc. Rep. 531, 145 N. T. Supp. 307. IS Rockwell V. Swift, 59 Conn. 289, 20 Atl. 200; Rogers v. Law, 66 U. S. (1 Black) 253, 17 L. Ed. 58. 2 In re Vandevort, 62 Hun, 612, 17 N. Y. Supp. 316. But a provision that the legatee shall bring In no bill against the estate, and if she does, the amount thereof is to be deducted from the legacy, seems un- doubtedly valid. Farnham v. Barker, 148 Mass. 204, 19 N. E. 371. § 139) PABTICULAR CONDITIONS 471 it does so occur, his heirs or personal representatives take nothing, and the party taking by way of limitation receives an absolute es- tate. ^^ But the rule does not apply where there are indications in the will, though slight, of a different intention on the part of the testator,^'' as where a life estate is given to one, with remainder to another, with limitation over upon the death of the remainderman without i^sue,^' or a provision for a reversion of such beneficiary's interest to the estate of the testator.^* In such cases, the time of death is construed as subsequent to that of the testator. A gift dependent upon the birth of issue is valid, unless too re- mote,^'^ and the possibility of issue is regarded as existing regard- less of the age of the person of whom they are to be bbrn.^° Conditions Involving Support and Maintenance Gifts conditioned on the beneficiary's rendering service and sup- port to another are valid, and are ordinarily construed as dependent on a condition subsequent,^' unless the plain intent of the testator is to make the rendering of the support a condition precedent."* A devise on condition that the devisees care for their mother "pro- vided she resided" with them does not require either of them to provide for her away from his home ; "* neither does a devise, con- ditioned on the beneficiary's cai;ing for and treating the testator's wife as a mother, require him to provide a trained nurse when the wife has funds of her own sufficient to pay for one^^" So a devise of a house, providing that the devisee shall furnish the testator's daughter a home, is construed as intending to secure her reason- able accommodations only in the house, and not support as a mem- 2iEIckards v. Gray, 6 Houst. (Del.) 232; Wright v. Charley, 129 Ind. 257, 28 N. E. 706; Burdge v. Walling, 45 N. J. Eq. 10, 16 Atl. 51; Mead v. Maben, 131 N. Y. 255, 30 N. E. 98 ; In re Eobinson's Estate, 149 Pa. 418, 24 Atl. 297; Morrison v. Truby, 145 Pa. 540, 22 Atl. 972; In re Bngel's Estate, 180 Pa. 215, 36 Atl. 727; In re Johnson, 23 R. I. Ill, 49 Atl. 695. 22 In re Maben's Estate (Sur.) 12 N. Y. Supp. 5, affirmed in Mead v. Maben, 131 N. Y. 255, 30 N. E. 98. v 23 In re Denton, 137 N. Y. 428, 33 N. E. 482; Hollister v. Butterworth, 71 Conn. 57, 40 Atl. 1044. 24 Trexler v. Holler, 107 N. C. 617, 12 S. E. 288. 2B Hatchett V. Trust Co., 19 Ky. Law Rep. 174, 39 S. W. 235. 28 Carney v. Kain, 40 W. Va. 758, 23 S. E. 650. Contra: In re Lowman, [1895] 2 Ch. 348. „ „ 27 Morse v. Hayden, 82 Me. 227, 19 Atl. 443; La Chapelle v. Burpee, 69 Hun, 436, 23 N. Y. Supp. 453. 28 Irvine v. Irvine (Ky.) 15 S. W. 511; Brennan v. Brennan, 185 Mass. 560, 71 N. E. 80, 102 Am. St. Rep. 363. 29 Isner v. Kelley, 51 W. Va. 82, 41 S. E. 158. so In re Wyatt's Estate, 9 Misc. Rep. 285, 30 N. Y. Supp. 275. 472 CONDITIONS (Ch. IS- ber of the family, when to hold otherwise would render the gift of little or no value to the beneficiary.*^ Conditions Pertaining to Matters Largely Personal to the Beneficiary Gifts on condition that the. beneficiary shall be baptized with/^ or that he shall adopt and assume a certain name, are vali'd.'* Where the devise was conditioned on the child's being baptized and known by a certain name during his natural life, and it appeared that, while so baptized, he had not been known by the name prior to his becoming of age, theire was a sufficient breach to effectuate a limitation over.'* Where a bequest is made to a college on con- dition that its name be changed, a legal change is necessary, and a vote of the trustees that steps be taken to secure such change is not enough." Since, at common law, a man may change his name without the intervention of the sovereign and without the aid of any legislative act,** an informal assumption by him of the required name is sufficient.*' Gifts conditioned on the beneficiary's pursuing certain business,** or following particular lines of study,*" or attaining or exhibiting certain traits of character, as that he shall be a reformed man,*" or shall be capable of making a prudent use of the gift,*^ or should cease to be a spendthrift for a certain length of time,*^ or should abstain from the use of tobacco and liquor, and association with 81 Clough V. Clough, 71 N. H. 412, 52 Atl. 449. «2 Smith V. Smith, 64 Neb. 563, 90 N. W. 560 (held a condition subsequent). 33 In re Jackson's Will (Sur.) 20 N: T. Supp. 380. 3* Smith V. Smith, 64 Neb. 563, 90 N. W. 560. SB MERRILL V. WISCONSIN FEMALE COLLEGE, 74 Wis. 415, 43 N. W. 104, Dunmore Cas. Wills, 272. 36 See Laflin & Rand Co. v. Steytler, 146 Pa. 434, 442, 23 Atl. 215, 14 L. B. A. '690. 3 7 Lowndes v. Davis, 2 Scott, 71, 74, 1 Bing. N. C. 597. 88 Seeley v. Hincks, 65 Conn. 1, 31 Atl. 533; Colby v. Dean, 70 N. H. 591, 49 Atl. 574, holding that, In a bequest on condition that the beneficiaries had some useful trade, the term meant some special occupation or profession, rather than mechanical employment, and that beneficiaries who were book- keepers, typewriters, and teachers complied with the condition ; also that in the case of minor beneficiaries the necessary trade could be acquired within a reasonable time after becoming of age. 89 Shepard v. Shepard, 57 Conn. 24, 17 Atl. 173. *o Markham v. Hufford, 123 Mich. 505, 82 N. W. 222, 48 L. R. A. 580, 81 Ai-\. St. Rep. 222; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391. 41 Rushmore v. Rushmore, 59 Hun, 615, 12 N. Y. Supp. 776. Compare: Jones v. Jones, 223 Mo. 424, 123 S. W. 29, 25 L. R. A. (N. S.) 424, where such a condition was held invalid for indefiniteness, no person being designated to determine the capacity required by the condition. *2 Burnham v. Burnham, 79 Wis. 557, 48 N. W. 661. § 139) PAETIOULAR CONDITIONS 473 immoral persons,*' or that a girl who had lived with the testator should remain in his family and conduct herself as she had here- tofore done, until she reached a certain age,** are valid. And so with a gift over to a child in case the father becomes a drunkard and vagabond.*" Gifts conditioned on the beneficiary's adhering to *° or abstaining from *' certain religious beliefs are generally treated as valid, as are also devises on the condition that the dev- isees shall occupy the property devised.*' A condition requiring residence in a certain house is said to be satisfied by such a resi- dence as is necessary to create a legal domicile,** and a temporary absence is not a ground of forfeiture."" Gifts conditioned on the beneficiary's attaining a certain age have already been discussed."^ Miscellaneous Conditions Conditions that the devisee should have the land so long as he paid the taxes upon it, with limitation over ; °'' that a portrait should be hung and retained in a certain place; °' that the legatee should bury the testatrix in a certain cemetery ; °* that the devisee should have an infant under her sole guardianship until arriving at age ; " that no intoxicating liquors should be sold upon the premises de- vised; ^* that the beneficiary should be in the testator's employ at the time of his decease;" that the money bequeathed should be needed by reason of sickness or misfortune °* — have been held valid. But a condition in a gift to an adoptive parent, requiring the parent to set aside the adoption of the child, is void." *8 Onderdonk v. Onderdonk, 52 Hun, 614, 5 N. T. Supp. 242. 4* Reufl V. Coleman, 30 W. Va. 171, 3 S. E. 597, holding that the birth of an iUegitlmate child prior to the time when the legacy was to be paid defeated the legatee's right to it 45 Forsyth v. Forsyth, 46 N. J. Eq. 400, 19 Atl. 119, holding that he must be- come both, for the limitation to take effect. 4a Magee v. O'Neill, 19 S. C. 170, 45 Am. Rep. 765. Contra: Maddox v. Mad- 4ox's Adm'r, 11' Grat. (Va.) 804. 47 Barnum v. Mayor, 62 Md. 275, 50 Am. Rep. 219, 4 Am. Prob. Rep. 291 ; Ex parte Dickson, 1 Sim. N. S. 37; Spencer v. See, 5 Redf. Sur. (N. Y.) 442. 48 Lowe V. Cloud, 45 Ga. 481; Marston v. Marston, 47 Me. 495; Casper v. Walker, 33 N. J. Eq. 35 ; Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S. W. ^838 49 2 Jar. Wills, 51, 52. 6 Holt's EK'r V. Deshon, 31 Ky. I^w Rep. 744, 103 S. W. 281. Bi See ante, p. 439; In re Rogers' Estate, 94 Cal. 526, 29 Pac. 962. B2 Hoselton v. Hoselton, 166 Mo. 182, 65 S. W. 1005. 53 In re Gassiot, 70 Law J. Ch. 242. B4 In re Bratt, 10 Misc. Bep. 491, 32 N. T. Supp. 168. BB Johnson v. Warren, 74 Mich. 4^1, 42 N. W. 74. B6 Nudd V. Powers, 136 Mass. 273. „ „ -h„ «T White V. Institute of Technology, 171 Mass. 84, 97, 50 N. B. 512. B8 tiarvey v. Garvey, 150 Mass. 185, 22 N. B. 889. JiSAnonymous, 80 Misc. Bep. 10, 141 N. Y. Supp. 700. 474 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 CHAPTER XIX CONSTRUCTION (Continued)— TESTAMENTARY TRUSTS AND POWERS 140. Testamentary Trusts — General Rule. . 141-142. The Trustee. 143. The Beneficiary. 144. Powers. TESTAMENTARY TRUSTS— GENERAL RULE 140. Testamentary trusts illustrate the doctrines controlling in the case of trusts generally. The testator must adequately in- dicate his intention to create a trust by using language sufficient to sever the legal from the equitable estate, and must, with sufficient certainty, identify the beneficiaries, and the property out of which the trust is to take effect. The above proposition is steadily reiterated in the form that "three things must concur to raise a trust — sufficient words to cre- ate it, a definite subject, and a certain or ascertained object." ^ No particular or technical words are required to create a testamentary trust. Though "trust" and "trustee" are apt for this purpose, they are not necessary,' any others showing that the donee was not in- tended to take beneficially being sufficient.' Thus gifts to testa- tor's sons and their wives "for the use, benefit, and support of such legatees and their children" ; * to the wives of certain sons for the education of their children and the support of their families ; ' to trustees for the benefit of designated children "or their heirs" ; " to a wife, the property to be administered by her for the support of herself and the testator's children ; ' to a bishop for the educa- 1 By Sir William Grant in Cruwys v. Colman, 9 Ves. 323. 2 Hughes V. Fitzgerald, 78 Conn. 4, «0 Atl. 694; In re Sheets' Estate, 52 Pa. 266. The use of the word "trust" is not conclusive on the question whether a trust is created. Bank of Uklah v. Rice, 143 Cal. 265, 76 Pae. 1020, 101 Am. St. Rep. 118. 3 Crockett v. Crockett, 1 Hare, 451; Heywood's Estate, 148 Cal. 184, 82 Pac. 755 ; Day v. Roth, 18 N. Y. 453 ; Blackburn v. Blackburn, 109 N. C. 488. 13 S. E. 937 ; Martin v. Moore, 49 Wash. 288, 94 Pac. 1087. i Allen V. McGee, 158 Ind. 465, 62 N. E. 1002. 5 Clifford V. Stewart, 95 Me. 38, 49 Atl. 52. 6 O'Rourke v. Beard, 151 Mass. 9, 23 N. E. 576. 7 O'Riley v. McKiernan, 90 Ky. 116, 13 S. W. 360 ; Anderson v. Crist, 113 Ind. 65, 15 N. E. 9; Deans v. Gay, 132 N. O. 227, 43 S. E. 643. § 140) TESTAMENTABT TRUSTS — GENERAL RULE 475 tion of priests ; * to a legatee, to be equally divided between the legatee's children, the legatee to take a child's part ; » to a wife, "to have and to use as she may think proper for herself and my children" ; " to a wife, "in good faith believing that she will make a will distributing so much of the property among -my near rela- tives as she may not use for comfortable maintenance, and it is my will that my said wife shall make such distribution" ; ^^ to a devisee, with a provision that, in case she sells the property, she shall pay a certain amount to another from the proceeds of the sale ; ^^ to an executor to invest certain money for the benefit of an indicated beneficiary ; " to one for hei-self and her three chil- dren ; ^* to a wife, to use so much of the property bequeathed for the support of the testator's niece "as she should, from time to time, in her discretion, think best to do" ; ^° to one, "he paying the tes- tator's debts" '■" — all furnish instances of an adequately indicated intention to create a trust. The fact that the testator designated the purpose for which a legacy must be used does not necessarily indicate an intention to create a trust.^' So the mere expression of the motive in making a bequest must be distinguished from such intention,^* as must also 8 Shanahan v. Kelly, 88 Minn. 202, 92 N. W. 948 (1903). 9 Freeman v. Brown, 115 Ga.'23, 41 S. E. S85. 10 Elliott V. Elliott, 117 Ind. 380, 20 N. E. 264, 10 Am. St. Rep. 54. 11 Cox V. Wills, 49 N. J. Eq. 130, 22 Atl. 794. Semble: McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Cresap v. Oesap, 34 W. Va. 310, 12 S. E. 527; Mc- Cleman v. McCleman, 73 Md. 283, 20 Atl. 908. 12 Haskett v. Alexander, 134 Ind. 543, 34 N. B. 325. So a trust Is created by a devise to three sons, who are directed to pay to each of testator's daughters a sixth of the value of the estate for life, and on the death of each daughter to pay her heirs such one-sixth. Comstock v. Kedmond, 252 HI. 522, 96 N. E. 1078. 13 Bearing v. Selvey, 50 W. Va. 4, 40 S. E. 478; Mee v. Gordon, 187 N. Y. 400, 80 N. E. 353, 116 Am. St. Rep. 613, 10 Ann. Cas. 172. 14 Stratton v. McKinnie (Tenn. Ch. App.) 62 S. W. 636. IB Collister v. Fassitt, 163 N. Y. 281, 57 N. E. 490, 79 Am. St. Rep. 586. 16 Wright V. Wilkin, 2 Best & S. 32. See Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502; Sohier v. Trinity Church, 109 Mass. 1. IT In re Bogart's Will, 43 App. Div. 582, 60 N. Y. Supp. 496. See Randall V. Randall, 135 111. 398, 25 N. E. 780, 25 Am. St. Rep. 373. Where a gift, intended to benefit the donee alone, is expressed to be for a certain purpose, the donee is entitled to it without applying it to the purpose. Thus, where testator directed that annuities be purchased for certain bene- ficiaries, they were entitled to the money necessary to purchase such annu- ities although the will expressly provided that they should not be permitted to accept the money. Stokes v. Cheek, 28 Beav. 620,, 29 L. J. Ch. 922, 54 Eng. 18 Elliin ton's Ex'r v. Elkinton (N. J. Ch.) 18 Atl. 587 (where testator be- queathed money "to my daughter-in-law (wife of my son, J.), and to her chil- dren by said J., * ♦ * for the support and good of the family, the said 476 TESTAMENTARY TRUSTS AND POWERS (Ch. 19* the gift of an estate upon condition,^' or charged with some burden, such as the support of another.^" Where a will leaves it doubtful: whether it was intended to incumber a gift with a trust, or in any- way restrict it, the construction most favorable to the beneficiary will be adopted."^ Thus the mere expression of a belief that the devisee will do justice with regard to certain persons,"'' or of a de- sire that a certain disposition of the property should be made by the beneficiary,^' or of an expectation that the testator's wishes- would be followed,"* or of certainty that the beneficiary would aid the testator's relatives in case of need,"" or of a suggestion that the property bestowed be used for certain purposes,"* creates no trust. Neither do the words "to be held and enjoyed" by the beneficiary,, when used alone and without qualification ; "^ and a gift to the- testator's son, "in trust to my executors," goes to the legatee abso- lutely, free from any trust."* So, where a gift is made to a certain society, which is charged under the will to use it for certain pur- poses, for the accomplishment of which the society was formed, the gift is construed as absolute, and not in trust."' J. Included, the said money not to be held at the disposal of the said J.," held,, that the money should be paid to the mother and her children or their guard- ians, the language expressing the motive for the bequest); Seamonds v. Hodge,. 36 W. Va. 304, 15 S. B. 156, 32 Am. St. Rep. 854 (where the wUl gave to tes- tator's wife "all my estate • • • for the purpose of raising her children,, to have and to hold unto her and her heirs forever"). 19 Zimmer v. Sennott, 134 111. 505, 25 N. E. 774 (where the gift was to a- wife of "all the rents and profits" of real estate "until the eldest one of my children has attained the age of eighteen years, upon condition that my said- wife shall raise and support my children until they Respectively have attained the age of eighteen years," held, that the wife took an absolute estate, free- from any trust) ; Woman's Foreign Missionary Soc. of M. E. Church v. Mitch- ell, 93 Md. 199, 4§ Atl. 737, 53 L. R. A. 711. 2.0 Lang V. Everling, 3 Misc. Rep. 530, 23 N. Y. Supp. 329. Semble: GrifiEn- V. Griffin (Ky.) 21 S. W. 38. 21 Fox V. Fox, 102 Tenn. 77, 50 S. W. 765. 22 Hill V. Page (Tenn. Ch. App.) 36 S. W. 735; Cheston v. Cheston, 89 Md. 465, 43 AU. 768. ' 2 s In re Marti's Estate, 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071. 24 Fairchild v. Edson, 154 N. Y. 199, 48 N. E. 541, 61 Am. St. Kep. 609. 2B Toms V. Owen (C. C.) 52 Fed. 417. 28 Williams v. Committee, 92 Md. 497, 48' Atl. 930, 54 L. R. A. 427; Poor T. Bradbury, 196 Mass. 207, 81 Nt- E. 882, 13 Prob. Rep. Ann. 87. 2 7 Succession of Justus, 45 La. Ann. 190, 12 South. 130. Semble: Pell y. Folger, 68 Hun, 443, 23 N. Y. Supp. 42. The fact that testatrix gives to beneficiary only "the use" of certain prop- erty is not sufficient to indicate an intention to create a trust. Hardy v. Mayhew (1910) 158 Oal. 95, 110 Pac. 113, 139 Am. St Rep. 73 ; little v. Col- man, 74 N. H. 215, 66 Atl. 483. 2 8 In re Denfleld, 156 Mass. 265, 30 N. E. 1018. a» Pierce v. Phelps, 75 Conn. 83, 52 Atl. 612; Doan v. Vestry of Parisli of § 140) TESTAMENTABT TEDST8— GENERAL RULE 477 Even where the language is sufficient to establish a testamen- tary trust, if there is uncertainty in the objects to be benefited, or in the subject-matter to be affected, the trust must fail.*" Such a trust must be of so clear and definite a nature that a court can ren- der it effective, in the exercise of its ordinary judicial functions.'^ Thus a bequest to a bishop to be use4 for masses for the repose of the souls of the testator and certain others was held void for lack of beneficiaries to enforce it." So, where the testator's widow,. who was given a life estate in all his property, with a general pow- er of disposition, was requested, at her death, to make equitable disposition of what remained, among the testator's children, the subject-matter was regarded as too irfdefinite to create a trust ca- pable of being enforced/^ But a trust otherwise valid will not'be permitted to fail because the will does not designate a trustee,, since the court has power to appoint one.'* And the fact that no- time is stated in the will for the termination of the trust does not render it void as too indefinite.** Precatory Words as Creating a Trust The question as to whether precatory words (i. e., words of expectation, hope, desire, or recommen^lation) can operate to cre- ate a trust is, as Professor Bigelow has clearly indicated,'" purely one of definition, and, where the wUl itself doe§ not determine the sense in which the testator used them, is one for a lexicographer rather than a judge. If such words are used in their primary sense^ it is obvious, or should be, that they can impose no obligation up- on the first taker." If, however, the rest of the will shows that the words are really imperative, and that beneath the veil of cour- tesy there lurks a positive order — the Latin subjunctive of "mild Ascension, 103 Md. 662, 64 AU. 314, 115 Am. St. Rep. 379, 7 L. R. A. (N. S.) 1119; In re Dnrand, 194 N. Y. 477, 87 N. E. 677; Danforth v. Oshkosh, 119^ Wis. 262, 97 N. W. 258. 3 Pratt V. Trustees, 88 Md. 610, 42 Atl. 51. Matters relating to the de- scription of the beneficiary and of the subject-matter of the gift h?ive already been discussed (see ante, pp. 351, 374), and need be referred to but inciden- tally here. 81 McHugh V. McCole, 97 Wis. 166, 72 N. W. 631, 40 L. R. A. 724, 65 Am.. St. Rep. 106. 82 Id. 8 3 Coulson V. Alpaugh, 163 111. 298, 45 N. E. 216. See, also, Ensley v. En- sley, 105 Tenn. 107, 58 S. W. 288; Clark v. Hill, 98 Tenn. 300, 39 S. W. 339; Glover v. Baker, 76 N. H. 393, 83 Atl. 916. 34 Webber Hospital Ass'n v. McKenzie, 104 Me. 320, 71 Atl. 1032 ; Sears- V. Chapman, 158 Mass. 400, 33 N. E. 604, 35 Am. St. Rep. 502. 8 6 Holmes v. Walter, 118 Wis. 409, 95 N. W. 380, 62 L. R. A. 986, 9 Probv Rep. Ann. 561. 3 6 Bigelow, Wills, 151, note. 3T See In re Bellas' Estate, 176 Pa, 122, 130, 34 Atl. 1003. 478 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 command" — then the trust should be effectuated. In the nature of the thing, this is all the so-called "law" that this question can in- volve. But these obvious facts have been overlooked. The courts have been eager to give unnatural and wrongful meanings to words whose significance is commonly well understood, and the result is a hopeless confusion in the decisions, and that utter absence of principle which inevitably follows the abandonment of right prin- ciple. However, it is said that, according to the earlier cases, when property is given absolutely to any person, and the same person is, by the giver, who has power to command, recommended or entreated or wished to dispose of that property in favor of an- other, the recommendation, entreaty, or wish is held to create a trust, if the words are so used that, upon the whole, they ought to be construed as imperative, and if the subject-matter and the objects of the recommendation be certain.'* The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary man- ner.'° Applying thjs rule, it is clear that the same words may have wholly different meanings when read in the light of the con- text. Thus the expression of a "wish" may *° or may not *^ cre- ate a trust, and so with "desire," ** "request," ** and similar 3 8 Eaton, Equity, 368; Hill v. Page (Tenn. Ch. App.) 36 S. W. 735. Some modern cases apply this rule of construction. Deacon v. Cobson (1914) 83 N. J. Eq. 122, 89 Atl. 1029. 3s Pom. Eq. Jur. § 1016; Eaton, Equity, 369. "While in the earlier cases there was a disposition to formulate general rules and to give to a particular word or phrase the same meaning in one will as in another, sometimes even at the risk of defeating the real Inten- tion of the testator, the later cases, in trying to ascertain the true meaning of a clause, are inclined to give more consideration to the language of the whole will, and to the particular circumstances of each case."' Hammond, J., in Mc- Curdy v. McCallum, 186 Mass. 464, 468, 72 N. E. 75. *o Trustees of Pembroke Academy v. Epsom School Dist., 75 N. H. 408, 75 Atl. 100, 87 L. E. A. (N. S.) 646 ; PHILLIPS v. PHILLIPS, 112 N. T. 197, 19 N. E. 411, 8 Am. St. Rep. 737, Durunore Cas. Wills, 285; Hadley v. Hadley, 100 Tenn. 446, 45 S. W. 342. *i Holmes v. Dalley, 192 Mass. 451, 78 N. E. 513 ("wish and desire") ; Post V. Moore, 181 N. Y. 15, 73 N. E. 482, 106 Am. St. Rep. 495, 2 Ann. Cas. 591; In re Bellas' Estate, 176 Pa. 122, 130, 34 Atl. 1003. 12 Held to create a trust in Poster v. Willson, 68 N. H. 241, 38 Atl. 1003, 73 Am. St. Rep. 581; Wood v. Trust Co., 44 N. J. Eq. 460, 14 Atl. 885. Con- tra: Jewell V. Barnes' Adm'r, 110 Ky. 329, 61 S. W. 360, 53 L. R. A. 377. 43 Thus the expression of a "request" created a trust in Seefried v. Clarke, § 140) TESTAMENTAKY TRUSTS — GENERAL BULE 479 words.** The question in every case is whether they express mere- ly the testator's wish, or whether they express his will.*" Where an absolute estate is, in terms, given, precatory words which fol- low are usually treated as expressions of wish rather than of will.*' Trusts not Appearing in the Will On principle, where the testator makfes an absolute devise, his intention, not set forth in the will, that the devisee should hold the property in trust for others, cannot be enforced, though the devisee acknowledge the trust in writing, and define its extent.*' How- ever, it is very generally held that, where there is an oral agree- ment between the testator and the ostensible beneficiary in the will that the latter will hold the gift in trust for others, the construc- tive trust thereby created will be enforced in equity, despite the statutory requirement that wills be in -^^iriting.** "Equity acts in 113 Va. 365, 74 S. B. 204, but was deemed Insufficient to create a trust in White V. Irvine, 24 Ky. Law Rep. 2458, 74 S. W. 247, and Carter v. Strick- land, 165 N. C. 69, 80 S. E. 961, Ann. Cas. 1915D, 416. <* The words "will and desire" were held to create a trust In Deans v. Gay (1903) 132 N. O. 227, 43 S^ H. 643; Murphy v. Carlin, 113 Mo. 112, 20 S. W. 786, 35 Am. St Rep. 699. The term "recommend" will not ordinarily be interpreted as a command. In re Whitcomb's Estate, 86 Cal. 265,' 24 Pac. 1028; nor will an expression of confidence that the beneficiary will do a certain thing for another, Aldrich V. Aldrich, 172 Mass. 101, 51 N. E. 449. 4 B Hughes V. Fitzgerald, 78 Conn. 4, 60 Atl. 694; Wood v. Wood, 32 Ky. Law Rep. 408, 106 S. W. 226; Taylor v. Martin (Pa.) 8 Atl. 920. Sometimes the testator may explicitly state the sense in which precatory words are used, as in Enders' Ex'r v. Tasco, 89 Ky. 17, 11 S. W. 818 ; Eberhardt v. Perolin, 49 N. J. Eq. 570, 25 Atl. 510 ; In re Keleman, 126 N. Y. 73, 26 N. E. 968. *8 Bryan v. Milby, 6 Del. Ch. 208, 24 Atl. 333, 13 L. R. A. 563; Lumpliin v. Rodgers, 155 Ind. 285, 58 N. E. 72; Fullenwider v. Watson, 113 Ind. 18, 14 N. E. 571; Sale v. Thomberry, 86 Ky. 266, 5 S. W. 468; Igo v. Irvine, 139 Ky. 634, 70 S. W. 836; Nunn v. O'Brien, 83 Md. 198, 34 Atl. 244; Durant v. Smith, 159 Mass. 229, 34 N. B. 190 ; Bacon v. Ransom, 139 Mass. 117, 29 N. E. 473 ; In re Crane's Will, 159 N. T. 557, 54 N. E. 1089; First Presbyterian Church in Vniage of Waterford v. McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740- Street v. Gordon, 41 App. Div. 439, 58 N. Y. Supp. 860; In re Whelen's Estate, 175 Pa. 23, 34 Atl. 329; In re Hamilton [1895] 2 Ch. 370, 12 Rep. 355. Contra: Noe v. Kern, 93 Mo. 367, 6 S. W. 239, 3 Am. St Rep. 544. See Colton V. Colton, 127 U. S. 300, 8 Sup. Ct 1164, 32 L. Ed. IBS. 4T Moran v. Moran, 104 Iowa, 216, 73 N. W. 617, 39 L. R. A. 204, 65 Am. St Rep 443; Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Rep. 772. See Keith V Miller 174 111 64, 51 N. E. 151; In re Schultz's Appeal, 80 Pa. 896. 48 See' Curdy' V. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. Ren 157; Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L R. A 305- BENBROOK v. YANCY, 96 Miss. 536, 51 South. 461, Dun- more Cas. Wills', 289; Mead v.. Robertson, 131 Mo. App. 185, 110 S. W. 1095; Winder v Scholey, 83 Ohio St 204, 93 N. E. 1098, 33 L. R. A. (N. S.) 995, 21 Ann. Cas. 1379; In re Washington's Instate, 220 Pa. 204, 69 AU. 747. 480 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 such cases, not because of a trust declared by the testator, but be- cause of the fraud of the legatee." *• Implied Trusts The intention of the donor to create a trust may be often in- ferred from the powers granted to the trustee, as where a will au- thorizes the payment of certain annuities by the executors, whith would be impossible unless they had a trust estate' in the proper- ty."" So a will providing that, if certain relatives "shall be at any time * * * in need, I authorize my trustees thereunder to pro- vide" for them, creates an implied trust, and not a discretionary power.*^ So, if the executors of a will are authorized- to manage and control certain property, and pay over the net incomfe to bene- ficiaries, they of necessity take the legal estate, and an express active trust is the resulff"* And an implied trust arises from a gift of the income only of personalty with remainder over, unless the will expresses a contrary intent."' While, generally, a trust by implication of law will be decreed wherever it is essential to -carry into effect the provisions of the will,"* the court will not adopt a strained construction to create such a trust."" Active and Passive Triists An active trust is one in which some active duties are imposed upon the trustee with reference to the subject-matter of the trust. Where property is left in trust, the income to be paid to the tes- tator's wife for life, and at her death the fund to be divided among his children, the trust is active; and, though the children have released all their interest therein to the mother, it does not come within the purview of a statute providing for the delivery by a trustee to a beneficiary of property whose profits are bequeathed to the latter for life."" A passive or dry trust is one in which mere- ly the naked legal title is confided to the trustee, and which, in ju- risdictions where the statute of uses is in force, will be executed *» In re O'Hara's Will, 95 N. Y. 403, 413, 47 Am. Rep. 53. BO United States Trust Co. v. Maresi, 33 Misc. Rep. 539, 68 N. T. Supp. 918. 51 Ingraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320. Accord: In re Goodrtch's Estate, 38 Wis. 492. 5 2 Tobias v. Ketchum, 32 N. Y. 319, 327-331. oaRliines'v. Wentwortli, 209 Mass. 585, 95 N. E. 951. See, also, Ryder v. Lyon, 85 Conn. 245, 82 AU. 573. 04 Haywood v. Wachovia Loan & Trust Co., 149 N. C. 208, 62 S. E. 915. 85 Hamilton v. Hamilton, 135 App. Div. 454, 119 N. Y. Supp. 986. 8 Appeal of McClelland, 130 Pa. 451, 18 Atl. 638; Appeal of Watson, 125 Pa. 340, 17 Atl. 426. See, also. Appeal of Grothe, 135 Pa. 685, 19 AtL 1058; In re HemphUl's Estate, 180 Pa. 95, 36 AtL 409. § 140) TESTAMENTARY TRUSTS — GENERAL RULE 481 SO as to vest the entire legal and beneficial interest in the bene- ficiary/^ Duration and Termination of Trust A trust will continue so long as the testator shall indicate,''' pro- vided the period does not offend the rule against perpetuities ; if no period is indicated, so long as is necessary to accomplish the pur- pose of the trust." Where money was bequeathed to a trustee, who was to pay the income to the wife of the testator's son, the principal to be paid to the son if he should for five years lead a temperate life, and the son never reformed, his death was regarded as terminating the trust, when the property passed to his wife and children under the statute of distributions.®" Even though the testator has indicated the time of the termination of the trust, it may end sooner if all the purposes of the trust are effected before the time indicated. Thus where a bequest to a grandson was to be held in trust for him for fifteen years after the death of the testa- tor's wife, after which he was to take legal title, since the trust was for his sole benefit, the estate was held to pass to his personal rep- resentatives, on his death, free from the trust.®^ The testator may provide that an estate in trust shall become absolute in the benefi- ciary on her marriage,'^ or that her interest shall cease on her 7 Mims V. MacMln, 53 S. C. 6, 30 S. K 585. A court of equity may decree the termination of a passive trust which for any reason is not executed by the statute of uses. Sands v. Old Colony Trust Co., 195 Mass. 575, 81 N. E. 300, 12 Ann. Cas. 83T. 5 8 Batt r. Henderson, 181 Mass. 1, 62 N. B. 954; Kendall v. Gleason, 152 Mass. 457, 25 N. E. 838, 9 L. R. A. 509. 69 See Rankine v. Metzger, 174 N. T. 540, 66 N. E. 1115 (1903) ; Morse v. MorreU, 82 Me. 80, 19 Atl. 97; Louisville Trust Co. v. Todd (Ky.) 22 S. W. 438 ; In re Sheaff's Estate, 231 Pa. 251, 80 Atl. 361. Where the purpose of the trust in one-half of the trust estate has been ac- complished, the trust will not be continued in that one-half. Wayman v. Fol- lansbee, 253 111. 602, 98 N. E. 21. / ao Weakley v. Buckner, 91 Ky. 457, 16 S. W. 130. So where money was bequeathed in trust the income to be paid to testator's wife, and on her de- cease or marriage the principal to be disposed of between his sons and daugh- ters, but in case the wife should survive such sons and daughters and their is- sue the principal to be disposed of at her decease in accordance with her will, in default thereof to the testator's heirs, It was held that the trust termi- nated on the widow's surviving the children, who died without issue, and that she could maintain a bill to terminate the trust. Whall v. Converse, 146 Mass. 345, 15 N. E. 660. For further illustrations, Lee v. O'Donnell, 95 Md. 538, 52 Atl. 979; Taylor V. Richards, 153 Mich. 667, 117 N. W. 208; Baker v. McAden, 118 N. O. 740, 24 S. B. 531. «i Mallory v. Mallory, 72 Conn. 494, 45 Atl. 164. 62 Hughes V. Rhodes (Ky.) 37 S. W. 489. GABD.WrLLs (2d Ed.) — 31 482 TESTAMENTARY TRUSTS AND POWERS . (Ch. 19 death or marriage, in which case, in event of marriage, the trust fund is to be at once distributed among the testator's heirs.°^ A trust may be created for a class, the estate to vest absolutely when the youngest of the class becomes of age,'* or it may be terminated by implication on the beneficiary's reaching his majority, as where an estate was given in trust, the trustee to have full power to sell and reinvest the property for the benefit of the beneficiary during his minority.'" When the will does not in terms provide for the disposition of the fee in certain trust property, the death of the beneficiaries in a certain order, not contemplated by the will, does not terminate the trust and cause the fee to become a part of the residuary estate, when the construction of all the provisions of the will clearly discloses an intent to pass the fee to persons named, on the death of the beneficiaries, regardless of the order in which they might die.'* A trust to several persons or the survivor of them, with remain- der over, terminates only on the death of all the first takers.''^ But if the trust is for specified persons during their respective lives, with remainder over, the remainder takes effect, as to the share of each of the life takers, upon the death of each." A gift of the in- come of a trust fund, conditioned to cease in case any proceeding was instituted by creditors for the purpose of, reaching such in- come, terminates upon the beginning of proceedings by a judgment creditor of the beneficiary to subject the income to the payment bf his judgment, regardless of the fact that the object of the proceed- ings was impossible of accomplishment.'® Where the will contains no restraint upon the alienation of the trust property, the wish of beneficiaries to have the trust terminated will prevail over an ob- scure provision in the will which might be construed as indicating a wish to have the estate held in trust and managed for the benefi- ssOhapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Eep. 139; In re Rose's Will, 156 Wis. 570, 146 N. W. 916. A trust created for the benefit of a woman "while unmarried," which is ter- minated by her marriage, is not revived by the subsequent death of her hus- band. Thornquist v. Oglethorpe Iiodge No. 1, 140 Ga. 297, 78 S. E. 1086. 6* Masen v. Paschal, 98 Tenn. 41, 38 S. W. 92 ; Otterback v. Bohrer, 87 Va. 548, 12 S. E. 1013. 6 Page V. Marston, 94 Me. 342, 47 Atl. 529. 68 Williams v. Jones, 166 N. Y. 522, 60 N. E. 240, reversing 54 App. Div. 349 66 N. Y. Supp. 702. 6 7 Shattuck V. Balcom, 170 Mass. 245, 49 N. E. 87; Loring v. Coolidge, 99 Mass. 191 ; Dow v. Doyle, 103 Mass. 489. See Claflin v. Dewey, 177 Mass. 166, 58 N. E. 581; Seaver v. Griffing, 176 Mass. 59, 57 N. E. 220; Hood v. Board- man, 148 Mass. 330, 19 N. E. 379. 68 Tarrant v. Backus, 63 Conn. 277, 28 Atl. 46. « 8 In re Luscombe's Will, 109 Wis. 186, 85 N. W. 341. § 14:0 TESTAMENTAET TRUSTS— GENERAL KULB 483 Claries ; " but there can be no such termination bj'- consent when some of the beneficiaries are infants." And where testator has clearly expressed an intention to create an active trust, a court will not terminate the trust upon extrinsic evidence of testator's reasons for creating it and proof that such reasons no longer exist. '^ A trust in which peculiar and personal confidence is placed in the person named as trustee with regard to the exercise of powers con- ferred upon him terminates, so far as the powers are concerned, at his death." In some cases courts can decree the termination of a trust when all the parties interested are capable of acting and as- sent thereto, although alMts purposes may not have been accom- plished, as where the residue was to be deposited in a bank, to be appropriated by the executors to the relief of the testator's heirs, should they need assistance,'* or where the same person became absolutely entitled to both the principal and income." If, however, justice requires that the legal and equitable estates be kept distinct, there will be no merger on their uniting in one person.'* Resulting Trust If the trust fail by the death of the beneficiary, the devise being to the trustee for a specific purpose only, he holds the property for the testator's heirs at law, as a resulting trust, and is answerable to them for it." The same rule applies when the property devised is more than is needed to support the trust,'' and where the trust is not sufficiently defined to enable the court to carry it out.'* TO Armlstead's Ex'rs v. Hartt, 97 Va. 316, 33 S. E. 616. 71 Anderson v. WiUiams, 262 111. 308, 104 N. E. 659, Ann. Cas. 1915B, 720. T2 CARPENTER v. CARPENTER'S TRUSTEE, 119 Ky. 582, 84 S. W. 737, 27 Ky. Law Rep. 206, 115 Am. St. Rep. 275, 68 L. R. A. 637, 10 Prob. Rep. Ann. 82, Dunmore Cas. Wills, 290. 7 3 Hadley v. Hadley, 147 Ind. 423, 46 N. B. ^23; Baker v. McAden, 118 N. C. 740, 24 S. E. 531. Where the words, "heirs, administrators, and executors," or words of sim- ilar import, are added to the designation of a testamentary trustee by name, the will excludes the idea of a personal trust. Dodge v. Dodge (1908) 109 Md. 164, 71 Atl. 519, 130 Am. St. Rep. 503. 7 4 Smith r. Harrington, 4 Allen (Mass.) 566; Dodge v. Dodge, 112 Me. 291, 92 Atl. 49. 7 5 Inches v. Hill, 106 Mass. 575; Peugnet v. Bferthold, 183 Mo. 61, 81 S. W. 874, 9 Prob. Rep. Ann. 256. 7 8 Earle v. Washburn, 7 Allen (Mass.) 95, 97. 7 7 Easterbrooks v. Tillinghast, 5 Gray (Mass.) 17, 21. 7 8 Sears v. Hardy, 120 Mass. 524, 542. 7 9 Nichols v. Allen, 130 Mass. 211, 221, 39 Am. Rep. 445; OUifTe v. Wells, 130 Mass. 221, 223; St Paul's Church v. Attorney General, 164 Mass. 188, 197, 41 N. B. 231. 484 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 THE TRUSTEE 141. Any person, capable of taking and holding the legal estate, and possessed of natural capacity and legal ability to per- form the duties imposed by the will, may act as trustee, 142. His duty is to carry out the directions of the will, in sp far as they may be legally executed. These propositions are unquestioned.*" Cbrporations, both pub- lic and private, may act as trustees, if the execution of the trust is within the scope of their corporate powers.*^ A bequest of a library to the mayor of a city and the presidents of two medical colleges and their successors, in trust for the purpose of founding a public li- brary, was held to vest the property in the persons who might oc- cupy the positions mentioned, perpetually, and not in the corpora- tions of which they were the heads.'^ While an infant might legally act as trustee, he should, of course, never be appointed ; '* and an alien can take real estate in trust, only to the same extent that he can take and hold the legal title for his own use.*** If the testator, by his will, has not placed his property in trust with any other trustee than the executor, it is the province and duty of the latter to act as trustee.*' There is apparently no objection to 'a married woman's acting as trustee,** and nonresidence is no dis- qualification.*^ Estate Taken by Trustee When the will does not, in terms, fix the extent of the estate or interest which the trustee is to take in the property, he will take only such an interest as is -necessary to enable him to execute the 80 Eaton, Equity, 356, 420; Lewln, Trusts, 27. 81 Attorney General v. Town of Dublin, 38 N. H. 577; Vidal v. Girard's Ex'rs, 2 How. 127, 11 U Ed. 205 ; Attorney General v. St. John's Hospital, 2 De G., J. & S. 621; Sargent v. Town of Cornisli, 54 N. H. 18; Webb v. Neal, 5 Allen (Mass.) 575. 82 Oottman v. Grace, 112 N. Y. 299, 19 N. E. 839, 3 Ji. E. A. 145. 8 3 Perry, Trusts, |§ 52, 54. 84 Id. § 55. 8 5 Dorr V. Wainwright, 13 Pick. (Mass.) 328, 331; White v. Institution of Technology, 171 Mass. 84, 96, 50 N. E. 512; Woods v. Gilson, 178 Mass. 511, 60 N. E. 4, 61 N. E 58; Bean v. Commonwealth, 186 Mass. 348, 71 N. E. 784. 88 Eaton, Equity, 357. 8 7 Eoby T. Smith, 131 Ind. 342, 30 N. E. 1093, 31 Am. St. Rep. 439, 15 L. R. A. 792 (holding unconstitutional a statute requiring trustees to be resi- dents of the state). §§ 141-142) THE TRUSTEE 485 trust." This may be a fee," as where propferty is devised in trust for the lives of the testator's wife and children, and until the young- est child of any of the testator's children should become of age, when a conveyance was to be made by the trustee to the grand- children and their heirs; »» or a life estate, as when property was devised in tr^ist for the testator's daughters during life, then to be- come the absolute property of their children ; *^ or for years, as where children are entitled to their share in the trust fund on reach- ing a certain age.*^ A trustee takes the fee, if the purposes of the trust so require, although no words of inheritance are used in de- vising to him the legal interest."* Trustee Cannot Delegate His Powers A trustee cannot delegate his powers or duties either to a stranger or a co-trustee, unless authorized to do so by the will, or unless morally obliged to do so from necessity, where any reliance is placed upon the judgment or discretion of the trustee.** Hence where a will directed the executors to invest funds in real estate, and pay the income to a beneficiary for life, and on her death to her children, and the executors, after accepting the trust, conveyed the property to the beneficiary for life under an agreement relieving them from all liability, the conveyance was held void.''^ But the rule above stated does not prevent the delegation of mere ministerial duties incidental to the execution of the trust.'* Cofnpensation of Trustees In tlie United States trustees are allowed their reasonable ex- penses, and are entitled to just and reasonable compensation.*' In 8 8 Doane v. Trust Co., 160 N. Y. 494, 55 N. E. 296. 8» Chase v. Cartright, 53 Ark. 358, 14 S. W. 90, 22 Am. St. Rep. 20T; Doe dem. Patton v. Roe, 1 Marv. (Del.) 232, 40 Ati. 1106; Harvey v. Ballard, 252 lU. 57, 96 N. E. 558 ; Woodward v. James, 115 N. Y. 346, 22 N. E. 150; Potter V. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721 ; Haynesworth v. Good- win, 35 S. C. 54, 14 S. E. 491 ; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456, 43 Am. St. Rep. 410; Sneer v. Stutz, 102 Iowa, 462, 71 N. W. 415. 8 De Haven v. Sherman, 131 111. 115, 22 N. E. 711, 6 L. R. A. 745. Semble: Crane v. BoUes, 49 N. J. Eq. 373, 24 Atl. 237. 81 Brantley v. Porter, 111 Ga. 886, 36 S. E. 970. See, also. Hale v. Hale, 146 111. 227, 33 N. B._ 858, 20 L. R. A. 247 ; Jobe v. Dillard, 104 Tenn. 658, 58 B. W. 324; People's Loan & Exchange Bank v. Garlington, 54 S. C. 413, 32 S. E. 513, 71 Am. St. Rep. 800. 82 Treat v. Vose, 63 App. Div. 338, 71 N. Y. Supp. 507. See, also, Weller v. Noffsinger, 57 Neb. 455, 77 N. W., 1075. 8 3 Martin v. Moore, 49 Wash. 288, 94 Pac. 1087. 8 4 Eaton, Equity, 423. 8 5 Binns v. La Forge, 191 111. 598, 61 N. E. 382. 88 Spengler v. Kuhn, 212 111. 186, 72 N. E. 214. ' 8T Baton, Equity, 433; Urann v. Coates, 117 Mass. 41, 44. 486 TESTAMBNTAEY TRUSTS AND POWBES (Ch. 19 some jurisdictions the amount is regulated by statute. The fact that the trustee has received compensation as executor does not de- prive him of his right to compensation as trustee, if the duties are separate. °' Reasonable counsel fees are allowed,"* though where the trustee, who is also a lawyer, charges for services in the latter capacity, the charge is apt to be carefully scrutinized, both as to its reasonableness and the necessity of the service.^ The testator may provide for the compensation of the trustee, in terms, and an agreement between the trustee and the beneficiary as to the amount is sometimes held valid where the latter is sui juris, and the arrange- ment is fair and conscionable.^ THE BENEFICIARY 143. As a general rule, whoever is capable of taking and holding the legal title to property under a will may, as beneficiary, receive the equitable title, and, as the legal estate canl only be conferred upon a definite taker, the beneficiary must likewise be certain and definite. The question as to who can take directly under a will has already been discussed at length,' and as the same doctrines control in the case of equitable beneficiaries they need not be repeated here ; and so with regard to the description of the beneficiaries.* A trust with- out a definite beneficiary who can claim its enforcement is void.° Thus, where a will gives the residue to a brother, in trust "to be disposed of by him as I have heretofore or may hereafter direct him to do," but, the- beneficiaries are not disclosed either by the will or in any paper that can be regarded as a part of it, the trust failed for uncertainty, a resulting trust arising for the testator's heirs at law ; ° and so with a devise for the benefit of "near relations." ^ The bene- "sArnold v. Alden, 173 lU. 229, 50 N. E. 704. 9 » Blake v. Pegram, 101 Mass. 592, 690; Willis v. Clymer, 66 N. J. Bq. 284, 57 Atl. 803 (where trustee acted also as attorney), i Shirley v. Shattuck, 28 Miss. 13. 2 Bowker v. Pierce, 130 Mass. 262. 3 See ante, p. 141. 4 See ante, p. 374. : Levy V. Levy, 33 N. T. 97, 107; Murray v. Miller, 178 N. Y. 316, 70 N. B. 870, 9 Prob. Rep. Ann. 501. ' 6 Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29; Condit V. Reynolds, 66 N. J. Law, 242, 49 Atl. 540. Accord: Ludlam v. Hol- man, 6 Dem. Sur. (N. Y.) 194. See Gross v. Moore, 68 Hun, 412, 22 N. Y. Supp. 1019. 1 Sale V. Moore, 1 Sim. 534. § 143) THE BENEFICIAKY 487 ficiary need not be described by name; any description by which he may be identified is sufficient.' And the gift of a sum for "the maintenance and support of such of my heirs at law as shall or may be in need of pecuniary assistance" has been held to sufficiently designate the beneficiaries.' The same person may not be both sole trustee and sole benefi- ciary of the same interest,^" but the trustee under a testamentary trust may be one of several , cestuis que trustent.^^ Right of Beneficiaries to Income Where a fund is given in trust, the income to be paid to a bene- ficiary, the latter is entitled to it from the testator's death,^^ unless the will provides for the time and amounts of payment. ^^ A gift of the income ordinarily means the net income,^* and the whole of it,^° in the absence of an indicated intent to the contrary. Where trus- tees are directed to apply the net income of a fund "to the support, maintenance, and education" of a child until he becomes of age, when the principal was to be paid to him, the entire income need not be applied to the child's wants, unless necessary for that pur- pose.^® And where the will authorizes the trustee to apply so much of the income of a trust fund as may be necessary for the support of a beneficiary, the trustee may make payments, although the bene- ficiary has an independent estate sufficient for his support.^' The gift, in trust, of so much of the income of a fund as should be necessary for the support of a son and his children gives the children a several right each to his portion of the income, dependent on the amount necessary for his support, and an arbitrary division 8 Holmes v. Mead, 52 N. Y. 332, 343. 8 Bronson v. Strouse, 57 Conn. 147, 17 Atl. 699. 10 Weeks v. Frankel, 197 N. Y. 304, 90 N. E. 969. 11 In re Vreeland's Estate, 66 N. J. Eq. 297, 57 Atl. 903; Burbacli v. Bur- bach, 217 111. 547, 75 N. E. 519. 12 McLane v. Cropper, 5 App. D. C. 276; Pope v. Pope, 209 Mass. 432, 95 N. B. 864. 13 Bates v. Barry, 125 Mass. 83, 28 Am. Rep. 207. 14 See Stone v. Littlefield, 151 Mass. 485, 24 N. E. 592 ; Watts v. Howard, 7 Mete (Mass.) 478; Dickinson v. Henderson, 122 Mich. 583, 81 N. W. 583; Wolfinger v. Fell, 195 Pa. 12, 45 Atl. 492 ; Goodwin v. McGaughey, 108 Minn. 248, 122 N. W. 6. 15 Gasquet v. PoUock, 158 N. Y. 734, 53 N. E. 1125. So, where testator directed that the trustees apply the income of property devised "to the maintenance and use" of his two sons for Ufe, the bene- ficiaries were held to be entitled to the entire income. In re Scharmann, 63 Misc. Rep. 640, 118 N. Y. Supp. 687. 16 In re McCormick, 163 N. Y. 551, 57 N. E. 1116. Semble: Hooper v. Smith, 88 Md. 577, 41 Atl. 1095. n In re Longenecker's Estate, 226 Pa. 1, 74 Atl. 616. 488 TBSTAMEN'TAEY TRUSTS AND POWERS (Ch. 19 among the beneficiaries is erroneous.^* Where property is given in trust for a class, the share of one dying without issue to go to the survivors, and the income of such members of the class as should become intemperate or incompetent to manage their interest to be withheld, the portion thus withheld goes to the other members of the class.^* Miscellaneous In the absence of a restriction to the contrary, the holder of the beneficial interest in a trust may devise,"" or convey it.-^ Where the parties entitled under a will to the whole beneficial interest in an estate all join in an election to receive it as land rather than as money, in the absence of any superior equity, the trustee holding the lands solely for the purpose of division will be directed to con- vey land to the beneficiaries, according to their interest under the will." POWERS 144. A power is an authority to create some estate in land, inde- pendent of any estate therein possessed by the donee of the power, or to impose a charge thereon, or to revoke an existing estate therein. Powers of appointment may be general, i. e., exercisable in favor of anybody, or special, i. e., exercisable only in favor of particular persons or classes. Powers may be created by will by any language clearly indicating the testator's intent to that end. A power is, briefly, a right to create or change an estate in land."' It is distinguishable from an estate as being a mere right over, and not an interest in, the land."* The power may be, and frequently is, coupled with an interest in the land, as in case of a gift to a life tenant, with a general power of disposition, or it may be merely a naked power, disassociated with any estate, as where executors are authorized to sell any or all of the testator's real estate and make a certain disposition of the proceeds."" 18 Woodruff V. Woodruff, 54 App. Div. 414, 66 N. Y. Supp. 936. 19 Lombard v. Witbeck, 173 111. 396, 51 N. E. 61. soBransfield v: Wigmore, 80 Conn. 11, 66 Atl. 778; Chase v. Benedict, 72 Conn. 322, 44 Atl. 507. 21 Kean's Guardian v. Kean (Ky.) 18 S. W. 1032. 22 Beidman v. Sparks, 61 N. J. Eq. 226, 47 Atl. 811. 2 3 Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Rodgers v. Wallace, 50 N. C. 181. 2< Sewall V. Wilmer, 132 Mass. 131; Eaton v. Straw, 18 N. H. 320. 2 6Bradt 7. Hodgdon, 94 Me. 559, 48 Atl. 179. § 144) POWERS 489 No technical language need be used in the creation of a power. Any words definite enough to disclose it^ nature, the donee, or the person by whom it is to be exercised, and its objects, are enough. A will expressing the wish that, the remainder of the estate be dis- posed of in accordance with the judgment and advice of the execu- tor gives the latter an unlimited power of disposition.''* The pow- ers most commonly conferred by wills, either expressly or by neces- sary implication, are powers to sell and powers to devise property. Powers of Sale A power of sale may be conferred by will either in express terms or by implication, as where the will contains a provision that per- sons named should take certain shares of "the net proceeds of, the sale" of the testator's realty, though no person is designated^ to make the sale,^^ or where lands are given to a wife for life, with a devise over to others of "whatever may remain." "' A power to sell is not genefally regarded as including a power to mortgage.^* But where an absolute and unrestricted power of sale is given in furtherance of some benefit which is conferred upon the donee, lan- guage creating the power is construed as giving the power to mort- gage when such a construction promotes the purpose of the testa- tor.* » So a power authorizing the testator's wife, who was given a life estate, to sell and dispose of the estate as she may deem best to support herself and family, and carry on the testator's business, in- cludes a power to mortgage the estate for these purposes.*^ Where land is devised, with a power of sale in the devisee "if a sale is ad- ze in re Watts' Estate, 202 Pa. 85, 51 Atl. 588. 2T Meehan v. Brennan, 16 App. Div. 395, 45 N. Y. Supp. 57. Accord: Cor- ley V. Bishop, 101 Miss. 490, 58 South. 360. , ' 2 8 YOUNG V. HI,LLIER (1907) 103 Me. 17, 67 Atl. 571, 125 Am. St. Rep. 283, Dumnore Gas. Wills, 293, citing with approval Johnson v. Battelle, 125 Mass. 453. For further illustrations of implied power of sale, see Wenger v. Thomp- son (1905) 128 Iowa, 750, 105 N. W. 333 ; Stein v. Stein, 79 Md. 464, 29 Atl. 691; lasigi V. lasigl, 161 Mass. 75, 36 N. B. 579; Tomkins v. Miller (N. J.) 27 Atl. 484; Pennsylvania Go. for Insurance on Lives v. Leggate, 166 Pa. 147, 30 Atl. 946. 29 2 Wash. Real Prop. 318; Hoyt v. Jaques, 129 Mass. 286; Dewein v. Hooss, 237 Mo. 23, 139 S. W. 195 (1911) ; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Ferry v. Laible, 31 N. J. Eq. 566. Contra: Zane v. Kennedy, 73 Pa. 182. 8 Hamilton v. Hamilton (1910) 149 Iowa, 321, 128 N. W. 380; Kent v. Mor- rison, 153 Mass. 137, 26 N. E. 427, 25 Am. St. Rep. 616, 10 L. R. A. 756; Grace V. Perry (1905) 197 Mo. 550, 95 S. W. 875, 7 Ann. Gas. 948. See, also, Lueft V, liueft, 129 Wis. 534, 109 N. W. 652, 7 L. R. A. (N. S.) 263, 9 Ann. Gas. 819. SI Lardner v. WUliams, 98 Wis. 514, 74 N. W. 346. 490 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 vantageous," the devisee's decision that a sale is advisable is con- clusive.'^ JVho may Execute a Power of Sale An infant may execute a power which is collateral or in grbss, whether as to real or personal property.'* A married woman, even before the removal of her common-law disabilities, could execute a power of sale, or any power relating to real estate, without the con- sent of her husband, and this was the usual method of conferring upon her the right to deal with her separate estate.'* Where a power of sale is created but no donee is in terms indi- cated, it will not fail for lack thereof, particularly if it be a power given in trust. A power to sell is readily implied as existing in the execiitors, as when the proceeds of a sale are to be received and distributed by them.'° If the power of sale is expressly given to executors or trustees, as such, in their official capacity, and vir- tute officii, or to them as joint tenants, or to the survivor or sur- vivors of them it can be exercised so long as' there is a single ex- ecutor or trustee remaining.'" In case of the death of all the orig- inal executors or trustees, leaving the power unexecuted, if the will imposes upon them the duty of selling real estate absolutely, unconditionally, and without discretion, the power follows the office,'^ and will exist in their successors; and where direction to sell is peremptory, the power may be executed by an administra- tor with will annexed when the person nominated as executor re- fuses to qualify." If, however, the power of the executor to sell is not coupled with an interest, and the direction to sell is not per- emptory, but rests in the discretion of the executor, the power is personal, and does not follow the office.'^ If the power of sale is 32 Johnson v. Dximeyer (Ky.) 66 S. W. 1025. See, also, In re Rogers' Es- tate, 185 Pa. 428, 39 Atl. 1109; Matthews v. Oapshaw, 109 Tenn. 480, 72 S. W. 964, 97 Am. St.^Rep. 854 (where donee held sole judge as to necessity of sell- ing). 33 In re D'Aaglbaw, 15 Ch. D. 228, 49 L. J. Ch. 756; Sheldon v. Newton, 3 Ohio St. 494. 34 Rush V. Lewis, 21 Pa. 72; Ladd v. Ladd, 8 How. 10, 12 L. Ed. 967. 35 Ogle V. Reynolds, 75 Md. 150, 23 Atl. 137. See, also. Walling v. Scott, 50 Ind. App. 23, 96 N. E. 481, 97 N. B. 38S; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Silverthorn v. McKinster, 12 Pa. 67. 8 6 Bradford v. Monks, 132 Mass. 405; Nugent v. Cloon, 117 Mass. 219; (iould V. Mather, 104 Mass. 283; Gibbs v. Marsh, 2 Mete. (Mass.) 243; Den- ton V. Clarkj 36 N. J. Eq. 534 ; Jennings v. Teague, 14 S. C. 229. 37 Farrar v. McOue, 89 N. Y. 139, 144; Clark v. Denton, 36 N. J. Eq. 419, 423; Potts V. Breneman, 182 Pa. 295, 37 Atl. 1002. 3 8 Leonard v. Hale's Adm'r, 144 Ky. 77, 137 S. W. 866 (where power orig- inally given to "H., heretofore appointed my executor under my will.") 88 2 Woerner, Am. Law of Administration, 719; Hodgin v. Toler, 70 Iowa, § 14:4> POWEES 491 vested in several donees, who are required to exercise discretion, all must join in its execution,*" unless otherwise provided. And where the power is given to several persons having a trust ca- pacity, or an office in its nature like that of the executors of a will, the donees being designated by name, the trust is regarded as re- posed in the donees as individuals^ and the power will not sur- vive unless they take an interest coupled with the power.* ^ Where a sale is authorized upon the consent of specified per- sons, the consent of all must be obtained to the valid exercise of the power. ■'^ The death before consent given of the person, or of one of several persons, whose consent is required to the execution of the power, prevents its execution, unless the donor or the stat- ute provides otherwise.** How a Power Should be Executed The donee of every testamentary power, including a power of sale, must execute it strictly in the method indicated by the testa- tor and an intention to execute the power must appear in its ex- ecution either by express terms or recitals or by necessary impli- cation.** Questions in this connection most frequently arise from the wills of life tenants, whose estates for life are coupled with a power to dispose of the property by will, more particularly as to whether the power has been exercised under a general or resid- uary clause. If the whole will discloses with reasonable clearness an intent to exercise a power of appointment of which the testa- tor was the donee, such a clause will be sufficient, though it con- 21 30 N. W. 1, 59 Am. Rep. 435; Bennett v. Chapin, 77 Mich. 526, 43 N. W. 893, 7 L. B. A. 377; Clark v. Hornthal, 47 Miss. 434, 474; Stoutenburgh v. Moore, 37 N. J. Eq. 63 ; McDonald v. King, 1 N. J. Law, 432 ; Cooke v. Piatt, 98 N. T. 35; Frisby v. Withers, 61 Tex. 134. 40 Pennsylvania Company for Ins. on Lives v. Bauerle, 143 111. 459, 33 N. a 166; Tarlton v. GUsey (N. J. Ch.) 37 Atl. 467; Shelton v. Homer, 5 Mete. 41 Bnrdick on Real Property, 735; Peter v. Beverly, 10 Pet. 532, 563, 9 L. Ed 522- Franklin v. Osgood, 14 Johns. (N. Y.) 527; Tainter v. Clark, 13 Mete. (Mass.) 220; Parrott v. Edmondson, 64 Ga. 332; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635. 42 Poole V. Anderson, SO Md. 454, 31 Atl. 207. 43 Peirsol V. Boop, 56 N. J. Eq. 739, 40 Atl. 124; Gulick v. Griswold, 160 N. Y. 399, 54 N. B. 780; Barber v. Cary, 11 N. Y. 397. See, however, Hackett v. Mllnor 156 Pa. 1, 26 Atl. 738. 44 Scott V. Bryan, 194 Pa. 41, 45 Atl. 135; Getting v. De Sartiges, 17 B. I. 668 24 Atl 530 16 L B A. 367. Where one having a life estate in land, and a power of 'conveying the fee, executes a conveyance purporting to convey the fee, an intention to execute the power is shown. Young v. Sheldon, 139 Ala. 444, 36 South. 27, 101 Am. St. Bep. 44. 492 TESTAMENTARY TRUSTS AND POWERS (Ch. 19 tain no express reference to the power.*' But a general residuary- clause in the will of one having a general power of appointment by will does not operate as an exercise of such power, in the absence of statute, if the intent of the testator does not otherwise appear in any way.*" Power to Dispose of Property by Will The power to dispose of property by will is most commonly giv- en to a life tenant of the land in question. This power may be con- ferred in terms,*^ or by implication, as where property in which a son had a life estate "is to be disposed of, at the decease of my son, to his heirs, as he shall direct." ** The intention to create a power of this sort must, however, explicitly appear. A power of disposi- tion given in general terms, as where a life tenant is given "full power to use and dispose of the property as she may deem right and proper," *° is not sufficient; and when a gift is made to a wife, subject to her sole management and control, the remainder, after her death, to be disposed of by the executors in a certain manner, her power of disposal must be exercised by her during her life, it not including the power to devise the remainder."" But where property was given to a wife for life, with power to give ^way a certain amount, the same as if the property were her own, the wife could dispose of this amount by will."^ And a power of appointment "to such persons" as donee directs is not limited to natural per- sons, but includes a foreign charitable corporation."^ Where a donee fails to execute a power to appoint among cer- tain objects, although testator's intention that such objects shall take appears and there is no gift in default of appointment, the *» See Richardson v, Woodbury, 43 Me. 206; Hassam v. Hazen, 156 Mass. 93, 30 N. E. 469 ; Cooper v. Haines, 70 Md. 282, 17 Atl. 79. Statutes have quite generally been enacted to the effect that general devises or bequests are construed as including real or personal property over which the testator may have had a general power of appointment. 1 Vict. c. 26, § 27, is the prototype of most of such statutes. See Lockwood v. Mildeberger, 159 N. T. 181, 53 N. E. 803. - 4 8 Harvard College v. Balch, 171 111. 275, 49 N. E. 543; Meeker v. BreintnaU, 38 N. J. Eq. 345 ; Mason v. Wheeler, 19 B. I. 21, 31 Atl. 426, 61 Am. St. Rep. 734. Contra: Stone v. Forbes, 189 Mass. 163, 75 N. E. 141; Emery v. Haven, 67 N. H. 503, 35 Atl. 940. 47 Watson V. Watson, 21 Tex. Civ. App. 348, 51 S. W. 1105; Clay v. Small- wood, 100 Ky. 212, 38 S. W. 7. *8 Phelps V. Phelps, 143 Mass. 570, 10 N. E. 452. 49 Ford V. Ticknor, 169 Mass. 276, 47 N. E. 877. eo Wooster v. Fitzgerald, 61 N. J. Law, 368, 39 Atl. 679. SI In re Warner, 53 App. Div. 565, 65 N. T. Supp. 1022. 82 Farmers' Loan & Trust Co. v. Shaw, 56 Misc. Rep. 201, 107 N. T. Supp, 337, aff. 127 App. Div. 656, 107 N. Y. Supp. 337, 111 N. Y. Supp. 1118. § 144) POWERS 493 persons designated as objects of the power are entitled In equity to an equal distribution."' Power of Disposal in Tenant for Life It frequently happens that testators, realizing that the life es- tate given to a beneficiary may be insufficient to provide for his needs, annex to the devise a power of disposition, either general or under restrictions. The effect of the conferring of such powers upon the life tenant has already been discussed at length in other connections."* A devise of property to a wife for life, "with full power to sell the property if she sees proper," with remainder ovpr of "what may have been left," gives the life tenant a power to pass the fee by sale."" The power, once exercised,^ defeats the life es- tate, and consequently any i liens thereon obtained against the life tenant."* Where the power of sale given to the donee is not re- stricted, the donee may convey the fee, although he has a private estate amply sufficient for his support."' But when a life estate is given for the support of the beneficiary, with power of sale, if nec- essary for his support, the power can be exercised for that purpose only, and the donee of the power cannot give away the property, as against those to whom it is limited over."^ Powers of this char- acter are purely personal, and the creditors of the donee gain no rights therein, in the absence of the exercise of the power by the beneficiary." ° Miscellaneous A power of appointment may be created to be exercised by do- nees not in existence at the testator's death."" Where a power of 53 Loosing V. Loosing, 85 Neb. 66, 122 N. W. 707, 25 L. R. A. (N. S.) 920 ; Smith V. Floyd, 140 N. T. 337, 35 N. E. 606 ; Derse v. Derse, 103 Wis. 113, 79 N. W. 44 (statute). 5 4 See ante, p. 422. 5 Fink V. Leisman (Ky.) 38 S. W. 6. Semble: Simpkins v. Bales, 123 Iowa, ■62, 98 N. W. 580; Woodbridge v. Jones, 183 Mass. 549, 67 N. E. 878; Ruttei?;V. Anderson, 48 W. Va. 215, 36 S. E. 357; Smitb v. Mclntyre, 95 Fed. 585, 37 '-C C A. 177. Under such a power, the life tenant may sell the remainder while reserv- ing to himself a life estate. Priest v. McFarland (1914) 262 Mo. 229, 171 S. W. 62. 56 Bose V. Hatch, 125 N. X. 427, 26 N. E. 467. 67 Dana v. Dana, 185 Mass. 156, 70 N. E. 49 (where donee permitted to ex- -ercise power to secure funds' for charitable objects). 5 8 Gardner v. Whitford, 23 E. I. 396, 50 Atl. 642. So a conveyance without money consideration was held void, although life tenant authorized to convey "at any time that she may think best, and to her .best interest." Tallent v. Fitzpatrick, 253 Mo. 10, 161 S. W. 689. 5 8 Ryan v. Mahan, 20 R. I. 417, 39 Atl. 893. e« Meldon V. Devlin, 20 Misc. Rep. 56, 45 N. X. Supp. 333. 494 ^ TESTAMENTARY TEDSTS AND POWERS (Ch. 19 sale IS given to effect purposes which are partially invalid it may be properly executed for the purpose of carrying out the provi- sions of the will so far as they are valid.°^ An order of court set- tling an estate and discharging the executor does not revoke a power, vested in the executor by the will, to sell testator's land for the purpose of distributing the proceeds among the beneficiaries named."* «i Jones V. Kelly, 170 N. X. 401, 63 N. E. 443. 6 2 Starr v. Willoughby, 218 111. 485, 75 N. E. 1029, 2 L. R. A, (N. S.) 623, 11 Prob. Rep. Ann. 220. §§ 145-150) LEGACIES 495 CHAPTER XX LEGACIES— GENEEAI/-SPBCIFIC— DEMONSTRATIVE— CUMITIA- TIVE— LAPSED AND VOID— ABATEMENT— ADEMPTION— ADVANCEMENTS 145-150. General, Specific, Demonstrative, and Cumulative Legacies. 151. Abatement of Legacies. 152. Ademption and Satisfaction of Gifts. 153. Advancements. 154r-155. Lapsed Gifts. 156-15T. Void Gifts, and Property Undisposed of by Will. GENERAL, SPECIFIC, DEMONSTRATIVE, AND CUMULA- TIVE LEGACIES 145. A general legacy is one which is payable out of the general assets of the testator's estate, and which does not require the delivery of any particular thing, or the payment of money from any particular portion of the estate. 146. A specific legacy is a gift of some definite, specific thing, capa- ble of being designated and identified. 147. A demonstrative legacy is one of a certain cunount or quantity, the particular fund or personal property being pointed out from which it is to be paid or taken. 148. A specific legacy differs from a general legacy — (a) In that it does not in the first instance abate in case the es- tate is insufficient to pay debts and legacies in full. (b) In that there is no recourse for its payment to the general estate in event of ademption. 149. A demonstrative legacy differs from a general legacy in that it does not in the first instance abate upon a deficiency of assets, and from a specific legacy in that there is recourse for its pa3maent to the general estate in case the designated fund or property fails. 150. A legacy given in addition to another legacy is cumulative; when given in lieu of another it is substitutional. Whether a legacy is one or the other is purely a question as to the testator's intention. In the absence of internal evidence as to what this is^ the legacies are cumulative when they are of unequal amounts and created by the same instru- ment, or when they are given simpliciter by different in- struments, regardless of amount. 496 LEGACIES (Ch. 20 In one form and another the substance of the above definitions is given for these legkcies.^ The intention of the testator, as as- certained from an examination of the entire will, is decisive in determining to which of these classes a given legacy belongs." General Legacies In view of the liability of a specific legacy to destruction by ademption,' the courts rather incline to construe a legacy as gen- eral rather than specific* Pecuniary legacies are usually held to be general,'* even though the executors be requested to pay them from a certain fund as soon as collected," and though the amounts are directed to be invested in a certain way.' A residuary bequest is general, though articles bequeathed are enumerated,* and so is a bequest of all the testator's personalty, where certain articles are specifically excepted.* Gifts of stated, sums in bonds, stocks, or mortgages, with no direction to select them out of the testator's estate, and in amount greater than the securities in the testator's possession when the will was made, are also general legacies ; ^" and the fact that the testator had, at the time of making the will, securities equal to or greater than the amount of those bequeathed, will not, in itself, render the gift specific.^^ Bequests in different 1 For the definitions in the black-letter text, see 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 Martin, 25 R. I. 1, 54 Atl. 589; Gilmer's Legatees v. Gilmer's EJx'rs, 42 Ala. 9, 16 ; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 262, 11 Am. Dee. 456; Addition v. Smith, 83 Me. 551, 22 Atl. 470; 2 Woerner, Am. Law- Administration, 966 ; Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733. 2 Spinney v. Eaton, 111 Me. 1, 87 AU.. 878, 46 L. R. A. (N. S.) 585. 8 See post, p. 504. * Bradford v. Haynes, 20 Me. 105; Walton T. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456; Wilcox v. Wilcox, 13 Allen (Mass.) 256 ; Briggs v. Hos- ford, 22 Pick. (Mass.) 288 ; Wallace v. Wallace, 23 N. H. 153 ; Teel v. Hilton, 21 R. I. 227, 42 Atl. 1111; May v. Sherrard's Legatees, 115 Va. 617, 79 S. E. 1026, Ann. Cas. 1915B, 1131. Kelly V. Richardson, 100 Ala. 584, 13 South. 785 (a bequest of $500 in cash to each of certain persons); In re Martin, 25 R. I. 1, 54 Atl. 589; In re Marshall, 80 Misc. Rep. 1, 141 N. Y. Supp. 540 (beqhest of "$2,000, $1,000 in cash ^nd $1,000 due on a certain mortgage"); Pagan v. Jones, 22 N. C. 69 (a. bequest of $2,000, "or the value thereof in property"). 6 Byrne v. Hume, 86 Mich. 546, 49 N. W. 576. 1 Moore's Ex'r v. Moore, 50 N. J. Eq. 554, 25 Atl. 403 ; In re Hodgman's Es- tate, 69 Hun, 484, 23 N. Y. Supp. 725. 8 In re Martin, 25 R. L 1, 54 Atl. 589. » Kelly V. Richardson, 100 Ala. 584, 13 South. 785. So a bequest of "all moneys or legacies coming to me from any source" is a general legacy. Dean V. Rounds, 18 R. I. 436, 27 Atl. 515, 28 Atl. 802. 10 Blundell v. Pope (N. J. Ch.) 21 Atl. 456; Palmer v. Palmer's Estate, 106 Me. 26, 75 Atl. 130, 19 Ann. Cas. 1184. 11 Capron r. Capron, 6 Mackey (D. C.) 340, where the bequest was "that th& §§ 145-150) QBNEKAL, SPECIFIC, DEMONSTRATIVE, ETC. 497 sums ^to various legatees of "my stocks and bonds at their par value," without further description, are general legacies," as is also a gift of such an amount of interest bearing securities as shall produce a certain income.^* Specific Legacies If the manifest intent of the testator is that the legatee shall have a particular thing, his legacy is then specific, as ,where particu- lai' notes owned by the testator are bequeathed,^* or any other debt,^° or life insurance,^* or money on deposit in specified banks,^' or the testator's interest in the estate of a deceased person,'^* or a sum of money to be paid by the assignment of a mortgage,^" or the proceeds of a mortgage,^" or of the sale of certain real and personal property.^^ A bequest of stock is specific, if it appears, from the entire will that testator intended to pass particular designated stocks,'^ as where there is a bequest of "my" stock.^* Income from $6,000 in bonds of the United States" should be set apart and ap- propriated, and the testator had at the time $12,000 in such bonds. Accord: EVANS V. HUNTER, 86 Iowa, 413, 53 N. W. 277, 17 L. R. A. 308, 41 Am. St Rep. 503, Dunmore Cas. Wills, 296 ; Mecum v. Stoughton, 81 N. J. Bq. 319, 86 Atl. 52 (legacies of stock aggregating exactly the number of shares owned when will executed); In re Snyder's Estate, 217 Pa. 71, 66 Atl. 157, 11 L. R. A. (N. S.) 49, 118 Am. St. Rep. 900, 10 Ann. Cas. 488. 12 In re Hadden's Will (Sur.) 9 N. Y. Supp. 453. IS Eggleston v. Merriam, 83 Minn. 98, 85 N. W. 937, 86 N. W. 444; Merriam V. Merriam, 80 Minn. 254, 83 N. W. 162. Where a testator gave a legacy of "$10,000 in 100 shares of some good rail- road company," an unattested memorandum showing, the securities to be used in paying such legacy does not form a part of the wiU, so as to render the legacy specific, though the memorandum is referred to in the wUl. Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 288. , 14 In re Mowry, 16 R. I. 514, 17 Atl. 553 r In re Martin, 25 R. I. 1, 54 Atl. 589; In re Willett's Estate, 57 Hun, 400, 10 N. Y. Supp. 871. 15 Hayes v. Hayes, 45 N. J. Eq. 461, 17 Atl. 634. 18 In re Tailer, 147 App. Div. 741, 133 N. Y. Supp. 122, affirmed in 205 N. Y, 599, 98 N. E. 1116. 17 Bullard v. Leach, 213 Mass. 117, 100 N. E. 57; Prendergast v. Waish, 53 N. J. Eq. 149, 42 Atl. 1049; Barber v. Davidson, 73 111. App. 441; Crawford V. McCarthy, 159 N. Y. 514, 54 N. E. 277. 18 In re Tillinghast, 23 R. I. 121, 49 Atl. 634; In re Goodfellow's Estate, 166 Cal. 409, 137 Pac. 12. , 19 Wheeler v. Wood, 104 Mich. 414, 62 N. W. 577. 20 In re McMahon's Estate, 132 Pa. 175, 19 Atl. 68; Hazard v. Gushee, 35 R. I. 438, 87 Atl. 201. 21 Kaiser v. Brandenburg, 16 App. D. C. 310; In re Martin, 25 R, I. 1, 54 Atl. 589. 22 Harvard Unitarian Soc. v. Tufts, 151 Mass. 76, 23 N. E. 1006, 7 L. R. A. 390- Drake v. True, 72 N. H. 322, 56 Atl. 749; Gardner v. McNeal, 117 Md. 28 See note 23 on following page. Gakd' Wills (2d Ed.)— 32 498 LEGACIES (Ch. 20 All devises, whether by Specific description, or by residuary clauses, are generally treated as specific, except in so far as they may include real estate acquired after the execution of the will, as to which the devises are general, unless such after-acquired prop- erty is so described as to' admit of its identification by the devi- sees.^* One claiming the benefit of a specific legacy must establish the existence and identity of the subject-matter of the legacy as stated in the will.^" Demonstrative Legacies A legacy is demonstrative when it is the clearly disclosed inten- tion of the testator that the legatee shall certainly receive the amount bequeathed.^" Where there is a doubt as to testator's in- tention, courts incline to construe a legacy as demonstrative rather than specific.''^ A common instance is where a testator provides a fund to furnish a certain income for his widow, requiring that it shall be paid annually, and that securities sufficient to that end shall be selected. If the fund set aside fails to yield the required income, the deficit must be made up from the corpus of the estate.^' So bequests of a certain amount to legatees, to be paid by turning over to the legatees any of the testator's stock, bonds, or other evi- 27, 82 Atl. 988, 40 L. R. A. (N. S.) 553, Ann. Cas. 1914A, 119 ; In re Ferreck's Estate, 241 Pa. 340, 88 Atl. 505. For cases holding beciTiests of bonds or stock to be general, see Blair v. Scribner, 67 N. J. Eq. 583, 60 Atl. 211, and In re Bergen's Estate, 56 Misc. Bep. 92, 106 N. Y. Supp. 1038. 23 In re Martin, 25 R. I. 1, 54 Atl. 589; Loring v. Woodward, 41 N. H. 391, 395; Ford v. Ford, 23 N. H. 212; Kearns v. Keams (1910) 77 N. J. Eq. 453, 76 Atl. 1042, 140 Am. St. Rep. 575; Brainerd v. Cowdrey, 16 Conn. 1; Hood V. Haden, 82 Va. 588. 2* Kelly V, Richardson, 100 Ala. 584, 13 South. 785; Bice v. Rice (Iowa, 19q9) 119 N. W. 714. See In re White, 125 N. Y. 544, 26 N. E. 909 ; Farnum V. Bascom, 122 Mass. 282; Blaney v. Blaney, 1 Cush. (Mass.) 107; Shreve's Ex'rs V. Shreve, 10 N. J. Eq. 385. On principle, in jurisdictions where a will may pass after-acquired real es- tate, personal and real estate should be placed upon the same footing, and a devise of realty should be treated as specific only when it contains a descrip- tion of the estate sufficient to enable the devisee to identify it. Wilts v. Wilts (1911) 151 Iowa, 149, 130 N. W. 906; In re Woodworth's Estate, 31 Cal. 595. 2 5 Barber v. Davidson, 73 111. App. 441. See, also, Johnson v. Johnson, 48 S. C. 406, 26 g. E. 722. 2 8 Methodist Episcopal Church v. Hebard, 28 App. Div. 548, 51 N. Y. Supp. 546; In re Stilphen, 100 Me. 146, 60 Atl. 888, 4 Ann. Cas. 158. Such legacies are a prior claim on the fund out of which they are made payable. Dunford v. Jackson's Ex'rs (Va.) 22 S. E. 853. 2 7 Gardner v. McNeal, 117 Md. 27, 82 Atl. 988, 40 L. R. A. (N. S.) 553, Ann. Cas. 1914A, 119. 28 Merriam v. Merriam, 80 Minn. 254, 83 N. W. 162. Semble: Johnson v. Conover, 54 N. J. Eq. 333, 35 Atl. 291. §§ 145-150) GENEKAL, SPECIFIC, DEMONSTRATIVE, ETC. 499 dences of debt at their market value, and, in case these were not sufficient, the balance to be paid in money, constitute demonstra- tive legacies." And legacies to be paid out of the proceeds of .tes- tator's life insurance are demonstrative, where there are no words evincing an intention to relieve the general estate from liability in case the insurance fund proves insufficient.*' Cumulative and Substitutional Legacies In the absence of internal evidence of intent, the following rules of construction first formulated by Mr. Williams,*^ though abun- dantly supported by earlier cases, have been generally adopted to determine whether a legacy be cumulative or svibstitutional : (1) If the same specific thing is bequeathed twice to the same legatee in the same will, or in the will and again in the codicil, the legatee can claim the benefit of but one legacy.*^ (2) Where two legacies of quantity, of equal amount, are bequeathed to the same legatee in one and the same instrument, the second bequest is regarded as a mere repetition, and the beneficiary takes but one legacy.'* (3) Where two legacies of quantity, of unequal amount, are given to the same person in the same instrument, they are cumulative, and the legatee is entitled to both.** (4) Where two legacies are given simpliciter, i. e., as plain gifts without statement as to the reason or motive therefor, to the same legatee by different instruments, the 29 Baptist Female University v. Borden, 132 N. C. 476, 44 S. E.' 47, 1007. See, also, Hibler v. Hibler, 104 Mich. 274, 62 N. W. 361. so White V. White, 73 S. C. 261, 53 S. E. 371; Kramer v. Kramer, 119 C. C. A. 482, 201 Fed. 248. SI 2 Wms. Ex'rs, 1290. 32 Suisse V. liOWther, 2 Hare, 424. This proposition is obviously true. The same thing can be given away but once by a testator. S3 Garth v. Meyrick, 1 Bro. C. C. 30; Halford v. Wood, 4 Ves. 75; Manning V. Thesiger, 3 My. & K. 29; Thompson v. Betts, 74 Conn. 576, 51 Atl. 564, 92 Am. St Rep. 235; In re Powell's Estate, 138 Pa. 322, 22 Atl. 92; Dewitt v. Yates, 10 Johns. (N. Y.) 156, 6 Am. Dec. 326. But the fact that legacies to a similar amount are given to the same per- sons by the will does not affect their right to take, as additional legacies, the proceeds of bonds, under a codicil written on the envelope containing the bonds. In re Harrison's Estate, 196 Pa. 576, 46 Atl. 888. Where legacies come under this general rule, small differences in the man- ner of conferring the gifts will not afford internal evidence that the testator intended them to be cumulative. Thus, where the testatrix gave "to my niece, Mary Cook, the wife of John Cook, £500," and afterwards in the same will gave "to my cousin, Mary Cook, £500 for her own use and disposal, notwith- standing her coverture," the legatee was held entitled to but one legacy. Greenwood v. Greenwood, 1 Bro. C. C. 31, note. 3* Curry v. Pile, 2 Bro. C. C. 225; Windham v. Windham, Finch, 267; York- ney v. Hansard, 3 Hare, 620, 622; Gordon v. Smith, 103 Md. 315, 63 Atl. 479. 500 LBGACIES (Ch. 20 legacies are cumulative, whether their amounts be equaP" or un- €qual.°° If two instrunients have been probated as one will, a court of construction is bound to regard them as one,'^ for the purpose of applying these rules, while if probate is granted, as of a will and codicil, this is conclusive of the fact of their being distinct instru- ments, though written on the same paper.^' But these rules are resorted to only to determine an intention which is otherwise undiscoverable. They yield, or rather never appear, when the will itself contains indicia as to the testator's in- tent. Thus where the legacy in the codicil of a will is referred to as being in addition to one contained in the will, the two are cumu- lative, though they are in form identical, both bping of the same amount of stock of a certain corporation."" So where the testator left a legacy of "$50,000, inclusive of the note of the" legatee held by the testator, the note was treated as part of the legacy of $50,- OOO, and not additional thereto.*" If in the two instruments the motive of the gift is expressed, and in both the motive and the amount of the legacy are the same, it is presumed that the testator by the second instrument meant only a repetition of the former gift.*^ But no such presumption exists if the sums are the same and the motives different.** A substituted legacy is prima facie payable out of the same funds, and is subject to the same incidents and conditions, as is the orig- 8s Lee V. Pain, 4 Hare, 216; Forbes v. Lawrence, 1 Coll. 495; Benyon v. Benyon, 17 Ves. 34; Roch v. Callen, 6 Hare, 531; Hartwell v. Martin, 71 N. J. Eq. 157, 63 Atl. 754. 3 6 Gordon v. Hoffman, 7 Sim. 29; Guy v. Sharp, 1 My. & K. 589; Watson V. Reed, 5 Sim. 431 ; Mackenzie v. Mackenzie, 2 Russ. 272. A legacy given by a codicil will not be regarded as a substitute for one given by the will, but as cumulative, unless there is intrinsic evidence in the will or codicil of the testator's intention that a substitution shall take place. Appeal of Manifold, 126 Pa. 508, 19 Atl. 42. See, however, Gould v. Chamber- lain, 184 Mass. 115, 68 N. E. 39, where court admitted parol evidence to show that testator intended smaller legacies in a codicil to be substitutional, be- cause his estate had so diminished that it was insufficient to carry out the provisions of his will. On principle, this evidence' should have been excluded, since it was offered to rebut a literal construction of the documents. 3 7 Brine v. Ferrier, 7 Sim. 549; Hemming v. Clutterbuck, 1 Bligh (N. S.) 491. See TJtley v. Titcomb, 63 N. H. 129, as illustrative of these rules. 38 Baillie v. Butterfield, 1 CoX, 392; Campbell v. Radnor, 1 Bro. O. O. 272; Martin v. Drinkwater, 2 Beav. 215. 8 9 In re Sponsler's Appeal, 107 Pa. 95. *o In re Pepper's Estate, 154 Pa. 340, 25 Atl. 1063. *i Hurst V. Beach, 5 Madd. 358; Benyon v. Benyon, 17 Ves. 34. *' Hurst V. Beach, 5 Madd. 359; Lord v. SutlifCe, 2 Sim. 273. % 151) ABATEMENT OF LEGACIES 501 anal legacy,** and the same rule applies to a legacy in terms addi- tional to one already made.** Where a presumption is raised against the intention of a double gift, by reason of the fact that two legacies of the same amount are bequeathed to one legatee in the same instrument, or becaus^ the sums and the motive 'are the same in different instruments giving a legacy to the same legatee, parol evidence, including tes- tator's declarations, are admissible to rebut the equitable presump- tion and to uphold the literal interpretation of the document.*" ABATEMENT OF LEGACIES 151. Abatement is the reduction of a legacy, general or specific, on accovmt of the insufficiency of the estate of the testa- tor to pay his debts and legacies. In the absence of an indicated intent on the part of the testator as to the order of abatement, a bequest of the residuum abates before general bequests, and general bequests, unless, according to some authorities, they rest upon a consideration, be- fore specific and demonstrative bequests. No question of abatement can arise when the testator's estate is adequate to meet the calls of his creditors and those of the will. In- event of its inadequacy, the testator may provide as to where the burden of the deficiertcy shall fall, as this is but another form pf disposing of his estate, and the loss must be borne by those on whom he places, it.** Thus he may provide that the legacies shall take priority in the order in which they appear in the will,*^ or that certain indicated legacies shall be paid in full and others abate,*^ or that the share of the wife shall not fall below a certain amount,*^ in which case the wife's interest to that extent will not. abate unless it be necessary for the payment of debts, or that spe- *s In re De Laveaga's Estate, 119 Cal. 651, 51 Pac. 1074. *4ld. ; Thompson's Adm'r v. Churchill's Estate, 60 Vt. 371, 14 Atl. 699. 46 Wlgmore on Er. § 2475; Hurst v. Beach, 5 Madd. 351. " Chester County Hospital v. Hayden, 83 Md. 104, 34 AU. 877; Bartlett vr Houdlette, 147 Mass. 25, 16 N. E. 740; Bahbidge v. Vittum, 156 Mass. 38, 30 N. E. 77; McLean v. Eobertson, 126 Mass. 537; Bancroft v. Bancroft, 104 Mass. 226 ; Lyon v. Brown UniTersity, 20 E. I. 53, 37 Atl. 309. 47 Eexford v. Bacon, 195 111. 70. 62 N. B. 936. 4 8 Methodist Episcopal Church v. Hebard, 28 App. Div. 548, 51 N. X. Supp. *'» In re Phillips' Estate, 18 Mont. 311, 45 Pac. 222. 502 LEGACIES (Ch. 20 cific legacies shall abate along with general legacies," or that certain specific legacies shall bear the burden of the loss for the benefit of others of that class."^ In the absence of expressed intention, in event of a deficiency, the burden first falls upon the residuary estate, and the residuary legatee has no right to call upon the* general legatees to abate, though the entire residuum be exhausted ; "^ for there is, of course, no residuum until the testator's debts are paid. This rule is ap- plied, even though there was a large residuum at testator's death, but, because of misappropriation, the assets became insufiScient to pay general legacies."' But where the will gave the executor five years to settle the estate and provided, "should my estate di- minish in value, then my legacies shall be decreased in propor- tion," the testator's intent is evident, and in event of decrease all the legacies decrease proportionately, and not the residuary leg- acy alone."* The residuum exhausted, the burden of a deficiency next falls upon the general legacies, as against specific and demonstrative bequests, and they abate proportionately or pro rata,"" and in this respect there is no difference between legacies to individuals and to public charities."' Where, however, a general legacy is sus- tained by a valuable consideration, such as the relinquishment of 6 Moore's Ex'r v. Moore, 50 N. J. Eq. 554, 25 Atl. 403. 61 Richardson v. Hall, 124 Mass. 228, 233. 6 2 In re Martin, 25 R. I. 1, 54 Atl. 589; Baker v. Farmer, L. R. 3 Ch. App. 537; Harley v. Moon, 1 Dr. & Sm. 623; Fonnereau v. Poyntz, 1 Bro. C. C. 478 ; Purse v. Snaplln, 1 Atk. 418. See, also, Robertson v. Broadbent, L. R. 8 App. Cas. 812. But where $1,300 was given in trust for the testator's brother for life, when $500 was to g6 to T., and the remainder to others equally, and part oi the $1,- 300 was taken to pay the debts of the testator, the gift of the $800 was not a gift of the residue, in the ordinary sense of the term; and it was held that the share of T. should abate with that of the others. Van Nest v. Van Nest, 43 N. J. Eq. 126, 13 Atl. 179. ' 6 3 Baker v. Farmer, L. R. 3 Ch. App. 537. 6 4 In re Spencer, 16 R. I. 25, 12 Atl. 124. 6 6Capron v. Capron, 6 Mackey (D. C.) 340; In re Parsons' Estate (1911) 150 Iowa, 230, 129 N. W. 955; Porter v. Howe, 173 Mass. 521, 54 N. E. 255; Wetmore v. St. Luke's Hospital, 56 Hun, 313, 9 N. T. Supp. 753; Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95 ; Morse v. Tilden, 35 Misc. Rep. 560, 72 N. Y. Supp. 30; Pond v. Allen, 15 R. I. 171, 2 Atl. 302; Nickerson v. Bragg, 21 R. I. 296, 43 Atl. 539; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; Heath v. McLaughlin, 115 N. O. 398, 20 S. E. 519. 6 6 Wetmore v. St. Luke's Hospital, 56 Hun, 313, 9 N. Y. Supp. 753; Porter V. Howe, 173 Mass. 521, 54 N. E. 255. See, also, Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95. § 151) ABATEMENT OF LEGACIES 503 a debt, or of a claim for dower," and the right to the claim con- stituting the consideration subsists at the testator's death, the leg- atee IS entitled to full payment as against other general legatees who take merely of the testator's bounty." On principle, and by weight of authority,"" a general legacy of . this character should have priority over a specific legacy, unsupported by a considera- tion. ^ The burden of proving that a general legacy is entitled to priority is on him who asserts it." Specific legacies do not abate unless the residuum and the amount available for the payment of general legacies have been exhausted in the payment of debts.«= In this event they abate pro rata.«= A demonstrative legacy is entitled to priority over general legacies.** However, to the extent that the fund from which it is to be paid " Clayton v. Clayton, 38 Ga. 320, 330; McLean v. Robertson, 126 Mass. 537; Turner v. Martin, 7 De G., M. & G. 429 ; Duncan v. FrankUn Tp., 43 N. J. Eq. 143, 10 Atl. 546; Reynolds v. Reynolds, 27 R, I. 520, 63 Atl. 804. The fact that will recites that a legacy is given In consideration of services rendered testator, when services were rendered gratuitously, does not entitle legacy to priority. Matthews v. Targarona, 104 Md. 442, 65 Atl. 60, 10 Ann. Cas. 153. And where legacy was given in satisfaction of an ascertained debt for a, smaller sum, the legacy was denied priority. In re Wedmore (1907) 2 Ch. 277, 76 L. J. Ch. N. S. 486, 2 B. R. C. 502. 58 In re Forepaugh's Estate, 199 Pa. 484, 49 Atl. 236; Pope v. Pope, 209 Mass. 432, 95 N. E. 864; Pollard v. Pollard, 1 Allen (Mass.) 490; Plum v. Smith, 70 N. J. Eq. 602, 62 Atl. 763; In re Brooks, 2 Cton. Sur. 172, 10 N. Y. Supp. 20; Ellis V. Aldrich, 70 N. H. 219, 47 Atl. 95. 69 Duncan v. FrankUn Tp., 43 N. J. Eq. 143, 10 Atl. 546. Expressions such as that a legacy is given to an executor "for his care and pains" (Heron v. Heron, 2 Atk. 171); for Ms "trouble in the management of the estate" (Duncan v. Watts, 16 Beav. 204); for his "services in assisting me at various times" (Duncan v. Franklin Tp., supra)— do not indicate an intended preference. A legacy in lieu of dower is not preferred unless the testator had real estate wherein the widow was entitled to dower. Moore v. Alden, 80 Me. 301, 14 Atl. 199, 6 Am. St. Rep. 203; Borden v. Jenks, 140 Mass. 562, 5 N. E. '623, 54 Am. Rep. 507. A bequest to a priest to say masses has been held not to abate. Sherman v. Baker, 20 R. I. 613, 40 Atl. 765. 80 Borden v. Jenks, supra ; Clayton v. Clayton, 38 Ga. 320; Loocock v. Clarkson, 1 Desaus. (S. C.) 471. Contra: Warren v. Morris, 4 Del. Ch. 289. 61 Duncan v. Franklin Tp., 43 N. J. Eq. 143, 10 Atl. 546. 82 Sykes v. Van Bibber, 88 Md. 98, 41 Atl. 117; Stevens v. Fisher, 144 Mass. 114, 10 N. B. 803; Wallace v. Wallace, 23 N. H. 149; Page v. Eldredge Public Library, 69 N. H. 575, 45 Atl. 411 ; McFadden v. Hefley, 28 S. C. 317, 5 S. E. 812, 13 Am. St Rep. 675 ; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; In re Tunno, 45 Ch. Div. 66. 8 3 Tomlinson v. Bury, 145 Mass. 346, 14 N. E. 137, 1 Am. St. Rep. 464; Far- num V. Bascom, 122 Mass. 282 ; Van Nest v. Van Nest, 43 N. J. Eq. 126, 13 Atl. 179. 8 4 Baptist Female University v. Borden, 132 N. C. 476, 44 S. B. 47, 1007; Myers v. Myers, 88 Va. 131, 13 S. E. 34& 504 LEGACIES (Ch. 20 fails to satisfy it, a demonstrative legacy stands on the footing of general legacies, and abates proportionally with them.*" Demon- strative legacies, so far as the fund upon which they are charged will extend for their payment, abate ratably with specific legacies.*' Under statutes subjecting realty to liability for the testator's debts, it is sometimes held that general and specific devises stand on the same footing as general and specific legacies in regard to abatement." There is no abatement of a legacy given by the tes- tatrix in the exercise of a power of appointment until the donee's own property is first exhausted.** ADEMPTION AND SATISFACTION OF GIFTS 152. The ademption of a bequest is effected when, by some act of the testator, its subject-matter has ceased to exist in the form in which it is described in the will, so that on his death there is nothing answering the description to be given to the beneficiary ; or when the testator, during his life, satisfies the gift, either in whole or in part, by giving the beneficiary w^hat wfis designed for him under the wilL Ademption, in its first form, can apply only to specific gifts: There is obviously an intrinsic difference between the ademption of a gift as first described and its satisfaction. But the term "ademption" is broadly applied to both cases, and. the effect of ademption, in its strict sense, and of satisfaction upon the rights of the beneficiaries, is substantially the same. It is also clear that ademption by the change or destruction of the subject-mat- ter of the gift can affect only specific legacies,*" at least so far as 65 Gelbach v. Shlvely, 67 Md. 498, 10 Atl. 247; Dunn's Ex'rs v. Renick, 40' W. Va. 349, 22 S. B. 66. 86 O'Day V. O'Day, 193 Mo. 62, 91 S. W. 921, 4 L. R. A. (N. S.) 922. 6T Kelly V. Richardson, 100 Ala. 584, 13 South. 785 ; Parnum v. Bascom,, 122 Mass. 282, 287; O'Day v. O'Day, supra; Brant v. Brant, 40 Mo. 266, 280; In re Woodworth's Estate, 31 Oal. 595 ; Armstrong's Appeal, 63 Pa. 312. And see Logan v. Logan, 11 Colo. 44, 17 Pac. 99. Contra: Colder v. Chandler, 87 Me. 63, 32 Atl. 784; Gordon v. James, 86 Miss. 719, 39 South. 18, 1 L. R. A. (N. S.) 461; Edmunds' Adm'r v. Scott, 7a Va. 720. Much depends, in this matter, upon the wording of each statute. es Tuell v. Hurley, 206 Mass. 65, 91 N. E. 1013; White v. Institute of Tech- nology, 171 Mass. 84, 50 N. E, 512. 6» Nusly V. Curtiss, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118- Am. St. Rep. 113, 10 Ann. Cas. 1134; Mahoney v. Holt, 19 R. I. 660, 36 Atl. 1.. § 152) ADEMPTION AND SATISFACTION OF GIFTS 505 the right of payment is concerned ; for a general legacy takes effect out of no particular fund, and a demontrative legacy, in event of the failure of the property out of which it is payable, has recourse to the estate in general.'" Ademption by Change or Destruction of Subject-Matter If a debt specifically bequeathed be received by the testator, the legacy is adeemed, as nothing remains to which the words of the will can apply." So ademption results pro tanto where a testatrix bequeaths her interest in her mother's estate, and afterwards re- ceives and uses a portion thereof," or where testator bequeaths in- surance policies of which he is beneficiary and later receives the proceeds of the policies," or where a portion of the subject-matter of a specific legacy has been parted with by the testator,'* as in the case of the alienation or change of a part of stock specifically be- queathed.'" But there is no ademption if the fund or stock or debt 'be converted or the testator's interest in it be changed by statute TO Ante, p. 498; Ives v. Canby (C. C.) 48 Fed. 718. Ti Succession of Batehelor, 48 La. Ann. 278, 19 South. 283 (where the tes- tator bequeathed a note, the amount of \^hich was subsequently collected and placed to his credit) ; Tolman v. Tolman, 85 Me. 317, 27 Atl. 184 (where a testator, after bequeathing certain notes secured by a mortgage, surrendered the notes and took a deed of the land, which he afterwards sold, taking notes tn payment. Held, that the bequest was adeemed); IN RE BRIDLE (1879) 4 C. P. D. 336, Dunmore Cas. Wills, 302; Richards v. Humphreys, 15 Pick. (Mass.) 133 ; Georgia Infirmary v. Jones (C. C.) 37 Fed. 750; Ford v. Ford, 23 N. H. 218; Gilbreath v. Alban, IQ Ohio, 64; Badrick v. Stevens, 3 Bro. C. C. 431; Barker v. Bayner, 5 Madd. 208. Contra: Joynes v. Hamilton, 98 Md. 665, 57 Atl. 25. But where the testatrix bequeathed all her money on hand and all bonds left her by her late husband to certain legatees, and one of the bonds was paid before the testator's death, and the amount deposited in a bank, there ■was no ademption as to the bond paid. In re Bradley's Will, 73 Vt. 253, 50 Atl. 1072. It makes no difference whether the debt is paid voluntarily or under legal •compulsion. WyckofC v. Perrine's Ex'rs, 37 N. J. Eq. 118 (disapproving Stout V. Hart, 7 N. J. Law, 414) ; Humphries v. Humphries, 2 Cox, 1S5; Jones v. Southall, 32 Beav. 31 ; Ford v. Ford, 23 N. H. 212. The earlier English cases ^ ■were otherwise, , however. See 2 Wms. Ex'rs [1324] note (p). 72 In re Tillinghast, 23 R. I. 121, 49 Atl. 634. See, accord, In re Goodf el- low's Estate, 166 Cal. 409, 137 Pac. 12. " In re Pruner's Estate, 222 Pa. 179, 70 Atl. 1000, 40 L. R. A. (N. S.) 561. 7 4 New Albany Trust Co. v. Powell, 29 Ind. App. 494, 64 N. E. 640; Hood v. Haden, 82 Va. 588 (where certain bonds were disposed of by will and the tes- tatrix afterwards sold them). Semble: Brady v. Brady, 78 Md. 461, 28 Atl. 515; Douglass v. Douglass, 13 App. D. C. 21. 7 5 Gardner v. McNeal, 117 Md. 27, 82 Atl. 988, 40 L. E, A. (N. S.) 553, Ann. €as. 1914A, 119; White v. Winchester, 6 Pick. (Mass.) 48, 57; Ashburner v. McGuire, 2 Bro. 0. C. 108. 506 LEGACIES (Ch. 20 or operation of law;''" nor where the stock has been transferred into another fund by a trustee without the knowledge or consent of the testator; " nor where the stock is transferred, with the tes- tator's consent, from the name of his trustee into his own; '' nor where consols bequeathed by a testatrix, and standing in her name at her death, are transferred, under an order in lunacy, into the name of the paymaster general.'* So no ademption is worked by the simulated transfers of property by the testator, which subse- quently returns to his possession ; '° nor by an offer of sale of the property bequeathed, not accepted until after the testator's death ; '^ nor by the lease of a ground rent, after a specific devise thereof ; *^ nor by the renewal of notes given to secure a debt which is be- queathed/^ So there is no ademption from the collection of a debt where the gift is of the proceeds of the debt and not of the debt itself.'* If the goods in a certain locality are bequeathed, and the locality is referred to merely as an aid to their identification, their removal from that locality will not adeem -the legacy if identifica- tion is possible after such removal.*' But if the fact of locality is of the essence of the gift, their subsequent removal will work an '« Walton V. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456; Partridge V. Partridge, Oas. temp. Talb. 226; Bronsdon v. Winter, Ambl. 59; Oakes v. Oakes, 9 Hare, 666. See, however. Slater v. Slater [1906] 2 Ch. 480, where a different conclusion Is reached under the Wills Act " Shaftsbury v. Shattsbury, 2 Vern. 747. 7 8 Dingwell v. Askew, 1 Cox, 427. Where testatrix bequeathed certain bank stock, and subsequently the bank consolidated with others, the former stockholders being entitled to exchange their shares for shares in the new bank, which the testatrix did, no ademp- tion was held to result In re Peirce, 25 R. I. 34, 54 Atl. 588. And, generally, a bequest of stock is not adeemed by any ajteration in the stock which is purely formal. In re Frahm's Estate, 120 Iowa, 85, 94 N. W. 444 ; Pope v. Hinckley, 209 Mass. 323, 95 N. E. 796 ; In re Clifford's Estate, [1912] 1 Ch. 29. '9 In re Wood, [1894] 2.Ch. 577. In such a case the bequest does not take effect upon consols purchased by order of court, in behalf of the lunatic tes- tatrix, and which never stood in her name. Id. 80 Succession of Blakemore, 43 La. Ann. 845, 9 South. 496. A sale of property bequeathed, followed by its repurchase, the title being in the testator at the time of his death, can obviously have no effect upon the legacy. 81 In re Pearce, 8 Reports, 805. 82 Brady v. Brady, 78 Md. 461, 28 Atl. 515. 88 Ford V. Ford, 23 N. H. 212; Gardner v. Prtntup, 2 Barb. (N. Y.) 83. 84 Hopkins v. Gourand, 3 Misc. Rep. 619, 23 N. Y. Supp. 189; Clark v. Browne, 2 Sm. & 6. 524; Littig v. Hance, 81 Md. 416, 32 Atl. 343; Miller's Ex'r V. Malone, 109 Ky. 133, 58 S. W. 708, 95 Am. St. Rep. 338; In re Black's Estate, 223 Pa. 382, 72 Atl. 631. 85 Chapman v. Hart 1 Ves. 271 ; Land v. Devoynes, 4 Bro. 0. C. 537. § 152) ADEMPTION AND SATISFACTION OF GIFTS 507 ademption,'* unless they are removed to preserve them, as from fire," or by fraud, or without the testator's knowledge or authoi- ity/' The making of a codicil does not revive a legacy previously adeemed by the testator,^' neither does a republication of the will.»» Ademption by Satisfaction A legacy may be adeemed or satisfied by a payment or transfer of property expressly made for that purpose by the testator during his lifetime,^^ as where money is paid to the legatee, who gives a receipt in full discharge of the legacy,'" even though the sum given in satisfaction is smaller than the legacy,"' or where a father makes a legacy of "$1,000, to be paid by deducting the same from the amount the legatee owes me as evidenced by notes I hold on him," and he subsequently surrenders to the son notes to the amount of the legacy,"* or where the amount of a legacy is advanced at the express request of the legatee'."" But the receipt by a legatee of a , certain amount in part payment of a legacy does not, to that extent, work an ademption of a legacy of the same amount under a subse- quent will revoking the prior will."' Where ademption is effected by payments of this character, it results by force of the payment itself, and not by virtue of any con- tract with the legatee; hence the fact that the legatee was a mar- ried woman when she received the money and gave the receipt is immaterial as affecting the result."^ When a legacy is given for a particular purpose, which purpose 88 2 Wms. Ex'rs [1326]; Green v. Symonds, 1 Bro. C. C.-129, note; Hesel- tine V. Heseltine, 3 Madd. 276 ; Colleton v. Garth, 6 Sim. 19. 8T Chapman v. Hart, 1 V6s. 273. 88 Shaftsbury v. Shaftsbury, 2 Vern. 7. 80 Tanton v. Keller, 167 111. 129, 47 N. E. 376. 90 Trustees Unitarian Soc. v. Tufts, 151 Mass. 76, 23 N. B. 1006, 7 L. E. A. 390. In Louisville Trust Co. v. Southern Baptist Theological Seminary, 148^ Ky. 711, 147 S. W. 431, it was held tbat a legacy once adeemed was not revived by the execution, after the ademption took effect, of another wUl containing the same legacy. 91 Gallagher v. Martin, 102 Md. 115, 62 Atl. 247; Carmichael v. Lathrop, 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232 ; In re Johnson's Estate, 201 Pa. 513, 51 Atl. 342. 92 Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414. Semble: Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733; Glasscock v. Layle (Ky.) 53 S. W. 270. 9 3 In re Brown's Estate (1908) 139 Iowa, 219, 117 N. W. 260. 94 Davis V. Close, 104 Iowa, 261, 73 N. W. 600. 9 5 Hay ward v. Loper, 147 111. 41, 35 N. B. 225. 9 6 Jaques v. Swasey, 153 Mass. 596, 27 N. E. 771, 13 L. R. A. 566. 9 7 Roquet T. Eldridge, 118 Ind. 147, 20 N. E. 733. 508 / LEGACIES (Ch. 20 is accomplished by' the testator during his own life, the legacy is regarded as thereby adeemed;" as where a legacy is given to a legatee to pay the debt of another legatee in the will, and, after the execution of the will, the testator pays the debt himself."' So where a woman bequeathed certain legacies, and afterwards made a marriage settlement disposing of her property substantially to the legatee, the legacies were treated as adeemed to the extent of the provisions in the settlement.^ Thus far the intention of the testator with regard to the eflfect of his subsequent acts upon a prior bequest is reasonably clear, and it of course governs. Room for construction or presumption only exists when a subsequent payment is made to a beneficiary, and' there is nothing to indicate the testator's intention as to the effect, of such payment upon his will. Subsequent Payment, with Intention not Evidenced In such cases courts have adopted the not wholly satisfactory- rule that where a bequest is made by one standing in loco parentis- to the beneficiary, and subsequent thereto payments are made hf- the testator to the beneficiary equal to or greater, or less than the amount of the legacy, such payments are prima facie a complete satisfaction in the one case, or a satisf actipn pro tanto in the other ; '' 8 Taylor v. Tolen, 38 N. J. Eq. 91; In re Johnson's Estate, 201 Pa. 513, 51 AU. 342; Rosewell v. Bennett, 3 Atk. 77. »» Taaton v. Keller, 167 111. 129, 47 N. E. 376; Taylor v. Tolen, 38 N. J. Eq. 91, where money was given to pay the debt on a chapel, which the testator afterwards paid himself. Ademption was held to follow, though the amount paid was less than the amount of the legacy. See, however, Api>eal of Keiper,. 124 Pa. 198, 16 Att. 744. 1 Webb V. Jones, 36 N. J. Eq. 163. 2 In re Youngerman's Estate, 136 Iowa, 488, 114 N. W. 7, 15 Ann. Cas. 245 ; Richards v. Humphreys, 15 Pick. (Mass.) 133; Weston v. Johnson, 48 Ind. 1;. Carmlchael v. Lathrop, 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232; Boring V. Jobe (Tenn. Ch. App.) 53 S. W. 763; Shudall v. Jekyll, 2 Atk. 518; IZARD V. HURST, 2 Freem. O. C. 224, Dtmmore Cas. Wills, 303. ' It seems to have been originally held that complete ademption resulted even when the subsequent payment was less than the amount of the legacy — this on the theory that the legacy is the child's portion, and that a subsequent ad- vancement is in lieu of such portion. See Hartop v. Whitmore, 1 P. Wms. 681; Clarke v. Burgoine, 1 Dick. 353; Ex parte Pye, 18 Ves..l53. But this view is no longer recognized. See Pym v. Lockyer, 5 My. & Cr. 29; 2 Story, Eq. Jur. § 1111; Paine v. Parsons, 14 Pick. (Mass.) 318. The question as to whether a testator is to be considered as standing iii- loco parentis depends upon the circumstances of each particular case. The test is whether the testator means to put himself ki'the situation of the law- ful father of the child, with reference to the father's office and duty of mak- ing provisioif for the child. 2 Wms. Ex'rs [1338]. Great uncles, uncles, grandfathers, and grandmothers are not to be considered in loco parentum un- less such is their Intention. , Id. [1339]. § 152) ADEMPTION AND SATISFACTION OP GIFTS 509 while, if the testator does not stand in loco parentis, such payment does not, prima facie, have any relation to the prior legacy ^= The' doctrine arose from the hostility of the courts of equity towards double portions, and it finds some plausible support in the sugges- tion that the earlier payment is merely the anticipated performance of the ultimate duty which the parent owes his child.* Although criticized," it has never been denied either in English or American jurisprudence.' But the presumption that the subsequent gift by one in loco parentis is by way of advancement does not prevail where the tes- tamentary portion is not of the same kind as the thing given ; ' nor where the subsequent advancement depends upon a contingency and the testamentary provision is certain ; * nor where small sums of money are given from time to time,* particularly when given to relieve the financial distress of the recipient ; ^^ nor where a sum equal to the amount of the legacy is paid to the husband of the legatee ; ^^ nor where, in any way, the intention that a subsequent payment is not to occasion ademption is manifest.^'' In two Eng- lish cases, the courts have refused to apply this doctrine of ademp- tion where the result would be to increase the residuary gift to a legatee who is a stranger.^* The doctrine has no application to an s Wallace v. Du Bois, 65 Md. 153, 4 Atl. 402 ; Appeal of Sprenkle (Pa.) 15 AU. 773; Kramer v. Kramer, 119 O. C. A. 482, 201 Fed. 248; Wilson v. Smith (C. C.) 117 Fed. 707, affirmed 61 O. C. A. 446, 126 Fed. 916 (where legatee a nephew). 4 Watson V. Lincoln, 1 Ambl. 325. B Bigelow on Wills, p. 372; 2 Story, Eq. Jur. § 1113. ■« See Weston V. Johnson, 48 Ind. 1, 5; Grogan v. Ashe, 156 N. C. 286, 72 S. E. 372, citing Gardner on Wills (1st Ed.) p. 569. 7 Holmes y. Holmes, 1 Bro. 0. C. 555; Davys v. Boucher, 3 T. & OoU. 411; Appeal of Elliott, 132 Pa. 164, 19 Atl. 32. Thus the gift of a house and lot to the legatee after the date of the wUl does not adeem a pecuniary legacy. Swoope's Appeal, 27 Pa. 58. 8 Spinks V. Robins, 2 Atk. 491; 2 Wms. Ex'rs [1336]. » Watson V. Watson, 33 Beav. 574. 10 Carmichael v. Lathrop, 112 Mich. 301, 70 N. W. 575. 11 Hart V. Johnson, 81 Ga. 734, 8 S. E. 73; In re Hall's Estate (1907) 132 Iowa, 664, 110 N. W. 148. 12 See Richardson v. Eveland, 126 111. 37, 18 N. E. 308, 1 L. R. A. 203; In re Crawford, 113 N. X. 560, 21 N. E. 692, 5 L. R. A. 71. Whether the doctrine applies to the bequest of the residue is in dispute. See Van Houten v. Post, 32 N. J. Eq. 709; 2 Wms. Ex'rs [1334], citing cases holding that it does. Contra- Davis v. Whlttaker, 38 Ark. 435; Clark v. Jetton, 5 Sneed (Tenn.) 229 Since an ademption of a legacy may now be partial as well as total, there seems to be no reason why the doctrine should not be applied to resid- 119 rv sift s 13 Pumphrey v. Fryer, [1906] 2 Oh. 230; Meinertzagen v. Walters, L. R. 7 Ch. 670. 510 LEGACIES (Ch. 20 advance made prior to the making of the 'will." And where an ad- vancement has been made to a beneficiary in excess of a legacy be- que'athed, the beneficiary is not liable to the testator's estate for the excess, the advancement being an irrevocable gift.^° Devises as Affected by Ademption While a conveyance to a devisee, either in whole or in part, of the land devised, cannot do otherwise than effectuate the gift either wholly or in part,^° yet the general rule is that a devise cannot be adeemed by a payment of money,^^ or a conveyance of other realty,^' during the life of the testator. It is held, however, that the taking of land by eminent domain, and the retention by the owner of the money awarded therefor, constitute an ademption which will prevent the devisee of the land under a former will from taking the money on the death of the testator.^* Satisfaction of Debt by Legacy to Creditor A legacy by a debtor to a creditor will, in the absence of any evi- dence of the testator's intent, be presumed to have been given in payment of the debt, if the debt was contracted prior to the making of the will, and the legacy is as great or greater than the debt.^" The rule seems to have little or no foundation in reason, and is fol- lowed with reluctance.''^ It does not apply where a debt turns out 11 Jaques v. Swasey, 153 Mass. 596, 27 N. E. 771, 13 L. E. A. 566; Stichte- notli V. Toph, 23 Wkly. Law Bui. (Ohio) 126. IB Baker v. Safe-Deposit & Trust Co., 93 Md. 368, 48 Atl. 920, 49 Atl. 623. 18 Marshall v. Eench, 3 Del. Ch. 239 ; Kice v. Kice (1910) 147 Iowa, 1, 125 N. W. 826, 34 L. B, A. (N. S.) 917 ; Pickett v. Leonard, 104 N. C. 326, 10 S. E. 466, where the testator devised 80 acres of a certain tract, and afterwards conveyed to the devisee 30 acres of the same tract Held that, under the will, the devisee took so much of the 80 acres as was not included in the deed, and not 80 acres besides what he took under the deed. 17 Campbell v. Martin, 87 Ind. 577 ; In re Brown's Estate (1908) 139 Iowa, 219, 117 N. W. 260; Burnham v. Comfort, 108 N. Y. 535, 15 N. E. 710, 2 Am. St. Rep. 462. Conversely', a legacy is not adeemed by a conveyance of land to the legatee, Jacobs V. Button, 79 Conn. 360, 65 Atl. 150, 12 Prob. Rep. Ann. 661; unless it is made to appear that testator intended the subsequent conveyance to oper- ate as a satisfaction, Carmichael v. Lathrop, 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232. 18 Fisher v. Keithley, 142 Mo. 244, 43 S. W. 650, 64 Am. St. Rep. 560; Swails V. Swails, 98 Ind. 511. Contra: Hansbrough's Ex'rs v. Hooe, 12 Leigh (Va.) 316, 37 Am. Dec. 659. i» Ametrano v. Downs, 62 App. Div. 405, 70 N. Y. Supp. 833. 20 Adams v. Adams, 55 N. J. Eq. 42, 35 Atl. 827; Heisler v. Sharp's Ex'rs, 44 N. J. Eq. 167, 14 AU. 624; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81; Reynolds v. Robinson, 82 N. Y. 103, 37 Am. Rep. 555. 21 Mathews v. Mathews, 2 Ves. 635; Smith v. Smith, 1 Allen (Mass). 129. § 1^3) ADTANCEMENTS 511 to be due on an account current," nor where the legacy is uncer- tain or contingent.^s ^^ jf ^j^ere is an express direction to pay debts,''* or if there is a difference in the nature of the debt and legacy.^" or in the times in which they are respectively payable,^* or where the legacy is payable upon terms less advantageous to the creditor," or where the debt accrued after the making of the will," ' or where the property devised is of uncertain value.^" or where the expressed purpose of the gift, strictly construed, would not include a debt due from the testator.** Satisfaction, even pro tanto, is not presumed where the amount of the legacy is less than the amount of the debt." ADVANCEMENTS 153. The doctrines pertaining to advancements have no application in the law of wills, unless the testator provides that his estate, either in whole or in part, shall descend as though he had died intestate, or unless he directs that gifts, loans, or grants be deducted, as advancements, to equalize the shares of the beneficiaries. In the first case, the usua^ rules respecting advancements in case of intestacy prevail ; in the latter, the will of the testator is effectuated, though the gifts, loans, and grants would not have constituted ad- vancements had there been no will. A will is supposed to contain the final manifestation of the tes- tator's bounty, he having in view all prior bounties to the benefi- ciaries ; hence the will extinguishes all previous advancements, un- less there is a manifest intention on the part of the testator to the contrary,*^ as indicated in the black-letter text. When this inten- tion is manifested, it, of course, controls.*' 22 Rawlins v. Powel, 1 P. Wms. 299; Williams v. Orary, 5 Cow. (N. Y.) 368. 2s Nicholls V. Judson, 2 Atk. 300; Compton v. Sale, 2 P. "Wms. 553. 24 Mitchell V. Vest (1912) 157 Iowa, 336, 136 N. W. 1054; BougMcn v. Flint, 74 N. Y. 476. 26 Fidelity Tnist Co. v. Martin, 158 Ky. 522, 165 S. W. 665, L. R. A. 1915B, 1156; Perry v. Maxwell, 17 N. C. 488. 2 6 Dey V. Williams, 22 N. C. 66. ' 2T Stone V. Pennock, 31 Mo. App. 544. 2 8 In re Ebos' Estate, 61 Misc. Rep. 594, 115 N. Y. Supp. 863; Sullivan v. Latimer, 38 S. C. 158, 17 S. E. 701. 2 8 Deichman v. Arndt, 49 N. J. Eq. 106, 22 Atl. 799. 80 Adams v. Olin, 61 Hun, 318, 16 N. Y. Supp. 132. 81 Parker v. Coburn, 10 Allen (Mass.) 82, 84, and cases there cited. 3 2 Trammel v. Trammel, 148 Ind. 487, 47 N. E. 925; Bowron v. Kent, 190 N. Y. 422, 83 N. E. 472. 3 8 In re Hayne's Estate, 165 Cal. 568, 133 Pac. 277; Ann. Gas. 1915A, 926; 512 LEGACIES (Ch. 20 Testators frequently provide that advancements made to the bene- ficiaries shall be accounted for and charged against their ^shares.'* When the term "advancement" is used, it is usually interpreted, as in intestacy, as meaning a present gift by a parent of a portion or all . of what a child would be entitled to on the death of the donor," but intention controls when it appears that testator intends to use the term in a popular sense and to include a debt.'" Where a testator signed notes as surety for his son, with the understanding that, if compelled to pay the same, the amount should be deducted from the, son's share of the estate, and some of the notes were thus paid by the testator, the payments constitute advancements.*' Under a general provision that advancements shall be accounted for, the law relating to advancements in cases of intestacy applies.*' Where a bequest is made to a daughter of "the advance she has received as per private account," it is to be construed in the light of conditions existing at the testator's death, and passes the balance as shown against her by the testator's account at that time.*' The testator may himself fix the value at which advancements are to be reckoned,*" and such amount controls, though there is no evidence as to what the amounts actually are.*^ Where the will is silent on this question, the value is to be determined as of the time the advancement was made.*^ In re Bresler's E&tate, 155 Mich. 567, 119 N. W. 1104 (where sums advanced to husband deducted from a legacy to wife because testator so Intended); In re Harris' Estate, 82 Vt 199, 72 AU. 912. S4 Breckinridge v. Breckinridge, 98 Va. 561, 31 S. E. 892; Coombs v. Came, 236 111. 333, 86 N. E. 245 ; In re Moore, 61 N. J. Eq. 616, 47 Atl. 731. Where testator conveyed land to his son's children, and the will shows that testator considered the conveyance as an advancement to the son, it wiU be given that effect. Duff v. DufCs Ex'rs, 146 Ky. 201, 142 S. W. 242. 86 2 Woerner, Am. Law of Administration, 1214; Osgood v. Breed's Heirs, 17 Mass. 356. 38 Montgomery's Trustee v. Brown (1909) 134 Ky. 592, 121 S. W. 472. 87 In re Pickenbrock's Estate, 102 Iowa, 81, 70 N. W. 1094. 8 8 See Appeal of Men'gel, 116 Pa. 292, 9 Atl. 439; Frye v. Avritt (Ky.) 68 S. Vr. 420; Leggett v. Davison, 131 Mich. 77, 90 N. W. 1060. 8 8 Vitt V. Clark, 66 Mo. App. 214. *o Ballinger v. Connable, 100 Iowa, 121, 69 N. W. 438; QiUender v. Wood- ward (Tenn. Ch. App.) 52 S. W. 756. *i In re Eichelberger's Estate, 135 Pa. 160, 19 Atl. 1006, 1014.«. Parol evidence is not admissible to show that the property advanced was not worth the amount at which it was valued by testator. Buchanan v. Hun- ter (1914) 166 Iowa, 663, 148 N. W. 881. 42 Grattan v. Grattan, 18 111. 167, 65 Am. Dec. 726; Clark v. Wilson, 27 Md. 693; Jackson v. Jackson, 28 Miss. 674, 64 Am. Dec 114; Ray v. Loper 65 Mo. 470. . § 153) ^ ADVANCEMENTS 513 Interest on Advancements An advancement' being in the nature of a gift, no interest is to be charged in determining its amount,** in the absence of an ex- press provision to that effect in the will.** When debts due testator are directed to be deducted from the shares of legatees, interest is reckoned only to the date of testator's death,*" and when it appears that testator intends an indebtedness to be treated strictly as an advancement, no interest will be charged against a legatee.*" Debts as Advancements A loan is not an "advancement," and hence is not included under the term when used without qualification in a will.*^ But the tes- tator may provide that debts shall be treated as advancements,*' in which case the statement of the amount of the delat is conclusive as against the beneficiaries.** A provision that a debt shall be treated as an advancement will not be defeated by a prior release of the debt,"" or by the fact that, as a debt, it is barred by the stat- ute of limitations,"^ or because the legatee has obtained a discharge in bankruptcy in respect of the debt."^ *3 Baker v. Trust Co., 93 Md. 368, 48 Atl. 900, 49 Atl. 623; Osgood v. Breed, 17 Mass. 356; Wilklns v. Wilkins, 43 N. J. Eq. 595, 12 Atl. 620; Da vies v. Hughes, 86 Va. 909, 11 S. E. 488. 4* Hays V. Freshwater, 47 W. Va. 217, 34 S. E. 831. *s Howe V. Howe, 184 Mass. 34, 67 N. E. 639; Taylor v. Taylor, 145 Mass. 239, 14 N. E. 101. *8 Garth v. Garth, 139 Mo. 456, 41 S. W. 238. *7 Ex parte Middleton, 42 S. C. 178, 20 S. E. 34; Woessner v. Wells (Tex. Civ. App.) 28 S. W. 247. See, also, Dawson v. Macknet, 42 N. J. Eq. 633, 8 Atl. 312. 4 8 Albert V. Albert, '74 Md. 526, 22 Atl. 408; Ritch v. Hawxhurst, 114 N. Y. 512, 21 N. E. 1009; Snider v. Snider, 149 Pa. 362, 24 Atl. 284. *9 In re Eichelberger's Estate, 135 Pa. 160, 19 Atl. 1006, 1014. See, also, Yoiince V. Mory, 77 Ohio St. 71, 83 N. E. 305. In re Tompkins" Estate, 132 Oal. 173, 64 Pac. 268. , Bi Baker v. Trust Co., 93 Md. 368, 48 Atl. 920, 49 Atll 623. See Price v. Douglass, 150 Mass. 96, 22 N. E.- 583. 62 Matter of Fussell, 129 Iowa, 498, 105 N. W. 503 ; Stephenson v. Norris, 128 Wis. 242, 107 N. W. 343. Gabd. Wills (2d Ed.)-^3 514 LEGACIES (Ch. 20 LAPSED GIFTS 154. A lapsed gift is one which fails to vest when the time for vest- ing arrives by reason of the incapacity or unwillingness of the beneficiary to receive it. Death of the beneficiary be- fore that of the testator is the most common cause of lapse. ,155. In event of lapse, the heirs or personal representatives of the beneficiary take nothing, except in so far as provision is made to that end by statute, but the property either passes under the residuary clause of the will or is distributed as intestate property, in the absence of an indicated intention of the 'testator to the contrary. The doctrine of lapse is merely a statement of the obvious prop- osition that, where there is.no one who can or will take that which the will undertakes to dispose of, the will must to that extent fail. The death of the beneficiary prior to that of the testator inevitably results in lapse,"* where the testator fails to indicate his wishes in that event, and this is true though the deceased beneficiary is one of several residuary legatees."* Lapse is not prevented by reason of the fact that the gift is to one and his heirs,°° the latter word being merely one of limitation to indicate the extent of the estate which the beneficiary is to take in event of his surviving the testa- tor, and this whether the subject-matter of the gift be real or per- sonal property. Where the beneficiary survives the testator and the gift vests, his death before the time of payment or enjoyment occa- sions no lapse, but his rights pass to his heirs or personal represent- atives."* So there is no lapse when the testator manifests his in- saDorsey v. Dodson, 104 111. App. 589; Pittman v. Burr,, 79 Mich. 539, 44 N. W. 951 ; In re Eells' Estate, 239 Pa. 385, 86 Atl. 877. 04 Bill V. Payne, 62 Conn. 140, 25 Atl. 354. 8 6 Wood V. Seaver, 158 Mass. 411, 33 N. EL 587; Bryson v. Holbrook, 159 Mass. 280, 34 N. E. 270; Loveren v. Donaldson, 69 N. H. 639, 45 Atl. 715; McKlernan v. Beardslee, 72 N. J. Eq. 283, 73 Atl. 815; Zabriskie v. Huyler, 62 N. .7. Elq. 697, 51 Atl. 197; Kimball v. Chappel, 18 N. Y. Supp. 30„ 27 Abb. N. C. 437 ; In re Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457. So, where three testatrices die simultaneously, a bequest or devise from one to the other does not take effect. IN RE WILLBOR, 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863, 78 Am. St. Rep. 842, Dunmore Cas. Wills, 304. But where the words "or to their heirs" were interlined by the testator, aft- er the names of certain legatees of whose death the testator was aware, and the will republished, the words were clearly words of substitution, and the heirs would take. In re Gilmor's Estate, 154 Pa; 523, 26 Atl. 614, 35 Am. St Rep. 855. Be Dorsey y. Dodson, 104 111. App. 589; Cook v. Hay ward, 172 Mass. 195, 51 §§ 154-155) LAPSED GIFTS 515 tention to the contrary, as where he provides for a limitation over in event of the death of the first beneficiary," or where the gift is to a fluctuating class, to be ascertained at the death of the testator, or at a subsequent period."' So a legacy given to discharge an ob- ligation will not lapse on the legatee's dying before the testator," neither does the lapse of a devise of lands charged with the pay- ment of a legacy cause the latter to lapse."" Lapse may be occasioned otherwise than by the death of the beneficiary during the life of the testator, as by the refusal of the beneficiary to accept the gift,°^ or by the marriage during the tes- tator's life of a beneficiary to whom a gift has been given to en- joy so long as she remains unmarried," or by the dissolution of a corporation to which a gift is made before the testator's death."' And when the will gave to the person named as executor the pow- er to distribute the residue of the estate to such charitable institu- tions as he might choose, the bequest lapsed upon the death of such person before the death of testatrix."* Lapse as Affected by Statute In most jurisdictions statutes have been enacted preventing lapse upon the death of the beneficiary before that of the testator under N. E. 1075; Hibler v. Hibler, 104 Mich. 274, 62 N. W. 361; Wamen's Adm'r v. Bronson, 81 Vt.- 121, 69 Atl. 655; Saxton v. "Webber, 83 Wis. 617, 53 N. W. 905, 20 L. E. A. 509. If legatee survives testator, his death before the probate of the will does not cause the legacy to lapse. Jersey v. Jersey, 146 Mich. 660, 110 N. W. 54 ; Tillson V. HoUoway (1912) 90 Neb. 481, 134 N. W. 232, Ann. Cas. 1913B, 78. B7 Rivers V. Rivers, 36 S. C. 302, 15 S. E. 137. Where will devises a life estate with remainder over, the death before tes- tator of the one designated as life tenant simply accelerates the time when the remainder over becomes operative. Farnsworth v. Whiting, 102 Me. 296, 66 AtL 831 ; Thompson v. Thornton (1908) 197 Mass. 273, 83 N. E. 880. 5 8 Gordon v. Jackson, 58 N. J. Eq. 166, 43 Atl. 98; Holbrook v. Harrington, 16 Gray (Mass.) 102. B» Ballard v. Camplin, 161 Ind. 16, 67 N. E. 505; Ward v. Bush, 59 N. J. Eq 144 45 Atl. 534; McNeal v. Pierce, 73 Ohio St. 7, 75 N. E. 938, 1 L. R. A. (N. S.) 1117, 112 Am. St Rep. 695, 4 Ann. Cas. 71 ; Turner v. Martin, 7 De. G., M. & G. 429. socady V. Cady, 67 Miss. 425, 7 South. 216; Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664. «i Sawyer v. Freeman, 161 Mass. 543, 37 N. E. 942. 8 2 Andrew v. Andrew, 1 Colly. 690. 63 Merrill v Haydeq, 86 Me. 133, 29 Atl. 949 ; Gladding v. St. Matthew's Church, 25 B. I. 628, 57 Atl. 860, 65 L. R. A. 225, 105 Am. St Rep. 904, 1 Ann. Cas. 537. 84 Hall V. Harvey, 77 N. H. 82, 88 Atl. 97. 516 LEGACIES (Ch. 20 certain circumstances. These statutes have already been discussed in another connection,*' and need no further treatment here. Disposition of Lapsed Legacies In the absence of a general residuary clause, the subject-mat- ter of lapsed legacies is distributed as intestate property,"' and such is the case where a general residuary gift lapses,*' as by the death of the residuary legatee before that of the testator,?' or by the dissolution before the death of the testator of a corporation made residuary legatee.** Such is also the case where a special or restricted residuary clause is not broad enough to embrace the subject-matter of the lapsed legacy.'"' If, the will contains a gen- eral residuary clause, the subject-matter of a lapsed legacy be- comes .a part of the residuary estate, and is distributed under the provisions of that clause,'^ unless it i^ a residuary bequest which 85 Ante, p. 394. As illustrative of statutes providing that a gift shall go to the issue of a dead beneficiary, see Smith v. Williams, 89 Ga. 9, 15 S. B. 130, 32 Am. St. Rep. 67; Dane v. Wynn, 80 Ga. 673, 6 S. E. 183 ; Goodwin v. Colby, 64 N. H. 401, 13 Atl. 866; JiOveren v. Donaldson, 69 N. H. 639, 45 Atl. 715. As illustrative of statutes providing that the gift shall go to the issue of a deceased relative of the testator who is a beneficiary, see Sears v. Putnam, 102 Mass. 5; Mliot v. Fessenden, 83 Me. 197, 22 Atl. 115, 13 L. E. A. 37; Ken- iston V. Adams, 80 Me. 290, 14 Atl. 203; Canfield v. Canfield, 62 N. J. Eq{ 578, 50 Atl. 471; Schaefer v. Bernhardt, 76 Ohio St. 443, 81 N. E. 640, 10 Ann. Cas. 919 (holding husband not a relative within such a statute) ; In re Brad- ley's Estate, 166 Pa. 300, 31 Atl. 96; Mann v. Hyde, 71 Mich. 278, 39 N. "W. 78. As to whetheir adopted children are "issue," under these statutes, see ante, p. 256 ; Phillips v. McConica, 59 Ohio St. 1, 51 N. E. 445, 69 Am. St. Kep. 753 (holding that they are not); Warren v. Prescott, 84 Me. 483, 24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370 (holding that they come within the term "lineal descendant"). 66 Bill V. Payne, 62 Conn. 140, 25 Atl. 354; Magnuson v. Magnuson, 197 111. 496, 64 N. E. 371; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949; Clark v. Cam- mann, 160 N. Y. 315, 54 N. E. 709. 67 In re Kimball's Will, 20 R. I. 619, 40 Atl. 847. 88 Wood V. Hubbard, 31 App. Div. 635, 53 N. T. Supp. 1119. «a Brooks v. City of Belfast, 90 Me. 318, 38 Atl. 222. 70 In re Kimball's Will, 20 R. I. 619, 40 Atl. 847; Lenz v. Sens, 27 Tex. Civ. App. 442, 66 S. W. 110; Williams v. McKeand, 119 Mich. 507, 78 N. W. 553, 75 Am. St. Rep. 420. 71 English V. Cooper, 183 111. 203, 55 N. E. 687; Clark v. Mack, 161 Mich. 545, 126 N. W. 632, 28 L. R. A. (N. S.) 479; City of New Orleans v. Hardie, 43 La. Ann. 251, 9 South. 12; In re Batchelder, 147 M^ss. 465, 18 N. E. 225; Carter v. Board, 144 N. Y. 621, 39 N. E. 628; Kimball v. Chappel, 18 N. Y. Supp. 30, 27 Abb. N. C. 437 ; Hiker v. Cornwell, 113 N. Y. 115, 20 N. E. 602'; Tindall's Ex'rs v. Tindall, 24 N. J. Eq. 512 ; In re Murphy's Estate, 184 Pa. 310, 39 Atl. 70, 63 Am. St Rep. 802 ; In re Powell's Estate, 138 Pa. 322, 22 §§ 156-157) VOID GIFTS— UNDISPOSED OP PEOPERTT 517 lapses, in which event the testator must with reference thereto be considered intestate, unless there is a provision for survivor- ship among the residuary legatees or a gift over in case of the death of any of them/'' Disposition of Lapsed Devises At common law the subject-matter of a lapsed devise went to the heirs of the testator as intestate property, and did not pass under a general residuary clause." But with the enactment of statutes enabling a will to operate upon subsequently acquired realty, it is generally held that lapsed devises fall into the resid- uum and pass to the general residuary beneficiaries.^* VOID GIFTS, AND PROPERTY UNDISPOSED OF BY WILL 156. A void gift is one which is incapable of taking effect from the time of making the will. The subject-matter of such a gift is governed, in its disposition, by much the same prin- ciples as prevail in the disposition of the subject-matter of a lapsed gift. 157. Property which the will does not operate to dispose of is dis- tributed as though there had been no will. Atl. 92; Nickerson v. Bragg, 21 R. I. 296, 43 Atl. 539; Lenz v. Sens. 27 Tex. Civ. App. 442, 66 S. W. 110; Fisk v. Attorney General, L. R. 4 Bq. 521; Rymer v. Stanfield, [1895] 1 Ch. 19. 72 Stetson V. Eastman, 84 Me. 366, 24 Atl. 868 ; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135 ; Hard v. Ashley, 117 N. T. 606, 23 N. E. 177 ; Canfleld y. Canfield, 62 N. J. Eq. 578, 50 Atl., 471 ; Church v. Church, 15 R. I. 138, 23 Atl. 302; In re Gorgas' Estate, 166 Pa. 269, 31 Atl. 86; Kent v. Kent, 106 Va. 199, 55 S. E. 564, 12 Prob. Rep. Ann. 310. So, where a testator, by codicil, revokes a bequest to one of the residuary legatees because of his death, but makes no disposition of the share of such legatee, it passes to the testator's next of kin, and not to the remaining resid- uary legatees. In re Wain's Estate, 156 Pa. 194, 27 Atl. 59. 73 English V. Cooper, 183 111. 203, 55 N. E. 687; Cox v. Harris, 17 Md. 23; Brown v. Higgs, 4 Ves. 708. This rule seems to have arisen because of the view that a devise to a par- ticular person was intended as an exception from the gift to a residuary leg- atee, Johnson v. Hollfield, 82 Ala. 123, 2 South. 753 ; and because a will was treated as a present conveyance, which could not pass after-acquired real es- tate, MoUneaux v. Raynolds, 55 N. J. Eq. 187, 36 Atl. 276. 74 In re Upham's Estate, 127 Cal. 90, 59 Pac. 315; Thayer V. WelUngton, 91 Mass. (9 Allen) 283, 85 Am. Dec. 753 ; MoUneaux v. Raynolds, 55 N. J. Eq. 187, 36 Atl. 276 ; Cruikshank v. Home for the Friendless, 113 N. Y| 337, 21 N. 518 LEGACIES (Ch. 20 A void differs from a lapsed gift in that the latter is good at the time of the execution of the will, while the former, such as a gift in violation of the rule against perpetuities, is as nothing from the first. A void bequest passes under a general residuary clause,^" un- less the void bequest is itself a residuary bequest, in which case the general rule applies," and the subject-matter of the void gift is distributed as intestate property." If, however, the residuum is bequeathed to a class, and the shares of certain members of the class fail by reason of their being subscribing witnesses to the will, their shares pass to the other residuary legatees." A >. special or restricted residuary clause may be so worded as not to include void bequests, in which case their subject-matter is treated as in- testate property.'" In the absence of legislation permitting the devise of after- acquired realty, a void devise passes to the heirs of the testator, and not to the residuary legatee ; ^'' otherwise when there is such legislation.'^ In case of a void devise, the real estate does not be- come personalty, as against the heirs, because the executors were authorized to convert it into money to carry out the provisions of the will." E. 64, 4 L. R. A. 140; Smith v. Smith, 141 N. Y. 29, 35 N. E. 1075; Duck- worth V. Jordan, 138 N. C. 520, 51 S. E. 109, 11 Prob. Rep. Ann. 891 (statute). '5 Crerar v. Williams, 145 111. 625, 34 N. E. 467, 21 L. R. A. 454; Dorsey v. Dodson, 104 111. App. 589; Dexter v. parvard College, 176 Mass. 192, 57 N. E. 371; Garter v. Board, 68 Hun, 435, 23 N. Y. Supp. 95; Hulin v. Squires, 63 Hun, 352, 18 N. Y. Supp. 309 ; In re Bonnet's Estate, 113 N. Y. 522, 21 N. E. 139 ; Peckham v. Newton, 15 R. I. 321, 4 Atl. 758 ; prison Ass'n v. Russell's Adm'r (1905) 103 Va. 563, 49 S. E. 966; Gallagher v. Rowan's Adm'r, 86 Va.' 823, 11 S. E. 121; Milwaukee Protestant Home v. Becher, 87 Wis. 409, 58 N. W. 774. See, also, Davis v. Davis, 62 Ohio St. 411, 57 N. K 317, 78 Am. St Rep. 725. ■"> See ante, p. 370. '7 Powers V. Codvylse, 172 Mass. 425, 52 N. E. 525 ; Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 238; Spencer v. Association, 36 Misc. Rep. 393, 73 N. Y. Supp. 712 ; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924. Of course, where the whole residuary clause is invalid, the residuum is dis- tributed as intestate property. State v. Holmes, 115 Mich. 456, 73 N. W. 548 ; Henderson v. Henderson, 46 Hun (N. Y.) 509. 7 8 Martineau v. Simonson, 59 App. Div. 100, 69 N. Y. Supp. 185. Tobavis V. Davis, 62 Ohio St. 411, 57 N. E. 317, 78 Am. St. Rep. 725; Schu- maker v. Grammer, 200 lU. 48, 65 N. E. 722. 80 Kelly V. Nichols, 18 R. I. 62, 25 Atl. 840, 19 L. R. A. 413. siGiddingsv. Giddings, 65 Conn. 149, 32 Atl. 334, 48 Am. St. Rep. 192; Gallavan v. Gallavan, 57 App. Div. 320, 68 N. Y. Supp. 30 (denying the exist- ence of any distinction in this connection between lapsed and void devises). 82 Fifield V. Van Wyck's Ex'r, 94 Va. 557, 27 S. E. 446, 64 Am. St. Rep. 745. §§ 156-157) VOID GIFTS — UNDISPOSED OF PEOPEETT 519 Property Undisposed of by Will Property which the testator does not undertake to dispose of, or which is not in fact disposed of by the will, as in event of the defeat of an estate upon condition or with limitation," without limitation over, or where a life estate is created, with no disposi- tion of the reversion,'* descends at once as intestate property, un- affected in any way by the provisions of the will. 83 Bennett v. Packer, 70 Conn. 357, 39 Atl. 739, 66 Am. St Rep. 112; Hen- riques v. SterUng, 26 App. Div. 30, 49 N. Y. Supp. 1071. 84 Oliver V. Powell, 114 Ga. 592, 40 S. E. 826; Torrey v. Peabody, 97 Me. 104, 53 AtL 988. 520 LBQACIBS CHAKGBD UPON LAND OB OTHER PKOPliETy (Ch. 21 CHAPTER XXI LEGACIES CHARGED UPON LAND OB OTHER PROPERTY 158. Legacies as Charged upon the Realty. 159. Legacies Charged upon Specific Personalty. 160-161. Enforcement of Charge, LEGACIES AS CHARGED UPON THE REALTY 158. Legacies are primarily payable from the personalty only, and, in event of its insufficiency, they must abate, unless, either expressly or by necessary implication, the land of the tes- tator is charged with their payment. A legacy is not chargeable upon real estate unless the will clearly exhibits an intent to this end,^ either by direct language or by im- plication from the language employed.^ ' The question is purely one of intent,* each case turning upon the particular phraseology employed, and the burden of showing testator's intent to charge general legacies on realty is upon those who assert it.* The gift of a legacy to be paid out of the "estate" of the testator creates a charge upon the realty," though in such case the personalty is ap- parently primarily liable.* A devise of land subject to the condi- tion that the devisee shall pay a certain amount to a third party is 1 Robertson v. Broadhent, L. R. 8 App. Cas. 812; Wentworth v. Read, 61 111. App. 539; McVean v. Wagoner (Ky.) 58 S. W. 594; Porter v. Ford (Ky.) 7 S. W. 29; La Foy v. La Foy, 43 N. J. Eq. 206, 10 Atl. 266, 3 Am. St Rep.- 302; In re Duvall's Estate, 146 Pa. 176, 23 Ati. 231; Phillips v. Clark, 18 R. I. 627, 29 Atl. 688; Allen v. Mattison (R. I.) 39 Atl. 241 ; Cairns v. Smith (Tex. Civ. App.) 49 S. W. 728; Hoyt v. Hoyt, 69 N. H. 303, 45 Atl. 138. Statutes In some jurisdictions have effected changes in the common-law rule. In re Lee Rattos' Estate, 149 Cal. 552, 86 Pac. 1107, quoting Civil Code, § 1360. 2 Wentworth v. Read, 166 111. 139, 46 N. E. 777 ; In re Wallace's Estate, 234 Pa. 459, 83 Atl. 280. 3 Hogg V. Browning, 47 W. Va. 22, 34 S. Ei 754. * McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. T. Supp. 101. e Hartson v. Mden, 50 N. J. Eq. 522, 26 Atl. 561; In re Lloyd's Estate, 174 Pa. 184, 34 Atl. 519 ; Davidson v. Coon, 125 Ind. 497, 25 N. E. 601, 9 L. R. A. 584. See Todd v. McPall, 96 Va. 754, 32 S. B. 472. « O'Brien v. Dougherty, 1 App. D. C. 148 ; Longacre v. Stiver, 135 Ind. 584, 35 N. E. 900; Langworthy v. Golden, 28 111. App. 119; Congregational Church In White River Village v. Benedict, 62 N. J. Eq. 812, 48 AtL 1117. § 158) LEGACIES AS CHARGED UPON THE REALTY 521 usually construed as creating a charge in the latter's favor in the absence of a limitation over/ and such is commonly the case with a direction to the devisee to make such payment.* So a devise of the residue after the payment of specified legacies charges their payment upon the realty passing under the residuary clause," as does also a devise of specific land to a devisee after paying,^" or provided that she shall at some time pay,^^ a legacy to a third party, or that the devisee shall, "in consideration" of the gift, pay certain specific legacies.^* So a power of sale conferred upon the executors, they to make perfect title to the purchasers, without liability on the part of the latter to see to the application of the purchase money, is held to indicate an intention to charge the land with the payment of leg- acies.^' There is, of course, no room for doubt where the legacy is, in terms, made a charge upon land,^* or where the gift is made subject to a certain legacy,^" or where there is a provision that, if T Daly V. Wilkle, 111 111. 382; Merrltt v. Bucknam, 78 Me. 504, 7 Atl. 383; McNaUy v. McNally, 23 R. I. 180, 49 Atl. 699; Chase v. Warner, 106 Mich. 695, 64 N. W. 730; In re Kom's Will, 128 Wis. 428, 107 N. W. 659. 8 Wyckoff V. Wyckoff, 49 N. J. Eq. ^44, 25 Atl. 963 ; Carter v. Worrell, 96 N. C. 358, 2 S. E. 528, 60 Am. Rep. 420; Case v. Hall, 52 Ohio St. 24, 38 N. B. 618, 25 D. R. A. 766 ; Brotzman v. Riehl, 119 Pa. 645, 13 Atl. 483. Contra: Larkln v. Larkin, 17 R. I. 461, 23 Atl. 19. » Smith V. Jackman, 115 Mich. 192, 73 N. W. 228 ; Dunham v. Deraismes, 165 N. T. 65, 58 N. E. 789 ; Appeal of Chilcott, 134 Pa. 240, 19 Atl. 850; In re Root's WiU, 81 Wis. 263, 51 N. W. 435 ; TURNER v. LAIRD, 68 Conn. 198, 35 Atl. 1124, Dunmore Gas. Wills, 312. 10 Woods V. Gilson, 178 Mass. 511, 60 N. E. 4, 61 N. E. 58; Dean's Adm'r V. Atmore, 3 U. ^S. App. 131, 1 C. C. A. 595, 50 Fed. 644. 11 Cunningham v. Cunningham, 72 Conn. 253, 43 Atl. 1046; Bartholomew v. Merriam, 55 Hun, 280, 8 N. Y. Supp. 179. 12 Hogg V. Browning, 47 W. Va. 22, 34 S. E 754; In re Wise's Estate, 188 Pa. 258, 41 Atl. 526; Buchanan v. Lloyd, 88 Md. 642, 41 Atl. 1075. 13 Budd V. Wilson, 61 N. J. Eq. 246, 48 Atl. 225. Semble: Smith v. Cairns, 92 Tex. 667, 51 S. W. 498. But where executors were authorized to sell realty, if. In their judgment, it was necessary to carry out the will, and when the will took effect the per- sonalty was sufficient to pay debts and legacies, but, by reason of expense incurred in the contest of the wUl, it proved insufficient, the power to sell was held inadequate to charge the realty with the payment of the legacies. Carberry v. Ennis, 72 App. Div. 489, 76 N. Y. Supp. 537. See, also, Schmidt V. Limmer, 91 App. Div. 360, 86 N. Y. Supp. 657. 14 Young V. Benton, 70 N. H. 268, 46 Atl. 51; Sherrer v. Bartlett, 45 App. Div 135, 60 N. Y. Supp. 1067; GifEord v. Rising, 51 Hun, 1, 3 N. Y. Supp. 392; Miller's Guardian v. Miller's Trustee, 100 Ky. 37, ,37 S. W. 271; Waterfield v. Rice 111 Fed. 625, 49 C. C. A. 504 ; Stickel v. Crane, 189 111. 211, 59 N. E. 595;' Waddell v. Waddell, 68 S. C. 335, 47 S. E. 375; McCarthy v. McCartie [1897] 1 Ir. 86. 15 Carroll v. Botsai, 65 Miss. 350, 5 South. 823; In re More's Estate (1914)' 179 Mich. 237, 146 N. W. 319. 522 LEGACIES CHARGED UPON LAND OR OTHER PROPERTY (Ch. 21 there was not enough personalty to pay certain legacies, devisees should pay enough to make, up the amount.^' The mere fact that some of testator's realty passes to his heir as intestate property is not enough to show an intention to charge such realty with the payment of legacies when the personalty is insufficient.*^ Where a valuation is put by the will upon the real estate devised, such valuation does not subject the land to payment of the val- ues indicated, to the executor,*' in the absence of a plain intent on the part of the testator to give the devisee the option of purchasing the land at the indicated valuation.*® Devises of property, with the duty of supporting another imposed upon the devisee, further illustrate the rules already discussed. De- vises conditioned on the furnishing of such support are steadily construed as creating charges upon the land,^" and so with a devise, in consideration of which support was to be furnished,^* or where thefe is a direction to this end,^^ or a request manifestly intended as a direction.''^ But the expression of a mere desire that the dev- isee shall render support creates no charge upon the land.^* The manifest tendency of the courts, however, is to favor charges for support. Thus, where the testator devised to a son the residue of his estate, "and to his care, the protection and support of my daughter" during life, and the will disclosed an intention to disin- herit no child, and the daughter in question was unfitted for the 18 Henry v. Griffis, 89 Iowa, 543, 56 N. W. 670. iTWentworth v. Bead, 166 111. 139, 46 N. E. 777; 2 Ptob. Rep. Ann. 253; Leigh V. Savldge, 14 N. J. Eq. 124 ; In re Cameron, 26 Ch. D. 19, 53 Ia J. Ch. 1189. See, however, Earle v. Coberly, 65 W. Va. 163, 64 S. E. 628, 17 Ann. Cas. 479, and St John's German Evangelical Lutheran Church v. Dippolds- mann, 118 Md. 242, 84 Atl. 373 (statute). 18 In re Knaub's Estate, 144 Pa. 322, 22 Atl. 814; Shenk v. Shenk, 150 Pa. 521, 24 Atl. 680. i» "WyckofC V. WyckofC, 49 N. J. Eq. 344, 25 Atl. 963. 20 In re Kyder, 41 App. Div. 247, 58 N. Y. Supp. 635; In re "Walters' Estate, 197 Pa. 555, 47 Atl. 862; Isner v. KeUey, 51 W. Va. 82, 41 S. E. 158. But in such case neither the devisee nor the estate devised is liable to one furnishing the required support, on his failure to do so. McQuerry v. Wilson (Ky.) 50 S. W. 1099. 21 Outland v. Outland, 118 N. C. 138, 23 S. B. 972. 22 Clark V. Marlow, 149 Ind. 41, 48 N. B. 359 ; Low v. Ramsey, 135 Ky. 333, 122 S. W. 167, 135 Am. St. Rep. 459; Crossett v. Clements (Miss.) 7 South. 207; Bakert v. Bakert, 86 Mo. App. 83. But see Schmehl's Appeal tPa.) 8 Atl. 874. 28 Block v. Mauck (Tenn. Ch. App.) 52 S. W. 689. 24 Perdue v. Perdue, 124 N. C. 161, 32 S. E. 492. § 158) LEGACIES AS CHARGED UPON THE REALTY 523 management of property, the support of the daughter was held to be a charge on the residue."" Implied Intention to Charge the Realty An intent to charge pecuniary legacies on land rnay be inferred when it appears that at the date of the will the personal estate was so clearly insufficient to pay the legacies that the testator must have then known that their payment could not be made without the aid of the real estate.*' The mere fact that the personal estate, at a time subsequent to the making of the will, was insufficient, is not enough,"^ unless it be shown that there was no substantial diminu- tion of the estate from the time of making the will. In general, in determining whether the testator intended the legacies to be charg- es on the realty, the fact that they far exceeded in amount the value of the personal property may be considered; "* and a direction to pay a legacy without sacrificing the real property, if possible, im- pliedly charges the legacy upon the land."" Charges on Realty by Reason of Residuary Clause It is thoroughly well settled that when realty and personalty are blended in one mass, and legacies are then bequeathed, the legacies become a charge upon the realty in event of the insufficiency of the 25 Bank of Florence v. Gregg, 46 S. C. 169, 24 S. E. 64. Semble: Bell v. Watkins, 104 Ga. 345, 30 S. E. 756. A charge for support, ia terms, Is, of course, sufficient See Forbes v. Dar- ling, 94 Mich. 621, 54 N. W. 385; Rose v. Baton, 77 Mich. 247, 43 N. W. 972 ; Walker v. Downer, 55 Hun, 75, 8 N. Y. Supp. 393; Rivers v. Rivers, 36 S. 0. 302, 15 S. E. 137. 2 8 Burns v. Allen, 89 Hun, 552, 35 N. Y. Supp. 342; Duncan v. Wallace, 114 Ind. 169, 16 N. E. 137; Thayer v. Finnegan, 134 Mass. 62, 45 Am. Rep. 285; Fecht V. Henze (1910) 162 Mich. 52, 127 N. W. 26, citing Gardner on Wills, 1st Ed. p. 584; Stuart v. Robinson, 80 Miss. 290, 31 South. 903, 92 Am. St. Rep. 603; Olotilde v. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847; Stewart V. Crysler, 52 App. Div. 597, 65 N. Y. Supp. 483 ; McCorn v. McCorn, 100 N. Y. 511, 3 N. B. 480; Cole v. Proctor (Tenn. Oh. App.) 54 S. W. 674; Theobald v. Fugman, 64 Ohio St. 473, 60 N. E. 606. In New Jersey, however, the fact that the testator knew the personal propr erty to be insufficient is' a circumstance to be considered in ascertaining his intention to charge legacies on, land, but it alone is not enough to effect such a charge Turner v. Glbb, 48 N. J. Eq. 526, 22 Atl. 580. And, in Illinois,' the rule stated in the text has not been adopted. Haynes v. McDonald, 252 111. *JQfl Oft "NT "P 5?9^ 2T Van Giliurve v. Becker, 56 Misc. Rep. 157, 106 N. Y. Supp. 1080; Burns V. AUen, 89 Hun, 552, 35 N. Y. Supp. 342; In re Heathcote's Estate, 209 Pa. ^^28 Price V. Price, 52 N. J. M- 326, 29 Atl. 679; Lord v. Simonson (N. J. Ch.) 42 Atl. 741. 2 8 Price r. Price, supra. 524 LBGAOIBS CHARGED UPON LAND OR OTHER PROPERTY (Ch. 21 personalty," and that when, after the giving of pecuniary legacies, the testator makes a general residuary disposition of the whole estate, blending the realty and personalty in one fund, such blend- ing implies an intention to charge the legacies on, the residuary- real estate if the personal estate is not sufficient, and this impli- cation prevails unless restrained or avoided by other words or pro- visions in the will." The blending of the two kinds of property is essential, for this indicates the testator's intention to treat both alike with regard to the payment of legacies." The New York cases place emphasis upon the disparity between the value of the personal property and the amount of the legacies, and the blend- ing, alone, is not sufficient, in that jurisdiction, to establish the tes- tator's intent to charge the legacies upon the land.^' And the rule does not apply when, though included in the residuary clause, the real estate does not go, by that clause, to the residuary devisees in common, as a part of the general residuum, but is separated so as to go as a specific devise.'* So, where a testator is compelled to dispose of personalty which he had intended should be used for the 3 Carter v. Gray, 58 N. J. Eq. 411, 43 Atl. 711; Perking v. Bank, 81 Miss. 358, 33 South. iS. 31 Simonsen v. Hutchinson, 231 111. 508, 88 N. E. 183; Turner v. Gibb,'48 N. J. Eq. 526, 22 Atl. 580; Gorman v. McDonnell, 127 Ala. 549, 28 South. 964; Miller v. Cooch, 5 Del. Oh. 161; Brooks v. Brooks, 65 111. App. 326; Williams v. Williams, 189 111. 500, 59 N. Ei 966 ("all the rest, residue, and remainder of my estate"); In re Newcomb's Will, 98 Iowa,' 175, 67 N. W. 587; Wilson v. Foss, 2 Neb. (Unof.) 428, §9 N. W. 300; Stevens v. Flower, 46 N. J. Ea. 340, 19 Atl. 777 (where the use and income of the "residue" of the estate was disposed of) ; First Baptist Church of Hoboken v. Syms, 51 N. J. Eq. 363, 28 Atl. 461; Turner t. Gibb, supra (where the residue of the estate, "real, personal, and mixed,". was disposed of); Collins' Appeal, 148 Pa. 139, 23 Atl. 1108 (language of residuary clause same as in preceding case) ; In re Markley's Estate, 148 Pa. .538, 24 Atl. 75 ; Jaudon v. Ducker, 27 S. 0. 295, 3 S. E. 465; Hutchinson v. Gilbert, 86 Tenn. 464, 7 S. W. 126 (where the residue of the property was disposed of); Atmore v. Walker (O. C.) 46 Fed. 429 ; In re Dyson [1896] 2 Ch. 720. 32 Armentrout v. Armentrout, 111 Va. 348, 69 S. E. 333. Hence, where a testatrix, after giving general legacies, devised her real estate and the residue of her personalty to her husband, and she left no per- sonal estate, the general legacies did not become a charge upon the realty. In re Jamieson, 18 E. I. 385, 28 Atl. 333. 88 Harvey v. Kennedy, 81 App. Div. 261, 80 N. Y. Supp. 878, affirmed 177 N. T. 553, 69 N. E. 1124; Briggs v. Carroll, 117 N.Y. 288, 22 N. E. 1054; American Baptist Home Mission Soc. v. Foote, 52 Hun, 307, 5 N. Y. Supp. 236; Morris v. Sickly, 133 N. Y. 456, 31 N. E. 332 (holding that after-acquired realty would not be charged with legacies under a blending residuary clause). See, also, Pearson v. Wartman, 80 Md. 528, 31 Atl. 446. »* Belcher v. Belcher, 16 R. I. 72, 12 AU. 230. § 158) LEGACIES AS cSaBGED UPON THE BEALTY 525 payment of legacies, such legacies do not become a charge upon land under a blending residuary clause.'* Where all the testator's personal property was given to the tes- tator's wife, followed by specific devises, which, in turn, were fol- lowed by a legacy, and the residuary clause disposed of all the res- idue of the realty, the last legacy was held to be impliedly charged upon the residuary devise ; '« and, in general, the land is charged by implication where a legacy is given after a disposition of all the personalty, as there is then nothing else from which the legacy can be paid.*' Legacies Charged upon Specific Devises While the courts have been thus inclined to subject residuary real estate to general legacies, the tendency has been to relieve specif- ically devised estates from the effect of even an express charge; and it is a rule of construction that a charge of legacies on the real estate, or on all the real estate, of the testator, does not prima facie charge lands specifically devised."' So a legacy chargeable on the realty under a blending residuary clause is not a charge upon land specifically devised."' So, where a legacy is given after a disposi- tion of all the personalty, it is chargeable upon realty as to which the testator died intestate, rather than upon that specifically de- vised.*" And a direction to a daughter, to whom specific land had been devised, to pay a certain sum to another daughter, because of the fact that the devise to the latter was less in value than that to the former, is a personal charge merely, not binding on the land." But land specifically devised may be charged with legacies if the testator's intent to that end is unmistakable, as where they are in terms made a charge upon the land,*^ or where the devise is sub- 8 5 Hindman v. Haurand, 159 N. X. 546, 54 N. E. 1092. se Eeld v. Corrigan, 143 111. 402, 32 N. E. 387. 87 Bigelow, Wills, 319; Davidson v. Coon, 125 Ind. 497, 25 N. E. 601, 9 L. B. A. 584; Bevan v. Cooper, 72 N. Y. 317; In re Hershey's Estate, 200 Pa. 562, 50 Atl. 199. 38 KitcheU v. Toung, 46 N. J. Eq. 506, 19 Atl. 729; Spong v. Spong, 3 Bligh (N. S.) 84; Conron v. Conron, 7 H. L. O. 168; Davenport v. Sargent 63 N. H. 538, 4 AU. 569; Worth v. Worth, 95 N. O. 239. Semble: Newsom v. Thornton, 82 Ala. 402, 8 South. 261, 60 Am.' Rep. 743; Phillips V. Clark, 18 R. I. 627, 29 Atl. 688. But see McCarthy v.McCartie [1897] 1 Ir. 86; Bank of Ireland v. McCar- thy, 67 Lav7 J. P. 0. 13,' App. Cas. 181. 89 Peet V. Peet, 99 Iowa, 314, 68 N. W. 705; Phillips v. Clark, 18 R. I. 627, 29 Att. 688. *o Morey v. Moray, 113 Iowa, 152, 84 N. W. 1039. " Sauer v. MoUinger, 138 Pa. 338, 22 AO. 89. ,^„ ^ ^ ^-_ „ .. ^ _„. 42 Mortgage Trust Co. of Pennsylvania v. Moore, 150 Ind. 465, 50 N. E. 72, 526 LEGACIES CHARGED UPON LAND OR OTHER PROPERTY (Ch. 21 ject to the devisee's paying a certain sum to the executor.** So, where the testator, after devising certain land to each of his three children, provided for the sale of the remainder of his property and its division, and then provided that, when certain grandchildren be- came of age, they should each receive $500, to be paid jointly by two of the devisees, these legacies were regarded as charges upon the land devised to the latter.** LEGACIES CHARGED UPON SPECIFIC PERSONALTY 159. Legacies, though primarily payable from the personal proper- ty in general, may yet be made a charge uppn particular funds, or upon personalty specifically bequeathed to oth- ers. The intention of the testator is decisive in this regard.*" If real estate be directed to be sold, and a sum of money given from thd proceeds, this is not a general legacy, and the money must be paid from such proceeds, if at all.*' So, where a will gives to an insti- tution all the money, notes, accounts, stock, etc., which shall re- main and belong to the testator's estate after the full payment of all the sums of money given by previous clauses, legacies given in such clauses i;nust be charged to the property bestowed upon the institution, in exoneration of other property which might oth- erwise have been primarily liable for their payment.*' ENFORCEMENT OF CHARGE 160. A legacy charged upon land is an equitable lien thereon, en- forceable by a proceeding in equity. 161. The devisee ordinarily becomes personally liable upon accept- ing a gift charged with a legacy, and an action at law is then maintainable against him for its recovery. Bamhart v. Bamhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St. Rep. 652; Nes- bit V. Wood (Ky.) 56 S. W. 714 ; Emory v. Emory, 91 Md. 531, 46 Atl. 977. 48 In re Hammond's Estate, 197 Pa. 119, 46 Atl. 935. *i Cady V. Oady, 67 Miss. 425, 7 South. 216. *B See Thurber v. Battey, 105 Mich. 718, 63 N. W. 995, where general lega-/ cies were charged on specific. *8Hancox v. Abbey, 11 Ves. 179; Dicken v. Edwards, 4 Hare, 273. *7 Hileman v. Tuthill, 97 111. App. 258. Semble: Woodward v. James, 115 N. Y. 346, 22 N. E. 150; Cowherd v Kitchen, 57 Neb. 426, 77 N. W. 1107. See, also, Loring v. Wilson, 174 Mass. 132, 54 N. E. 502. §§ 160-161) ENFOECEMENT OF CHARGE 527 Legacies charged upon land ordinarily remain a Hen until actual payment,** although sometimes legatees are denied relief, when seekmg to enforce charge, because of laches " or because of the stat- ute of limitations."" Such legacies may be enforced by a bill in equity; " the petitioner being entitled to a decree for the sale of the land," though not if his indebtedness to the testator's estate exceeds the amount of his legacy." Such an action will lie, though the estate has been finally settled." The legatees, and not the ex- ecutors, are the proper persons to sue to charge real estate with the payment of legacies," but the testator's personal representatives are necessary parties defendant.^" Purchasers from the devisee take the land subject to the charge of the legacy," and, where the lands are in the hands of purchasers under mortgages executed by the devisee, they are liable in the inverse order of the dates of the mortgages."* A reversion or vested remainder may be sold before the expiration of the precedent estate for the satisfaction of lega- cies charged thereon."" Devisee Personally Liable By accepting a devise charged with a legacy, the devisee ordina- rily becomes personally liable therefor in quasi contract, and ac- tion may be maintained against him by the legatee to recover its' amount.*' Where a legacy is charged on all the land devised, a *8Bal2i V. Kircher, 192 Pa. 63, 43 Atl. 392. *» Shuld V. WUson. 225 111. 336, 80 N. E. 259. BO Merton v. O'Brien, 117 Wis. 437, 94 N. W. 340. Bi Headman v. Ferguson, 13 App. D. C. 60; McFarland v. McFarland, 177 lU. 208, 52 N. B. 281; Hammell v. Barrett (1911) 79 N. J. Eq. 218, 81 AU. 1106; ColUster v. Fassitt, 163 N. Y. 281, 57 N. B. 490, 79 Am. St. Rep. 586; Arrington v. Arrington, 114 N. O. 151, 19 S. E. 351. B2 Steele v. Kom, 137 Wis. 51, 118 N. W. 207, 120 N. W. 261, 129 Am. St Kep. 1051. B» In re Harman's Estate, 135 Pa. 441, 19 Atl. 1021. 84 Davidson v. Coon, 125 Ind. 497, 25 N. E. 601, 9 X,. R. A. 584. BB St. Jolm's German Evangelical Lutheran Church v. Dippoldsmann, 118 Md. 242, 84 Ati. 373. The statute sometimes permits the legatee to proceed In the probate court for the enforcement of the lien of his legacy charged on land. In re Ham- mond's Estate, 197 Pa. 119, 46 Atl. 935. 8 Congregational Church of White River Village v. Benedict, 59 N. J. Eq. 136, 44 AU. 878. B7 Proctor Coal Co. v. Beams (Ky.) 50 S. W. 533; Peebles v. Acker, 70 Miss. 356, 12 South. 248; WILSON v. FOSS, 2 Neb. (Unof.) 428, 89 N. W. 300, Dun- more Cas. Wills, 309 ; Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625 ; Coleman's Bx'rs V. Howell (N. J. Ch.) 16 Atl. 202. 68 Wieting v. Bellinger, 50 Hun, 324, 3 N. Y. Supp. 361. B» In re Root's Will, 81 Wis. 263, 51 N. W. 435. 80 Trustees of Amherst College v. Smith, 134 Mass. 543; Red v. Powers, 69 Miss 242, 13 South. 586; Dunham v. Deraismes, 166 N. Y. 607, 59 N. E. 903; 528 LEGACIES CHARGED UPON LAND OR OTHER PROPERTY (Ch. 21 devisee of part of the land becomes personally liable for only his proportional share of the legacy.'* But where land is devised to sons, charged with the support of their mother, they become jointly and severally liable for such support.*^ No demand is necessary prior to bringing suit for failure to supply support with which the land is charged.** Sommers v. Schrader, 59 App. t)lv. 340, 69 N. Y. Supp. 866 ; In re Walters' Estate, 197 Pa. 555, 47 Atl. 862; ShillitO v. Shlllito, 160 Pa. 167, 28 AtL 637; Renner v. Headley, 129 Pa. 542, 18 Atl. 549; Steele v. Korn, 137 Wis. 51, 118 N. W. 207, 120 N. W. 261, 129 Am. St Rep. 1051. The testator may clearly Indicate an intention that the devisee shall not be personally responsible. See Eddy v. Kelly, 72 Minn. 32, 74 N. W. 1020; In re Semple's Estate, 189 Pa. 385, 42 Atl. 28. 81 Dunham v. Deraismes, 166 N. Y. 607, 59 N. E. 903. «» ShillitO V. ShillitO, 160 Pa. 167, 28 Atl. 637. •» Watt V. Pittman, 125 Ind. 168, 25 N. E. 191. §§ 162-164) PAYMENT OP THE TESTATOr's DEBTS 529 CHAPTER XXII PAYMENT OF THE TESTATOR'S DEBTS 162-164. Debts Charged upon the Realty and Other Specific Property. 165. Exoneration of Realty and other Property from Liens Thereon. 166. Remedies of Creditors against Beneficiaries. 167. Contribution among Beneficiaries for Debts Paid by Them. DEBTS CHARGED UPON THE REALTY AND OTHER SPECIFIC PROPERTY 162. At common law the debts of a testator were payable only from his personal property, unless, by the will, the realty was charged therewith. Under modem statutes, all the prop- erty of a decedent passes, dharged with the burden of his debts, except so far as special exemptions are made. 163. When, under the will, the realty is charged with the payment of debts, such a charge does not, of itself, exonerate the personalty which is still regarded as primarily liable. To effect such exoneration, the intention must appear, not only to charge the real estate, but to discharge the per- sonalty. 164. The testator, by apt language, may charge the payment of his debts solely upon the realty, or specific personal prop- erty, in which event other property passing under the will, to the extent that the property so charged is suffi- cient for their payment, is exonerated from their payment. The question — once so important — as to whether the testator's realty was charged by the will with the payment of his debts is, in view of modern legislation, as above indicated, of no conse- quence, from the standpoint of his creditors, as, homestead and other special exemptions aside, they will be paid if there is prop- erty enough with which to pay them. The matter is of signifi- cance only to the beneficiaries under the will, as determining, among themselves, upon what subject-matter of devise or bequest the burden of the testator's indebtedness will ultimately fall. In the absence of an intention on the part of the testator to the contrary, his debts must be paid from the personal property, the legatees taking only the residue, and the realty is resorted to only Gabd.Wuxs (2d Ed.)— 34 530 PAYMENT OF THE TESTATOK's DEBTS (Ch. 22 in event of insufficiency of personal assets.^ Thus a will provid- ing that, after the payment of the testator's debts, all the debts of his mother were to be paid out of "my estate," is construed as not intending to charge such debts upon the testator's real estate.^ So, where a will which made no disposition of the personal estate, and had no residuary clause, contained a provision authorizing the executor to sell certain lands for the purpose of discharging all his debts, there was held to be no intention that the personalty should be relieved from its primary liability, and the executors could not sell the land, when they knew that there was more than enough personal property to pay the debts.' It is frequently said that a general direction to pay debts, such as is commonly foutid in wills, creates a general charge of debts upon the testator's lands, but leaves the personal estate the pri- mary fund for such payment.* As this result would follow, prac- tically, if there were no provision whatever respecting the payment of debts, the charge" thus imposed, if it be one, can have no effect upon the rights of the beneficiaries as among themselves. Other cases say that a mere general direction in a will to pay debts is not a charge upon the real estate for that purpose, and furnishes no evidence of an intent to charge it." The results of the two ways of putting the matter are substantially the same. 1 Steiner v. Stelner Land & Lumber Co., 120 Ala. 128, 26 South. 494; Pit- kin V. Peet, 108 Iowa, 480, 79 N. W. 272; Morse v. Hayden, 82 Me. 227, "19 Atl. 443 ; Hattersley v. Bissett, 52 N. J. Eq. 693, 30 Atl. 86 ; Appeal of CMlcott, 134 Pa. 240, 19 Atl. 850; In re Thompson's Estate, 182 Pa. 340, 37 Atl. 940; In re Martin, 25 R. I. 1, 54 Atl. 589; Hamm v. Hutchins, 19 Tex. Civ. App. 209, 46 S. W. 873; Frasler v. Littleton's Ex'rs, 100 Va. 9, 40 S. E. 108; In re But- ler, [1894] 3 Ch. 250; In re Bate, 43 Ch. Div. 600; In re Head's Trustees, 45 Ch. Div. 310; IN RE BANKS, [1905] 1 Ch. 547, Dunmore Cas. Wills, 311. 2 Lediger v. Canfield, 78 App. Div. 596, 79 N. Y. Supp. 758. 3 Sweeney v. "Warren, 127 N. Y. 426, 28 N. E. 413, 24 Am. St. Rep. 468. * Suydam^v. Voorhees, 58 N. J. Eq. 157, 43 Atl. 4; Decker v. Decker, 121 111. 341, 12 N. E. 750; Kiesewetter v. Kress (Ky.) 70 S. W. 1065. 5 Harmon v. Smith (C. C.) 38 Fed. 482; In re Bingham, 127 N. T. 296, 27 N. E. 1055; In re O'Brien, 39 App. Div. 321, 56 N. Y. Supp. 925; Balls v. Damp- man, 69 Md. 390, 16 Atl. 16, 1 L. R. A. 545; McGlaughlin v. McGlaughlin's Legatees, 43 W. Va. 226, 27 S. E. 378. As a matter of fact, there can be little question that in such cases the testator has no Intention whatever as to the special form of property from which the debts are to be paid. So the provision of a will that "all hay just debts shall be paid out of the first realized assets of my estate" does not charge the payment of debts on the land, so as to give a lien prior to that of a mortgage given by the exec- utor under a power in the will. Ames v. Holderbaum (C. C.) 44 Fed. 224. The fact that the testator, after directing his executor to pay his debts, /, §§ 162-164) DEBTS CHARGED UPON THE REALTY, ETC. 531 Language Sufficient to Charge Debts upon Specific Property The testator may, however, by making manifest his intention to that end, exonerate his personalty from liability for his debts, and charge them upon the realty. Such is the case where the whole personal estate is specifically bequeathed, and there are provisions for the payment out of the realty of all the charges which would otherwise primarily afifect the personalty." So, where all the per- sonal property is given t9 the widow in lieu of dower, and the dower interest takes - precedence over the testator's debts, an in- tent to charge the debts on the realty is clearly disclosed.'' Where the balance of an estate, including property of whatever sort, is bequeathed, with a direction that the beneficiary shall pay all debts, such debts become a charge upon the property thus bequeathed." Debts thus made a lien upon the realty will be barred by the stat- ute of limitations unless an express trust is created for their pay- ment.' So debts may, in terms, be charged upon the subject-matter of a specific legacy, as where lall the property pertaining to a certain business is bequeathed, with a provision that the testator's debts shall be paid therefrom.^" devises the residue of his estate to him, does not render the debts a charge on the land included in the residuary devise. Cunningham v. Parker, 146 N. Y. 29, 40 N. E. 635, 48 Am. St. Rep. 765. e Greene v. Greene, 4 Madd. 148 ; Driver v. Ferrand, 1 B. & My. 681 ; Plen- ty V. West, 16 Beav. 173; GUbertson v. Gilbertson, 34 Beav. 854. See, how- ever, IN RE BANKS, [1905]. 1 Ch. 547, Dunmore Gas. Wills, 311. 1 See Wiggins v. Wiggins, 65 N. J. Eq. 417, 56 Atl. 148; Calder v. Curry, 17 R. I. 610, 24 Atl. 103. In such cases the widow is really a purchaser tor val- ue. Dauel V. Arnold, 201 111. 570, 66 N. E. 846. See, also. Dunning v. Dunning, 82 Hun, 462, 31 N. Y. Supp. 719. sAppeal of Thompson (Pa.) 11 Atl. 455: In re Thomas, 2 Out. Law Rep. 660. » In re Mitchell's Estate, 182 Pa. 530, 38 Atl. 489. A provision charging a debt on land is sometimes treated as creating an equitable estate. McKinley v. Coe, 66 N. J. Eq. 70, 57 Atl. 1030 (permitting suit within twenty years). 10 Bishop V. Howarth, 59 Conn. 455, 22 Atl. 432; Kelly v, Richardson, 100 Ala. 584, 13 South. 785. 532 PAYMENT OF THE TESTATOb'S DEBTS (Ch. 22 EXONERATION OF REALTY AND OTHER PROPERTY FROM LIENS THEREON 165. From the primary liability of the gpneral personalty to satisfy the testator's debts, it follows that such debts, though secured by liens upon his realty or other property, are to be paid from the personalty, unless a contrary intention is disclosed, and that the taker of such property under the will may call upon the executor to satisfy such liens, though not at the expense of specific legatees. This doctrine is most commonly invoked in case of devises of mortgaged realty. It is steadily held, in the absence of legislation to the contrary, that a devise of land mortgaged by the testator to secure his own debt .prima facie imports an intention that the debt shall be satisfied out of the general personal assets.^^ The failure of mortgagees to present their claims against the estate of the deceased mortgagor does not, as between the devisees of the mortgaged property and the executor, discharge the latter's obli- gation to pay the mortgage.^^ A will of real and personal prop- erty, directing the payment of debts, and, should the income be insufficient for that purpose, authorizing the executors to sell per- sonalty, and, should that not be enough, real estate, does not con- template that mortgaged real estate shall be the primary fund for the payment of the mortgage debts.^' But the devisee of mortgaged property is not entitled to have it exonerated out of personalty specifically bequeathed,^* and, ac- cording to the prevailing view, there is no exoneration of mort- gaged property as against pecuniary legacies of a fixed amount." "Jacobs V. Button, 79 Conn. 360, 65 Atl. 150; TUBNER v. LAIRD, 68 Conn. 198, 35 Atl. 1124, Dunmore Cas. Wills, 312; Bulkley v. Seymour, 74 Conn. 459, 51 AtL 125, 92 Am. St. Rep. 229 ; Jackson v. Bevlns, 74 Conn. 96, 49 Atl. 899; Brown v. Baron, 162 Mass. 56, 37 N. E. 772, 44 Am. St. Rep. 331; Hewes v. Deion, 3 Gray (Mass.) 205; Higble v. Morris, 53 N. J. Eq. 173, 32 Atl. 372; Veils v. Wells, 24 N. Y. Supp. 874, 30 Abb. N. C. 225; Raftery v. Monahan, 22 R. I. 558, 48 Atl. 940; Hennegar v. Deadrick (Tenn. Ch. App.) 54 S. W. 138. See In re Heydenfeldt's Estate, 106 Cal. 434, 39 Pae. 788. 12 TURNER V. LAIRD, 68 Conn. 198, 35 Atl. 1124, Dunmore Cas. Wills, 312. 13 Hale V. City of St. Paul, 54 Minn. 421, 56 N. W. 63. 1* Morris v. Higbie (N. J. Ch.) 27 Atl. 438; Glass v. Dunn, 17 Ohio St 413; Bmuss V. Smith, 2 De G. & S. 737. "Glass V. Dunn, 17 Ohio St. 413; Lutkins v. Leigh Cas. temp. Talb. 53; Smith v. Smith, [1899] 1 Ch. 365; Howel v. Price, 1 P. Wms. 291. And see Gould y. Wlnthrop, 5 R. L 319. Contra: Brown v. Baron, 162 Mass. 56, 37 N. E. 772, 44 Am. St Rep. 331. I 165) EXONEEATION OF PEOPEETT FEOM LIENS 533 The devisee is not entitled to exoneration where testator bequeaths all his personalty to his wife in lieu of dower.^* And where the testator purchased the land already subject to the mortgage, the debt secured is payable out of the property encumbered,^' unless the testator has assumed the debt as his own, and not even then unless, under such an agreement, he is held to be personally liable to the mortgagee.** Where a testator devises land, describing it, in terms, as sub- ject to a mortgage, the devisee is then entitled to no exoneration from the personalty,** though the rule was otherwise in England;^" the view there being that such language is descriptive of the prop- erty, rather than of the extent of the testator's bounty. In Eng- land the common-law rule with regard to the exoneration of mort- gaged realty has been changed by statute, so that no exoneration is had unless the testator shall signify an intention to that end.^* There can be little doubt that such legislation effectuates the real intention of the testator in most cases. The common-law rule applies to other incumbrances upon land as well as to mortgages. Thus, where land is devised in trust, un- paid taxes assessed against the property during the testator's life are payable from the general estate, as any other indebtedness.^'' And where land is devi,sed by a vendee holding under a contract of purchase, the devisee may require the unpaid purchase price to be paid from the residuary personalty.''* While the cases are less frequent, personal property specifically bequeathed is to be exonerated by the general personalty from all incumbrances placed upon it by the testator, in the absence of a manifest intent to the contrary."* 16 Wiggins V. Wiggins, 65 N. J. Eq. 417, 56 Atl. 148. 17 Creesy v. Willis, 159 Mass. 249, 34 N. E. 265; Hetzel v. Hetzel, 74 N. J. Eq. 770, 71 Atl. 755; Hoffs Appeal, 24 Pa. 203. In such cases the mortgage debt is not the debt of the testator. 18 Butler V. Butler, 5 Ves. 534; Creesy y. Willis, 159 Mass. 249, 34 N. E. 265; McLenahan v. McLenahan, 18 N. J. Eq. 101; In re Hunt, Petitioner, 19 R. I. 139, 32 Atl. 204, 61 Am. St. Eep. 743. 18 Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899; Harris v. Dodge, 72 Md. 186, 19 Atl. 597; Langstroth v. Golding, 41 N. J. Eq. 49, 3 Atl. 151. See, also, Conover v. Dennis, 63 N. J. Eq. 207, 49 Atl. 723; Lawrence v. Hathaway, 128 Mich, 119, 87 N. W. 84. 20 Serle v. St. Eloy, 2 P. Wms. 386.- 21 17 & 18 Vict. c. 113, § 1. See 1 N. T. Rev. St. (1st Ed.) 749, pt. 2, c 1. tit. 5, § 4. 22 In re Doheny, 171 N. Y. 691, 64 N. E. 1120. 23 In re Riegelman's Estate, 174 Pa. 476, 34 Atl. 120. 24 Richardson v. Hall, 124 Mass. 228 ; Johnson v. Goss, 12S Mass. 433. 534 i'ayment of the testator's debts (Ch. 22 REMEDIES OF CREDITORS AGAINST BENEFICIARIES 166. By statute, creditors whose claims have not been satisfied by the executor are frequently authorized to proceed against devisees and legatees who have received property under the will, and recover against them, to the extent of the value of the property thus received. A will charging the testator's debts, on deficiency of personalty, on lands therein devised, does not impose any personal liability on the devisees, though they accept the provisions of the will,^° unless the circumstances are such as fairly raise an implication of assumpsit.*" However, the land itself might be reached in equity, in the hands of a devisee or of a purchaser with actual or con- structive notice of the charge."' Statutes of the character indi- cated in the black-letter text have been widely adopted. They vary largely in their terms, and in the character of the remedies which they afford. Their discussion belongs to a work on the set- tlement of estates, as they present nothing peculiar to the law of wills. CONTRIBUTION AMONG BENEFICIARIES FOR DEBTS PAID BY THEM 167. When the property bestowed by the will upon a beneficiary belonging to a class of beneficiaries, the subject-matter of whose gifts is equally liable to be applied to the payment of debts, has been taken for this purpose either in whole or in part, such beneficiary is entitled to a ratable contri- bution from the other beneficiaries of his class, whose property has not been so applied, and such is tiie case when a beneficiary pays the entire debt to prevent his property from being taken for that purpose. This is but an instance of the application of the general equita- ble doctrine of contribution. Thus a devisee whose land is sold 20 Hayes v. Sykes, 120 Ind. 180, 21 N. E. 1080. "(e Harland v. Person, 93 Ala. 273, 9 South. 379 (devisees directed personally to pay debts); Olmstead v. Brush, 27 Conn. 530; Burton Machinery Co. v. Da- vies, 123 C. C. A. 373, 205 Fed. 141. 27 Brown v. Logan's Adm'r (Ky.) 7 S. W. 398 ; McKlnley v. Coe, 66 N. J. Eq. 70, 57 AU. 1030. § 167) CONTKIBUTION AMONG BENEFICIARIES FOB DEBTS PAID 535 by the executor to pay debts may demand contribution from other devisees,''' and where the whole tax covering several parcels of land is paid by one devisee to prevent a sale of his parcel, he may recover from the others an equitable proportion of the tax.''* So, where all the testator's property was specifically devised, the ben- eficiaries must contribute ratably to the payment of debts for which the testator had made no provision by reason of his erroneous belief that there were valid defenses to the claims.'" And where a will directs that the testator's real estate shall be charged with the payment of his debts and subsequent to its execution he places an incumbrance upon part of the larid devised, all the real estate, including the incumbered portion, must contribute to the payment of the incumbrance.'^ 28 Cox V. Johnson, 242 111. 159, 89 N. B. 697. 29 McAdam v. Honey, 20 R. I. 351, 39 Atl. 189. 80 In re Pittman's Estate, 182 Pa. 355, 38 Atl. 133. 31 Frasier t. Littleton's Ex'rs, 100 Va. 9, 40 S. E. 108. 538 ELECTION (Ch. 23 CHAPTER XXIII ELECTION 168. Election Defined. 169. Necessity of Election. 170. Election — How Effected. 171-172. Time for Making Election. 173. Effect of Election. 174. Election by Persons under Disabilities. 175-177. Election by Surviving Spouse. ELECTION DEFINED 168. Election is the obligation imposed on a party to choose be- tween two inconsistent and alternative rights or claims in cases where there is a clear intention on the part of the person from whom he derives one that he should not enjoy both. The doctrine, which is purely equitable, finds its most frequent illustration in the case of wills. The definition above is that generally given.^ A common illustra- tion occurs where one person undertakes to give to a third the prop- erty of another, and by the same instrument makes a gift to such other person. Here the latter cannot take the gift and retain his own property, but must elect to claim either under or against the instrument. Thus, where a wife inherited property which she al- lowed her husband to manage, and died intestate, leaving a daugh- ter as her only heir, and her husband, by his will, disposed of this property belonging to his wife, which had descended to the daugh- ter as her heir, and made provision from his own property for his daughter, the latter was put to her election either to renounce her interest under the will and assert her title to the property which she had inherited from her mother, or to take under the will and renounce her interest as heir in such property.* 1 Eaton, Equity, 180; Story, Eq. Jur. § 1075. 2 Drake v. Wild, 70 Vt. 52, 39 Atl. 248. Semble: Brown y. Brown, 42 Minn. 270, 44 N. W. 250. § 169) NECESSITY OP ELECTION 537 NECESSITY OF ELECTION 169. To render an election necessary, there must appear in the will — (a) A clear intention on the part of the testator to dispose of property over whose disposition he has not, as against the party put to his election, the power of disposal ; (b) A valid gift to such party of property absolutely and actually owned by the testator. In order to put a party to his election under a will, it is necessary that the testator shall have given to another something that be- longs to the party required to elect, and that he shall have given to the latter, directly, and not derivatively or indirectly, a substantial donation by the will.' Thus, where land is devised to two daugh- ters, with directions that they pay $3,000 to a third, and, in default of such payments, 60 acres of the said land was devised to the third ■daughter, the two may either pay the $3,000 and keep the whole land, or they may elect not to retain the 60 acres, and thus avoid paying the money.* But where a father conveys to a daughter land which he had previously devised to a son, the daughter is not put to her election as to whether she will take the land under the deed, or her interest as given by the will." In determining the necessity of election, it is not material wheth- er testator, in disposing of another's property, was in error as to his ownership, or whether he knew that he had no title thereto." The fact of the disposition by the testator of the property of an- other must be clearly shown. If the provisions of the will which is alleged to convey the property of another who is also a beneficiary, when taken in connection with the entire instrument, will reason- -ably admit a construction not involving such disposition, that con- struction will prevail, and the beneficiary will not be required to elect under the will or to claim the property.'' But the use of ex- s Bennett v. Harper, 36 W. Va. 546, 15 S. E. 143; Moore v. Baker, 4 Ind. App. 118, 30 N. E. 629, 51 Am. St. Rep. 203 ; Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899; Smith v. Smith, llS.Md. 495, 77 Atl. 975, 31 L. R. A. (N. S.) 922, ' 140 Am. St. Rep. 435 ; Bible v. Marshall, 103 Tenn. 324, 52 S. W. 1077. * I>am-uth V. Lee, 29 App. Div. 26, 51 N. Y. Supp. 648. See, also, Hyatt v. Vanneck, 82 Md. 465, 33 Atl. 972. B Hattersley v. Bissett, 51 N. J. Eq. 597, 29 Atl. 187, 40 Am. St. Rep. 532. For further Illustrations, see Van Schaack v. Leonard, "164 111. 602, 45 N. E. ■982; Hartwig v. Schiefer, 147 Ind. 64, 46 N. B. 75. « McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A. (N. S.) 657. T Charch v. Charch, 57 Ohio St 561, 49 N. E. 408; Havens v. Sackett, 15 N. y. 365 ; Rancliflfe v. Parkyns, 6 Dow. 149, 179. 538 ~ ELECTION (Ch. 23 press terms is not indispensable.. If a reasonable and fair interpre-i tation of the will discloses an intent to put the beneficiary to an election, it is enough.* But words expressive of a mere wish, de- sire, or expectation that a. beneficiary will dispose of property in a certain way are not sufficient.* Disposition of Partial Interest Where both the testator and beneficiary are interested in the property disposed of, the presumption is that the testator intended to give only that which was his, unless it clearly appear that he meant to dispose of the entire property.^" Thus, if the testator uses general expression's, such as "all my lands," "all my estate," no case of election arises, it not appearing that he meant to dispose of anything not strictly his own ; ^^ otherwise, where, owning merely a partial or individual interest, the testator devises th)e en- tire property, specifically describing it.^" Gift Necessary tc Person Required to Elect The doctrine of election depending upon compensation, it has no application unless the testator bestows property a,bsolutely and ac- tually his own upon the person required to elect.^* Thus, where a testator devises to one of his daughters land owned by the husband of another daughter, and then devises another tract to the last- named daughter, the husband cannot be required to elect, since nothing has been devised to him.^* The application of the doctrine is not affected by disproportion between the value of the property belonging to the beneficiary and that given him by the testator.^ ° And the doctrine applies to con- tingent as well as vested interests, and to reversions as well as to present interests.^' 8 Paulus V. Beseh, 127 Mo. App. 255, 104 S. W. 1149. oLangslow v. Langslow, 21 Beav. 552; Blacket v. Lamb, 14 Beav. 482. 10 Baton, Equity, 186; Toney v. Spragins, 80 Ala. 541; Havens v. Sackett, 15 N. T. 365; Penn v. Guggenheimer, 76 Va. 839 ; Pickersgill v. Rodger, 5 Ch. Div. 163 ; Wilkinson v. Dent, 6 Ch. App. 339. iil/a Tourette v. La Tourette (1914) 15 Ariz. 200, 187 Pac. 426, Ann. Cas. 1915B, 70; Sherman v. Lewis, 44 Minn. 107, 46 N. W. 318; Haack v. Weieken, 118 N. Y. 67, 23 N. E. 133; Winton v. Clifton, 8 De G., M. & G. 641. 12 Waggoner v. Waggoner, 111 Va. 325, 68 S. E. 990, 30 L. R. A. (N. S.) 644, and note; Penn v. Guggenheimer, 76 Va. 839 (devise of "home place," In vchich the testator owned only an undivided Interest); Shuttleworth v. Greaves, 4 Myl. & C. 35. 15 Eaton, Equity, 189. 14 Bennett v. Harper, 36 W. Va. 546, 15 S. E. 143. loBigelow, Wills, 346; Lee v. Templeton, 73 Ind. 315; Caulfleld v. Sulli- van, 85 N. y. 153. 16 Story, Eq. Jur. § 1095. § I'^O) ELECTION — HOW EFFECTED 539 Where the testator makes two distinct gifts of his own property to the same beneficiary— one beneficial and the other onerous— the beneficiary may accept the former and reject the latter," unless it clearly appears that the acceptance of the benefit is conditioned on the assumption of the burden." If the gift is single and undivided, the beneficiary must take all or none of it.^» ELECTION— HOW EFFECTED 170. An election may be either — (a) Express — ^by some positive declaration of the person re- quired to elect, showing the 'intention and fact of elec- tion ; or (b) Implied — ^from such acts of acceptance and acquiescence as evince an intention of the person required to elect to take one gift and reject the other. No difficulty can arise in the case of an express election. The question as to whether there is arf implied election is one of fact, turning upon the circumstances of each particular case. Election may be inferred from the conduct of the party, his acts, omissions, and method of dealing with the property,'"' but to constitute an implied election the acts or conduct relied upon must be of an un- equivocal character."^ The taking and retention of property to which the taker has no right except under the will is an election of the benefit conferred by the will; "^ and, in general, -the enjoyment of the provisions of the will estops the beneficiary from exercising a further election.^* So any assertion of title under the will, as by an action at law,^* indicates an election to take thereunder, and an election against the interest conferred by the will may be indicated 17 Syer v. Gladstone, 30 Ch. Div. 614; Moffett v. Bates, 3 Sm. & G. 468. 18 Green v. Britten, 42 Law J. Ch. 187; Talbot v. Earl of Eadnor, 3 Myl. & K. 252. i» Green v. Britten, supra; Guthrie y. Waldrond, 22 Ch. Div. 573; In re Bless' Estate, 114 Mich. 204, 72 N. W. 148. 20 Eaton, Equity, 195 ; King v. Skellie, 79 Ga. 147, 3 S. B. 614. 21 Wolfe V. Mueller, 46 Colo. 335, 104 Pac. 487; Bebout v. Quick, 81 Ohio St. 196, 90 N. B. 162. 2 2 Grumpier v. Barfleld & Wilson Co., 114 Ga. 570, 40 S. E. 808; HOVEY T. HOVEY, 61 N. H. 599, Dunmore Cas. Wills, 316; Drake v. Wild, 70 Vt 52, 39 Atl. 248; Lee v. McFarland, 19 Tex. Civ. App. 292, 46 S. W. 281; Fry v. Morrison, 159 111. 244, 42 N. E. 774. When the party has a title to the land Independent of the will, acts of ownership do not indicate an election. Mellen V. Mellen, 139 N. Y. 210, 34 N. E. 925. • 23 Bennett v. Packer, 70 Conn. 357, 39 Atl. 739, 66 Am. St Rep. 112. 24 Davis V. Badlam, 165 Mass. 248, 43 N. E. 91. 540 ELECTION (Ch. 2S in like manner.'' So, where the testator devised his homestead to his daughter on condition that she make it her home, otherwise to. receive in lieu thereof a certain sum, her failure to make the home- stead her home amounted to an election to take the money.** But in all cases, to constitute a binding election, the party must act or acquiesce with full knowledge of all his rights, and of all material facts which might influence or determine the manner in which they should be exercised."" Thus, where all the acts of a devisee tend- ing to show an election to take under the will occur before she knows that she has any other title to the land, no election is im- plied.'* So the execution of a mortgage by a beneficiary upon prop- erty bequeathed to him, and. which he could not have taken except, under the will, is no election to take thereunder when he was un- aware that such an act amounted to an election, and when it was- otherwise evident that he intended to assert his interest as against the will.'" For any act, to be binding upon a person, must be- donc'with the intention of constituting an election.*" Whether the probating of a will and qualifying as executor con- stitute an election of benefits conferred upon him, so as to estop the executor from claiming any interest adverse to the will, is a matter of dispute. Where a testator, after making a will, gave a devisee who was named as executor a deed of the property devised to the latter, charged with the payment of a certain sum, the devisee, by qualifying as executor, was held to elect to take under the will, and the deed, therefore, was of no effect.*^ But, according to the gen- eral rule, the mere probating of the will and qualification as execu- tor do not per se constitute an election under the, will, 'and the fact of an implied election must be determined by the facts and circum- stances of each particular case." 25 Thus where a sum of money Is bequeathed to a nurse by the testator to payment for her care and attention to him, an action against the estate to- recover the value of such services Is an election not t6 claim the bequest. Smith V. Furnish, 70 Cal. 424, 12 Pac. 392. 2 8 Grindem v. Grindem, 89 Iowa, 295, 56 N. W. 505. 27 Showalter v. Showalter, 107 Va. 713, 60 S. E. 48; Dillon v. Parker, 1 Swanst 381, 389; Edwards v. Morgan, 13 Price, 782; Watson v. Watson, 128- Mass. 152, 155. 2 8 Clark V. Hershy, 52 Ark. 473, 12 S. W. 1077. 20 Williams v. Emherson, 22 Tex. Civ. App. 522, 55 S. W. 595. ao Cobb V. Macfarland, 87 Neb. 408, 127 N. W. 377; Waggoner v. Waggoner, 111 Va. 325, 68 S. E. 990, 30 L. R. A. (N. S.) 644 ; Stratford v. Powell, 1 Ball' &B. 1. 81 Allen V. Allen, 121 N. C. 328, 28 S. E. 513. See, also, Treadaway v. Payne, 127 N. C. 436, 37 S. E. 460; Stone v. Vandermark, 146 111. 312, 34 N. B. 150. 82 Benedict v. Wllmarth, 46 Fla. 535, 35 South. 84, 4 Ann. Cas. 1033, and § 173) EFFECT OP ELECTION 541 TIME FOR MAKING ELECTION 171. Aside from statute, and where the rights of third parties are not involved, there is no limit to the time within which an election may be made. 172. With reference to the rights of third parties, an election must be made within a reasonable time, if at all. In the most usual instances of election — that of a spouse as be- tween the provisions of the consort's will and the interest given by statute in the estate of the deceased — statutes have generally fixed the time within which election must be made ; ** otherwise, no more definite rule than that above stated can be given.'* Where the tes- tator gave certain land to his daughter so long as she should "de- sire to remain satisfied upon it," it to revert "to the possession from which it was taken" in event of her dissatisfaction, the devisee was held to have a reasonable time in which to elect whether she de- sired to remain satisfied upon it.'° Where a will provides that the testator's son shall have a home on a certain farm during his natural life, "if he shall so elect," he is entitled to the benefit whenever he chooses to. demand it.** And where a widow has for sixteen years received an income provided for her by the will of her husband, she cannot be then allowed to elect to take against the will, merely be- cause she was not advised of the law regarding her rights.*' EFFECT OF ELECTION 173. An election once made by a party bound to elect, acting with full knowledge of his rights and of all material circum- stances, is irrevocable, and binds the party and his privies, and all beneficiaries under the will whose rights are di- rectly affected by the election. note; Haby v. Fuos (Tex. Civ. App.) 25 S. W. 1121; In re Atkinson [1898] 1 33 The provisions as to time and manner of election vary largely. Equity VTill grant no relief where there was a failure to elect within the time fixed by statute by reason of the fact that the person entitled to elect was ignorant of the law. Shelton v. Sears, 187 Mass. 455, 73 N. B. 666. 84 Eaton, Equity, 199. • „„_ ' 3 5 Grumpier v. Barfield & Wilson Co., 114 Ga. 570, 40 S. E. 808. «» Soper V. Halsey, 85 Hun, 464. 33 N. Y. Supp. 105. »T In re Boileau's Estate, 201 Pa. 493, 51 Atl. 3.38. 543 ELECTION (Ch. 23 The above rule, which follows necessarily from the very nature of election, is supported by the authorities,*' and its concrete illus- trations are numerous. Thus, where land is devised, the devisee being directed to convey certain other land belonging to him to third parties, the devisee, by accepting the devise, elects to surren- der all right to his own land, and must make the conveyance as in- dicated.^* But an election induced by fraud may be set aside.*" If the beneficiary elects to take against the will (i. e., to retain his own property instead of surrendering it to the third party and taking the testator's bounty), then the, disappointed donee is com- pensated from the property designed for the electing beneficiary, to the extent that he has been injured by the beneficiary's declining to take thereunder, and the surplus, if any, does not devolve upon the heir as a residue undisposed of, but is restored to the electing bene- ficiary.** ELECTION BY PERSONS UNDER DISABILITIES 174. Election may be enforced against married women, infants, and lunatics. In the case of infants and lunatics, the court will make the election in their behalf after ascertaining which course is the more advantageous. A married woman may elect for herself. ' In the case of infants, the period of election may, under some cir- cumstances, be deferred until they become of age.** But ordinarily the court will institute an inquiry in- behalf of the infant, and elect for him.*' 38 Earl of Northumberland v. Earl of Aylesford, Amto. 540; Dewar v. Mait- land, L. R. 2 Eq. 834; Whitley v. Whitley, 31 Beav. 173; Cory's Ex'r v. Cory's Adm'r, 37 N. J. Eq. 198; 2 Pom. Eq. Jur. § 517; Helm v. Leggett, 66 Ark. 23, 48 S. W. 675. See, also, Waller v. NofCslnger, 57 Neh. 455, 77 N. W. 1075 ; Gorham v. Dodge, 122 111. 528, 14 N. E. 44 ; Bird v. Hawkins, 58 N. J. Bq. 229, 42 Atl. 588; Pryor v. Pendleton, 92 Tex. 384, 47 S. W. 706, 49 ts. W. 212; Borden v. Ward, 103 N. C. 173, 9 S. E. 300; Hartwlg v. Schiefer, 147 Ind. 64, 46 N. E. 75; Cooke v. Safety Vault Co., 104 Ky. 473, 47 S. W. 325. 3 8 McQuerry v. Gilllland, 89 Ky. 434, 12 S. W. 1037, 7 L. R. A. 454. *o Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524. 41 In re Delaney'g Etetate, 49 Cal. 77; Carper v. Crowl, 149 111. 465, 36 N. B. 1040; Wilbanks v. Wilbanks, 18 111. 17; Brown v. Brown, 42 Minn. 270, 44 N. W. 250; Roe's Ex'rs v. Roe, 21 N. J. Eq. 253; Appeal of Van Dyke, 60 Pa. 481, 490; Appeal of Sandoe, 65 Pa. 314; Streatflelfl v. Streatfield, Cas. temp. Talb. 176; Gretton v. Ha ward, 1 Swanst. 433; Rogers v. Jones, 3 Ch. Div. 688. *2 Streatfield v. Streatfield, Cas. temp. Talb. 176; Baton, Equity, 198. *s McQueen v. McQueen, 55 N. O. 16, 62 Am. Dec. 205; Bonnie's Guardian §§ 175-177) ELECTION BY SURVIVING SPOUSE 543 The committee of a lunatic cannot elect in his behalf, but must apply to the court for leave to that end, which will not be granted except upon due consideration of the advantages and disadvantages resulting to the lunatic from the choice, and this will be made un- der the direction of the court.** The guardian of an insane person may elect only with the approval of the court having jurisdiction of the ward.*° Where the commOn-law disabilities of married women have been removed by statute, there is, of course, no question as to their pow- er to elect. And independent of statute they may apparently elect so as to affect their interests in both real and personal property.** ELECTION BY SURVIVING SPOUSE 175. The foregoing doctrines find their most frequent illustration in case of election by a surviving spouse. If the will de- clares in express terms or by unavoidable implication that a testamentary gift is in lieu of dower, the widow is put to her election. In the absence of such express or implied declaration, a provision for the wife in a will is presumed to be in addition to her dower right, and no election is re- quired. 176. By statute, in a number of states, this rule has been changed so that a provision for the wife in a will is presumed to be in lieu of dower, in the absence of a manifest intent to the contrary, in which case election by the widow is necessary. 177. These principles generally apply to provisions made by the will of a wife for her husband. The common-law rule is as above stated.*^ If the gift is not de- clared by express words to be in lieu of dower, the inquiry is wheth- V. Haldeman, 31 Ky. Law Rep. 522, 102 S. W. 308; Brown v. Brown, L. R. 2 Eq. 481 ; Ebrington v. Ebrlngton, 5 Madd. 117. 44 State ex rel. Percy v. Hunt (1903) 88 Minn. 404, 93 N. W. 314; State v. TJeland, 30 Minn. 277, 15 N. W. 245; Penhallow v. Kimball, 61 N. H. 596; Kennedy v. Johnston, 65 Pa. 451, 3 Am. Rep. 650; Van Steenwyck v. Wash- bum, 59 Wis. 483, 509, 17 N. W. 289, 48 Am. Rep. 532. 4B Hardy v. Richards (1911) 98 Miss. 625, 54 South. 76, 35 L. R. A. (N. S.) 1210 and note. See, also. In re Connor's Estate, 254 Mo. 65, 162 S. W. 252, 49 L< B. A. (N. S.) 1108. 48 McQueen v. McQueen, 55 N. O. 16; 62 Am. Dec. 205; Robinson v. Buck, 71 Pa. 386 ; Tieman v. Roland, 15 Pa. 430, 452. 47 Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125; Lord v. Lord, 23 Conn. 327; Kinsey v. Woodward, 3 Har. (Del.) 459; Speer v. Speer, 67 Ga. 748; Kiefer Mi BLECTIOI« (CL 23 er such an intention on the part of the testator is to be collected by clear and manifest implication from the will.*' To give rise to such an implication, the claim of dower must be inconsistent with the will, and repugnant to some of its dispositions.*" Adequacy of the testamentary provision as compared with the value of the dower interest is not controlling on the question of intention,"" though in- adequacy of such provision, if known to the testator, strongly in- dicates that it was not the testator's intention to put his widow to her election."^ Ascertainment of Values by Widow The widow is entitled to ascertain the value of her dower interest and that conferred upon her by the will, and to this end may main- tain a bill in equity to learn the extent of the respective interests."^ No act of election is binding upon her, unless done with full knowl- edge of all the circumstances, and of her rights, and with the inten- tion of electing."* Thus, in'the absence of such infprmation regard- ing her husband's indebtedness, the receipt by her of certain per- sonalty of an estate cannot be treated as an election to take under the will which gives her all the personalty absolutely."* In general, her election, made without full knowledge or under a mistake of fact as to the value and condition of the property, may be revoked,"" V. Gillett (1903) 120 Iowa, 107, 94 N. W. 270; Watson v. Watson, 98 Iowa, 132, 67 N. W. 83; Sutherland v. Sutherland, 102 Iowa, 535, 71 N. W. 424, 63 Am. St Hep. 477; Franke v. Wiegand, 97 Iowa, 704, 66 N. W. 918 ; In re Proc- tor's Estate, 103 Iowa, 232, 72 N. W. 516; Horstmann v. Flege, 61 App. Div. 518, 70 N. Y. Supp. 596 ; Gloss v. Eldert, 30 App. Div. 338, 51 N. Y. Supp. 881 ; Hiers v. Gooding, 43 S. O. 428, 21 S. E. 310; In re Hatch's Estate, 62 Vt. 300, 18 Ati. 814, 22 Am. St Hep. 109 ; Dixon v. McCue, 14 Grat (Va.) 540; Atkin- son V. Sutton, 23 W. Va. 197. *8 Eaton, Equity, 191. *»Adsit V. Adsit 2 Johns. Ch. (N. X.) 448, 7 Am. Dec. 539; KonvaUnka v. Schlegel, 104 N. Y. 125, 9 N. B. 868, 58 Am. Rep. 494; Scott v. Vaughn, 83 S. C 362, 65 S. E. 269 ; Callahan v. Robinson, 30 S. C. 249, 9 S. E. 120, 3 L. R. A. 497, and note; Reed v. Dickerman, 12 Pick. (Mass.) 146; In re Purcell, 25 R. I. 553, 57 Atl. 377. Lewis V. Smith, 9 N. Y. 502, 61 Am. Dec. 706. oiAtkinson v^ Sutton, 23 W. Va. 197; a?racey v. Shumate, 22 W. Va. 474. 2 Johnston v. Duncan, 67 Ga. 61; United States v. Duncan, 4 McLean, 99, Fed. Gas. No. 15,002. OS Hodgkins v. Ashby, 56 Golo. 553, 139 Pac. 538; Stone v. Vandermark, 146 111. 312, 34 N. E. 150; Reaves v. Garrett's Adm'r, 34 Ala. 558; English v. English's Ex'rs, 3 N. J. Eq. 504, 29 Am. Dec 730 ; Payton t. Bowen, 14 R. I. 375. 0* Gelger v. Gelger, 57 S. G. 521, 35 S. B. 1031. In re Smith's Estate, 108 OaL 115, 40 Pac. 1037; Gam v. Garn, 135 Ind. 687, 35 N. E. 394; In re Woodburn's Estate, 138 Pa. 606, 21 Atl. 16, 21 Am. St R«p. 932 ; Pratt v. Douglas, 38 N. J. Eq. 539; Dabney v. Bailey, 42 Ga. §§ 175-177) ELECTION BY SURVIVING SPOUSE 545 and this is true though she make a sealed agreement with the exec- utor to abide by her husband's will.°° Where the widow made her election under a mistake as to her rights under the will, a revocation was allowed in equity, where the rights of other parties were not thereby prejudiced," and where an election was made by the widow under a misapprehension of the law as to her dower rights, caused by the erroneous advice of her counsel, she was permitted to retract her election.^* She can- not, however, treat her election as void, and yet retain what she received in consequence of it."' Acts of Widow Amounting to an Election The principles heretofore discussed °" apply here. Conduct, as well as matters of record, may constitute an election,'^ such as the receipt of property bestowed on her by the will,*^' the entry into possession of devised lands and the sale thereof," or possession alone,** or the unequivocal assumption of ownership of one of the two properties between which she has the right to choose,"^ or an application to have certain property coming to her under the will set apart to her.*" The proof of an implied election must, however, be clear and satisfactory.*' No election results from the probatirig of the will by the widow who qualifies as executrix thereunder and 58 Richardson v. Justice, 125 N. O. 409, 34 S. E. 441. BT Macknet v. Macknet, 29 N. J. Eq. 54. »8 In re McFarlin (1910) 9 Del. Ch. 430, 75 Atl. 281. 9 Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15; In re Young's Es- tate, 202 Pa. 431, 51 Atl. 1036. eoAnte, p. 539. 81 Revllle V. Dubach, 60 Kan. 572, 57 Pac. 522 ; Owens v. Andrews (1913) IT N. M. 597, 131 Pac. 1004, 49 L. R. A. (N. S.) 1072. «2 Id. ; Skaggs v. Deskin (Tex. Civ. App.) 66 S. W. 793 ; Hill v. Hill, 62 N. J. Law, 442, 41 Atl. 94S; MOORE v. BAKER, 4 Ind. App. 115, 30 N. B. 629, 51 Am. St. Rep. 203, Dunmore Cas. Wills, 314; In re Franke's Estate, 97 Iowa, 704, 66 N. W. 918; Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664. 83 In re Smith's Estate, 4 Cal. Unrep. Cas. 919, 38 Pac. 950; Whetsell v. Louden, 25 Ind. App. 257, 57 N. E. 952 ; Chaee v. Gregg, 88 Tex. 552, 32 S. W. 520 ; Larkin v. McManus, 81 Iowa, 723, 45 N. W. 1061. 6* Wilson v. Wilson, 145 Ind. 659, 44 N. E. 665 ; Cook v. Lawson, 63 Kan. 854, 66 Pac. 1028; Hoggard v. Jordan, 140 N. C. 610, 53 S. B.,220, 4 L. R. A. (N. S.) 1065, 6 Ann. Cas. 332. Possession may, however, he explained so as to remove the presumption of election. Wold v. Berkholtz, 105 Iowa, 370, 75 N. W. 329. 8B Burroughs v. De Couts, 70 Cal. 361, 11 Pac. 734. 88 Smith V. Butler, 85 Tex. 126, 19 S. W. 1083. Semble: Schweitzer v. Bonn's Ex'rs (N. J. Ch.) 38 Atl. 302. 8 7 Reville V. Dubach, 60 Kan. 572, 57 Pac, 522. See, also, O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 594. Gaed. Wills (2d Ed.)— 35 546 ELECTION (Ch. 23 takes possession of the estate,"' nor by an occupancy which might- as well have been against as under the will/" nor by an oral consent to the will, given when it was made,'" nor by the receipt of support not provided for by the will." Election is effected by filing a pe- ' tition for dower within the proper time,'^ by renouncing by deed the provision of the will and claiming dower,^* and by giving writ- ten notice to the executors of her intention in the matter.'* Widoztfs Right to Elect a Personal Right The widow's right of election is purely personal, and in event of her death it cannot be exercised in behalf of her estate by her per- sonal representatives '° or heirs,'" even though she be personally incapable of making a choice by reason of continuous insanity from the time of the testator's death." The personal representative can- not have an election set aside because tnade by his decedent under a mistake as to her legal rights,.'* but he may question the validity of an attempted election." Equity will not compel a widow to exer- cise her election for the benefit of her creditors.'" In event of no election by the widow, she is ordinarily, by statute, presumed to take under the will."^ 68 In re G win's Estate, 77 Cal. 313, 19 Pac. 527; Benedict v. Wilmarth, 46 Fla. 535, 35 South. 84, 4 Ann. Oas. 1033; In re Proctor's Estate, 103 Iowa, 232, 72 N. W. 516; McClary v. Duckworth (Tex. Civ. App.) 57 S. W. 317. Contra: Mendenhall v. Mendenhall, 53 N. C. 287. 6 8 Archer v. Barnes (1910) 149 Iowa, 658, 128 N. W. 969; Hunter v. Hunt- er, 95 Iowa, 728, 64 N. W. 656, 58 Am. St. Rep. 455. •"> Cook V. Lawson, 63 Kan. 854. 66 Pac. 1028. The fact of such consent is, however, admissible as tending to show her subsequent attitude of mind to- wards the will. Id. Ti In re Blackmer's Estate, 66 Vt. 46, 28 Atl. 419, Ti! Rayner v. Capehart, 9 N. C. 375. Ts Hawley v. James, 5 Paige (N. Y.) 3ll8, 435. '* Greiner's Appeal^ 103 Pa. 89. "NORDQUIST'S ESTATE V. SAHLBORN, 114 Minn. 329, 131 N. W. 323, Dunmore Cas. Wills, 317; Williamson v. Nelson (Terta. Ch. App.) 62 S. W. 53; In re McClintock's Estate, 240 Pa. 543, 87 Atl. 703 ; In re Anderson'.'s Estate, 185 Pa. 174, 39 Atl. 818. 7 6 Page V. Public library, 69 N. H. 575, 45 Atl. 411; In re Anderson's Es- tate, 185 Pa. 174, 39 Atl. 818. 77 Williamson v.. Nelson (Tenn. Ch. App.) 62 S. W. 53. 78 Fergus v. Schiable (1912) 91 Neb. 180, 135 N. W. 448. 7 8 Miller v. Stephens, 158 Ind. 438, 63 N. E. 847. 80 Bains v. Globe Bank & Trust Co. (1910) 136 Ky. 332, 124 S. W. 343, 136 Am. St. Rep. 263. 81 Appeal of Jackson, 126 Pa. 105, 17 Atl. 535; Archibald v. Long, 144 Ind, 451, 43 N. E. 439; Koster t, GeUen, 124 Mich. 149, 82 N. W. 823. §§ 175-177) ELECTION BY SUBVIVING SPOUSE 547 Effect of Widow's Election A widow who elects to accept benefits under a will in lieu of dower must conform to all its provisions, and renounce every right inconsistent therewith.*'' Thus a widow who elects to take under her husband's^ will is barred of dower in lands conveyed by him during coverture by a deed of warranty, in which she did not join." She does not become, however, strictly a partaker of the testator's bounty, but is treated in equity as a purchaser for value, in view of the dower rights which have been barred by her .election." Hence, when' part of the legacy so bequeathed is taken for the pay- ment of debts, she is entitled to reimbursement from the balance of the estate.*" By the weight of authority she can take nothing un- til the debts of the testator are paid,*" .though, in view of the fact that by analogy she takes under a contract with the testator, some courts have held that she shares on an equality with the creditors if the estate is insufficient to pay the debts and her legacy.*' Elect- ing to take under the will, she can claim neither homestead nor dower as against the testator's creditors.** But a widow taking un- der the will is not deprived of her statutory allowance for sup- port, unless the testamentary provisions are, in terms, expressly or impliedly inconsistent with the granting of such allowance.** In some jurisdictions, where a widow elects to take under the will, she thereby loses all interest in property in regard to which the testator died intestate, as well as in that upon which the will operates other than that given her in lieu of dower."" In other ju- risdictions, however, the courts permit the widow to take ber share 82 Godman v. Converse, 43 Neb. 463, 61 N. W. 756; Kirkpatrick v. Kirk- patrick, 197 lU. 144, 64 N. E. 267; Kidder v. Douglas, 194 lU. 888, 62 N. E. 911. 8 8 Howe Lumber Co. v. Parker, 105 Minn. 310, 117 N. W. 518. 84 Richie 7. Cox, 99 111. App. 369; Isenbart v. Brown, 1 Edw. Ch. (N. Y.) 411, 413. ,^ 8 6 Overton v. hea., 108 Tenn. 505, 68 S. W. 250. 88 Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15; Howard v. Francis, 30 N. J. Eq. 444; Chambers v. Davis, 15 B. Mon. (Ky.) 522; Arrington v. Dorteh, 77 N. 0. 367; Miller v. Buell, 92 Ind. 482; 1 Woemer, Am. Law of Administration, 272. 87 Tracy v. Murray, 44 Mich. 109, 6 N. W. 224. 8 8 Kiesewetter v. Kress (Ky.) 70 S. W. 1065; Harrison v. Taylor's Adm'r (Ky.) 51 S. W. 193. 8 9 In re Cowell's Ebtate, 164 Cal. 636, 130 Pac. 209; Bowman v. Olrick, 165 Ind. 478, 75 N. E. 820. 8 Walker v. Upson, 74 Conn. 128, 49 Atl. 904; In re Hodgman's Estate, 140 N. y. 421, 35 N. E. 660 ; Appeal of Jackson, 126 Pa. 105, 17 Atl. 535; Chap- man V. Chapman, 128 Wis. 413, 107 N. W. 668. 548 . ELECTION (Ch. 23 of intestate property, though she has elected to take under the will." If a will is void because of its provisions as to the testator's wid- ow, it is not rendered valid by her election to take under the law.°^ Where a will directs the conversion of real into personal property, and the widow elects to take under the statute, her rights are then fixed irrespective of the will, and she cannot claim that the conver- sion operates in her favor so as to enable her to take one-half of the fund aJbsolutely, as personalty." In event of her renouncing the will, her interest cannot be diminished by reason of costs in- curred in litigation over its probate and construction."* When the widow elects to take under the law, the will, so far as may be, remains effective and will be administered." Where such election results to the disadvantage of other beneficiaries, as is usu- ally the case, such beneficiaries are to be compensated out of the subject-matter of the gift to the widow in the will,"' or, if this be impossible, out of the residuary estate.*' If the renunciation of the will results in partial intestacy, the widow may share in the prop- erty undisposed of as heir or distributee, if she be either under the statutes of descent or distribution.*' When a provision is made by will for the wife for life, with re- mainder over, and she elects to take under the law, the remainder is ordinarily accelerated, and the remaindermen take at once.°* But where the claim for dower is satisfied out of land devised to 81 Sutton V. Read,- 176 HI. 69, 51 N. B. 801; Nickerson v. Bowly, 49 Mass. (8 Mete.) 424; Skellenger v. Skellenger, 32 N. J. Bq. 659; State v. Holmes, 115 Mich. 456, 73 N. W. 548 ; Mathews v. Krisher, 59 Ohio St. 562, 53 N. E. 52. This position seems preferable. The statute having appointed a definite channel of disposition of all intestate property, the widow takes by opera- tion of law irrespective of any act or will of decedent. »2 Dean v. Mumford, 102 Mich. 510, 61 N. W. 7. »8 In re Cunningham's Estate, 137 Pa. 621, 20 Atl. 714, 21 Am. St. Rep. 901. »4 Morton's Ex'rs v. Morton's Ex'r, 112 Ky. 706, 66 S. W. 641. 80 Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235, 27 L. R. A. (N. S.) 602, and note; In re Little, 22 Utah, 204, 61 Pac. 899. Thus a testamentary provision for the funeral expenses and the erection of a monument for the widow of the testator on her death is not abrogated by her waiver of the provisions of the will and her election to take dower. Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7. 86 Dean v. Hart, 62 Ala. 308; Jennings v. Jennings, 21 Ohio St. 56; In re Evan's Estate, 150 Pa. 212, 24 Atl. 642; Jones v. Knappen, 63 Vt 391, 22 Atl. 630, 14 L. R. A. 293. 87 Treasy v. Treasy (Ky.) 36 S. "W. 3; Chamberlain v. Berry's Ex'r (Ky.) 56 S. W. 659; Tehan v. Tehan, 83 Hun, 368, 31 N. T, Supp. 961. ' 88 In re Kempton, 23 Pick. (Mass.) 163. 80 Beidman v. Sparks, 61 N. J. Eq. 226, 47 Atl. 811; Baptist Female Uni- versity of Korth Carolina v. Borden (1903) 132 N. O. 476, 44 S. E. 47, 1007. i §§ 175-177) ELECTION BY SUBVIVING SPOUSE 549 another beneficiary, and there was no personalty to which the lat- ter could have recourse for satisfaction, the remainder was not ac- celerated, but the disappointed beneficiary was subrogated to the rights of the widow under the will, and took the l^ife estate devised to her.* Where a will gives the wife both real and personal property, she must either take under or against the will as a unit; she cannot elect to take under the will as to the realty, and under the statute as to the personalty." And a widow who has elected to take under the will at testator's domicile cannot elect to take under the law in another jurisdiction where testator left property.* Election by Surviving Husbcmd Generally, the same principles apply to election by the surviving husband between the interest given him under the will and by law in the property of his wife as prevail in election by the widow un- der similar circumstances.* The contest by him of his wife's will is not a renunciation of a devise therein to him." 1 Latta V. Brown, 96 Tenn. 343, 34 S. W. 417, 31 L. R. A. 840. 2 In re Bloss' Estate, 114 Mich. 204, 72 N. W. 148. 8 Martin v. Battey, 87 Kan. 582, 125 Pac. 88, Ann. Cas. 1914 A, 440; Linds- ley V. Patterson (Mo. 1915) 177 S. W. 82a L. R, A. 1915F, 680. * Everett v. Croskrey, 9Z Iowa, 333, 60 N. W. 732; Gillespie v. Boisseau (Ky.) 64 S. W. 730; Clark v. Clark, 132 Ind. 25, 31 N. E. 461 ; JLahr v. Ulmer, 27 Ind. App. 107, 60 N. E. 1009. With regard to acts of acceptance, see Richardson v. Trubey, 250 111. 577, 95 N. E. 971; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94; Milner v. Davis (1903) 120 Iowa, 231, 94 N. W. 511; Brightman v. Morgan, 111 Iowa, 481, 82 N. W. 954; McGrath v. Qulnn, 218 Mass. 27, 105 N. B. 555 (consent to pro- bate) ; Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Rowley v. Sanns, 141 Ind. 179, 40 N. B. 674. As to the effect of acting as executor, see Appeal of Coe, 64 Conn. 352, 30 Atl. 140; Appeal of SchoU (Pa.) 17 Atl. 206; Kerrigan v. Oonelly (N. J. Ch.) 46 Atl. 227. e Scheible v. RInck, 195 HI. 636, 63 N. B. 497. 550 OTHER RIGHTS OF BENEFICIARIES (Ch. 24 CHAPTER XXIV RIGHTS OF BENEFICIARIES NOT PREVIOUSLY DISCUSSED. I 178-179. Title to Subject-Matter of Devise or Bequest. 180. Right of Devisee or Legatee to Possession. 181-182. Time for Payment of Legacies. 183-184. Interest on Legacies. 185. Transfers by Legatees and Devisees. 186. Effect of a Legacy Given by Creditor to Debtor. 187-188. Estoppel of Beneficiaries to Contest the Will. TITLE TO SUBJECT-MATTER OF DEVISE OR BEQUEST 178. The title to personal property of every kind upon which the will operates at all goes immediately to the executor. 179. The title to real estate which the will undertakes to dispose of passes directly to the beneficiaries^ without the interven- tion of the executor, unless there is provision in the will or by statute to the contrary. - With regard to realty, the will operates as a conveyance, and where the gift is outright the devisee takes title at the' testator's death,^ if the will is duly admitted to probate.^ The devisee stands substantially in the shoes of the testator, and takes subject to rights created by contracts of the testator affecting the title of or relating to the land.' The question as to whether a devisee takes title im- mediately depends, of course,^ wholly upon the language of the will, and an allegation that the complainants are "devisees under the last will," etc., is not a sufficient assertion pf title in a bill in equity seeking relief on the ground of title in the complainants to certain land devised.* For the will may provide for the vesting >■ Croswell's Executors and Adm'rs, 207; Jenks v. Liverpool, London & Globe Ins. Co., 206 Mass. 591, 92 N. B. 998; Satcher v. Grice, 53 S. O. 126, 31 S. E. 3 ; Engllsh-MoCafiCery Logging Co. v. Clowe, 29 Wash. 721, 70 Pac. 138 ; Simmons' v. Spratt, '26 Fla. 449, 8 South. 123, 9 L. R. A. 343 ; Flemister v. , Flemister, 83 Ga. 79, 9 S. E. 724; Hall v. Hall, 98 Wis. 193, 73 N. W. 1000. 2 Evansville Ice & Cold Storage Co. v. Wlnsor, 148 Ind. 682, 48 N. E. 592. Devisees cannot enjoin real actions by the heirs at law until probate of the will. Pratt V. Hargreaves, 76 Miss. 955, 25 South. 658, 71 Am. St. Rep. 551. 8 Hyde v. Heller, 10 Wash. 586, 39 Pac. 249. * Brown v. Tallman (N. J. Ch. 1903) 54 Atl. 457. § 180) EIGHT OF DEVISEE OB LEGATEE TO POSSESSION 551 of the title at a time subsequent to the testator's death," or that it may, for certain purposes, vest in the executors." By statute, in a number of jurisdictions, the real estate of the de- cedent is made a part of his estate, and the execut9r has a title ei- ther in fee or during administration, or a. possessory right to oc- cupy and take the rents and profits for the settlement of the estate.' With regard to personalty, however, the executor represents the testator, "a legal or fictitious as distinguished from a natural or true personality being assumed to exist in the executor and to con- tinue until the duties committed to him have been performed. The legatee takes accordingly from a representative." * In other words, title comes to the legatee through the executor, and administration is necessary to perfect his title.* RIGHT OF DEVISEE OR LEGATEE TO POSSESSION 180. It follows that, in the absence of a statute giving the right of possession to the executor, a devisee to whom land is given outright is entitled to possession on the death of the testator, if the testator had that right. The same rule ap- plies to specific legatees unless the subject-matter of the legacy is needed to satisfy debts. Debts paid, the right to possession depends wholly upon the intention of the tes- tator as disclosed by the will. This proposition follows necessarily from that of the preceding black-letter text. The devisee, after probate of the will, may main- tain suit against the party in possession for the recovery of the land, and if such party be a legatee whose legacy is a charge upon the land recovery of the land will not be defeated by showing nonpay- ment of the legacy.J," A legatee bf specific property is entitled' to s Henry v. Henderson (1903) 81 Miss. 743, .33 South. 960, 63 U B. A. 616. e Beadle v. Beadle (C. C.) 40 Fed. 315; Trapliagen v. Levy, 45 N. J. Eq. 448, 18 Atl 222. T CrosweU's Executors, etc., 208; Banks v. Speers, 97 Ala. 560, 11 South. 841; Dexter v. Hayes, 88 Iowa. 493, 55 N. W. 491; Grady v. Warrell, 105 Mich. 310, 63 N. W. 204. 8 Bigelow, Wills, 19. See, also, Oroswell's Executors, etc., 207; Tourtelot v. ^B^iernschmidif^v.^Bauernschmldt (1903) 97 Md. 35, 54 Atl. 637. See Rhodes T. Rhodes, 88 Tenn. 637, 13 S. W. 590. This topic properly belongs to the suWect of Executors and the Settlement of Estates, and will not be pur- sued further here. See 1 Woerner, Am. Law of Administration, 592 et seq. 10 Dinan v. Coneys, 143 N. X. 544. 38 N. E. 715. 552 OTHER EIGHTS OF BENEFICIARIES (Ch. 24 1 possession/ on the death of the testator, unless it be needed to pay- debts.^* Debts paid, the legatee of a life interest in personal prop- erty, with remainder over, is entitled to possession if an intention to that end appear, though the bequest is general.^? Such ii^tent may. be express, as where the taker for life is in terms given the custody of the property,*" or where the property is given to hold and enjoy for life,** or implied, as where property is left to one for life with unlimited discretion as to its use,*° or to one for life with remainder over of so much of the property as remains uncon- sumed.*' But where money or other personal property yielding an income is bequeathed for life generally, and no trustee is ap- pointed, the executor will hold the property, properly invested, and pay the interest only to the person entitled for life.*" But where a life interest in a chattel, such as a table or picture, is bequeathed, possession must be given to the beneficiary.** TIME FOR PAYMENT OF LEGACIES 181. The testator may determine the time at which legacies shall be paid, and his intention controls. 182. If no time of payment is indicated by the will, legacies are pay- able at the expiration of one year from the testator's death, unless the time of payment under such circumstances is fixed otherwise by statute. The testator may fix the time at or within which a legacy shall be paid, as within sixty days after his death,*' or at any other indi- cated time, and such restrictions in regard to the time are valid 11 In re Bobinson's Estate, 24 Pa. Co. Ct. R. 588. 12 HiU V. Harding, 92 Ky. 76, 17 S. W. 199, 437. 18 Gee V. Hasbrouck, 128 Mich. 509, 87 N. W. 621; In re Ungrich, 166 N. Y. 618, 59 N. E. 1131. 11 In re Garrity's Estate, 108 Cal. 463, 38 Pac. 628, 41 Pac 485; In re Mc DougaU, 141 N. Y. 21, 35 N. E. 961. 10 Pierce v. Stidworthy, 81 Me. 50, 16 Atl. 333. 18 Posegate v. South, 46 Ohio St. 391, 21 N. E. 641. Semble: Colliver v. Taylor (Ky.) 51 S. W. 432. 17 Eddy V. Cross, 26 Ind. App. 643, 60 N. E. 470; White v. Institute, 171 Mass. 84, 50 N. B. 512. Semble: Lewis v. Shattuck, 173 Mass. 486, 53 N. B. 912. 18 White V. Institute, supra; WHITTEMORB v. RtJSSEIiL, 80 Me. 297, 14 Atl. 197, 6 Am. St. Rep. 200, Dunmore Gas. Wills, 257; Fuller v. Fuller, 84 Me. 475, 24 Atl. 946. 19 Martin v. Martin, 69 Miss. 315, 13 South. 267. Semble: Cowherd t. Kitchen, 57 Neb. 426, 77 N. W. 1107. §§ 181-182) TIME FOB PAYMENT OF LEGACIES B53 if they do not offend the rule against perpetuities.'* Legacies may be made payable wljen the legatee reaches a certain age,^^ or when one of a class reaches a certain age.''? Where a legatee, who takes a legacy payable when she reaches the age of twenty-one, dies after the death of the testator, but be- fore becommg of age, the legacy is at once payable to her per- sonal representatives," unless the interest on the sum is given to others during minority, in which case it seems that payment of the pnncipal will not be made until such time as the legatee would have reached the age of twenty-one.''* Where a legacy is given to take effect at the termination of a pre- ceding life estate or at the death of the taker for life, and it is evidently the testator's intent that, upon the failure of the life estate for any reason, the legacy over is to at once take effect, the failure of the life interest will accelerate the enjoyment of the re- mainder, and the legacy is then payable immediately on the termi- nation of the life estate. This rule is most frequently applied where a widow elects to take under the law instead of a life inter- est provided for her in lieu of dower under the will.*' But where the fund is in terms to be paid at the death of the wife, who is given the enjoyment thereof for life, the failure of her life interest by virtue of her election to take against the will does not accel- erate the remainder, and there can be no distribution of the fund until the time fixed by the will therefor, viz., her death."" If the will mentions no time for the payment of legacies, the 20 Claflin v. Claflin, 149 Mass. 19, 20 N. E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393 (where a fund was t» be paid In installments as the legatee should reach the ages of 21, 25, and 30 years); Derbyshire's Estate, 239 Pa. 389, 86 Atl. 878. 21 Turner v. Safety Vault Co. (Ky.) 49 S. W. 9; Bunch v. Ray (Ky.) 49 S. W.*336; Calvert v. BouUemet, 46 La. Ann. 1132, 15 South. 363; Stehlin v. Stehlin, 67 Hun, 110, 22 N. Y. Supp. 40; Collin v. Wilcox, 65 Hun, 368, 20 N. X. Supp. 199. 2 2 Webber v. Jones, 94 Me. 429, 47 Atl. 903. 28 Savin v. Webb, 96 Md. 504, 54 Atl. 64; McReynolds v. Graham (Tenn. Ch. App.) 43 S. W. 138. 24 Merritt v. Richardson, 14 Allen (Mass.) 239, 241. 26 Slocum V. Hagaman, 176 111. 533, 52 N. E. 332; Trustees Church Home V. Morris, 99 Ky. 317, 36 S. W. 2 ; In re Schulz's Estate, 113 Mich. 592, 71 N. W. 1079; In re Ferguson's Estate, 138 Pa. 208, 20 Atl. 945; In re Vance's Es- tate, 141 Pa. 201, 21 Atl. 643, 12 L. R. A. 227, 23 Am. St. Rep. 267 (the wife's renunciation being regarded as equivalent to her death for the purpose of accelerating legacies) ; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 I/. R. A. 717. 2 6 Brandenburg v. Thorndike, 139 Mass. 102, 28 N. B. 575; Lovell v. Town of Charlestown, 66 N. H. 584, 32 Atl. 160; Jones v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 li. R. A. 293. 554 OTHER RIGHTS OF BENEFICIARIES (Ch.24 common law generally fixes the time of payment at one year after testator's 'death; it being presumed that such a delay affords the executor a reasonable time for determining whether the estate is sufficient to pay all debts and legacies.JJ The time for the payment of legacies, in the absence of determi- nation by the will itself, is sometimes fixed by statute, the require- ment being that this shall be done at the expiration of the time within which creditors may prove their claims, if there are assets sufficient for this purpose,^' though ordinarily payment may be made before this time, if there are assets for the purpose, on the execution of a refunding bond by the legatees.'" INTEREST, ON LEGACIES 183. General legacies draw interest if not paid at the time when they are due. If this time is not faxed by the will, they ordinarily become due one year after the testator's death, and hence bear interest from that time. 184. This rule does not apply to specific legacies, the produce ac- cruing from the subject-matter of which from the time of the testator's death belongs to the legatee, it being re- garded as separated from the general estate, and appropri- ated to the use of the beneficiary at that time. A demand bears interest from the time it is due. Hence interest at the legal rate is payable upon a general legacy from the time it ought to be paid until the time it is paid.*^ Where legacies are |7 Fitch V. Randall, 163 Mass. 381, 40 N. B. 182 ; Eotch v. Emerson, 105 Mass. 431, 435; Brooks v. Lynde, 7 Allen (Mass.) 64; Ashton v. Wilkinson, 53 N. J. Eq. 6, 30 Atl.'895; Walford v. Walford (1912) 1 App. 658. 28 2 Woerner, Am. Law of Administration, 996. 29 Id. The discussion of these statutes manifestly does not come within the scope of a work on Wills. aoHamUton v. McQuillan, 82 Me. 204, 19 Atl. 167; Cline v. Scott's Ex'r (Ky.) 32 S. W. 215; Webb v. Webb, 92 Md. 101, 48 Atl. 95, 84 Am. St. Hep. 499 (where a legacy to grandchildren who might reach the age of 21 was held not to bear interest until that event occurred); Von der Horst v. Von der Horst, 88 Md. 127, 41 Atl. 124; Loring v. Society, 171 Mass. 401, 50 N. E. 936; Cook V. Hayward, 172 Mass. 195, 51 N. E. 1075 (where a legacy payable on the death of the testator's wife was held entitled to interest from the date of her death); Ashton v. WUldnson, 53 N. J. Eq. 6, 227, 30 Atl. 895, 35 Atl. 1130; Van Rensselaer v. Van Rensselaer, 113 N. Y. 207, 21 N. E. 75 (where a legacy was given to be paid by the executors when it shall be convenient for them, without regard to the time fixed by law; held that interest should be allowed from the time when sufficient funds had been realized to pay the legacy and no possible inconvenience could result to the estate) ; In re Engles' Estate, §§ 183-184) INTEEEST ON LEGACIES 555 payable when the legatees reach a certain age and the estate is set- tled- and the proceeds ready for distribution before that time, the legacies bear interest from the time when the estate was settled." Where the will specifies no time for payment, legacies commonly bcome payable one year after the death of the testator,*^ and hence, if not paid, bear interest at the legal rate from that time,^' and this though a contest over the will is pending at the expiration of that period,^* or though the legacy is directed to be paid as soon as con- venient,^" or though, by statute, the executor 'has one year after the probate in which, to pay,'" or though the will had not been pro- bated at the expiration of one year from the testator's death,*' or though the executors are allowed a longer period in which to settle the estate,** or though the legatee die within the year and no ad- ministrator is appointed until 18 months after the expiration of the year.** Interest is not payable on a general legacy before the ex- piration of one year from testator's death merely because the money is invested and interest is received.*" The rate of interest is the 167 Pa. 463, 31 Atl. 681; Armentrout v. Armentrout (1911) 112 Va. 660, 72 S. E. 721 (where legacies charged on remainder held to bear interest only from the termination of particular estate). 31 Appeal of Provident Life & Trust Co., 134 Pa. 426, 19 Atl. 692. See, also, State V. Main, 87 Conn. 175, 87 Atl. 38 (where a grandson bequeathed a legacy payable at majority was held entitled to the accrued interest on his legacy). 82 Ante, p. 553. 88 Chambers' Guardian v. Chambers, 87 Ky. 144, 7 S. W. 620; In re Bart- lett, 163 Mass. 509, 40 N. E. 899; Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355 ; Davison v. Eake, 45 N. J. Eq. 767, 18 Atl. 752 ; Marsh v. Taylor, 43 N. J. Eq. 1, 10 Atl. 486; Flummerfelt's Ex'rs V. Flummerfelt, 51 N. J. Eq. 432, 26 Atl. 857 ; Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843; Moore v. PuUen, 116 N. C. 284, 21 S. E. 195; In re Eichelbcrger's Estate, 170 Pa. 242, 32 Atl. 605; Webster v. Wiggin, 19 R. I. 653, 35 Atl. 961; Barber v. JSVestcott, 21 R. I. 355, 43 Atl. 844; Wood v. Ham- mond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478 ; In re Friend, 78 Law T. (N. S.) 222. 34 Redd's Adm'r v. Redd (Ky.) 58 S. W. 428; Powell v. Drake, 19 D. C. 334; WOODWARD'S ESTATE v. HOLTON, 78 Vt. 254, 62 Atl. 718, 6 Ann. Gas. 524, Dunmore Cas. Wills, 319 (applying general rule, although contest partici- pated in by legatee now claiming interest). Contra: Good Samaritan Hospital v. Mississippi Valley Trust Co. (1909) 137 Mo. App. 179, 117 S. W. 637. SB Griggs V. Veghte, 47 N. J. Eq. 179, 19 Atl. 867. 86 Davison v. Rake, 44 N. J. Eq. 506, 16 Atl. 227. 8 7 Ogden V. Pattee, 149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401. 8 8 In re Spencer, 16 R. I. 25, 12 Atl. 124; Warwick v. Ely, 59 N. J. Eq. 44, 44 Atl 666 8 9 Esmond v. Brown, 18 R. I. 48, 25 Atl. 652 (it being the duty of the execu- tors under such circumstances to invest the legacy in some interest bearing 4 Thayer v. Paulding, 200 Mass. 98, 85 N. E. 868. 556 OTHEB RIGHTS OF BENEFICIARIES (Ch. 24 legal rate,** irrespective of the rate which safe investments will produce/* but interest will not be compounded.*' Sometimes, by virtue of statute, interest on legacies begins to run one year after the grant of letters testamentary.*^ Where the income of a fund is directed to be paid to a beneficiary, he is entitled to interest thereon from the death of the testator, in the absence of an intent of the testator to the contrary.*" Specific Legacies Specific legacies are not subject to the general rule, for the reason indicated in the black-letter text. Such a legatee is entitled to what- ever income or interest the property bequeathed may produce from the tiriie of the testator's death,*v* and to accrued interest' in arrears at that time on securities specifically given.*^ Further Exceptions Where a legacy is given to a minor child or to a minor to whom the testator stood in loco parentis, for whose support no provision is made by the will, interest upon the legacy will be allowed from- the time of the testator's death, as a provision for maintenance, re- gardless of the time at which the legacy itself is payable.** The rule does not apply to a bequest to an adult child, though he had *i In re Watt's Elstate, 168 Pa. 422, 32 Atl. 42. But where a fund remains In a bank by tbe consent of the beneficiary, pending the decision of a suit for the construction of the will, he is entitled to no greater rate of Interest thereon than is allowed the executor by the bank. Foster v. Wetmore, 60 Hun, 577, 14 N. y. Supp. 194. *2 Welch V. Adams, 152 Mass. 74, 25 N. E. 34, 9 L. R. A. 244; Loring v. So- ciety, 171 Mass. 401, 50 N. E. 936. *3 Welch V. Adams, supra. > ** Lewis V. Barkley (1912) 91 Neb. 127, 135 N. W. 379; In re McGowan, 124 N. Y. 526, 26 N. E. 1098; Moorman v. Crockett, 90 "Va. 185, 17 S. E. 875. Or, in one year after date of the notice of the appointment of the executor. Gray v. Case School of Applied Science, 62 Ohio St. 1, 56 N, E. 484. «BMackay v. Mackay, 107 Cal. 303, 40 Pac. 558; In re Catron's Estate, 82 Mo. App. 416; Corle v. Monkhouse, 47 N. J. Eq. 73, 20 Atl. 367 ; In re Stan- field, 135 N. Y. 292, 31 N. E. 1013; In re Flickwir's Estate, 136 Pa. 374, 20 Atl. 518 ; Chafee v. Maker, 17 R. I. 739, 24 Atl. 773. *8 GraybUl v. Warren, 4 6a. 528; Smith v. McKitterick, 51 Iowa, 548, 2 N. W. 390 ; Blundell v. Pope (N. J. Ch.) 21 Atl. 456; Smith v. Lansing, 24 Misc. JRep. 566, 53 N. Y. Supp. 633. it Fleming v. Carr, 47 N. J. Eq. 549, 22 Atl. 197; In re Mowry, 16 R. I. 514, 17 Atl. 553; Harcourt v. Morgan, 2 Keen, 274, 15 Bug. Ch. 274, 48 Eng. Re- print, 633. ■•8 Flinn v. Flinn, 4 Del. Ch. 44; Webb v. Webb, 92 Md. 101, 48 Atl. 95, 84 Am. St Rep. 499; Doten v. Doten, 66 N. H. 331, 20 Atl. 387; Marsh v. Taylor, 43 N. J. Eq. 1, 10 Atl. 486 ; In re Keech's Estate, 240 Pa. 491, 87 AtL 623; Couch V. Eastham, 29 W. Va; 784, 3 S. B. 23. § 185) TRANSFERS BY LEGATEES AND DEVISEES 557 always been supported by the testator,** nor where other provision is made for the support of the beneficiary,"" nor to a minor grand- child,"^ or nephew or niece," unless the testator stood in loco parentis to them. A legacy given in satisfaction of a debt bears interest from the testator's death."' In some jurisdictions, a widow, given a legacy in lieu of dower, is entitled to interest from testator's death, if no other means for her support are provided ; "* but. in England and in the greater number of the United States such a legacy does not bear interest until one year from the death of testator.'^ TRANSFERS BY LEGATEES AND DEVISEES 185. In the absence of any provision in the will to the contrary, a legatee may assign or a devisee convey his interest under the will, and the usual doctrines respecting assignments and conveyances apply. The interest of a legatee under a will may be assigned,"' and such assignment may be by parol,"^ in the absence of a statute to the contrary. The assignee takes all the rights of the assignor, and may ordinarily assert them in his own name."* Any set-off avail- able against the assignor is also available as against the assignee."* 49 Thorn v. Garner, 113 N. Y. 198, 21 N. E. 149. 6 In re Clark, 62 Hun, 275, 17 N. Y. Supp. 93. Bi Marsli V. Taylor, 43 N. J. Eq. 1, 10 Atl. 486; In re Goble's Will (Sur.) 10 N. Y. Supp. 18; In re Todd's Estate, 237 Pa. 466, 85 Atl. 845, 43 L. E. A. (N. S.) 869. 2 Crickett v. Dalby, 3 Ves. 10; Lyon v. School Ass'n, 127 K. Y. 402, 28 N. E IT 53 Welsh V. Brown, 43 N. J. Law, 37; Clark v. Sewell, 3 Atk. 96, 26 Bng. fee- print, 858. \ 54 Pollard V. Pollard, 1 Allen (Mass.) 490; Welch v. Adams, 152 Mass. 74, 35 N. E. 34, 9 L. R. A. 244. , 56 In re Barnes' Estate," 7 App. Dlv. 13, 40 N. Y. Supp. 494 (affirmed ih Barnes v. Barnes, 154 N. Y. 737, 49 N. E. 1093) ; Howard v. Francis, 30 N. J. Eq 444; 'Gill's Appeal, 2 Pa. 221; In re Bignold, 45 Ch. D. 496. 6 6 People's Trust Co. v. Harman, 43 App. Div. 348, 60 N. Y. Supp'. 178; San- ders V Soutter, 136 N. Y. 97, 32 N. E. 638; In re Martin's Estate, 178 Pa. 416 35 Atl. 989; Whelen v. Phillips, 151 Pa. 312, 25 Atl. 44; Appeal of Men- denhall, 151 Pa. 214, 25 Atl. 44; In re Luscombe's Will, 109 Wis. 186, 85 N. W. 341.' 67 Mellon V. Heed, 123 Pa. 1, 15 Atl. 906. 68 Graham v. Abercrombie, 8 Ala. 552; In re PhilUps, 71 Cal. 285, 12 Pac. 169 The matter depends entirely upon statute, however. 5'» Ford T. O'DonneU, 40 Mo. App. 51; Hopkins v. Thompson, 73 Mo. App. 401. ' 558 OTHER EIGHTS OF BENEFICIARIES (Ch. 24 Executors having notice of an assignment of a legacy which shows on its face that it is given as security for the payment of a note "with interest," the rate not being stated, are put on inquiry as to the rate, and cannot escape liability for the interest on the ground that they had no notice of the rate.'" So a devisee, whose interest is^ not a mere expectancy,'^ but who takes an estate in the property devised, may slienate it before it vests in possession,'^ although devisee's estate is subject to be de- feated by the happening of a condition subsequent." A provision that none of the real estate devised shall be sold until the youngest beneficiary becomes of lawful age-does not prohibit a devisee from selling his undivided interest at any time, the purchaser becoming a tenant in common with the other devisees.'* Where a statute pro- vides that no will shall operate to pass title to real estate until duly probated, a conveyance without warranty by a devisee before the probate of the will is ineffective to pass title to property subse- quently acquired under the will by virtue of its probate, and such title may be asserted by the devisee as against his grantee." But where the statute does not postpone vesting until the probate of the will, a conveyance by a devisee before probate conveys a title which may be asserted upon the subsequent probate of the will." EFFECT OF A LEGACY GIVEN BY CREDITOR TO DEBTOR 186. A legacy given by a testator to his debtor is not an extinguish- ment of the debt, imless the intention of the testator to that end is clearly manifest. The full extent of the testator's bounty is supposed to be dis- closed by the will. Hence a legacy to a debtor does not include, in addition thereto, a gift of the debt unless his intention to that end is entirely clear." This intention may be manifested by express 80 McKle V. Gregory, 175 Mass. 505, 56 N. E. 720. siCassem v. Kennedy, 147 111. 660, 35 N. E. 738. ie2 Heise v. Wells, 211 N.'Y. 1, 104 N. E. 1120; Sayles v. Best, 140 N T. 368, 35 N. E. 636 ; Griffin v. Shepard, 124 N. Y. 70, 26 N. B. 389; In re Valentine, 59 Hun, 619, 13 N. Y. Supp. 444. 88 Newlove v. Mercantile Trust Co., 156 Cal. 657, 105 Pac. 971. 64 Roederer v. Hess, 112 Ky. 807, 66 S. W. 1012. es Douglass V. Miller (Com. PI.) 4 Ohio Dec. 414. 83 Boothe V. Cheek, 253 Mo. 119, 161 S. W. 791. evLeask v. Hoagland, 64 Misc. Rep. 156, 118 N. Y. Supp. 1035; Sharp v. Wightman (1903) 205 Pa. 285, 54 Atl. 888; In re Baily's Estate, 153 Pa. 402, §§ 187-188) ESTOPPEL TO CONTEST OF WILL 559 words " or by necessary implication," and parol evidence is some- times admitted to prove the intention of testator to forgive a debt due from a legatee." Where one of two co-sureties left a legacy to the other, who assigned it, and the estate of the deceased surety was afterwards compelled to pay the whole amount of the bond, the right to set off against the legacy one-half the amount of the bond was held to be an equity existing even before payment thereof by the executors, and hence the assignee took the legacy subject to such right of set-off J ^ ESTOPPEL OF BENEFICIARIES TO CONTEST THE WILL 187. Beneficiaries who receive and retain property and benefits un- der a will with full knowledge of sfll material facts are thereby estopped to deny or contest it. , 188. No estoppel results against the beneficiaries for their failure to present the will for probate and to assert their rights thereunder, when such failure is due to ignorance of its existence. The rule with regard to the effect of the acceptance of benefits under a will is but an instance of the application of the general doctrines of estoppel, and is steadily recognized.'* Thus where a 26 AtL 23; Spatli v. Zeigler, 48 La. Ann. 1168, 20 South. 663; Bo wen v. EJr- ans, 70 Iowa, 368, 30 N. W. 638. 98 Taylor v. Taylor, 145 Mass. 239, 14 N. B. 101; Neville v. Dulaney's Ex'rs, 89 Va. 842, 17 S. E. 475; Waterman v. Alden, 143 U. S. 196, 12 Sup. Ct. 435, 36 li. Ed. 123. A clause in a will, "My executors may, in their discretion, cancel the mort- gages held by me" upon certain lands, does not amount to a discharge of such mortgages, but leaves the matter wholly to the discretion of the execu- tors. Moss V. Lane, 50 N. J. Eq. 295, 23 Atl. 481. 8 9 SorreUe's Ex'rs v. Sorrelle, 5 Ala. 245, 248; Woodruff v. Migeon, 46 Conn. 236 ; Baldwin v. Sheldon, 48 Mich. 580, 12 N. W. 872. TO Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356; Zeigler v. Eckert, 6 Pa. 13 47 Am Dec. 428 (admitting evidence of testator's declarations). 71 In re Baily's Estate, 156 Pa. 634, 27 Atl. 560, 22 L. R. A. 444. T2 KEYS V WRIGHT, 156 Ind. 521, 60 N. E. 309, Dunmore Cas. Wills, 321; MedUl V Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307; Medlock v, Merritt, 102 Ga. 212, 29 S. E. 185 ; Madison v. Larmon, 170 111. 65. 48 N. E. 556 62 Am. St. Rep. 356; Bennett v. Bennett (Ky.) 65 S. W. 12; Green v. Ponder (Ky ) 58 S. W. 605; In re Walkerly's Estate, 108 Cal. 627, 41 Pac. 772, 49 Am. St Rep. 97. It finds its most common application in cases of election. See ante, p. 539. , , ^ i. tv, „ The fact that legacies were received under protest does not prevent the es- 560 OTHER EIGHTS OF BENEFICIARIES (Ch. 24 father devised certain lands to each of his children, and each ac- cepted the devise made to him, they are each estopped from there- after claiming that the tract devised to one child belonged to their mother, and that each inherited an equal share therein at her death." Where a will is not probated for seven years after the testator's death, and in the meantime the heir had taken possession of the testator's land and given a mortgage thereon, the devisees are not estopped to claim the land as against the mortgagee, in view of the fact that they were ignorant of the existence of the will.'* toppel of legatees. Stone v. Cook, 179 Mo. 534, 78 S. W. 8Q1, 64 L. R. A. 287, 9 Prob. Rep. Ann. 453. T8 Buchanan v. McLennan, 192 111. 480, 61 N. E. 448. T« Reid's Adm'p v. Benge, 112 Ky. 810, 66 S. W. 997, 57 I* E. A. 253, 99 Am. iSt Rep. 334. TABLE OF CASES CITED [the riQUEES EEFEE TO PAGES] Aaron v. Aaron, 41. " Abbiss V. Bui;ney, 134. Abbott V. BrSdstreet, 400. Abbott V. Middleton, 327, 333. Abel' V. Abel, 388. Abercrombie, In re, 191. Abraham v. Wilkins, 184. Abrahams v. WooUey, 119, 173. Abrams v. State, 143. Acherly v. Vernon, 458. Ackels' Estate, In re, 227. Acklin V. Paschal, 299. Ackman v. Potter, 21. Acree v. Dabney, 444, 450. Adams, Goods of, 28, 29. Adams v. Adams, 337, 422, 510. Adams v. Atherton, 11. Adams v. Becker, 318. Adams v. Berger, 332, 336. , Adams v. Field, 185, 186, 187. Adams t. Johnson, 454. Adams y. Jones, 328, 386. Adams v. Legroo, 330. Adams y. Lillibridge, 422. Adams v. Massey, 331. Adams v. Olin, 511. Adams y. Rodman, 292, 293. Adams y. Woolman, 439, 448. Adair y. Adair, 322, 323. Adam's Estate, In re, 159. Addington v. Wilson, 107. Addition v. Smith, 496. Adler's Estate, In re, 250. Adsit V. Adsit, 544. AfEolter y. May, 378. Ahl y. Bosler, 411. Ahl V. Ligsett, 415. Aikin v. Weckerly, 213. Alnsworth y. Briggs, 59. Aislavie v. Evans, 466. Aistrop y. Aistrop, 329. Akerman v. Akerman, 398. Akers' Will, In re, 57, 192, 217, 237. Albany Fertilizer Co. v. James, 180. Albert, In re, 295. Albert y. Albert, 138, 513. Albert's Will, In re, 210. Albiston's Estate, In re, 453. Aldrich v. Aldrich, 28, 479. Aldridge y. Aldridge, 401. Alexander v. Alexander, 463. Alexander v. Bates, 344. Gaed.Wills (2d Ed.)— 36 Alexander v. McPeck, 384. Alexander's Estate, In re, 465. Alford V. Johnson, 163. Alger's Will, In re, 230. Allaire v. Allaire, 217. Allan, In' re, 371. Allan V. Morrison, 259. Allbright y. Hannah, 63, 64, 68. AUday v. Cage, 43. Allen, Appeal of, 328. Allen, In re, 398. Allen, Succession of, 147, 406. Allen y. Allen, 344, 540. Allen y. Almy, 426, 449. Allen V. Barnes, 316. Allen V, Boardman, 405. Allen y. Boomer, 38, 421, 549. Allen y. Bromberg, 71. Allen V. Craft, 413, 467. Allen y. GrifiBn, 115, 193, 212. Allen V. Hoyt, 409. Allen V. Jackson, 467. Allen y. Little, 84. Allen v. McGee, 474. Allen y. Maddock, 39, 41. Allen V. Mattison, 520. Allen y. Seaward, 300. Allen V. Stevens, 140, 141, 142. Allen V. Van Houton, 360. Allen y. Watts, 146. Allen y. Whitaker, 439. Allen V. White, 3. Allen's Will, 213. AllETOod y. Williams. 273. Allison V. Allison, 203., Allison V. Allison's Ex'rs, 320, 329, 386, .SR9, 399. 444, 445. Allison's Ez'ra y. Allison, 205. Allison's Estate, In re, 96, 158, 222, 294. Almand v. Whitaker, 404. Almosino. Goods of, 41, 42. Almy v. Jones, 138. A)paugh's Will, In re, 221. Alsman v. Walters, 456. Alston, Anpeal of, 405. Alston v. Davis, 58. 59. Altdorfer's Estate, In re, 328, 381- Altrock V. Vandenburgh, 246. Amberson's Estate, In re, 346. Ames, In re, 123, 124, 177. Ames V. Ames, 197. Ames y. Duryea, 274. Ames V. Holderbaum, 530. American Baptist Home Mission Soc. y. Foote, 524. (561) 562 CASES CITED [Tbe figures refer to pages] American Baptist Missionary Union v. Peck, 181. American Bible Soc. v. Marshall, 143, 273. American Bible Soc. v. Pendleton, 270. American Board of Com'rs for Foreign Missions, In re. 111, 115. American Nat. Bank v. Taylor, 427. American Seamen's Friend Soc. t. Hop- per, 100, 108. Ametrano v. Downs, 510. Amherst College v. Bitch, 141, 142, 479. Amherst College t. Smith, 527. Amory v. Fellowes, 200, 201. Amos, In re, 419. Anderson t. Anderson, 155, 421. Anderson v. Berkley, 153. Anderson v. Brown, 4i5. Anderson v. Crist, 474. Anderson y. Ettridge, 419. i Anderson v. Felton, 443. Anderson v. Miller, 82. Anderson v. United Realty Co., 451. Anderson v. Williams, 483. Anderson v. Wilson, 393. Anderson's Estate, In re, 546'. ' Andrew v. Andrew, 515. Andrews, Matter of, 188. Andrews v. Andrews, 70, 283, 302. Andrews v. Applegate, 352. Andrews v. Brewster, 72, 73. Andrews v. Lincoln, 133, 134, 135, 136, 138, 336. Andrews V. Partington, 402. Andrews v. Russell, 438. Andrews v. Schoppe, 353. Andrew v. Society, 143. Andrews' Will, In re, 28, 42, 164, 189. Angell T. Home for Aged Women, 366. Angell V. Springfield Home for Aged Women, 428. Angus V. Noble, 388, 449. Anonymous, 86, 473. Anstee, In re, l90. Anstruther v. Chalmer, 271. Anthony v. Anthony, 387. Anthracite Sav. Bank v. Lees, 453. Antioch College of TeUow Springs v. Branson, 395. Aplin V. Stone, 204. Appel V. Byers, 377. Apperson v. Cottrell, 218. Apperson v. Dowdy, 304. Applebee, Goods of, 233. Applegate v. Smith, 268. Appleby v. Brock, 126, 127. Appleton, Appeal of, 134, 135. Appleton V. Rowley, 384. Arbery v. Ashe, ll9. Archambault's Estate, 315. Archer v. Barnes, 546. Archer v. Jacobs, 444. Archibald v. Long, 546. Arcularius v. Geisenhainer, 334. Areson v. Areson, 335. Armendariz de Acosta v. Caderia. 187. Armentrout v. Armentrout, 524, 555. Armistead v. Dangerfield, 376. Armistpad's Ex'rs v. Hartt, 397, 483. Armant, Succession of, 58. Armor's Estate, In re, 157. Armstrong v. Armstrong, 162, 452. Armstrong v. Baker, 277. Armstrong v. Barber, 440, 441, 453. Armstrong v. Crapo, 331, 432, Armstrong v. Crutchfield, 404. Armstrong v, Douglass, 135, 336. Armstrong v. Galusha, 343. Armstrong v. Michener, 416. Armstrong v. Walton, 186. Armstrong's Appeal, 432, 504. Armstrong's Ex'r v. Armstrong's Heirs, 186, 187. Arneson's Will, In. re, 216. Arnold v. Alden, 385, 397, 398, 486. Arnold's Estate, In re, 171, 174, 363. Arnault v. Arnault, 146. Arrants v. Crumley, 421. Arrington T. Arrington, 527. Arrington v. Dortch, 547. Ash V. Ash, 251. Ashburner t. MacGuire, 246, 605. Asher v. Whitlock, 146. Ashhurst v. Potter, 394. Ashmore, Goods oi, 207. Ashton V. Railroad Co., 423. Ashton V. Wilkinson, ,554. Ashton's Estate, In re, 389. Ashworth v. Carleton, 54. Ashworth V. McNamee, 127. Askins' Estate, In re, 47, 48, 49. Aspy V. Lewis, 397. Asten V. Asteu, 338. Astor, In re, 36. Atkins' Ex'x v. Atkins, 464. Atkinson, In re, 541. Atkinson v. Hutchinson, 335. Atkinson v. May's Estate, 303. Atkinson v. Sutton, 544. Atmore v. Walker, 524. Attorney General y. DubUn, 484. Attorney General v. Jones, 25. Attorney General v. Lloyd, 245. Attorney General v. Merrimack Mfg. Co., 457. Attorney General v. Parnther, 110. Attorney General v. St. John's Hospital 484. Attorney General v. Vigor, 246. Attorney General v. Wiltseere, 852. Attwater v. Attwater, 468. Atwood V. ,Weems, 146. Auger V. Tatham, 391. Aurand v. Wilt, 16, 47. Austen v. Graham, lOl. Austin, In re, 192. Austin V. Bristol, 437. Austin V. Hyndman, 360, 421. , Avaro v. Avaro, 180. Aveling v. Aid Ass'n, 373. Aveling v. Northwestern Masonic Aid Ass'n, 367. Avery v. Everett, 444. Avery v. Mabey, 317. Avery v. Pixley, 185, 228. Aydlett v. Small, 352. Ayer v. Estabrooks, 357. Ayers' Estate, In re, 110. Aylward v. Briggs, 163. Ayres v. Ayres, 213, 216. Ayrey v. HiU, 112. B CASES CITED [The figures refer to pages] 563 Baacke v. Baacke, 257, 258. Babbidgev. Vittum, 501. Babcock v. CoUins, 311. Baby, In re, 239. Backus V. Association, 411. Backus' Will, In re, 237, 248. Bacon v. Bacon, 154. Bacon v. Nichols, 330, 332. Bacon v. Ransom, 479. Bader v. Dyer, 426. Badrick v. Stevens, 505, Baer v. Forbes, 386. Bagot, In re, 369. Babcock v. Collins, 312. Bailey, Goods of, 184. Bailey v. Baileyj 42, 323, 329, 330. Bailey v. Hawkins, 417. Bailey t. Mclntire, 315. Bailey v. Osborn, 295. Bailey v. Stiles, 218. Bailey's Heirs v. Bailey's Ex'r, 183. BaUlie v. Butterfield, 500. Bailis V. Gale, 408. Baily's Estate, In re, 558, 559. Bain v. Cline, 92, 102. Bains v. Globe Bank & Trust Co., 546. Baird v. Baird, 48, 49. Baird v. Winstead, 442. Baker, Appeal of, 38, 42, 188, 189, 339. Baker v. Baker, 15, 162, 188, 328, 376. Baker v. Bancroft, 206, 278. Baker v. Chastang's Heirs, 84. Baker v. Dening, 182. Baker v. Dodson, 49. Baker v. Farmer, 502. Baker v. Hacking, 146. Baker v. McAden, 481, 483. Baker v. Raimond, 407. Baker v. Safe-Deposit & Trust Co., 510. Baker t. Syfritt, 73, 76, 84. Baker v. Thompson, 424. Baker v. Trust Co., 513. Baker's Estate, In re, 316. Bakert v. Bakert, 522. Baldwin v. Morford, 424. Baldwin v. Robinson, 162. Baldwin v. Rogers, 4(^. Baldwin v. Sheldon, 559. Baldwin v. Spriggs, 252. Baldwin v. Tucker, 429. Baldwin's Estate, In re, 114, 115. Baldwin's WiU, In re, 196, 210. Balfour v. Scott, 271. Ball V. Dixon, 364. Ball V. Holland, 447. Ban V. Kane, 119. __ Ball V. Phelan, 268, 337. BaUard v. Camplin, 515. Ballentine v. Foster, 398. Ballentine v. Wood, 387. Ballinger v. Connable, OU. Balls V. Dampman, 530. Balme, Estate of, 280. Balsley v. Balsley, 318. Balz V. Kircher, 527. Bank of Florence v. Greag, 523. Bancroft v. Bancroft, 501. Bancroft v. Ives, 256. Bancroft v. Otis, 159. Bank of Charleston v. Dowling, 413. Bank of Ireland v. McCarthy, 525. Bank of Ukiah v. Bice, 474. Banks, In re, 530, 531. Banks t. Goodfellow, 104. Banks v. Howard, 63. Banks v. Speers, 551. Bannatyne t. Bannatyne, 98. Banuister v. Jackson, 112. Banvard's Estate, In re, 166. Banzer v. Banzer, 412, Baptist V. Baptist, 88. Baptist Church v. Robbarts, 228. Baptist Female University of North Car- olina V. Borden, 499, 503, 548. Barber, Appeal of, 128. Barber v. Allen, 171. Barber v. Barber, 274. Barber v. Gary, 491. Barber v. Crawford, 398. Barber v. Davidson, 497, 498. Barber v. Pittsburgh, Ft. W. & O. K, Co., 341. Barber v. Pittsburgh, etc.. By., 451. Barber v. Railroad Co., 387, 417, 455. Barber v. Westcott, 555. Barber's WiU, In re, 14, 16, 94, 163. Barbour v. Moore, 120, 177, 298, 299. Bardell v. Brady, 286. Barden, Goods of, 280. Barker v. Barker, 396. Barker v. BeU, 264. Barker v. Clark, 424. Barker v. Comins, 22, U9, 131. Barker v. Hinton, 181. Barker v. Rayner, 505. Barker v. Southerland, 446. Barker's Estate, In re, 256, 448. Barkley v. DonneUy, 282. Barkley v. Association, 166. Barkman v. Richards, l59. Barksdale v. Davis, 289. Barlaw v. Harrison, 59. Barlow v. Barnard, 337. Barlow v. Waters, 121, 155, 158, 217. Barnes v. Barnes, 557. Barnes v. Boardman, 419. Barnes v. Crow, 265. Barnes v. Crowe, 262. Barnes v. Patch, 351, 375. Barnes v. Stephens, 23, 25. Barnes' Estate, In re, 557. Barnes' Will, In re, 238, 244. B'amett v. Barnett, 413. Barnewall v. Murrell, 16, 29, 30, 114, 115, 190, 217, 222. Barney v. Arnold, 411, 454. Barney v. Hayes, 33. Barney's Will, In re, 160. Barnum v. .Mayor, 473. Barr V. Chapman, 311. Barrett's Estate, In re, 415, 455. S64 CASES CITED [Tlie flEurea reler to pages] Barrett's Will, In re, 410. Barricklow v. Stewart, 217. JBarrington v. Tristram, 402. Barrus v. Kirkland, 327. Barry v. ButUn, 160, 168. Barry v. Graciette, 156. ' Barstow v. Goodwin, 385. Bartee v. Thompson, 15. Barth v. Barth, 413. Barth v. Eiehter, 320. Bartholic, In re, 165, 167. Bartholick, In re, 96. Bartholomew v. Henley, 34. Bartholomew v. Merriam, 521. Bartine v. Davis, 403, 405. Bartlett, In re, 555. Bartlett v. Houdlette, 380, 501. Bartlett v. Patton,^ 430. Bartlett v. Sears, 317, 384. Bartlett v. Slater, 293. Barton v. Bigelow, 453. Barton v. Croxall, 246. Barton v. Robins, 15, 79, 280. Barton v. Tuttle, 387. Basan t. Brandon, 246. BasMn y. BasMn, 192. Bassett v. Hawk, 416. Batchelder, In re, 318, 516. Batchelder v. Batchelder, 179. Batchelor, Succession of, 230, 505. Bate, In re, 530. Bate V. Incisa, 312. Bateman t. Pennington, 29. Bateman's Trusts, In re, 85. Bates, In re, 331. 384. Bates V. Barry, 487. Bates V. Dewson, 375. Bates v. GiUett, 453. Bates v. Hacking, 238, 243. Bates V. Kingsley. 326, 369, Bates T. Officer, 204. Bates V. Spooner, 440. Batione's Estate, In re, 449. Batt V. Henderson, 481. Battey v. Battey, 367. Battis, In re, 257. Battle V. Speight, 262. Bauernschmidt v, Bauemschmidt, 551. Baugh's Estate, In re, 165. Baumann v. Kusian, 65. Baxter v. Abbott, 113, 115, 121. Baxter v. Isaacs, 438. Baxter v. Winn, 387. Baxter's Ex'rs v. Baxter, 314. Bayard v. Atkins, 441. Bayley v. Bailey, 2, 270. Beadle v. Beadle, 551. v Bealafeld v. Slaughenhaupt, 377. Beall V. Cunningham, 124. Beall v. Mann, 14, 168. Beard v. Jones, 435. Beard v. Knox, 543. Beardsley v. Hotchkiss, 140. Beardsley v. IJacey, 232. Bean v. Com., 484, Beatty v. Universalist See, 350. Beatty's Estate, 294. Beatty's Estate v. Western College of Toledo, 19. Beauhien v. Cicotte, 113, 127. Bebb V. Penoyre, 351. Bebout T. Quick, 539. Beck V. McGillis, 365. Beck's Will, In re, 210. Becker v. Becker, 336, 414. Becker v. Chester, 133. Beckett v. Selover, 288. Beckford v. Parnecott, 262. Beckley v. LeffingweU, 454. Bedell, In re, 221. Bedell v. Fradenburgh, 361. Bedford v. Bedford's Adm'r, 326. ' Bedford's Appeal, 455. Bedlow, In re, 150, 156. Beebe, In re, 35. Beebe v. McKenzle, 24. Beekman v. Bonsor, 370. Beeks v. Rye, 135. Beers v. Narramore, 358, 382, 418. Behrens v. Baumann, 419. Behrens v. Behrens, 259, 260. Beidman v. Sparks, 488, 548. Beilstein v. Beilstein, 360i 417. Belcher v. Belcher, 524. Belfield v. Booth, 318. Bell, Appeal of, 399. Bell V. Nesmith, 458. Bell V. SmaUey, 382. Bell V. Watkins, 523. Bellamy v. Peeler, 48. Bellas' Estate, In re, 411, 477, 478. BeUedin v. Gooley, 204. Belshaw v. Chitwood, 225. Belt V. Lazenby, 74. • Belton V. Summer, 254. Benbrook v. Yancy, 479. Bender v. Bender, 333. Benedict v. Wilmarth, 540, 548. Benesch v. Clark, 423. Benge t. Hiatt's Adm'r, 64, 72. Benjamin y. Welch, 359. Benjamin's^'Will, In re, 120. Benner y. Benner, 318. Bennett v. Bennett, 87, 168, 173, 559. Bennett t. Chapin, 491. Bennett v. Gaddis, 248. Bennett v. Harper, 537, 538. Bennett v. Hibbert, 100. Bennett v. Hutchinson, 84. Bennett v. Jackson, 46, 50. Bennett v. Packer, 412, 466, 519, 539. Bennett V. Sherrod, 232, 260. Bennett's Estate, In re, 99, 330. Bennett's Will, In re, 170. Benson v. Corbin, 455. Benson t. Linthicum, 387, 411. Bent, Appeal of, 297. Bent V. Thompson, 280, 288. Bentham v. Wilson, 380. Benton v. Benton, 440. Benton's Estate, In re, 283, 291, 292. Benyon v. Benyon, 500. Benz V. Fabian, 413. Berberet v. Berberet, 163, 217. Berdan's Case, 221. Beresford v. Stanley, 115. Berg's Estate, In re, 222, 223. Bergen's Estate, In re, 498. CASES CITED [Tbe figures refer to pages] -.565 Bergman v. Arnhold, 424. Bernard y. MinshuU, 28. Bernsee. In re, 164. Bernsee's Will, In re, 159, 221. Bernstein v. Bramble, 412. Berrien's Will, In re, 203. Berry v. Deposit Co., 87. Berry v. Trust Co., 121. Beshore v. Lytle, 466. Bessaub v. Noble, 32&. Best V. Best, 466. Best V. Best's Ex'rs, 113. Bestall V. Banbury, 83. Bethany Hospital Co. v. Philippi, 249. Bethea v. Bethea, 406, 431, 441, 444, 455. Bethel v. Major, 391. Betts V. Betts, 171. Betts V. Harper, 76, 77. Bettison v. Bromley, 205. Beurhaus v. Cole, 336. Bevan v. Cooper, 525. Bevans v. Bevans, 317. Bevans v. Murray, 425. Bevelot v. .Lestrade, 88, 155, 182, 285. Bever v. Spaugler, 109, 116, 117, 119. Bevins v. Phillips, 23. Bey, Succession of, 110, 118, 121. Beyer v. Le Fevre, 159, 291. Bibb dem. Mole v. Thomas, 227, 229, 260. Bible V. MarshaU, 537. Bice V. HaU, 94. Biddle v. Biddle, 46. Biddulph V. Meakin, 356. Bidwell, Succession of, 167. Bierce v. Bierce, 431. Bigley v. Watson, 436. Bigelow V. Bigelow, 437. Bigelow V. Gillott, 230, 231. Biggerstaff's Ex'rs v. A^m'r, 253. Bignold, In re, 557. Biles V. Dean, 282. BiU v. Payne, 335, 514, 516. Billings' Estate, In re, 57, 84. Billington v. Jones, 230. Bills' WiU, In re, 33. Bills V. Putnam, 319. Bims V. Collier, 114. Bing V. Burrus, 422. Bingham, Appeal of, 272. Bingham, In re, 530. Binning v. Binning, 427. Binns v. La Forge, 485. Bioren v. Nesler, 302. BirchaU, In re, 304. Bird V. Cross, 462. Bird v. Hawkins, 463, 542. Bird V. Jacobus, 63, 64. Bird V. Pope, 67, 70. Birdsall, In re, 95. Birdsall v. Birdsall, 452. Birdsall v. Hewlett, 442. Birks, In re, 328, 385. Birks V. Birks, 241. Birmingham v. Lesan, 459. Birt, Goods of, 188. Bishop T. Howarth, 349, 531. Bishop v. McClelland'a Ex'rs, 337, 368, 427. Bishop's Will, In re, 157. Bisson V. Railroad Co., 400, 404, 406. Black V. Foljambe, 161. Black V. Herring, 334. Black V. Jobling, 231. Black V. Jones, 386. Black's Estate, In re, 156, 157, 506. Blackborn v. Edgley, 356. Blackburn v. Blackburn, 474. Blacket v. Lamb, 538. Blackett v. Ziegler, 238, 242, 243, 263. Blaekman v. Edsall, 170. Blackman v. Fish, 454. Blaekman v. Schierman, 20, 23. Blackmer's Estate, In re, 356, 546. Blackmer's Ex'r v. Blackmer, 363. Blackshere v. Trustees, 332. Blackwood v. Damer, 151. Blaine v. Dow, 427. Blair, In re, 88, 154, 171, 172, 173, 185. Blair v. Johnson's' Heirs, 317. Blair v. Scribner, 498. Blair's Will, In re, 210. Blake, Trusts of, 337. Blake v. Pegram, 486. Blake v. Rourke, 118, 128, 130, 131, 163. Blake's Estate, In re, 190, 438. Blakeman v. Miller, 139. Blakeman v. Sears, 240. Blakemore, Succession of, 261, 506. Blakey's Heirs v. Blakey's Ex'x, 123, 124. Blanchard's Heirs v. Blanchard's Heirs, 211, 226. Blaney v. Blaney, 498. Bland v. Bland, 267. Blankenbaker v. Snyder, 377. Bledsoe's Ex'x v. Bledsoe, 154, 292. Bleidorn v. Mining Co., 311. Blight V. Blight, 433. Bliss V. Macomb Probate Judge, 297. Block V. Mauck, 522. Blodgett V. Moore, 249. Blodgett V. Stowell, 388. Blodwell V. Edwards, 145. Blood's WiU, In re, 118, 129. Bloodworth v. Stevens, 360. Bloomer v. Waldron, 489. Bloor V. Piatt, 281. Bless' Estate, In re, 539, 549. Blough V. Parry, 87, 105, 115. Blume V. Hartman, 285. Blundell v. Pope, 316, 496, 556. Blythe v. Ayres, 275. Boardman v. Mansfield, 368. Boardman v. Woodman, 99, 116. Boardman's Will, In re, 192. Boatman v. Boatinan, 449. Bobb, Succession of, 239. Bodman, In re, 366. Boehm, Goods of, 150. Boekemier v. Boekemier, 420. Bogert V. Batemen, 221. Bogart's Will, In re, 475. Boggs V. Boggs, 154, 159, 161. Bohanon v. Walcot, 235, 241. Bohleber v. Kebstock, 225. 666 CASES CITED [The fiEures refer to pages] Boileau's Estate, In re, 541. Boisaubin v. Boisaubin, 164. Boling V. Miller, 411. Boling's H«irs v. Boling's Ex'r, 21. BoUes T. Harris, 50, 51. Bolles' Will, In re, 156, 171. BolUng T. Boiling, 267i 271. Bolman v. Overall, 63, 70, 73. Bolton, In re, 145. Bolton V. Bank, 448. Bolton V. Bolton, 210. Boman v. Boman, 255. Bomar, In re, 296. Bonard'a Will, In re, 108. Bond T. Moore, 323, 337. Bond V. Seawell, 29, 193. Bone V. Tyrrell, 417. BoAnemort v. Gill, 120, 298. Bonner, In re, 380. Bonner v. Bonner, 378, 416. Bonnet's Estate, In re, 518. Bonnie's Guardian v. Haldeman, 542. Boofter v. Rogers, 47. Boon V. Castle, 21. Boon V. Cornforth, 333. Boone v. Lewis, 200, 208. Boone v. Bitchie, 114. Booth, In re, 186. Booth V. Baptist Church, 37, 38, 301, 497 578. Booth's Will, In re, 253. Boothe V. Cheek, 558. Boraston's Case, 437. Borden v. Jenks, 503. Borden v. Ward, 542. Boring v. Jobe, 508. Borlase v. Borlase, 232. Bostick V. Blades, 465, 466. Boston Safe Deposit & Trust Co. v. Buf- fum, 333. Boston Safe-Deposit & Trust CO. v. Cof- fin, 322, 337. Boston Safe-Deposit & Trust Co. v. Mix- "^ ter, 351. Boston Safe Deposit & Trust Co. v. Nev- in, 377. Boston Safe Deposit' & Trust Co. v. Par- ker, 400. Boston Safe , Deposit & Trust Co. v. , Stich, 410. Bottom V. Bottom, 119. Bottom V. Fnltz, 469. Boudinot v. Bradford, 260. Boughton-v. Boughton, 138. Boughton V. Knight, 92, 93, 99, 100, 119. Boughton V. Flint, 511. Bourke v. Boone, 325, 326. Bouser v. Kinnear, 28. Bouton V. Welch, 63. Bovard v. Wallace, 124. Bowditch V. Andrew, 375. Bowditch y. Ayrault, 436, 441. Bowdoin College v. Merritt, 20, 24. Bowen v. Allen, 297. Bowen v. Bowen, 412. Bowen v. Evans, 559. Bowen v. Johnson, 295. Bowen v. Hozie, 255. Bowen v. Sweeney, 174. Bower v. Bower, 87, 123, 131- Bowerman jv. Sessel, 430. Bowker v. Pierce, 486. Bowler v. Bowler, 23. Bowlin V. White, 410. Bowman v. Long, 437. Bowman v. Olrick, 547. Bowron v. Kent, 511. Bowser v. Mattler, 423, 425. Boyce's Estate, In re, 334. Boyd V. Boyd, 33. Boyd V. Cook, 79, 225. Boyd V. Eby, 110. Boyd V. Perkins, 380. Boyd V. Robinson, 387. Boyd V. Sachs, 447. Boyd V. Weber, 417. Boyd's Estate, In re, 388. Boyer v. Decker, 284. Boyer's Estate, In re, 91. Boyett V. Kerr, 287. Boyeus, In re, 200. Boylrin v. Ancrum, 416. Boyle V. Boyle, 259. Boyse v. Rossborough, 155, 157, 169. Brabham v. Crosland, 377. Brace v. Black, 105. Brack v. Boyd, 377. Bracken's Estate, 304. Brackney v. Fogle, 132. Braddock, Goods of, 209, 210. Bradford, Succession of, 183. Bradford v. Blossom, 150, 181, Bradford v. Bradford. 469. Bradford v. Glower, 50. Bradford v. Haynes, 496. Bradford v. Monks, 490. Bradhurst v. Field, 240, 349. Bradish v. Gibbs, 82. Bradish v. McClellan, 246. Bradley v. Games, 412. Bradley v. Palmer, 294. Bradley's Estate, In re, 366, 395, 518. Bradley's Will, In re, 367, 505. Bradsby v. Wallace, 386, 415. Bradshaw v. Butler, 419. Bradshaw v. Roberts, 287. Bradt v. Hodgdon, 488. Bradway v. Holmes, 424. Brady v. Brady, 360, 422, 505, 506. Brady v. Cubitt, 251. Brady v. McBride, 111. Brady v. McEnroe, 165. Brady v. Smith, 64. Braham v. Burehell, 83, 262, 264. Brainerd v. Cowdrey, 498. Bramell v. Adams, 430, 431. B^am^ll v. Cole, 316, 419. Bramhall v. Ferris, 469. Bramley, Goods of, 365. Brand v. "Rhodes' Adm'r, 421. Brand's Will, In re, 189. Brandenburg v. Thorndike, 553. Brandon v. Robinson, 469. Brandt v. Brandt, 336. Bransfield v. Wigmore, 488. Branstrator v. Crow, 117. CASES CITED [Tbe figures refer to pages] 567 Brant v. Brant, 336, 504. Brant v. Wilson, 239. Brantley v. Porter, 485. Brashears v. Orme, 122. Bratt, In re, 473. Brattle Square Church r. Grant, 133, 135. Brawley v. Collins, 352. 6ray v. Pullen, 395. Breathitt v. Whittaker's Ex'rs, 76. Breckinridge v. BrecKinrldge, 512. Breed v. Pratt, 111, 165. Bresee v. Stiles, 256. Breidenbach v. Walter's Ex'rs, 325. Breining's Estate, In re, 196. Brenchley v. Still, 280. Brendel v. Hansen, 419. Brengle v. Tucker, 180, 207. Brennan, In re, 444. Brennan v. Brennan, 458, 471. Brennan v. Winkler, S41. Bresler's Estate, In re, 512. Brett V. Donagh^'s Guard, 375, 376. Brewer v. Cox, 447. Brewster, In re, 229. Brewster v. Douglas, 412. Brewster v. Mack, 396. Brewster's Will, In re, 244. Briant v. Garrison, 322, 328. Brick V. Brick, 15, 123, 163. Bridge v. Bridge. 356. Bridle, In re, 505. BridweD y. Swank, 159, 165. Briggs' WiU, In re, 221. Briggs V. Carroll, 524. Briggs V. Hosford, 496. Brigham v. Fayerweather, 297. Brigham v. Winchester, 148. Brightman v. Morgan, 549. Brilliant v. Simpson, 301. Brimmer v. Sohier, 264. Brinckerhoff v. Farias, 364. Brinckerhoof v. Remsen, 194. Brine v. Ferrier, 500. Bringhurst v. Orth, 239. Brinton v. Martin, 416. Brinton v. Van Cott, 69. Brisbin v. Huntington, 385, 386. Briscoe's Devisees v. Wickliffie, 437. Brissell's Will, In re, 221. Bristol V. Ontario Orphan Asylum, 346. Brit, Goods of, 42. Britt V. Rawlings, 421. Brock, Ex parte, 285. Brock V. Luckett's Ex'rs, 218. Brock's Estate, In re, 263. Broderick's Will, In re, 296. Brodie v. Barry, 271. ^ Brogan v. Barnard, 58. Bromberg v. McArdle, 364. Bromfleld v. Crowder, 438. Bromley v. Atwood, 559. Bromley v. Gardner, 407. Bromley v. Mitchell, 21. Bromley's Estate, In re, 159. Brommer's Will, In re, 171. Bronsdon v. Winter, 506. BroDBon v. Strouse, 487. Brook V. Chappell, 51, 237. Brooke v. Ward, 224, 237. Brookhouse v. Pray, 438. Brookman, In re, 228, 231, Brooks, In re, 503. Brooks V. Barrett, 113,, 116, 121, 127. Brooks v. Belfast, 138, 516. Brooks V. Brooks, 524. , Brooks V. Hanna, 314. Brooks' T. Kip, 408, 415. Brooks V. Ijynde, 554. Brooks V. Woodson, 211. Brooks' Will, In re, 411. 420. Broome V. Monck, 147 Brotiman v. Riehl, 621. Brotzman's Estate, In re, 465. Brower v. Fisher, 80. Brewer's WiU, 94. Brown, In re, 119, 282, 465. Brown v. Addison GUbert Hospital, 417, 451. Brown v. Avery, 22. Brown v. Baron, 532. Brown v. Beaver, 59 Brown v. Bell, 119. Brown v. Brown, 230, 242, 236, 347, 437, 440, 536, 542, 543. Brown v. Bryant, 416. Brown v. Clark, 249, 253. Brown v. Concord, 60. Brown v. Dysinger, 352. Brown v. Ferren, 460. Brown v. Fisher, 160. Brown v. Garten, 67. Brown v. Higgs, 517. Brooks v. Kip, 415. ' Brown v. Lippincott, 395. Brown v. Logan's Adm't, 534. Brown v. Mitchell, 88, 121, 129, 158. Brown v. Moore, 124. Brown v. Perry, 410. Brown v. Pick, 467. Brown V. Richter, 336. Brown v. Riggin, 264. Brown v. Scherrer, 254. Brown v. Sutton, 69. Brown v. Tallman, 550. Brown v. Taylor, 354. Brown v. Thompson, 251. Brown v. Thorndike, 238. Brown v. Tuschoff, 326, 340, 387. Brown v. Vinyard, Bailey Eq., 302. Brown v. Walker, 218. Brown v. Ward, 103, 104. Brown v. Webster, 64, 77. Brown v. Wood, 218. Brown v. Wright, 388. Brown's Estate, In re, 258, 325, 382, 507, 510. Brown's Will, In re, 228. Browning v. Budd, 14. Brownrigg v. Pike, 2. Brubaker, Appeal of, 139. Bruce v. Bissell, 326. Bruce v. Goodbar, 455. Bruce v. Moon, 70. Bruce v. Shiiler, 201, 202. Bruce v. Sierra, 241 Bruch's Estate, In re, 465. 568 CASES CITBD [Th« fiEurea refer to pages] Brunor, In re, 120. Brunor's Will, In re, 162. Briinson v. Burnett, 48. Brunt V. Brunt, 232. Brush's Will, In re, ip2, 107, 142. Bryan, Appeal of, 37, 40. Bryan v. Milby, 479. Bryant v. Flanders, 399, 440. Bryant v. Pierce, l75. Bryant v. Thompson, 470. Bryant's Adm'r v. Dungan, 450, Bryce, Goods of, 183. Bryson v. Holbrook, 514. Buchan's WilL In re, 96, 219. Buchanan v. Belsey, 91, 102. Buchanan v. Buchanan, 455. Buchanan v. Hunter, 512. Buchanan v. Lloyd, 521. Buchanan v. Little, 140. Buchanan v. McLennan, 560. Buchanan v. Matlock, 306. Buchanan v. Pierie, 106, 107. Bucher v. Eaton, 66. Buckley v. Gerard, 255 Buckley's Will, In re, 161, 218. Bucklin v. Creighton, i424. Buchman's Will, In re, 90. Buckminster v. Perry, 131. Budd V. Haines, 404, 449. Budd V. WUson, 521. Budlong, In re, 119, 153, 173, 177. Buechle's Estate, In re, 307. Buel's WilL In re, 195, 221. Bulger V. Ross, 89, 119, 120, 130, 160, 162, 173. Bulkley v. Seymour, 5S2. Bull V. Pritchard, 438. BuU V. Wheeler, 103. BuU's WiU, In re, 90. BuUard V. Chandler, 433. Bullard v. GofEe, 351. Bullard v. Leach, 497. BuUin T. Fletcher, 247. Bullivant'a Will, In re, 185. Bullock V. Stones, 371. Bulmer's Estate, In re, 144. Bump's Estate, 300. Bunce, In re, 257. Bunch V. Hay, 553. Bundrick v. Haygood, 50. Bunnell v. Hixon, 81. Bunny v. Bunny, 240. Bunting v. Speek, 447, 452, Burbach v. Burbach, 487. Burbank v. Whitney, 144. Burchat v. Wollward, 461. Burden v. Lipsitz, 414. Burdett v. Hapgood, 141. Burdge v. Walling, 455, 471. Burdine v. Burdine's Ex'r, 64, 66, 69. Burdis v. Burdis, 460. Burford v. Aldridge, 447. Burgess v. Robinson, 459. Burgess t. Shepherd, 314. Burke v. Barrett, 445. Burke v. Millikin, 389. Burkett v. Whittemore, 297. Burkhart v. Gladish, 10.3, 108, 122. Burleigh t. Clough, 422, 488. Burieyson v. Whitley, 460. Burlington University v. Barrett, 21, Burney v. Allen, 197, 216. Burney y. Atkinson, 320. Burney v. Torrey, 87, 130, 132, 172. Burnham t. Burnham, 472. Burnham v. Comfort, 248, 510. Burnham v. Portw, 29. Burns T. Allen, 523. Burns v. Burns, 232, 419. Bums V. Clark, 461. Burns v. Smith, 64, 69. Bums V. Travis, 237, 278, 301. Burns' Estate, In re, 158, 166, 167, 17^ Burns' Will, In re, 114, 119, 120, 123. Burr V. Burr, 300. Barrage v. Briggs, 370. Burroughs v. De Couts, 545. Burroughs v. Jamieson, 323. Burrov7s v. Burrows, 121. Burrows' Estate, In re, 96. Burt V. Hillyar; 375. Burtenshaw v. Gilbert, 229. Burton v. Brown, 207. Burton v. Callingwood, 61. Burton v. Gagnon, 412. Burton v. Holly, 83. Burton v. Newbery, 265. Burton v. Provost, 447. Burton v. Scott, 124. Burton v. Wylde, 228, 260. Burton Machinery Co. v. Davies, 534. Burton's WiU, In re, 253. Buschemeyer v. Klein, 332. Bush V. Delano, 174. Bush V. Lindsey, 276. Bush V. lisle, 156, 170. Bushby v. NewhaU, 369. Buskirk'v. Ragland, 317. Busser v. Walter, 357. BusweD V. Newcomb, 449. Butler, In re, 379, 530. Butler V. Butler, 335, 533. Butler V. Lowe, 403. Butler's Will, In re, 88, 163, 293. Butf s Estate, 294. Butterfield v. Hamant, 332. Butterfield v. Reed, 448. Buys V. Buys, 129, 130. Byers y. Hoppe, 27, 35. Bynum v. Bynum, 216. Bym V. Kleas, 358. Byrne v. Byrne, 167. Byrne v. France, 447. Byrne v. Fulkerson, 109. ' Byrne v. Hume, 316, 496. Byrne v. McGrath, 421. Byrne v. Weller, 422. Byrnes v. Gibson, 159. Byrnes v. Stilwell, 436. Cadge, Goods of, 236. Cadogan v. Ewart, 437. Cady v. Cady, 515, 526. Caeman v. Van Harke, 260. Cahill T. Owens, 309. T. Cain, 430, 431. V. Robertson, 418, Cain Cain V. Robertson, 418, 455. Cairns v. Smith, 520. Calder v. Curry, 531. Caldwell v. Boyd, 368. Caldwell v. Renfrew, 83. Caldwell v. Turner, 67. Calkins v. Calkins, 213. Calkins' Estate, In re, 179. Call V. Shewmaker, 418 Callaghan's Elstate, In re, 339. Callahan v. Robinson, 544. Callender v. Woodward, 512. Callaway, Goods of, 36. Callow V. Callow, 368. Calloway v. Cooley, 299. Calvert v. Boullemet, 553. Calvin v. Springer, 442. Cameron, In re, 522. Cameron's Estate, In re, 91, 156. Cameron, v. Parish, 413. Camp V. Shaw, 235. Camp's Estate, In re, 58, 307. Campbell v. Barrera, 157, 170, 174. V. Campbell, 54, 89, 91, 282. V. Carlisle, 154, 156, 159, 167, CASES CITED [The figures refer to pages] Campbell Campbell 170. Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Campbell Camahan, 87, 171. Clark, 404. Clou?h, 459. Foster, 469. French, 244. Gilbert, 22. Logan, 208. Martin, 510. McGuiggan, 173, 214, 302. Prescott, 363. Radnor, 500. Robertson, 438. Stok6S 448 Campbell's Will, In re, il5, 264, 266. Camplin v. Jackson, 295. Canada's Appeal, 120. Canatsey v. Canatsey, 192. Canfield v. Bostwick, 325. Canfield v. Canfield, 323, 326, 516, 517. Canfield v. Fallon, 329, 387, 444 Cann v. Cann's Heirs, 72. Camion v. Rucastle, 416. Capehart v. Burrus, 353, 366. Capper v. Capper, 164, 177. Capron v. Capron, 496, 502. Carberry v. Ennis, 521. Card V. Alexander, 257. Card V. Grinman, 224. Card's WiU, In re, 121. Carder v. Board, 144. Cardwell's Estate, In re, 88, 100. Carey v. Dennis, 21. Carey's Estate, In re, 254. 292. Carey's Will, In re, 195, 221. Garland's Will, In re, 164. Carle v. Miles, 77. Carleton v. Griffin, 40. Carlin v. Harris, 463. Carlton v. Carlton, 201, 202. Carman's Will, In re, 301. Carmichael t. Carmichael, 69, 75, Carmiohael 510. Camahan y. 569 V. Lathrop, 507, 508, 509, .. Hamilton, 107. Carney v. Kain, 325, 326, 443, 471. Carpenter v. Bailey, 102, 168, 298. Carpenter v. Calvert, 128. Carpenter v. Carpenter's Trustee, 483. Carpenter v. Hall, 167. Carpenter v. Hannig, 21. Carpenter v. Hatch, 122, 130, 168, 17L Carpenter v. Snow, 256. Carpenter's Estate, In re, 131. Carpenter's Will, In re, 94, 115. Carper v. Crowl, 542. Carr v. Bredenberg, 442. Carr v. Brown, 299. Carr v. Smith, 328, 440. Carraway v. Moore, 299. Carrington (Lord) v. Payne, 218. Carritt, Goods of, 240. Carrodus v. Carrodus, 465. Carroll V. Bonham, 48. Carroll v. Botsai, 521. Carroll v. Carroll, 148. Carroll v. Hause, 164. Carstensen's Estate, In re, 448. Carter v. Board, 516, 518. Carter v. Carter, 452, 461. Carter v. Dixon, 103. Carter v. Gray, 322, 372, 524. Carter v. Seaton, 214. Carter v. Strickland, 479. Carter's Adm'r v. Carter, 300. Carter's Will, In re, 94, 164. Cartwright v. Cartwright, 110, 117, lia Carter v. Worrell, 521. Carver's Estate, In re, 96, 169, 236. Case V. Hall, 521. Casey v. Casey, 459. Casey v. Lockwood, 384. Casey's Estate, In re, 375. , Cash V. Dennis, 166. Cash V. Lust, 89, 163, 301. Cashman v. Ross, 448. Casper v. Walker, 473. Cassem v. Kennedy, 558. Casson V. Dade, 214. Castell V. Fogg, 151. Castens v. Murray, 237. Castle's Estate, In re, 300. Caswell V. Robinson, 448. Catlett V. Catlett, 186, 187. Catron's Estate, In re, 556. Caulfield v. Sullivan, 538. Caulk's Lessee v. Caulk, 418. Cavanaugh's Estate, In re, 67. Cauvien, Succession of, 56. Cavariy's Estate, In re, 139, 398. Caviness v. Rushton, 63. Cawley's Estate, In re, 22, 77. Caywood v. Jones, 402. Central Trust Co. of New York v. Rich- ards, 334. Cessna v. Miller, 67. Chace v. Gregg, 444, 545. Chace v. Lamphere, 357, 358. Chaddick v. Haley, 154. Chadwick t. Chadwick, 316, 370, 570 CASES CITED [The figures refer to pages] Chadwick v. Tatem, 248. Chadwick v. Wilson, 422. Chafee v. Maker, 448, 449, 556. Challenger v. Sheppard, 408. Chamberlain, In re, 357. Chamberlain v. Berry's Ex'r, 548. Chamberlain v. Chamberlain, 269, 270. Chamberlain T. Husel, 431. Chamberlain v. Springfield, 337. Chambers v. Brailsfprd, 333. Chambers v. Chambers, 164. Chambers v. Davis, 547. Chambers v. McDaniel, 40. Chambers v. Sharp, 447. Chambers v. Union Trust Co., 418. Chambers' Guardian v. Chambers, 555. Chamblee v. Broughton, 341. Champion, In re, 362. Champney v. Bradford, 425. Chandler v. Barrett, 92, 110. Chandler v. Ferris, 87, 116, 157. Chandler v. Jost, 159, 173. Chanler v. New York El. R. Co., 440. Chapin v. Cooke, 466, '482. Chapin v. Parker, 239. Chaplin V. Leapley,' 148. Chapman v. Chapman, 274, 445, 448, 547. Chapman v. Cheney, 135, 137. Chapman v. Chick, 351, 372. Chapman v. Dismer, 253. Chapman y. Hart, 506, 507. Chappell V. Trent, 120, 127, 155, 172, 173. Oharch v. Charch, 340, 537. Charge v. Goodyear, 380. Charlier, In te, 432. Charlton v. Miller, 257. Charp V. Hall, 22. Charter v. Charter, 321, 344, 348. Chase v. Benedict, 488. Chase v.' Cartright, 485. Chase v. Darby, 433. Chase 7. Isherwood, 317. Chase v. Kittredge, 182, 199, 211, 213. Chase v. Ladd, 421. Chase v. Lockerman, 326. Chase v. Peckham, 391, 397. Chase v. Stockett, 138, 364. Chase v. Warner, 521. Chasy v. Gowdy, 384. Cheadle, In re, 341. Cheatham v. Gower, 401. Cheever y. North, 227, 241, 242, 300. Chenault v. Scott, 461. Chenault's Guardian v. Chenault's Es- tate, 395. Cheney v. Goldy, 157, 171. Cheney v. Plumb, 373. Cheney v. Price, 95. Cheney v. Selman, 395. Cherbonnier v. Goodwin, 447. Cherry's' Will, 213. Chesebro v. Palmer, 417. Chester County Hospital v. Hayden, 501. Cheston v. Cheston, 476. Chevallier's Estate, In re, 58. Chew, Appeal of, 446, 469. Chewning v. Mason, 423. Chewning v. Shumate, 447. Chicago Title & Trust Co. v. Brown, 299. Chichester v. Oxendon, 408. Chichester v. Quatrefagas, 22. Chick V. Ives, 322. Chilcott, Appeal of, 521, 530. Chilcott V. Hart, 133, 336. Chillcott T. White, 353, 354. Children's Aid Soc. of City of New York V. Loveridgel 206. Chipman v. Montgomery, 317. Ghrisman v. Chrisman, 88, 95, 114. Chrisman v. Wyatt, 24. Christian, Goods of, 207. Christmas v. Mitchell, 80. Christmas t. Whinyates, 260. ChristofEerson v. Pfennig, 441. Christopher v. Christopher, 250. Christopherson v. Naylor, 392, 393. Christy v. Badger, 347. Church v. Church, 517. Church V. Warren, 372. Churchill v. Jackson, 299. Chwatal v. Schreiner, 385. Cilley V. Cilley, 126. City of New Orleans v. Hardie, 516. ClafCey v. Ledwith, 87, 164. Olaflin V. Claflin, 553. Claflin V. Dewey, 482. Claflin's Will, In re, 191," 193, 194, 195, 211, 221, 292. Clagett V. Hawkins, 295. Claiborne's Estate, In re, 362. Clanton v.. Bstes, 445, 447. Clapham's Estate, In re, 103. Clapp V. Astor, 433. Clapp V. Fullerton, 103, 104, 127. Clapp V. Vatcher, 297. Clark, Appeal of, 259, 273. Clark, In re, 158, 185, 557. Clark V. Browne, 506. Clark V. Cammann, 453, 516. Clark V. Clark, 194, 427, 549. Clark V. Cordry, 71. Clark V. Denton, 490. Clark V. Goodridge, 432. Clark V. Hershy, 540. Clark V. HiU, 477. Clark V. Hornthal, 491. Clark V. Jetton, 509. Clark V. Mack, 383, 390, 518. Clark V. Marlow, 522. Clark v. Miller,. 199. Clark V. Morehous, 449. Clark V. Morrison, 123, 124. Clark V. Mosely, 329. Clark V. Parker, 466. Clark V. Sewell, 557. Clark V. Shawen, 447. Clark V. Turner, 302, 30a Clark V. Wilson, 512. Clarke, Goods of, 183. Clarke V. Burgoine, 508. Clarke v. Clarke, 3. Clarke v. Ransom, 21. 22, 33. Clarke v. Schell. 16T, 168. Clarke v. Serippa, 228. CASES CITED [The figures refer to pages] 571 Clark's Estate, In re, 312, 367. Clark's Will, In re, 211. Olarkson v. Pell, 448. Clary's Adm'rs v. Clary, 130. Claussenius v. Claussenius, 161. Clay V. Chenault, 413. Clay V. Layton, 22. Clay V. Smallwood, 492. Clay V. Wood, 410, 411. Clayson's Estate, In re, 313. Clayson's Will, In re, 311. Clayton v. Clayton, 503. Clayton v. Hallett, 361. , Clayton v. Liverman, 76. Clayton v. EoBards, 390. Clearspring Tp. v. Blough, 281, 297. Clements v. Horn, 248. Clements v. McGinn, 114, 120. Cleobury v. Beckett, 238. Cleveland v. Cleveland, 432. Cleveland's Will, In re, 173. Cliff's Trusts, In re, 27. Clifford V. Stewart, 474. Clifford V. Taylor, 125. Clifford's Estate, In re, 506. Clifton V.' Clifton, 96. Clifton V. Murray, 79. Cline V. Lindsey, 87, 130. Cline V. Scott's Ex'r, 554. Clingan v. Micheltree, 225, 227. Closs V. Eldert. 544. Clotilde V. Luitz, 523. Clough V. Clough, 250, 472. Clow V. Plummer, 311. Clowes, In re, 367. Clupper V. Clupper, 319. Clusky V. Burns, 413. Coalter's Ex'r v. Bryan, 206. Coates V. Semper, 294. Coats' Ex'r v. Railroad Co., 423. Cobb V. Macfarland, 540. Coberly v. Earle, 337. Cochran v. Brown, 206. Cochran v. Cochran, 417. Cochran v. Hudson, 341, 418. Cochran v. Schell, 315. Cochran's Estate, In re, 393. Cochrane v. Kip,' 448. Cock T. Cooke, 28, 33. Coddington v. Jenner, 304, 305. Codman v. Brigham, 138. Codv V. Bunn's Ex'r, 396. Cody V. Conly, 60. Cody V. Staples, 445. Coe, Appeal of, 549. Coe V. Hill, 467. , Coffman v. Coffman, 14, 335. Coffman v. Hedrlck, 158. Coffin V. Coffin, 198. Coffin V. Otis, 238. Cogan V. McCabe, 382. CogdeU's Ex'rs v. Cogdell's Heirs, 262. Coggeshall v. Home for Friendless Chil- CoK^hUi V. Kennedy, 153, 154, 157, 158, 160, 171, 172. 174, 175, 176, 177, 178, 289, 290. Coghlan v. Dana, 319. CogUin V. Coghlin, 77. Cohen v. Herbert, 426. Colbert's Estate, In re, 260. Colby V. Colby, 74. Colby V. Dean, 472. Colby V. Ddty, 441. Colcord V. Conroy, 249. Cole V. Edwards, 453. Cole V. Fitzgerald, 364. Cole V. Mordaunt, 45. Cole V. Proctor, 523. Cole V. Society, 74. Cole V. Wade, 338. Cole's Will, 104. Coleman v. Coleman, 139. Coleman v. Marshall, 89. Coleman v. Robertson's Ex'rs, 92, 119. ' Coleman's Estate, In re, 163, 164, 281. Coleman's Ex'rs v. Howell, 527. Coleman's Will, In re, 286. Coles, Goods of, 26. Coles V. Coles, 355. Coles' WiU, In re, 191. Collagan v. Burns, 260. CoUard V. CoUard, 230, 382. Colleton V. Garth, 507. Collett V. Collett. 462, 465. Collier v. Grimesey, 360,' 441. Collier v. Rutledge, 73. Collier v. Slaughter's Adm'r, 465. Collin V. Wilcox, 553.' Collins, Appeal of, 524. Collins V. Brazill, 165. Collins V. Burge, 466. Collins V. ColUns, 171. Collins V. Elstone, 245, 329. Collins V. Feather^ Ex'rs, 404. Collins V. Hoxie, 377. CoUins V. Kilroy, 165. CoUins V. Thompson, 415. Collins V. Towhle^, 94. Collins V. Wickwire, 422. Collins V. Williams, 416. Coffins' Will, In re, 279. Collister v. Fassitt, 475, 527. Colliver v. Taylor, 552. Collup V. Smith, 248. CoUyer v. CoUyer, 260, 300, 306. Colman, Goods, of, 214. Colt V. Colt, 240. Colton V. Colton, 2, 479. Colvin V. Fraser. 229, 307. Colvin V. Warford, 119. Comassi's Estate, In re, 253, 257. Comer v. Comer, 19, 21, 34. Commons v. Commons, 420. Com. V. Rogers, 128, 129. Com. V. Wellford, 387. Commonwealth Title Ins. & Trust Co., Appeal of, 452. Commonwealth Title Ins. & Trust Co. V. Gray, 131. CompKer v. Browning, 160, 175. Compton T. Compton, 329. Compton V. Sale, 511. Comstock V. Ecclesiastical Soc, 174, 206. Comstock V. Redmond", 475. Comstock V. Society, 116, 172, 223. Comstock's Estate, In re, 119. Oonant v. Stone, 460. 572 CASES CITED [He figures refer to pages] Conaty, In re, 130. Conaughton's Will, In re, 48. Conboy v. Jennings, 188. Coudit V. Eej/nolds, 486. Conger v. Lowe, 446. Congregational Church BMg. Soc. v. Everett, 134. Congregational Church in White Kiver Village V. Benedict, 520, 52T. Congreve v. Palmer, 393. Conkie v. Grisson, 395. Conklin v. Conklin, 167. Conklin v. Davis, 405. Conkling v. Asylum, 316. Conley's Estate, In re, 366. Conlin v. Sowards, 411. Connecticut Trust & Safe Deposit Co. V. HoUister, 384. Connelly v^ O'Brien, 401, 444. Conner v. Skaggs, 99. Connor v. Gardner, 337, 408, 416. Connor v. Sheridan, 461. Connor's Estate, In re, 543. Connor's Will, In re, 130. Conover v. Conover, 163. Conover v. Dennis, 533. Conoway v. Fulmer, 280. Conrad v. Douglas, 21. Conrad v. Long, 145, 461, 467. Conrades v. Heller, 203. Conron v. Conron, 525. Constantine- v. Moore, 413. Converse v. Mix, 156. Converse's Ex'r v. Converse, 93. Conway, In re, 42, 188, 189, 190. Conway v. Vizzard, 119. Conway's Estate, In re, 379. Coogler V. Crosby, 397. Cook V. Collier, 431. Cook V. Couch, 410. Cook V. Councilman, 378. Cook T. Dyer, 420. Cook V. Hayward, 441, 514, 554. Cook V. Holmes, 326, 329. Cook T. Lambert, 190. Cook V. Lawson, 545, 546. Cook V. McDowell, 441, 447. Cook V. Oakley, 371. Cook V. Weaver, 330. Cook V. White, 263. Cook V. Winchester, 215. Cook's Estate, In re, 65. Cooke, Appeal of, 84. Cooke, In re, 228. Cooke V. Bucklin, 428. Cooke V. Piatt, 491. Cooke V. Safety Vault Co., 542. Cooke V. Turner, 470. Cooke V. Woman's Medical College of Pa., 321. Cooksey v. Hill, 396. Coombs V. Came, 512. Coon V. Coon, 335. Coop, In re, 90. Cooper V. Bockett, 235. Cooper V. Cooper, 332, 443. Cooper v. Finch, 146. Cooper V. Haines, 492. Cooper v. Pearce, 341. Cooper V. Pogue, 54. Cooper V. Woolfitt, 357. Cooper's Will, In re, 120, 160, 161, 160. Cope V. Cope, 338. Copeland v. Copeland, 404, 406. Copley y. Ball, 298. Corey v. Springer, 414. Corker v. Corker, 253. Corle T. Monkhouse, 556. Corley v. Bishop, 489. Corley v. McElmeel, 299. Cornelius, Appeal of, 165. Cornelius v. Brawley, 291. Cornelius' Will, In re, 142. Cornell V. Green, 348. Cornell's Will, In re, 166, 167, 178, 217., Coming's Will, In re, 313. Corporation, etc., v. Collins, 380. Corr V. Porter, 265. ■ Corrigan v. Jones, 311. Coryell's Will, In re, 282. Cory's Ex'r v. Cory's Adm'r, 542. Coryton v. Helyar, 335. Cosgrove's Will, In re, 305. Cossey v. Cossey, 245. Cotter V. Layer, 249. Cotton V. Stenlake, 333. Cottrell, In re, 219, 221. Cottrell's Estate, In re, 66. Cotting, V. De Sartiges, 272, 491. Cottmah v. Grace, 484. Couch V. E'astham, 408, 556. Couch V. Gentry, 89. Coulam V. Doull, 255. Coulson V. Alpaugh, 28, 477. Coulthurst V. Carter, 393. Councill V. Mayhew, 113, 167, 172. Cousens v. Advent Church, 276. Oousino V. Cousino, 420. Covenhoven v. Shuler, 332, 430. Coveny v. McLaughlin, 398, 401, 446.. Cover v. Stem, 2, 18, 27, 34. Covert V. Sebem, 318, 331, 345, 348.. Cowell's Estate, In re, 547. Cowdry's Will, In re. 111, 125, 165. Cowherd v. Kitchen, 526, 552. Cowles V. Cowles, 376, 507. Cowley V. Knapp, 33. Cox V. Anderson's Adm'r, 411, 428. Cox V. Cox, 15, 69, 291, 297. Cox V. Curwen, 384. Cox V. Handy, 447. Cox V. Harris, 517. Cox V. Johnson, 535. Cox V. Jones, 324. Cox V. Sims, 419. Cox V. Wills, 320, 475. Cox V. Wisner, 398. ,Cox's Estate, In re, 91. Coyle V. Coyle, 385. Cozzens' Will, In re, 182, 183. Crabtree v. Dwyer, 341. Craft's Estate, In re, 253. Crafts V. Hunnewell, 231. Craig V. Craig, 221. Craig V. Kittredge, 12. Craig V. Leslie, 142. Craig V. Rowland, 444. CASES CITED rrho figures refer to pages] Craig V. Southard, 115, 132, 217. Craig V. Trotter, 197. Craighead v. Given,. 370. Grain v. Wright, 410. Cramer, In re, 398. Crandall, Appeal of, 128, 172. Crane, In re, 453. Crane v. Bolles, 394, 485. Crane's Will, In re, 141, 163, 217, 479, Crapo V. Price, 436. Craven v. Winter, 21. Craw V. Craw, 435. Crawford, In re, 392, 509. Crawford, Goods of, 36. Crawford v. Clark, 449, 455, 456. Crawford v. Engram, 439. Crawford v. McCarthy, 497. Crawford v. Thompson, 465, 466. Crawford v. Wearn, 429. Crawford's Heirs ,v. Thomas, 300. Crawford's Will, In re, 209. Crawley v. Blackman, 447. Creamer v. Harris, 353. Creesy v. Willis, 533. Crerar v. Williams, 282, 318, 518. Cresap v. Cresap, 339, 475. Cressey v. Wallace, 409. Crew V. Pratt, 139. Crews' Adm'r v. Hatcher, 443. Crickett v. Dalby, 557. Criley v. Cassel, 420. Crissman v. Crissman, 330. Crist V. Schank, 442. Crocker v. Smith, 21, 25. Crockett v. Crockett, 474. Crockett V. Davis, 128. Croft V. Day, 15. Crofut V. Layton, 64, 69. Crommelin v. Crommelin, 464. \ Cromwell v. Cromwell, 420. Crook V. Whitley, 379. Crosbie v. McDoual, 263, 265. Crosby v. Crosby, 447. Crosby v. Mason, 38. Crosgrove v. Crosgrove, 316, 375, 382, 409, 428. Cross V. Cross, 32, 33. Cross V. Hoch, 330, 420. Cross V. Woodhull, 329. Crossan v. Crossan, 92, 158, 294. Crossett v. Clements, 522. Grossman v. Grossman, 36, 236. Grosson v. Dwyer, 318, 344, 362. Crosswell, Ex'rs & Adm'rs, In re, 298, 550. Grouse v. Wilson, 315. Crouzeilles, Succession of, 112. Crowell V. Kirk, 129. Crowninshield v. Crowninshield, 113. Growson v. Crowson, 87, 93, 120, 157, 158. Crozier v. Bray, 419. Crozier v. Cundall, 455. Cruger v. Phelps, 467. Cruger's Will, In re, 95, 161. Cruikshank v. Home for the Friendless, 517. Crum V. Sawyer, 249. 57a Crumb, In re, 15. Crumbaugh v. Owen, 107. Crump V. Chenanlt, 156. Crumpe v. Crumpe, 417. Grumpier v. Barfield & Wilson Co., 539,. 541. Crutchfield v. Greer, 413. Cruwys v. Golman, 474. Cudworth v. Beech, 34. Culbreth v. Godwin, 452. CuUen V. Woolverton, 71. Gulp V. Lee, 397, 404. Cummings v. Gummings, 399, 405. Cumminga v. Lohr, 362. Cummins v. Cummins, 285. Cummins v. Riordon, 358. Gundiff V. Seaton, 358. Cunningham, In re, 237, 238. Cunningham v. Cunningham, 215, 52L Cunningham v. Murray, 403. Cunningham v. Parker, .531. Cunningham's Estate, In re, 548. Cunnion's Will, In re, 241. Cureton v. Taylor, 199, 296. Curdy v. Berton, 479. Gurre v. Bowyer, 247. .- CurreU v. Villars, 311. Curry v. Patterson, 409. Curry v. Pile, 499. Curtis V. Fowler, 419, 447. Curtis V. Underwood, 289. Gushing v. Alywin, 325. Gushing v. Spalding, 412. Cushing's Will, In re, 433. Cushman v. Arnold, 401. Cushman v. Goodwin, 400. Cuthbert v. Ghauvet, 304. Guthbert v. Laing, 404. Cutler V. Cutler, 92, 159, 212, 227. Gutter V. Butler, 81. Gutto V. Gilbert, 239. D Dabney v. Bailey, 544. Daboll V. Moon, 467. Daintree v. Fasulo, 192. Dale, Appeal of, 120, 124, 154, 159, 16a Dale, In re, 194, 196. Dale V. White, 441. Dalhousie v. McDouall, 274. Dalrymple v. Gamble, 362. Dalrymple v. Leach, 412. , Daly, Settlement of, 274. Daly V. Daly, 122. Daly V. Greenberg, 385. Daly V. Wilkie, 521. Dammann v. Dammann, 230. Dammert v. Osborn, 269, 270. Damon v. Damon, 60, 61, 62. Damuth v. Lee, 537. Dan V. Brown, 124, 219. Dana v. Burke, 365. Dana v. Dana, 450, 493. Dana v. Murray, 427. Dana v. Sanborn, 447. Dane v. Wynn, 516. 574 CASES CITED [Tbe figures refer to pages] Danforth v. OaBkosh, 477. D'Angibaw, In re, 490. Daniel v. Daniel, 415. Daniel v. Hill, 22. Daniel v. Nockolds, 262. Daniel v. Smith, 11. Daniels, Goods of, 41. Daniels v. Eldredge, 437. Daniels v. Pratt, 147. Danley v. Jefferson, 243, 263. Dann v. Canfield, 373. Darby's Lessee v. Mayer, 267. Darling's Will, In re, 174. Darnell v. Buzby, 194, 195. Darragh, In re, 128. Dary v. Grau, 446. Dates, In re, 120, 222, 288. . Dauel V. Arnold, 531. Daugherty v. Rogers, 348. Daughters v. Lynchj 440, 447. D'Auterive, Succession of, 56. Davidson v. Bates, 447. Davidson v. Coon, 520, 525, 527. Davidson v. Davidson, 66. Davenport v. Coltman, 354. Davenport v. Davenport, 99, 102. Davenport v. Hanbury, 376, 384. Davenport v. Johnson, 172. ' Davenport v. Sargent, 525. Davies v. Davies, 384. Davies v. Hughes, 513. Davies v. Leete, 298. D' Avignon's .Will, In re, 127. Davis, Appeal of, 390. Davis V. Badlam, 539. Davis V. Cfhase, 370. Davis V. Close, 507. Davis V. Davis, 60, 142, 373, 397, 518. Davis V. Denny, l09. Davis V. Fogle, 257. Davis V. Inhabitants of Barnstable, 318. Davis V. Kerr, 382. Davis V. Kirksey, 423. Davis V. Kuck, 12. Davis V. Miller, 287. Davis v.Semmes, 207. Davis V. Sigourney, 307. Davis V. Upson, 277. Davis V. Whittak^r, 509. Davis' Estate, In re, 444. Davis' Will, In re, 55, 76, 281. Davison v. Kake, 555. Davys v. Boucher, 509. Dawkins v. Dawkins, 208. Dawson v. Macknet, 513. Dawson v. Smith, 306. Day V. Day, 15, 79. Day V. Roth, 474. Day V. Wallace, 830. Day V. Washburn, 72, 73. Dayger, In re, 190, 191. Dayger's Will, In re, 187. Dayman v. Dayman, 219. Deacon v. Cobson, 478. Deake, Appeal of, 211, 280. Dean v. Dean, 454. Dean v. Hart, 548. Dean v. Mumford, 335, 548. Dean v. Negley, 162. Dean v. Phillips, 87, 154. Dean v. Rounds, 496. Dean's Adm'r v. Atmore, 521. Deans v. Gay, 474, 479. Dearing v. Selvey, 475. Dearlove v. Otis, 340, 341, Deaves, Appeal of, 227. Deaves' Elstate, In re, 259. De Bajligethy v. Johnson, 24. De Bardelaben v. Dickson, 329. De Battle v. Fingal (Lord), 40. De Baun, In re, 161. Deck V. Deck, 154, 160. Decker v. Decker, 345, 348, 361, 365, 530. De Camp v. Dobbins, 144. De Conick v.- De Conick, 458. Deegan v. Wade, 422. DeflBis V. Goldschmidt, 338. Defoe V. Defoe, 161, 175. Defreese v. Lake, 349, 420. De Graff v. Went, 143. De'gman v. Degman, 424. De Groot, In re, 305. De Haas, In re, 219. De Haas' Will, In re, 191. De Hart's Will, In re, 187, 196. Bi Haven v.' Sherman, 432, 485. Deichman v. Arndt, 511. Delafield v. Parish, 91, 114, 115. Delaney's Estate, In re, 542. De Laurencel v. De Boom, 403. De Laveaga's Estate, In re, 501. Delavergne's Will, In re, 201. Del Bscobal, Succession of, 56. Deleglise's Will, In re, 301. Delehanty v. Pitkin, 294, 297. De Levillain v. Evans, l4l. Delgado v. Gonzales, 178. Delmar v. Delmar, 301. Delprat's Will, In re, 196. Demill v. Reid, 396, 452. Demoss v. Robinson, 68. Dempsey v. Taylor, 352. Demuth v. Kemp, 319. Den V. Trout, 353. Dench v. Dench, 236. Denfield, In re, 344, 476. Dengel v. Brown, 387. Denison's Appeal, 119, 174, 175, 176. Denlinger's Estate, In re, 398. Denlington (Lord) v. Pulteney, 76. Dennett v. Dennett, 335. Dennett v. Hopkinson. 357. Denning v. Butcher, 126, 129, 159, 167, 171j 173. Dennis v. Holsapple, 348, 374. Dennis v. Weekes, 120. , Denny v. Kettell, 452. * Denny v. Pinney's Heirs, 170, 195. Denson v. Mitchell, 330, 338. Dent V. Pepys, 333. Dent V. Pickens, 415. Denton, In re, 394, 471. Dentok v. Clark, 490. CASES CITED tThe figures refer to pages] 575 Denyssen t. Mostert, 76.^ Derbyshire's Estate, In re, 553. De Roux V. Girard, 311. Derse v. Derse, 493. Derse's Will, In re, 164, 301. Deseumeur v. Rondel, 75. Despard v. Churchill, 269. De Trafiford v. Tempest, 371. De Vaughn v. McLeroy, 447. Devecmon v. Shaw, 4o4. Devenney v. Devenney, 319. Devoe, In re, 383. Devol V. Dye, 11. Dew V. Clark, 99, 104, 119. Dew V. Dew, 312. Dew V. Reid, 290. Dewar v. Maitland, 542. Dewein v. Hooss, 489. Dewitt V. Barley, 127. Dewitt V. Yates, 499. De Wolf T. Middleton, 325, 388, 455. Dexter v. Codman, 282, 283. Dexter v. Harvard College, 37, 370, 518. Dexter v. Hayes, 551. Dey V. Williams, 511. Dexter v. Witte, 20. D'Huart v. Harkness, 272. Diamenf s Estate, 242. Dicke V. Wagner, 297, 382. Dicken v. Edwards, 526. Dicken v. McKinley, 68, 69, 70. Dickenson v. Blisset, 80. Dickerman v. Ailing, 387. Dickey v. Malechi, 309. Dickey v. Vann, 299. Dickie t. Carter, 119. Dickinson v. Barber, 131. Dickinson v. Dickinson, 15, 27, 204. Dickinson v. Henderson, 487. Dickinson v. Stidolph, 41, 43. Dickinson v. Swatman, 242. Dickison v. Dickison, 378. Dickson, Elx parte, 473. t Dickson v. Bates, 203. i Dickson v. Miller, 24. Dickson v. United States, 144. Dickson's Estate, In ri, 175. Dieffenbach v. Grece, 94. „,, ^ Diehl V. Middle States Loan Bldg. & Const. Co., 368. „^ Diehl's Estate, In re, 26. Diener, Estate of, 235. Diez's Will, In re, 77. Dill V. Harbeck, 72. Dill V. Wisner, 320. DUlard v. Dillard, 36o. Dillard v. Dillard's Ex'rs, 84. Dillman v. McDanel, 121. Dillon V. Faloon, 424. Dillon T. Gray, 74. Dillon V. Parker, 540. Dilworth v. Gusky, 410. Dinan v. Coneys, 551. Dingwell v. Askew, 506. Dinning v. Dinning, 58. Ditchey v. Lee, 457. Dixon V McCne, 544, Dixon V.' Solicitor to the Treasury, 233. Dixon's Will, In re, 95, 96, 156. Doan V. Vestry of Parish of Ascension,' 476. ~ Doane v. Hadlock, 235. Doane v. Trust Co., 485. Dobie V. Armstrong, li6. Dobson, Goods of, 60. Dockstader, In re, 222. Doekum V. Robinson, 47, 50, Dodd V. Winship, 447. Dodds V. Winslow, 427. Dodge V. Dodge, 483. ' Dodge V. Findlay, 217. Dodge V. Gallatin, 147. Dodson V. Sevars, 412. Doe ex dem. Allen y. Allen, 344. Doe ex dem. Biddulph v. Meakin, 356. Doe ex dem. Cadogan v. Ewart, 437. Doe ex dem. Canon v. Rucastle, 416. Doe ex dem. Cooper v. Hinch, 146. Doe ex dem. Cotton v. Stenlake, 333. Doe ex dem. Cross v. Cross, 32, 33. Doe ex dem. Elsmore v. Coleman, 408. Doe ex dem. Evans v. Evans, 2144. Doe ex dem. Gill v. Pearson, 468. Doe ex dem. Gord v. Needs, 342, 343. Doe ex dem. Haw v. Earles, 352, 355. Doe ex dem. Hick v. Dring, 352. ' Doe ex dem. Hiscocks v. Hiscocks, 844, 348. Doe ex dem. Hordsden v. Staple, 249. Doe ex dem. Ingram v. Roe, 146. Doe ex dem. Knapp v. Pattison, 185. Doe ex dem. Leach v. Micklem, 333. Doe ex dem. Morgan v. Morgan, 350. Doe ex dem. Patton v. Roe, 485. Doe ex dem. Perkes v. Perkes, 260. Doe ex dem. Perry v. Jones, 146. Doe ex dem. Roake v. Nowell, 438. Doe ex dem. Roberts v. Roberts, 354. Doe ex dem. Reed v. Harris, 225, 227. Doe ex dem. Shallcross v. Palmer, 236. Doe ex dem. Chillcott v. White, 353, 354. Doe ex dem. Small v. Allen, 152. Doe ex dem. Thwartes v. Over, 381. Doe ex dem. Thomas v. Beynon, 343. Doe ex dem. Tofield v. Tofield, 355. Doe ex dem. Westlake v. Westlake, 350. Doe ex dem. White v. Barford, 250. Doe ex dem. White v. Holton, 337. Doe ex dem. Williams v. Evans, 39, 41. Doe ex dem. Wolfe v. AUcock, 332. Doe ex dem. Wright v. Gooden, 447. Doe ex dem. Wright v. Manifold, 215. Doheny, In re, 533. Doherty v. Gilmore, 164, 175. Doherty v. Grady, 405. Dohn's Ex'r v. Dohn, 443. Dolbeer's Estate, In re, 121, 124. Dole v. Keyes, 403, 404. DombrowsM's Estate, In re, 185. Dominici, Estate of, 240. Donald v. Nesbit, 25. Donald v. TJnger, 47, 48. Donaldson, Goods of, 52. Donegan v. Wade, 470. Donges' Estate, In re, 320, 333. Donlon, In re, 295. Donlon v. Kimball, 306. 576 CASES CITED Cnie figures refer to pages] Donnan v. Donnan, 172. Donnelly v. Broughton, 218. Donner's WiU, In re, 190. Douohue V. Donohue, 340, 407. Donovan v. Bromley, 166. Doolittle's Estate, In re, 96. Doran v. Doran, ll. Dorr V. Ix)v6ring, 447. Dorr V. Wainwright, 484. Dorsey v. Dodson, 322, 326, 514, 518. Dorsey's Ciommittee v. Maddox, 415. Dorsey's Ex'r v. Dorsey's Adm'r, 269. Doten V. Doten, 556.' Doty T. Teller, 417. Dpuce, Goods of, 183. Dougherty v. Dougherty, 60. Dougherty v. McKagney, 96. Dougherty v. Thompson, 401, 444. Dougherty's Estate, In re, 192. Douglass V. Douglass, 505. Douglass V. Miller, 558. Douglass V. Sharp, 426. Douglass' Estate, In re, 95, 160, 167. Dove V. Johnson, 452. Dover v. Alexander, 378. Dovir V. Abbott, 421. Dow V. Doyle, 482. Dower v. Seeds, 227, 306. Downer, In re, 232. Downes v. Long, 449. Downey v. Murphey, 169. Downie's Will, In re. 213. Downing v. Bain, 334. Downing v. Grigsby, 324. Doyle V. Doyle, 175. Drake, Appeal of. 168. Drake v. Drake, 338, 348. Drake v. Lanning, 63, 66. Drake v. True, 497. Drake v. Wild, 536, 539. Drake's Will, In re, 300. Drew v. Drew, 382. Drew V. Hagerty, 12. Drew V. Wakefield, 370, 380, 459. Driver v. Ferrand, 531. Drum v. Capps, 91, 103. Drummond v. Parish, 52. Drury v. Connell, 213. Drysdale, Succession of, 312. Duane, Goods of, 150,^280. Dublin V. Chadbourn, 296. Du Boehet, In re, 391. Dubois V. Van Valen, 420. Ducasse's Heirs v. Ducasse, 57. Ducker V. Wear & Boogher Dry Goods Co., -449. Duckett's Estate, In re, 385. Duckmanton v. Duckmanton, 358. Duckworth v. Jordan, 372, 518. Duclos V. Benner, 319. Dudley r. Gates, 162, 237. Dudley v. Milton, 356. Duff V. Duff, 293. ' Duff V. Duff's Ex'rs, 512. Duffel's Lessee v. Burton, 246. Duffield V. Duffield, 436, 438. Duffield V. Elwes, 11. Duffield V. Morris' Ex'r. 121, 128. Duffield y. Eobeson, 90, 99, 168. Duffield V. Walden, 285. Dufour V. Pereira, 77. Duffy V. Hargan, 383. Duffy's Will, In re, 279. Dugan's Estate, In re, 112. Duggan V. McBreen, 96. Duggan V. Slocum, 138. Dukes V. Faulk, 387, 404. Dulany v. Middleton, 137, 333, 449. DuU's Estate, In re, 419, 433. Dulin V. Moore, 410, 413. Dunahugh's Will, In re, 241. Dunaway v. Smoot; 87, 157. Duncan v. Berry's Adm'r, 363. Duncan v. De Yampert, 376, 449, 456. Duncan v. Franklin To., 503. Duncan v. Wallace, 523. Duncan v. Watts, 503. Duncklee v. Butler, 336. Dunford v. Jackson's Ex'rs, 357, 498, Dunham v. Averill, 245, 345. Dunham v. Deraismes, 521, 527, 528. Dunham's Appeal, 104, 130. Dunham's Will, In re, 90, 170. Dunlap v. Dunlap, 262. Dunlap V. Fant, 415. Dunn V. Cory, 376, 377, 392. Dunn's Ex'rs v. Renick, 5P4. Dunning v. Burden, 451. Dunning v. Dunning, 531. Dunshee v. Dunshee, 328. Duperier v. Bervard, 288. Dupoyster v. Gagani, 311. Dupree's WiU, In re, 279. Dupuy V. Esnard, 57. Du Puy V. Mineral Co., 267. Dupuy V. Wurtz, 274. Durand, In re, 477. JDurant v. Smith, 479. Durbin v. Redman, 386. Durfee, In re, 395. Durfee v. MaeNeil, 415, Durham v. Northen, 39. Durham v. Smith, 105, 130. Dusbiber v. Melville, 467. Dusenberry v. Johnsoii, 438. Dutton V. Pugh, 398. Duvale r. Duvale, 63, 64, 74. Duvall's Estate, In re, 520. Dwyer's Will, In re, 167, 236. Dye V. Beaver Creek Church, 424. Dye V. Dye, 20, 25. Dyer, Goods of, 29. Dykeman v. Jenkines, 458. Dyson, In re, 524. E Eakins' Will, In re, 191. Earl V. Rowe, 360. Earl of 'Northumberlafld t. Earl ot Aylesford, 542. Earl of Sefton v. Hopwood, 156. Earl of Shrewsbury v. Hope-Scott, 460. Earle v. Coberly, 522. Barle v. Washburn, 483. Earnhardt v. Clement, 69. Earnhart v. Earnhart, 417, 626. CASES CITED [The figures refer to pages] 577 Earp V. Edgington, 154, 175. Barp, Appeal of, 434. Earnshaw v. Daly, 445. Easum m. Appleford, 370. East V. Garrett, 418. Easterbrooks v. Tillinghast, 483. Easterlin v. Easterlin, 250. '^ie3?177,1°7r28T''' ''*■ '''• ''"• Eastwood V. Crane, 66. - Eatley's Will, In re, 156. Eaton V. Brown, 60, 61. Eaton V. Eaton, 377. Eaton V. Straw, 488. Eberhardt v. PeroUn, 479. Ebrington v. Ebrington, 543. Eby V. Shank, 416. Eckersley v. Piatt, 233. Eckert's Estate, In re, 448. Eckford v. Eckford, 347, 370. Eddy V. Cross, 552. Eddy V. Kelly, 528. Edgar v. Edgar, 317. Edgerly v. Edgerly, 159. Edgeworth v. Edgeworth, 323, 327. Edmunds' Adm'r v. Scott, 504. Eflson V. Parsons, 63, 77. Edson's Will, In re, 168. Edwall's Estate, In re, 25. Edward v. Astley, 29. Edwards v. Edwards, 164. Edwards v. Fincham, 79. Edwards v. Hammond, 438. Edwards v. Jones, 11. Edwards v. Morgan, 540. Edwards v. State, 72. Edwards' Estate, In re, 278. Eeles, Goods of, 233. Eell's Estate, In re, 514. Egan, In re, 365. Efebers v. Egbers, 123, 217, 301. Ege V. He ring, 458. Egg v. Devy, 457. Eggers V. Anderson, 64, 70, 172. Eggleston v. Merriam, 497. Ehle's Estate, In re, 355. Ehler's Will, In re, 328, 333. Ehrenberg's Succession, 22, 33. Eichelberger's Estate, In re, 429, 432, 512, 513, 555. Eilbeck v. Wood, 249. Einbecker v. Einbecker, 432. Eisner's Estate, In re, 434. Eissler v. Hoppel, 284, 303. Ela V. Edwards, 29, 83, 190, 220. Elder v. Adams, 293. Eldred v. Meek, 133, 136, 137, 317, 336. Mdred v. Shaw, 420. Eldred's Estate, In re, 65. Eldridge v. Eldridge, 446. Eliot V. Carter, 328. Elbins V. Carsey, 401. Elkinton v. Brick, 117, 163, 195, 220. Elkinton's Ex'r v. Elkinton, 475. EUerson v. Westcott, 145. Ellicott V. Ellicott, 461. Ellington v. Dillard, 47. Gabd.Wills (2d Ed.)— 37 Elliot V. Brent, 204. Elliot V. Fessenden, 516. Elliott, Appeal of, 509. Elliott, In re, 428. Elliott V. Cheney, 22. Elliott. V. Elliott, 378, 475. Ellis, Goods of, 215. Ellis V. Aldrich, 428, 502, 503. Ellis V. Birkhead, 339, 467. Ellis V. Gary, 68. Ellis V. Darden, 252. Ellis V. Ellis, 294. EUis V. Pearson, 19. Ellis V. Secor^ll. Ellis V. Smith, 186. EUwanger's Will, In re, 170. Elmer's Will, In re, 294. Elmesley v. Young, 383. Elms V. Elms, 229. Elsmore v. Coleman, 408. Elwell V. Universalist Convention, 218, 219, 279, 375. Ely V. Ely's Ex'rs, 333. Elyton Land Co. v. McBlrath, 323. Embry v. Embry, 425. Emernecker, Estate of, 233. Emerson, Goods of, 183. Emerson v. Boville, 25L Emery, 250, 253. Emery v. Burbank, 68. Emery v. Clougb, 11, 12. Emery v. Darling, 64, 74. Emery v. Haven, 339, 492. Emery v. Society, 247. Bmmert v. Hays, 84. ' Emmet v. Emmet, 385. Emmons, In re, 280. Emmons' Will, In re, 37. Emory v. Emory, 526. Emuss V. Smith, 532. Enders' Ex'r v. Tasco, 479. Bndicott v. Endicott, 364. Bngel's Estate, In re, 428, 471. Engelthaler v. Engelthaler, 322. England v. Fawbush, 168. Engle's Estate,, In re, 311, 453, 554. Engleman v. Deal, 84. Englert v. Englert, 105, 155. English, In re, 22. English V. Cooper, 326, 516. 517. English V. English's Ex'rs, 544. Bnglish-McCaffery Logging Co. v. Clowe, 550. Ennis v. Pentz, 381. Enos V. Snyder, 148. Enos' Estate, In re, 511. Ensley v. Ensley, 320, 477. Entwistle v. Meikle, 92, 93, 114, 125. Episcopal City Mission v. Appleton, 457. Epling V. Hutton, 164. Erickson v. Robertson, 84. Ernst V. Foster, 330, 340, 422. Esmond v. Brown, 555. Eschbach v. Collins, 231. Esterbrook's Estate, In re, 177. Estes V. Bridgforth, 155, 171. Esty V. Clark, 380. 578 CASES OITBD [The figures refer to pagesj Etchison v. Etchison, 212. Ethridge v. Bennett, 115, 129, 130, 131, 159 178. ' > > I ■ Eubank v. Smiley, 422. Eureka liife Ins. Co. v. Geis, 377. Evans, Appeal of, 230. Evans v. Arnold, 113. Evans v. Evans, 244. Evans v. Folks, 423. Evans v. Evans, 244. Evans v. Henderson, 446. Efvans v. Hudson, 331. Evans v. Hunter, 497. Evans v. Iglehart, 430. Evans v. Jones, 354. Evans v. Price, 3. Evans v. Smith, 76, 412. Evans v. Weatherhead, 429. Evans' Estate, In re, 113, 122, 401, 448, 548. Evans' Will, In re, 110, 163, 282. EvansviUe Ice & Cold Storage Co. v. Winsor, 267, 268, 311, 312, 550. Evenson's Will, In re, 155. Everdell v. Hill, 75, 77, 298. Everett v. Carr, 325, 326. Everett v. Croskrey, 419, 549. Everett's Will, In re, 160. Everhart v. Everhart, 183. EJveritt's Estate, In re, 398. Ewing V. Barnes, 412. Eyer v. Beck, 405. Eysaman's Will, In re, 206. Fagan v. Jones, 496. Fair v. Angus, 336. Fair's Estate. In re, 336, 447. 'Fairchild v. Bascomb, 124, 129. Fairchild v. Bushnell, 385. Fairchild v. Edson, 28, 142, 476. Fairfax's Devisee v. Hunter's Lessee, 142. Faison v. Odom, 416. FaUon's Will, In re, 283. Fancher v. Fancher, 327. Fargo V. Miller, 400. Fargo V. Squiers, 140. Farley v. Farley, 219, 221. Farlin v. Sanborn, 425. Farmer v. Farmer, 91, 172. Farmer v. Kimball, 403. Farmers' Loan & Trust Co. v. Ferris, 315, 443. Farmers' Loan & Trust Co. v. Shaw, 492. Farmers' Trust Co. v. Borden, 377. Farnham v. Barker, 470. Farnsworth v. Whiting, 515. Famsworth's Will, In re, 88. Farnum v. Bascom. 498, 503, 504. Pamum v. Boyd, lOO, 166. Farr v. O'Keall, 264. Farrand v. Petit, 140. Farrar v. McCue, 490. Farrer, In re, 265. Farrington v. Putnam, 144. Farris v. Rogers, 468. Faulkner v. Sailors' Home, 346. Fawcett v. Jones, 14, 151. Feam v. Postelthvyaite, 205, 206. Fecht V. Henze, 414, 523. Fee V. Taylor, 114. Feeser v. Feeser, 18. Feit V. Richards, 412. Felkel v. O'Brien, 327. Fellows V. Miner, 269, 270. Pence's Estate, In re, 238. Fenstermaker v. Holman, 412. ^ Fenton v. Fenton, 364. Fenton's Will, In re. 111, 122, 124, 128, 130, 294. Fergus v. Schiable, 546. Ferguson-Davie v. Ferguson-Davie, 14, Ferguson's Estate, In re, 553. Ferguson's Will, In re, 269. Ferreck's Estate, In re, 498. Ferris v. Ferris, 421. Ferris v. Neville, 18. Ferry v. Laible, 489. Fesler v. Simpson, 38. Festing v. Allen, 438. Petherly v. Waggoner, 218. Pettyplace v. Gorges, 83. Feuchter v. Keyl, 288. Fickus, In re, 64. Fidelity Ins., Trust & Safe Deposit Co., Appeal of, 249. Fidelity Title & Trust Co., In re, 405. Fidelity Trust Co. v. Martin,' 511. Fidelity Trust & Guaranty Co., In re, 389 Field,' Appeal of, 218, 219. Field, In re, 37, 189. Field V. Log Driving Co., 288. Field V. Peeples, 449, 455. Fields V. Bush, 420. Fields V. Fields, 406. Fifield V. Van Wyck's Ex'r, 346, 470, 518. Figueira v. Taafe, 165, 384. , Finch Y. Combe, 229. Pinch V. Finch, 303. Finch V. Wilkes, 336. Finch's Case, 466. Finelite v. Sinnott, 359. Pink V. Leisman, 493. Finlay v. King, 333, 458, 459. First Baptist Church of Hoboken v. Syms, 524. First Nat. Bank v. De Pauw, 397, 415. First Nat. Bank v. Lee. 368. First Nat. Bank v. Nashville Trust Co., 469. First Nat. Bank v. Sharpe, 298. First Parish in Sutton v. Cole, 350. First Presbyterian Church in Village of Waterford v. McKallor, 479. Firth V. Denny, 370. Pish, In re, 380. Fishback v. Joesting, 387. Fisher v. Fisher, 458. Fisher v. Keithley, 510. CASES CITED [The figures refer to pages] 579 Fisher y. Spence, 203, 205. Fisher v. Wagner, 146. Fisher v. Wister, 454. Fish's Will, In re, 213. Fisk V. Attorney General, 517. Fisk V. Fisk, 383. Fiske V. Pratt, 291. Fitch V. Randall, 554. Fite V. Perry, 11. Fitzgerald v. Big Rapids, 140. Fitzpatrick v. Fitzpatrick, 339, 409. Fitzpatrick's Estate, In re, 399. Fitzsimmons' Estate, In re, 142. Flanagan v. Nash, 34. Flannery v. Hightower, 347. Flannigan v. Howard, 257. Flansburgh's Will, In re, 95. Fleetwood, In re, 203. Fleming v. Carr, 556. Fleming t. Fleming, 239. Fleming v. Hoffman, 311. Flemister v. Flemister, 550. Fletcher v. Gates, 30, 36. Fletcher v. Williams, 147. FUck V. Oil Co., 397. Flickwir's Estate, In re, 556. Flinn y. Flinn, 556. Flinn v. Owen, 211. Flint V. Wisconsin Trust Co., 386. Flint's Estate, In re, 179. Flood y. Kerwin, 212, 28& Floore y. Green, 178. Flora V. Anderson, 886. Florance, In re, 274. Flowers y. Flowers, 119. Floyd V. Floyd, 226, 239. Fluck y. Rea, 112. Flummerfelt's Ex'rs y, Flummerfelt, 361, 555. Flynii v. Holman, 362. Focha V. Focha's Estate, 295. Fogg y. Clark, 352. Fogle y. Church, 74. Foley y. O'Donaghue, 284. Foley y. Syer, 429. Foley's Will, In re, 185. Folks y. Folks, 166. Follansbee y. FoUansbee, 404. Folts' WiU, In re, 132. Fonnereau v. Poyntz, 502. Foote V. Foote, 279. Forbes y. Darling, 349, 411, 523. Forbes v. Gordon, 61. Forbes y. Lawrence, 500. Forbes' WiU, In re, 244. Ford y. De Pontes, 249. Ford y. Ford, 88, 226, 232, 260, 267, 268, 329, 498, 505, 506. Ford y. O'Donnell, 557. Ford y. Ticknor, 430, 492. Forepaugh's Estate,, In re, OOd. Forest Oil Co. y. Crawford, 378. Forman, Will of, 232. Forney y. FerreU, 123, 124. Forney's Estate, In re, 247. Forquer's Estate, Jg /e 61, 263. Forrest y. Porch, 386, 400. Forse & Hembling's Case, 249. Forsyth y. Forsyth, 473. Forsythe v. Forsythe, 423. Forsythe v. .Lansing's Ex'rs, 448. Fortner y. Wiggins, 199, 296. Fortune y. Buck, 205. Fosdick V. Fosdick, 138, 403. Fosselman y. Elder, 24, 33, 35. Foster, Appeal of, 259. Foster v. Clifford, 342. Foster y. Holland, 439. Foster v. McKenna, 416. Foster v. Smith, 349, 370, 413. Foster y. Stevens, 331. Foster y. Wetmore, 556. Foster v. Wick's Lessee, 438. Poster y. Willson, 478. Foster's Estate, In re, 163. Foster's Ex'rs y. Dickerson, 120, 128, 129, 130, 171. I Foster's WIU, 307, 425. Fothergill y. FothergiU, 124. Fouche's Estate, In re, 188. Fowler y. Duhme, 455, 468. Fowler y. Ingersoll, 140. Fowlkes y. Wagoner, 468. Fox y. Fee, 280, 449. Pox V. Fox, 476. Fox y. Hicks, 440. Fox y. Martin, 163, 171, 302. Fox V. Phelps, 457. Fox V. Setter, 367. Fox's Estate, In re, 171. Fox's Will, In re, 278. FoxweU V. Van Grutten, 416. Frahm's Estate, In re, 506. France's Estate, In re, 329. Francis, In re, 437. Francis v. Grover, 29. Francis y. Marsh, 252, 263. Francis' Will, In re, 228. Francks v. Whitaker, 387. Frank y. Frank, 377, 455. Frank y. Unz, 422. Franke y. Wiegand, 544. Franke's Estate, In re, 545. FrankUn v. Belt, 153. Franklin v. Franklin, 59, 219, 387, 401. Franklin v. Minertzhagen, 336. Franklin y. Osgood, 491. Franks y. Chapman, 209, Frary v. Gusha, 121, 122. Frasier y. IJttleton's Ex'rs, 530, 535. Prazer y. Hoguet, 283. Frazer y. Weld, 881. Frederick, Appeal of, 25, 32. Freeman v. Brown, 475. Freeman v. Freeman, 196, 239, 282. Freeman v. Morris, 65. Freeman v. Phillips, 467. French y. French, 61. French v. Raymond, 12. Freud's Estate, In re, 292. Freund y. Becker, 174. Frew y. Clarke, 2. Fricke, Jn re, 95, 105, 161. E'riend, In re, 555. Frieda's Estate, In re, 163, 469. Frierson v. Beall,, 47. Frink y. Pond, 202. Frisby y. Withers, 491. 580 CASES CITED [Tbe figures reter to pages] Fristoe V. Latham, 467. Frith, Goods of, 208. Frith, In re, 389. Frith V. Pearee, 57. Fritsche v. Fritsche, 343. Fritz V. Turner, 163, 183, Frost v. Blackwell, 460. Frost V. Courtis, 391.- H'rost V. Wheeler. 112, 300. Frothingham's, Will, In re, 230, 233. Frye v. Avritt, 512. Fry v. Jones, 164. Fry V. Morrison, 539. Fry V. Shipley, 365. Fuchs V. Fuchs, 64, 68. Fulbright v. Perry County, 100, 107, 144. Fullenwider v. Watson, 479. Fuller, Goods of, 190. Fuller V. Fuller, 200, 201, 463, 552. Fuller V. Wilbur, 420. Fuller V. Winthrop, 441. Fuller's Estate, In re, 357. Fulton V. Andrew,' 160. Fulton V. Freeland, 162, 179. Fulton V. Umbehend, 113. Fults' Will, In re, 189. Furbee v. Furbee, 330, 332, 421. Furenes v. Mickelson, 143. Furlong v. Carraher, 127, 163. Furness v. Fox, 441. Furrh v. Winston, 54. FusseU, Matter of, 513. Fussey v. White, 335. Gable v. Eauch, 157, 193, 221, 223, 285. Gadsden v. Desportes, 416. Gafney v. Kenison, 315, 357. Gage V. Gage, 21, 22. Gagan, In re, 206. Gaines, Succession of, 311. Gaines v. Hennen, 295. Gaines v. Lizardi, 58. Gains v. Gains, 225, 226. Galbraith v. Bowen, 358. Gallagher v. McKeague, 327, 353, 364. Gallagher v. Martin, 507. Gallagher v. Rowan's Adm'r, 518. Gallavan v. Gallavan, 518. Galiigan v. McDonald, 412. Gallisou V. Quinn, 428. Gallup's Will, In re, 168. Camber's Will, 196, 198. Gamble v. Bijtchee, 204. Gammell v. Ernst, 394. Gann v. Gregory, 281. ' Gannon v. Pauk, 415. Gannon v. Peterson, 454. Gannon's Will, In re, 105. Garard v. Yeager, 64, 66. GarCelou's Estate, In re, 284, 303. Gardiner v. Courthope, 231. Gardiner v. Gardiner,, 234. Gardiner v. Guild, 436. Gardner, Goods of, 259. Gardner, In re, 413. Gardner v. Frieze, 174, 175. Gardner v. Gardner, 112, 259, 261. Gardner v. Ladue, 311. Gardner v. McNeal, 497, 498, 505. Gardner v. Merritt, 141. Gardner v. Printup, 506. Gardner v. Whitford, 493. Garland v. Smiley, 442. Garland v. Smith, 176, 179. Garman v. Glass, 463. Carman v. Hawley, 443. Garn v. Garn, 544. i Gamett's Estate, In re, 42. Garrard v. Kendall, 412. Garrett v. Heflln, 168, 207. Garrison v. Blanton, 131. Garrison v. Hill, 449. Garrity'B Estate, In re, 431, 552. Garth v. Garth, 513. Garth v. Meyrick, 499. Garvey v. Garvey, 473. Garvey v. Guaranty Co., 299. Garvin v. Williams, 165. Gasquet v. Pollock, 487. Gass' Heirs v. Cass' Ex'rs, 29, 104, 107, 190. Gass V. Simpson, 12. Gassiot, In re, 473. Gaston's Estate, In re, 35, 346. Gates V. Cole, 109. Gates V. Seibert, 135, 377, 378, 391. Gatley's Estate, In re, 91. Gattward v. Knee, 52. Gaukler v. Moran, 419. Gaunt V. Stevens, 426, 427. Gaunt V. Tucker's Ex'rs, 11. Gay V. Dibble, 414. Gay V. Gay, 251, 255. Gay V. Gillilan, 159, 170, 171, 173. Geale, Goods of, 80, Gebhard v. Lenox Library, 315. Gedney's Will, In re, 188. Gee, In re, 190. Gee V. Hasbrouck, 552. Geery v. Skelding, 406. Gehrke v. State, 131. Geiger, Appeal of, 420. Geiger v. Geiger, 544. Geiser, Will of, 277. Geist's, Estate, In re, 431. Gelbach v. Shively, 504. Gelbke v. Gelbke, 231, 238, 239. Gemmell v. Wilson, 312. General Convention of New Jerusalem Church V. Crocker, 105. George v. Bussing, 81. George v. George, 277. George v. Green, 148. Georgia, O. & N. E. Co. v. Archer, 409. Georgia Infirmary v. Jones, 505. Geraghty v. Kilroy, 182, 206. Gerber's Estate, In re, 134, 325, 336. Gerbrich v. Freitag, 76. Gerhard's Estate, In re, 419. German v. German, 430. German Mut. Ins. Co. t. Lushey, 255. CASES CITED [The figures refer to pages] 581 German Pioneer Verein v. Meyer, 340. Gerrish v. Nason, 113. Geyer v. Wentzel, 338. Gfroerer. v. Gfroerer, 306. Gibbens v. Gibbens, 430. Gibbes v. Watson, 425. Gibbons v. Mahon, 434. Gibbons' Estate, In re, 363. Gibbs V. Marsh, 490. Gibson v. Dooley, 145. Gibson v. Gibson, 119, 120, 127, 129, 305, 413. Gibson v. Horton, 408. Gibson v. McCall, 144. Gibson v. Nelson, 211. Gibson's Will, In re, 188. Giddings t. Giddings, 240, 245, 372, 518. Giddings v. Turgeon, 181, 204. Gidley v. Lovenberg, 359. Gidney v. Chappell, 159, 166. Giffin V. Brooks, 231. Giffin's Estate, In re, 416. GifEord v. Dyer, 245. Gifford V. Rising, 521. Gififord V. Thompson, 434. Gihon's Will, In re, 95, 156. Gilbert, In re, 190. Gilbert t. Knox, 194, 198. Gilbertson v. Gilbertson, 531. Gilbreath v. Alban, 505. Gilchrist v. Empfield, 409. Giles V. Anslow, 411. Giles V. Irittle, 426. Giles V. Warren, 232. Gilham's Will, In re, 122, Gilkey v. Paine, 433. Gill, Appeal of, 557. Gill V. Gill, 227. Gill V. Pearson, 468. Gill V. Shelley, 378. Gillespie v. Allison, 445. Gillespie v. Boisseau, 432. 549. Gillespie's Will, In re, 263. Gillham v. Mustin, 22. Gillis V. GiUis, 207, 218. Gillis' Lessee v. Weller, 54. Gillman v. Daunt, 402. Gilman v. Ayer, 105, 162. Gilman v. Gilman, 269, 273. Gilman's Estate, In re, 239. Gilman's Will, In re, 190. Gilmer v. Stone, 343: Gilmer's liegatees v. Gilmer's Ex rs, 496. Gilmore v. Jenkins, 151. Gilmor's Estate, In re, 341, 362, 514, Gilroy v. Richards, 515, 545. Gingrich v. Gingrich, 436, 445, 450. Ginter v. Ginter, 155, 159. Ginter's Bx'rs v. Shelton, 381. Gites V. Gites, 393. Givens v. Ott, 16. , '-,. -Kir- Gladding V. St. Matthew's Church, 515. Gladstone v. Tempest, 34. Glancy r. Glancy, 190. Glascott V. Bragg, 254, 257. Glass V. Dunn, 532. Glass V. Scott, 230, 260. Glass' Estate, In re, 118, 141. Glasscock v. Layle, 507. Glasscock v. Tate, 318. Glouchester's Estate, In re, 298. Glover v. Baker, 477. Glover v. Condell, 429, 456. Glover v. Reid, 424. Glover v. Smith, 221. Glover v. Stillson, 424. Goad V. Lawrence, 20. Goad V. Montgomery, 316. Goble V. Grant, 110, 117. Goble's Will, In re, 557. Goblet V. Beechey, 240. Goddard v. Amory, 880. Godfrey, In re, 228, 229. Godfrey v. Smith, 46, 48, 49. Godman v. Converse, 547. Godshalk v. Akey, 430. Godwin v. Banks, 333, 413. Godwin v. Godwin, 277. Goerke v. Goerke, 27. 171. Goff V. Davenport, 21. GofE V. Pensenhafer, 460. Gold V. Judson, 325. Golder v. Chandler, 147, 504. Goldin V. Lakeman, 359. Goldsboro Lumber Co. v. Hines Bros. Lumber Co., 421. Goldsborough v. Washington, 334. Goldsmith v. Petersen, 413. Goldstein v. Goldstein, 63, 64, 73. Goldsticker's Will, In re, 232. Goldthorp v. Goldthorp, 217. Goldthorp's Estate, In re, 114, 131, 174. Goldtree v. Allison, 316. Goldtree v. McAlister, 312. Goldtree v. Thompson, 453. Gombault v. Public Adm'r, 117. Gomez v. Higgins, 18, 19. Gooch V. Gooch, 365, 402. Good V. Fichthorn, 413. Goodall V. Marshall, 267. Goodbar v. Lidikey, 120, 16& Goodell V. Pike, 284. Goodfellow V. Fish, 79. Goodfellow V. Shannon, 218. Goodfellow's Estate, In re, 497, 505. Goodin v. Goodin, 66. Goodloe V. Woods, 319. Goodrich v. Pearce, 420. Goodrich's Estate, In re, 480. Goodridge v. Schaefer, 396. Goodright v. Forrester, 146, 147. Goodright v. Glazier, 241. Goodright v. Harwood, 241. Goods of Hays, 53. ,,. . . . Good Samaritan Hospital v. Mississippi Valley Trust Cb., 555. • Goodsell, Appeal of, 254. Goodtitle v. Welford, 203. Goodtitle v. Whitby, 437. Goodtitle v. Wood, 146. Goodwin v. Colby, 516. Goodwin v. McDonald, 410. Goodwin v. McGaughey, 487. Gord V. Needs, 342, 343. 582 CASES CITED [The figures refer to pages] Gordon, In re, 223. Gordon v. Burris, 157, 164, 171, 175, 176, 217, 292, 345, 348. Gordon v. Gordon, 414. Gordon v. Hofifman, 240, 500. Gordon v. Jackson, 515. Gordon v. James, 504. Gordon v. Morrow, 103. Gordon v. Small, 389. GoEdon V. Smith, 499. Gordon v. Whitlock, 30, 239. Gordon's Case, 278, 313. Gordon's Estate, In re, 163. Gore V. Howard, 303. Gorgas' Estate, In re, 517. Gorham v. Dodge, 542. Gorkow's Estate, In re, 92, 100, 301. Gorman v. McDonnell, 524. Goss V. Withers, 425. Goudie v. Johnston, 430. Gough V. Land Co., 447. Gough V. Manning, 466. Gould V. Chamberlain, 500. Gould V. Chicago Theological Seminary, Gould V. Mansfield, 68. Gould V. Mather, 490. Gould V. SafiEord's Estate, S2. Gould V. Seminary, 195, 220. Gould V. Winthrop, 532. Gould's Will, In re, 243. Gourley v. Linsenbigler, 12. Gourley's Estate, In re, 430. Govan v. Wiley, 239. Govin V. Metz, 347. Gower v. Gower, 363. Grace v. Perry, 489. Grady v. Warrell, 551. Graham, In re, 219. Graham y, Abercrombie, 557. Graham v. Botner, 422. Graham v. Bureh, 225, 249. Graham v. Dcuterman, 109. Graham v. De Yampert, 366, 387. Graham v. Graham, 216. Graham v. Graham's Bx'rs, 66, 72. Graham v. Grugan, 361. Graham v. Heidrick, 421. Graham v. Knowles, 351. Graham v. Public Adm'r, 273. Grahaip t. Whitridge, 383. Grainger, In re, 343. Granaeher's WiU, In re, 307. Grand Fountain U. O. T. R. v. Wilson, 34. Grand Tower Min., Mfg. & Transp. Co. V. Gill, 298. Grant v. Grant, 68, 344. Grant v. Squire, 416. Grantham v. Gossett, 66. Grantley v. Garthwaite, 230. Grattan v. Grattau, 512. Graveley v. Graveley, 555. Graves v. Mitchell, 325. Gr^ V. Case School of Applied Science, 556. Gray v. Qarman, 392. Gray v. Whittemore, 389, 444. Gray's Adm'r v. Pash, 335, 339. Gray's Estate, In re, 370. Graybeal v. Gardner, 114. Graybill v. Warren, 556. Graydon v. Hicks, 466. Grayson v. Atkinson, 186. Greeley v. City of Nashua, 317. Green, In re, 163, 174, 385. Green iv. Alden, 270. 325. Green t. Britten, 539. Green v. Hayman, 332. Green v. Orgain, 72. Green v. Ponder, 559. Green v. Proude, 22. Green v. Skipworth, 27. Green v. Symonds, 507. Green v. Tribe, 265. Greene v. Greene, 87, 92, 274, 531. Greene v. Huntington, 384, 399, 448. Greene v. Kirkwood, 465. Greene v. Mallary's Estate, 420, 425. Green's Appeal, 379. Green's Estate, In re, 91. Greenhalgh v. MarggraflE, 420. Greenleaf s Estate, In re, 279. Greenough v. Cass, 334. Greenough v. Greenough, 182. Greenwalt v. Keller, 425. Greenwood, Goods of, 42, 234. Greenwood v. Greenwood, 499. Greer v. Chester, 386. Greer v. Greer, 88. Greffet v. Willman, 413. Gregg T. McMillan, 247. Gregory v. Gates, 299. Gregory v. Smith, 375. Gregory's Estate, In re, 175, 257. Greiner, Appeal of, 546. Gretton v. Haward, 542. Greves, Goods of, 41, 42. Grey v. Pearson, 323, 327. Grieves v. Rawley, 379. Griflin v. Griffin, 476. Griffin v. Shepard, 558. Griffin v. TJlen, 386, 390. Griffith V. DiffenderfEer, 169, 174. Griffith V. Higinbotom, 308. Griffiths V. Griffiths, 411. Griggs V. Griggs, 239. Griggs V. Veghte, 555. Grigsby's Legatees v. Willis' Estate, 24. Grimes v. Shirk, 416. Grimes v. Smith, 372. Grimes' Ex'rs v. Harmon, 333. Grimm v. Tittman, 196, 204. Grimmer v. Friederich, 399, Grindem v. Grindem, 540. Griscom v. Evens, 339. Griswold, In re, 405. Griswold v. Warner, 413. - Grogan v. Ashe, 509. Groot, In re, 164. Gross V. Burneston, 197, 290. Gross v. Moore, 486. Gross V. Newman's Adm'r, 67. Gross V. Strominger, 419. Grossman's Estate, In re, 46, 47, 49, 218. Grosvenor v. Boweu, 450. CASES CITED [The figures refer to pages] Grothe, Appeal of, 480. Grothe's Estate, In re, 335. grove v.Spiker, 166. Grubbs Estate, In re, 29, 36. Grubbs v. McDonald, 185. Grubbs v. Marshall, 193. 194. Gruenewald v. Neu, 414 Gryle v. Gryle, 185. Guardhouse v. Blackburn, 151. Gue, In re, 379. Guerard v. Guerard, 268. Guess V. Strahan, 320. Guest V. Willasey, 41. Gueydan v. Montague, 284, 330. Guild V. Allen, 403. Guilfoyle, In re, 182, 192. Gulick y. Griswold, 491. 583 Gunn, Appeal of, 174. Gunning's Estate, In re, 460, 467. Gunstan, Goods of, 191. Gurley v. Park, 96, 177. Guthrie v. Guthrie, 23. Guthrie v. Owen's Heirs, 47. Guthrie v. Waldrond, 539. Gutman v. Buckler, 491. Guy V. Osborne, 385. Guy v. Sharp, 500. Gwin V. Gwin, 161, 175, 292. Gwin V. Wright, 48, 49. Gwin's Estate, In re, 546. Gwin's Will, In re, 53. H Haack v. Weicken, 538. Haas V. Atkinson, 390. Habersham v. Vincent, 22, 38, 39. Haby v. Fuos, 541. Hacker v. Newborn, 155. Hackett v. Milnor, 491.- Hackney v. Tracy, 455. Hadden's WiU, In re, 497. Haddock v. Boston & M. R. Co., 279. Hadley v. Hadley, 478, 483. Hadley v. Simmons, 360. Hafner v. Hafner, 139, 322, 337, 454. Hagan v. Sone, 130. Hageman v. Hageman, 416. Haggerty v. IJoekenberry, 439. Haight, In re, 379, 467. Haines v. Haines, 232. Haines v. Hayden, 99, 119, 154, 157, 174. Haines v. Stewart, 261. Hair v. Caldwell, 422. Halbert's Will, In re, 107, 112, 156. Hale V. Audsley, 362, 372. Hale V. Hale, 68, 133, 137, 253, 372, 485. Hale y. Hobson, 445, 453. Hale V. St. Paul, 532. Haley v. Gatewood, 351, 361. Halford v. Halford, 62. Halford v. Wood, 499. Hall, Goods of; 29. Hall V. Blodgett, 334, 398. Hall V. Dench, 247. Hall V. Hall, 24, 155, 186, 191, 353, 550. Hall V. Harvey, 515. Hall y. Palmer, 332. Hall V. Perry, 87, 94, 102, 113, 1?8, HaU V. Warren, 110. HaU V. Waterhouse, 83. Hall V. Wiggin, 381, 440, 441, 452. Hall's Estate, In re, 257, 509. Hall's Will, In re, 90, 181. Hallet V. Bassett, 273. ' Halley v, Webster, 117. Halliday v. SticEler, 412. Hallifax v. Wilson, 442. Halsey v. Convention of Protestant Epia copal Church, 384. Halsey v. Episcopal Church, 28, 239. Halsey v. Goddard, 137. Halsey v. Paterson, 384. Hambel v. Hambel, 413, 424. Hambrooke v. Simmons, 13. Hamburger v. Rinkel, 120. Hamilton, In re, 295, 465, 479. Hamilton v. Hamilton, 124, 480, 489. Hamilton v. McQuillan, 554. Hamilton v. Ritchie, 325, 327. Hamilton v. Serra, 365. Hamilton v. Shillington, 303. Hamilton's Estate, In re, 246, 288. Hamlin v. Stevens, 377. Hamm v. Hutchins, 530. Hammell v. Barrett, 527. Hammer's Estate, In re, 322. Hammersley, In re, 353. Hammond v. Oroxton, 327, 412, 413. Hammond v. Dike, 119, 121, 122. Hammond v. Maule, 441. Hammond's Estate, In re, 526, 527. Hammond's Will, In re, 225, 258. Hamon v. Hamon, 104. Hampshire v. Peirce, 350. Hampton v. Westcott, 87, 164. Hampton V. Wheeler, 426. Hancock v. Lyon, 365, 366. Hancox v. Abbey, 526. Handberry v. Doolittle, 403. Handley v. Palmer, 43, 267. Handley v. Wrightson, 381. Handley's Estate, In re, 355, 356. Haney v. Gartin, 358. Hanley v. Coal Co., 134, 135, 459.' Hanley v. Kraftczyk, 278, 279. Hanly v. Hanly, 67. Hanna v. Prewitt, 315, 318. Hannig v. Hannig, 21. Hano's Estate, In re, 315. Hanrahan v. O'Toole, 87. Hansbrough's E's'rs v. Hooe, 510. Hansen, In re, 334. Hanson v. Graham, 439, 441. Hanvy v. Moore, 386. Hapgood V. Houghton, 457. Haraden v. Larrabee, 383. Harbison v. James, 420. Harcourt v. Morgan, 556. 584 CASES CITED [The figures refer to pages] Hard v. Ashley, 259, 517. Hard v. Davison, 240. Harden v. Hays, 117. Hardin v. Jamison, 313. Harding v. Harding, 453. Harding v. Schapiro, 277. Hardy, In re, 142, 236. Hardy v. Gage, 387. Hardy v. Martin, 118. Hardy v. Mayhew, 476. Hardy v. Merrill, 127. Hardy v. Richards, 543. Hardy v. Roach, 404. Hare v. Congregational Soc. of F., 450. Harkins, "Will of, 220, 221. Harkleroad v. Bass, 387. , Harkness v. Lisle, 468. Harlan T. Manington, 268. Harland v. Person, 534. Harlaud v. Trigg, 375. Harley v. Moon, 502. Harlow v. Scobee's Adm'r, 410. Harman's Estate, In re, 527. Harmon v. Dyer, 447. Harmon v. Smith, 530. Harmony Lodge, Appeal of, 112. Harp V. Parr, 29, 91, 118, 157, 160, 175, 195, 204, 218, 294. Harper v. Anderson, 358. Harper v. Baird, 415. Harper v. Harper, 58, 351. Harper v. Reaves, 20. Harper's Estate, In re, 63, 64. Harrel v. Harrel, 176, 2^3. Harrell v. Hagan, 388. Harris, Goods of, 230. Harris, In re, 36. Harris v. Anderson, 311. Harris v. Carpenter, 448. Harris v. Cook, 441. , Harris v. Dawley, 429. Harris v. Dodge, 533. Harris v. Fly, 442. Harris v. Harris, 222, 305, 307. Harris v. Harris' Ex'r, 460. Harris v. Ingalls, 390. Harris v. McCann, 409. Harris v. Wright, 460. Harris' Estate, In re, 512. Harrington v. Pier, 518. Harrington v. Stees, 48, 49. Harrison, Appeal of, 158, 280. Harrison, In re, 377. Harrison v. Bishop, 111. Harrison v. Elvin, 208. Harrison v. Foote, 462, 473. Harrison v. Foreman, 463. Harrison v. Harrison, 208, 462. Harrison v. McAdam, 384. Harrison v. Stanton, 301. Harrison v. Taylor's Adm'r, 547. Harrison v. Ward, 383. Harrison v. Weatherby, 312, 414. Harrison's Estate, In re, 379, 395, 499. Harrold, In re, 167. Hart, In re, 461, 463. Hart V. Darter, 317. Hart V. Hart, 64. Hart V. Johnson, 509. Hart V. Trelk, 333. Harter v. Harter, 151, 152. Hartford Trust Co. v. Purdue, 389. Hartford Trust Co. v. Wolcott, 384, 453. Hartman v. Strickler, 164. Hartop y. Whitmore, 508. Hartson v. Elden, 428, 520. Hartwell v. Martin, 40, 500. Hartwell v. Tefft, 384, 385. Hartwig v. Schiefer, 147, 343, 537, 542. Harwell v. Lively, 242. Harwood v. Baker, 15. Harwood v. Goodright, 241. Harvard College v. Balch, 450, 492. Harvard Unitarian Soc. v. Tufts, 497. Harvey, In re, 395. Harvey v. Ballard, 485. Harvey v. Chouteau, 41. Harvey v. Kennedy, 524. Harvey v. Sutton, 362. Harvey's Will, In re. 111, 125. Hascall v. King, 336. Haseltine v. Shepherd, 314. Haskett v. Alexander, 475. Hassam v. Hazen, 492. Hastie's Trusts, In- re, 145. Hastings v. Rider, 126, 127.,-, Hatch V. Caine, 421. Hatch's Estate, In re, 544. Hatchett v. Trust Co., 471. Hatfield v. Thorp, 204. Hathaway, Appeal of, 287. Hathom v. King, 94, 96. Hattersley v. Bissett, 530, 537. Hatton, Goods of, 210. Haug V. Schumacher, 336, 398, 448. Hauptman v. Carpenter, 447. Haus V. Palmer,' 48. Hauser v. Murray, 453. Havard v. Davis, 262. Haven v. Foster, 265. Haven v. Hilliard, 20p, 202. Havens v. Land Co., 449. Havens v. Sackett, 537, 538. Havens v. Van Den Burgh, 25I. Haviland v. Haviland, 447. Haviland's Wills, In re, 180. Haw V. Earles, 352, 355. Haward v. Peavey, 452. Hawes v. Humphrey, 201, 203. Hawes v. Kepley, 314. Hawes v. Nicholas, 243. Hawhe v. Chicago & W. I. R. Co., 256, 340. Hawke v. Euyart, 263, 467, 472. Hawkes v. Hawkes, 29. Hawkins v. Bohling, 447, 450, 549. Hawkins v. Everett, 402. Hawkins v. Hawkins, 204. Hawkins v. You'ng, 347. Hawley v. James, 546. Hawley v. Northampton, 328, 329, Hawthorn v. Ulrich, 450. Hay T. Coventry, 329. CASES CITED HTlie figures refer to pages] 685 Hayden v. Barrett, 145, 388. Haydoa v. "Willsbere, 376. Hayes v. Hayes, 245, 497. Hayes v. Moulton, 294. Hayes v. Seavey, 147. Hayes v. Sykes, 534. Haygood's Will, In re, 51. Hayne's Estate, In re, 264, 511. Haynes t. Haynes, 185, 192. Haynes v. McDonald, 523. Haynes v. Sherman, 137, 140. Haynesworth v. Goodwin, 485. Hays V. Ernest, 199, 267. Hays V. Freshwater, 513. Hays V. Jackson, 148. Hayward v. Loper, 507. Hayward v. Spaulding, 453. Haywood v. Wachovia Loan & Trust Co., 480. Hazard v. Eugs, 301. Hazard v. Gushee, 497. Hazard v. Stevens, 427. Head's Trustees, In re, 530. Heald v. Thing, 129. Healea v. Keenan, 120. Healey v. Bartlett, 214, 215. Healey v. Simpson, 64, 66. Healy v. Eastlake, 411. Healy v. Healy, 70, 135, 390, 397, 398, 405. Healy v. Reed, 270, 318. Healy's Wm, In re, 300. Heard v. Read, 320, 433. Hearn v. Purnell, 16. Heater v. Van Auken, 145. Heath v. Heath, 63, 64, -71, 73. Heath v. McLaughlin, 502. Heath v. Sampson, 274. ' Heathcote, Goods of, 39. Heathcote's Estate, In re, 528. Hebden's WiU, In re, 50. Heck V. Clippenger, 375. Heck's Estate, In re, 411. Hedgepeth's Will, 307. Hedges v. Harpur, 432. Hedges' WiU, In re, 164. Hegarty, Appeal of, 297. Hegney v. Head, 116, 164, 165. Heidenheimer v. Bauman, 486. Heidlebaugh v. Wagner, 331. Heilbrun's Estate, In re, 163. Heilman v. Heilman, 447, 451. Heilman v. Reitz, 335. Heise v. Heise, 188. Heise v. Wells, 558. Heisler v. Sharp's Ex'rs, 510. Heisse v. Markland, 402. Heizer v. Heizer, 433. HeUier v. HelUer, 241. Helnj V. Leggett, 542. Helsley v. Moss, 177. Heming V. Willets, 356. Hemingway's Estate, In re, 99, 102, 105, 290. „ , .on Hemphill's Estate, In re, 480. Heminway v. Reynolds, ^iiS. Hemming v. Olutterbuck. 500. Henderson v. Harness, 469. Henderson v. Henderson, 518. Henderson v. Simmons, 301. Henderson v. Vaulx, 430. Henderson v. Walthour, 416. Henderson's Estate, In re, 329. Hendrickson, In re, 365. Hendy's Estate, In re, 139. Henley v. Philips, 81. Hennegar v. Deadrick, 340, 341, 409, 532. Hennes v. Huston, 221. Hennes' Estate, In re, 192. Hennessey's Heirs v. Woulfe, 56, 57. Henninger v. Henninger, 413. Henriques v. Sterling, 519. Henry v. Griffis, 522. Henry v. Hall, 94, 119, 164, 168, 173. Henry v. Henderson, 551. Henry v. Pittsburg Clay Mfg. Co., 419. Henry v. Thomas, 405. Henry's WUl, In re, 96. Hensler v. Senfert, 426. Herbert v. Berrier, 184. Herbert v. Herbert, 52. Herd v. Catron, 467. Hernandez's WiU, In re, 179. Heron v. Heron, 503. Herrick v. Snyder, 77, 213, 377. Herring v. Patten, 341. Herring v. Ricketta, 288. Herrington v. 'Budd, 247. Herriot v. Prime, 440. Herr's Estate, In re, 392. Hersee v. Simpson, 448. Hersey v. Purington, 437. Hershey v. Bank, 422. Hershey's Estate, In re, 525. Hershy v. Clark, 76. Herster v. Herster, 174, 290. Herter v. Herter, 335. Hertz V. Abrahams, 322, 323, 417. Berwick v. Langford, 156, 160, 161. Hesdra's WiU, In re, 223, 280. Heseltine v. Heseltine, 507. Hess' WiU, In re, 172, 175. Hesterberg v. Clark, 234, 263, 293. Hetzel V. Hetzel, 533. Hewes v. Dehon, 532. ^ Hewlett V. Wood, 129. Hewitt V. Green, 330, 376. Hewitt's WiU, In re, 112. Heydenfeldt's Estate, In re, 532. Heywood's Estate, 474. Hiatt V. McCoUey, 200. Hibler v. Hibler, 499, 515. Hick V. Dring,'352. Hickling v. Fair, 448. Hickman v. Brown, 84. Hickman's Estate, In re, 2, 282. Hicks V. Smith, 378. Hicks' Estate, In re, 334. Hiers v. Gooding, 544. Hlester v. Yerger, 416. Higbie v. Morris, 532. Higginbotham v, Higginbotham, 157, leb. Higgins V. Carlton, 87, 116, 182. Higgins V. McQuirk, 300. Higgins V. Nethery, 287. High, In re, 274. 586 CASES CITED [The figures refer to pages] High V. Pollock, 438, 442. High's Estate, In re, 406. Hight V. Wilson, 112. Hildreth v. Marshall, 15, 149, 152, 195. HUeman v. Tuthill, 327, 526. Hill, Goods of, 52. Hill, Succession of, 225. Hill V. Bahrns, 120. Hill v. Barge, 212. Hill V. Bell, 58. Hill V. Bloom, 316. Hill V. Bowers, 403. HUl T. Dade, 319. Hill V. Fly, 91. Hm V. Giles, 416. Hill V. Harding, 76, 77, 552. Hill,v. Hilber, 499. HiU V. Hill, 545. HUl T. Page, 476, 478. Hill V. True, 445. Hills V. Barnard, 385, 398, 449, 452. HiUs V. Simonds, 137. HUlyer v. Vandewater, 140. Hilpire v. Claude, 257. Hilyard v. Wood, 230, 302. Hinckley v. Primm, 365. Hinckley v. Stebbins, 303. Hindman v. Haurand, 525. Hindman v. Van Dyke, 174. Hindmarsh v. Charlton, 207, 208. Hindson v. Kersey, 202. Hine, Goods of, 232. Hine, In re, 125. Hinkle v. Landis, 27. .Hinkle's Appeal, 419. Hinksou v. Iiees, 448. Hiscocks V. Hiscocks, 344, 348. Hise V. Fincher, 225. Hiss V. Weik, 157. Hitch T. Patten, 410. Hitchcock T. Peaslee, 431, 455. Hitchcock V. Shaw, 203. Hitchins v. Bassett, 241. Hitchler's WUl, In re, 191, 217, 220. Hite's Devisees v. Hite's Ex'r, 434. Hite's Estate, In re, 469, 470. Hitt V. Terry, 166. Hix V. Whittemore, 118. Hoadley, In re, 452. Hoadly v. Wood, 375. Hobart v. Hobart, 191, 218, 222. Hobbs T. Knight, 228, 229. Hobson V. Blackburn, 76. Hoch's Estate, In re, 405, 406. Hochstedler v. Hochstedler, 331, 408. Hodges V, Phelps, 527. Hodges' Legacy, In re, 459. Hodgin V. Toler, 490. Hodgkins v. Ashby, 544. HodgMns V. Hodgkins, 361. Hodgman v. Kittredge, 204. Hodgman's Estate, In re, 496, 547. Hodgson, In re, 355. Hodgson V. Ambrose, 329. Hodgson V. De Beauchesne, 273. Hodsden v. Lloyd, 82, 249. Hodnett, Will of, 278. Hodson V. Ball, 408. Hoerth v. Zable, 156, 159. Hoff, Appeal of, 533. Hofif's Estate, In re, 455. Hofeman v. Hoffman, 158, 211. Hoffman's Estate, In re, 170. Hoffner's Estate, In re, 63, 65, 74. Hogan V. Curtin, 466. Hogan V. Grosvenor, 211. Hogan V. Hogan, 437. Hogan V. Jackson, 352, 363. Hogg V. Browning, 520, 521. Hogg v. Cook, 379. Hoggar v.- Payne, 401. Hoggard v. Jordan, 545. Hogle V. Hogle, 344. Holt V. Hoit, 470. Hoitt V. Hoitt, 250, 254. Holbrook v. Harrington, 515. Holbrook's Estate, In re, 465. Holdfast T. Dowsing, 202. Holden v. Wells, 417. Holder v. Holder, 410. Holgate, Goods of, 221. Holgen V. Neale, 384. Holland v. Holland, 299. HoUenbeck v. Cook, 114. HoUey v. Larrabee. 239. Hollinger v. Syms, 104. HoUins V. Coonan, 331. Hollister v. Butterworth, 471, HoUister v. Howe, 317. Hollohan's Will, In re, 384. Holm V. Low, 452. Holman v. Perry, 82, 83, 297. Holman's Estate, In re, 154, 159, 160, 173. Holmberg v. Phillips, 94. Holmes v. Coates, 37. Holmes v. Dalley, 478. Holmes v. Holmes, 509. Holmes v. Mead, 487. Holmes v. Prescott, 438. Holmes v. Walter, 323, 477. Holmes' Estate, In re, 263. Holsen v. Rockhouse, 424. Holt V. Holt, 470. Holt V. Pickett, 415, 418. Holt V. Wilson, 334. Holt's Ex'r V. Deshon, 473. Holt's Estate, In re, 18, 379. Holt's Will, In re, 201, 204, 205. Holton V. Cochran, 105. Holyoke v. Holyoke's Estate, 299. Home for Incurables v. Noble, 240, 333. Homer v. Shelton, 331, 431. Homes' Will, In re, 260. Homet V. Bacon, 412. Honaker v. Starks, 327. Honywood, Goods of, 296. Hood V. Boardman, 482. Hood V. Bramlett, 422. Hood V. Dawson, 409, 418. Hood V. Haden, 424, 498, 5(S. Hooker v. Bryan, 437. Hooker v. Hooker, 140, 335. Hooks V. Brown, 282, 288. Hooper v. Smith, 396, 487. Hoopes' Estate, In re, 117, 124, 130, 397. CASES CITED [The figures refer to pages] 587 Hoover,' In re, 90. Hoover v. Hoover, 447. Hoover's Will, In re, 294. Hope V. Brewer, 140, 270. Hopewell v. Ackland, 354. Hopf V. State, 218, 282. Hopkins v. Gourand, 506. Hopkins v. Keazer, 406, 452. Hopkins V. Smith, 457. Hopkins v. Thompson, 557. Hopkins v. Wheeler, 129, 214. Hopkins' Will, In re, 227, 259. Hopkins' Trusts, 433. Hopkins University v. Pinckney, 239, 240. Hopper V. Harrod, 420. Hopiier V. Sellers, 339. Hoppe's Will, In re, 203. Horn V. Bartow, 211. Horn V. Broyles, 24. Horn V. Foley, 410. Horn V. Pullman, 91. Hornberger v. Miller, 391, 427. Home V. Featherstone, 213. Horsford, Goods of, 235. Horsford, In re, 190, 210, 229. Horstmann v. Flege, 544. Horton v. Barto, 297. Horton v. Cantwell, 315, 317, 318. Horton v. Earle, 517. Horton v. Johnson, 208. Horton v. Lee, 347. Horton v. TJpham, 320, 417. Hoscheid's Estate, 297. Hosea v. Skinner, 180, 339, 369. Hoselton v. Hoselton, 473. Hosea v. Jacobs, 137. Hoshauer v. Hoshauer, 14, 27. Hosman v. Willett, 424. Hoss V. Hoss, 462. Houck V. Patterson, 427. Houghton V. Bell, 404. Houghton V. Kendall, 384. Houser v. Paducah Lands Co., 312. Houston V. Wilcox, 295. Hovey v. Hovey, 539. Hovey V. Nellis, 444. Hovey v. Walbank, 414. Howard v. Francis. 547, 5o7. Howard v. Howard, 95. Howard v. Hunter, 230. Howard v. Moot, 114. Howard v. Smith, 320. Howard v. Society, 335. Howard v. Trustees, 416. Howarth v. Dewell, 28. Howat V. Howat's Ex'r, 114. Howden, In re, 36. Howe, Appeal of, 352, 656. Howe V. Hodge, 412. Howe V. Howe, old. Howe V. Rif^hards, 87 114 Howe V. Watson, 66, bo, 71, //. Howe Lumber Co. v. Parker, 547. Howel V. Price, 532. TTowell V. Ackerman, ooi. Howell l: Gifford, 383. 386, 447. Howell V. Knight, 420. Howell V. Shotwell, 430. Howell V. Troutman, 150. Howell V. Westbrook, 3§4. Howes V. Colburn, 128. Howland v. Howland, 326, 352, 403. Howland v. Seminary, 338. Howland v. Slade, 396. Howze V. Barber, 410. Hoy V. Hoy, 254. Hoyle V. Jones, 409. Hoysradt v. Kingman, 193. Hoyt V. Hoyt, 520. Hoyt V. Jaques, 489. Hoyt's Estate, In re, 88, 115, 155, 290, 336, 419. Hubbard v. Hubbard, 53, 230, 330. Hubbard v. Lloyd, 402. \ Hubbard's Estate .v. Huljbard, 340. Hubbuck's Estate, In re, 344. Huber V. Donoghue, 440. Huckabee "v. Swoope, 375. Huddleston's Goods, In re, 334. Hudgens v. Wilkins, 447. Hudnall v. Ham, 252. Hudson V. Hudson, 71. Hudson V. Hughan, 87, 95. Huff V. Browning, 330. Huffaker v. Beers, 89, 109. Huffman v. Graves, 163, 176. Huffman v. Young, 348. Hughes V. Allen, 370. Hughes V. Bank, 430. Hughes V. Clark, 387. Hughes V. Fitzgerald, 474, 479. Hughes V. Hughes, 140, 403. Hughes V. Hughes' Ex'r, 121. Hughes V. Knowlton, 377. Hughes V. Meredith, 168. Hughes V. Nicklas, 429. Hughes V. Pritchard, S54. Hughes V. Rhodes, 481. Hughes V. Turner, 280. Hughey v. Warner, 83. Hugo, Goods of, 77. Huidekoper v. Perry, 142, 268. Huie V. McConnell, 206. Hulett V. Carey, 254. Hulin V. Squires, 518. Hull, In re, 230. Hull V. Hull, 315. Hull V. Pearson, 383. Hull's Will, In re, 113, 197, 211, 217, 218, 222, 230, 387. Humble v. Shore, 370. Humphries v. Humphries, 505. Hunt, In re, 253, 533. Hunt, Goods of, 15, 40. 149. Hunt V. Evans, 40, 337. Hunt V. Hawes, 425. Hunt V. Hunt, 34, 330, 351. Hunt v. Smith, 430. Hunt V. White, 47. Hunt V. Williams, 360. Hunt's Estate, In re, 376, 387. Hunt's Will, In re, 221. Hunter v. Hunter, 546. Huntress v. Place, 393. Hurd V. Eeed, 156. 588 CASES CITED [The figures refer to pages] Hurdle t. Outlaw, 352. Hurlbut, In re, 163. Hurlbut's Will,. In re, 163. Hurley v. O'Brien, 177. Hursey v. Surles, 71. Hurst V. Beach, 500, 501. Hurst V. Von de Veld, 341. Huss, In re, 144. Huston V. Dodge, 315. Hutchins t. Pearce, 410. Hutchinson v. Gilbert, 524, Hutchinson v. Hutchinson, 94. Hutchinson v. Stephens, 408. Hutson v. Sawyer, 279. Huxtep V. Brooman, 354. Hyatt V. Vanneck, 537. Hlyde v. Heller, 550. Hyde v. Hyde, 233. Hyer v. Shobe, 147. Hylton T, Hylton, 225, 241. lasigi T. lasigl, 489. Ibbetson, In re, 229. Idle V. Cooke, 407. Idley V. Bowen, 232. Igo V. Irvine, 479. Ihrie's Estate, In re, 390. limas V. Neidt, 412. Illensworth v. Illensworth, 263. Inches v. Hill, 483. Inderwick v. Tatchell, 398. Ingalls' Will, In re, 127. Inge V. Jones, 40l. Ingersoll v. Gourley, 107, 283. IngersoU v. Hopkins, 252. Ingilby v. Aiiieotts, 146. Ingoldby v. Ingoldby, 264. Ingraham v. Ingraham, 138, 303, 397, 480. Ingram v. Roe, 146. Inhabitants of Abingtoiji v. Inhabitants of North Bridgewater, 273. Inhabitants of Dedham v. Inhabitants of Natick, 274. Inhabitants of Fayette t. Inhabitants of ChesterviUe, 128. Inhabitants of First Parish in Sutton v. Cole, 350. Inhabitants of Freetown v. Inhabitants of Taunton, 275. International Trust Co. v. Anthony, 199, 207. Iredale's Will, In re, 96, 105. Iredell v. Iredell, 402. Ironside v. Ironside, 329. Irvine v. Irvine, 471. Irvine's Estate, In re, 211. Irving v. McLean, 269. Irwin, Appeal of, 267, 269, 311. Irwin V. Jacques, 189. Isaac's Estate, In re, 184. Tsenhart v. Brown, 547. Isham V. Bingham, 46. Isner v. KeUey, 471, 522. Israeli v. Rodon, 251. Ive V. King, 392. Ives v. Canby, 505. Ives v. McNicoU, 268, 388. Ivison V. Ivison, 88. , Izard V. Hurst, 508. Jack V. Shoenberger, 264. Jackman v. Jackman, 395. Jackman's Will, In re, 119. Jackson, Appeal of, 546, 547. Jackson v. Alsop, 340, 394, 405. Jackson v. Betts, 260, 307. Jackson v. Bevins, 532, 533, 537. Jackson v. Durland, 205. Hoover, 330. Housel, 351, 352. Jackson, 187, 384, 385, 421, Jackson v. Jackson v. Jackson v. 512. Jackson v. Jackson's Adm'r, 22. Jackson v. KnifEen, 120, 225, Jackson v. Luquere, 323. Jackson v. Malin, 235. Jackson v. Phillips, 137. Jackson v. Shinnick, 240. Jackson v. Thompson, 316. Jackson v. Van Dusen, 117, 207. Jackson v. Varick, 147. J'ackson v. Westerfield, 469. Jackson v. Woods, 205. Jackson's Estate, In re, 397. Jackson's Will, In re, 472. Jacob v. Howard, 453. Jacob V. Jacob, 247. Jacobs, Appeal of, 365. Jacobs V. Button, 510, 532. Jacobs V. Ditz, 460. Jacobs V. Prescott, 375, 389. Jacobs V. Whitney, 268. Jacobs' Will, 208. Jacoby's Estate, In re, 27, 35, 263. Jacott's Will, In re, 157. James, Goods of, 232. James v. Dean, l48. James v. Langdon, 104. James v. Marvin, 241. James v. Smith, 379. James v. Sutton, 161. James White Memorial Home v. Eaeg, 117. James White Memorial Home v. Price, 299. Jameson v. Jameson's Adm'z, 406. Jamieson, In re, 524. Jamison v. Hay, 395. Jamison's Will, In re, 90. Janes, In re, 167. Jaques v. Horton, 278, 313. Jaques v. Swasey, 507, 510. Jarvis v. Pond, 393. Jaudon v. Ducker, 524. Jaudon v. Hayes, 446. Jauncey v. Thome, 219. Jeans, In re, 377. Jee V. Andley, 136. Jeffreys v. Jeffreys, "^62. Jeffries' Estate, In re, 60. Jele V. Lemberger, 282. Jenckes v. Probate Court, 110, 157 Co^ 550 "®'"^°°'' ^°°'^o=' & Globe Ins Jenkins v. Compton, 424. Jenkins v. Gaisford, 183. Jenkins v. Jenkins, 385. Jenner v. Finch, 212 Jenness v. Hazelton, 15. Jennings v. Jennings, 548. Jennings v. Neville, 25. Jennings v. Teague, 490. Jeremy's Estate, In re, 448. Jersey v. Jersey, 515. Jesse V. Parker, 209. Jesson v. Wright, 326. Jessup V. Fenton, 419. Jewell V. Barnes' Adm'r, 478. Jewett V. Jewett, 373. Jobe V. Dillard, 485. Jobson, In re, 453. Jocelyn v. Nott, 138. Jochumsen v. Bank, 299. Jodrell, In re, 380. Johannes v. Martian, 73. John's Will, In re, 2. Johnea v. Beers, 447. Johns V. Johns, 419. Johns Hopkins University v. Pinckney, 239, 240. Johnson, In re, 220, 411, 471. Johnson v. Armstrong, 117, 123, 154. Johnson v. Askey, 320, 400. Johnson v. Bank, 389. Johnson v. Battelle, 489. Johnson v. Bodine, 388, 405. Johnson v. Brailsford, 228. Johnson v. Brasington, 386. Johnson v. Cochrane, 99. Johnson v. Castle, 459. Johnson v. Conover, 498. Johnson v. Copeland's Adm'r, 269. Johnson v. Dumeyer, 490. Johnson v. Gallagher, 83. Johnson v. Gooch, 469. Johnson v. Goss, 533. Johnson v. Holifield, 517. Johnson v. Johnson, 18, 54, 84, 105, 114, 175, 200, 201, 333, 364, 410, 425, 498. Johnson v. Planting Co., 199, 410. Johnson v. Preston, 135, 468. Johnson .v. Simcock, 334. Johnson v. Smith, 13. Johnson r. Stivers, 114, 158. Johnson v. Warren, 458, 473. Johnson v. Webber, 399, 401. Johnson v. Whiton, 412. Johnson's Adm'r v. Johnson, 157. Johnson's Adm'r v. Longmire, 316. Johnson's Estate, In re. 111, 124, 163, 305, 366, 507, 508. Johnson's Will, Jn re, 94, 96, 118, 154, 165, 173, 221. Johnston y. Duncan, 644. CASES CITED tThe figures refer to pages] 589 Johnston v. Glasscock, 46, 48, 50 Johnston v. Knight, 404. Johnston v. Osmont, 420. Johnston's Estate, In re, 134, 136 Joiner v. Joiner, 240. Jolly's Will, In re, 187. Jones, In re, 100, 413. Jones V. Arterbum, 218. Jones V. Cable, 378. Jones. V. Casler, 305, 307, 309. Jones V. Collins, 117, 120, 126. Jones V. Deming, 424. Jones T. Grpgan, 87, 150, 174, 178. Jones V. Grieser, 205. Jones V. Habersham, 29, 30, 138, 144, Jones V. Hunt, 396. Jopes V. Jones, 114, 360, 398, 419, 429, 472. Jones V. Kelly, 283, 494. Jones V. Knappen, 448, 548, 558. Jones V. Larrabee, 200. Jones V. Moore, 451. Jones V. Moseley, 225, 258, 277. Jones V. Murphy, 241. Jones V. Newman, 344 Jones V. Nichojay, 34. Jones V. Perkins, 74. Jones V. Thresher Co., 467. Jones V. Quattlebaum, 347, 358. Jones V. Richards, 317. Jones ,v. Roberts, 114, 154, 155, 159, 174, 219. 297, 300. • • • "' Jones V. Selby, 13. Jones V. Simpson, 160, 164. Jones V. Southall, 505. Jones V. Tebbetts, 202. Jones V. Tuck, 215. Jones' Estate, In re, 228, 257, 382. Jones' Will, In re, 112, 277, 285. Jordan v. Hinkle, 415. Jordan v. Jordan's Adm'r, 17, 22. Jossey V. Brown, 459. Joumeay, In re, 173. Journeay's Will, In re, 90, 164. Journey's Estate, In re, 445. Joynes v. Hamilton, 505. Judd V. BUrrell, 63. Judevine's Ex'rs v. Judevine, 332. Jupp, Goods of, 373. Justus, Succession of, 476. K Kaenders v. Montague, 174 Kahn, In re, 103, 222. Kahn v. Hoes, 305. Kahn v. Tierney, 333. Kaiser v. Brandenburg, 349, 497. Kalbach v. Clark, 386. Kalish V. Kalish, 140, 317, 336. Kane, In re, 195, 222, 366. Kane v. Astor's Ex'rs, 326. Kansas City Land Co. v. Hill, 401. Kanouse v. Slockbower, 359. Kaplan v. Coleman, 314, 319. 590 CASES CITED [The figures refer to pages] Karrer's Will, In re, 213. Kasey v. Fidelity Trust Co., 283. Kastell V. Hillman, 75. Kaufman, Matter of, 253. Kaufman v. Burgert, 412. Kaufman v. Caughman, 127, 173, 175, 212. Kaufman v. Murray, 205. Kaufman's Estate, In re, 175, 177. Kaul V. Brown, 177. Kayhart v. Whitehead, 470. Kean's Guardian v. Kean, 488. Kearney v. Cruikshank, 432, 433. Kearney's Wills, In re, 183. Kearns v. Kearns, 498. Keating, Appeal of, 96. 'Keating v. McAdoo, 411. Keebler v. Shute, 291. Keech's Estate, In re, 556. Keefe v. Keefe, 66. Keefe's WiU, In re, 156, 166, 167. Keeler, In re, 300, 301. Keeler v. Keeler, 106, 107. Keeler v. Merchants' Loan & Trust Co., 37. Keely v. Moore, 117. Keep's Will, In re, 74. Keesy v. Dimon, 305. Kehoe, In re, 39. Keil V. Hoehn, 37. Keiper, Appeal of, 508. Keith V, Eaton, 268. Keith V. Johnson, 310. Keith y. Miller, 76, 479. Keith V. Scales, 26, 346. Keithley v. Stafford, 88, 92, 116, 130, 221. Keleman, In re, 479. Kell V. Charmer, 350. Kellan v. Kellan, 92. Kelleher v. Keman, 2. KeUers v. Kellers, 413, 414. Kellett V. Shepard, 400, 436. Kelley V. Devin, 73. Kelley v. Hogan, 326. Kelley v. KeUey, 122, 338. Kelley v. Welborn, 141. Kellogg V. Burnett, 314. Kelly. V. Aired, 84. Kelly V. Dike, 441. Kelly v. Gouce, 447. Kelly V. Miller, 107. Kelly V. Nichols, 518. Kelly V. Parker, 180. Kelly V. Richardson, 21, 25, 32, 240, 496, 498, 504, 531. Kelly V. Settegast, 172. Kelly V. Stevenson, 253. Kelly V. Williams, 410. Kempsey v. McGinniss, 128. Kempton, In re, 548. Kenan v. Graham, 387. Kenaday v. Sinnott, 326, 362. Kendall v. Case, 425. Kendall v. Clapp, 409. Kendall v. Gleason, 389, 481. KeiSdall V. Kendall, 363. Kendrick's Estate, In re, 99, 102, 105, 157, 164. Kenebel v. Scrafton, 250, 251. Keniston v. Adams, 278, 409, 516. Keniston v. Mayhew, 380, 383, 399, 423. Kenistons v. Sceva, 11, IZ, Keniston's Will, In re, 420. Kennedy v. Douglas, 47. Kennedy v. Hoy, 336. Kennedy v. Johnston, 543. Kennedy v. Kennedy, 356, 423. Kennedy v. Pittsburg & L. B. R. Co., 424. Kennedy v. Upshaw, 217, 223. Kennedy's Estate, In re, 442. Kennedy's Will, In re, 16, 259, 305. Kennell v. Abbott, 153. Kenney y. Parks, 25. Kenny v. Keplinger, 425. Kenrick v. Cole, 291. Kent V. Barker, 257. Kent V. Kent, 391, 517. Kent V. MahafEey, 225, 226. Kent v. Morrison, 414, 489. Kentucky Land & Immigration Co. y. Crabtree, 299. Kenyon, In re, 448. Kenyon v. Saunders, 281. Kern v. Kern,. 244, 286. Kerr v. Dougherty, 370. Kerr v. Lunsford, 89, 90, 93, 121, 122, 128, 156. Kerrich v. Brausby, 276. Kerrigan v. Conelly, 383, 549. Kerrigan v. Leonard, 165. Ketcham v. Ketcham, 420. Ketehum v. Corse, 335. Ketchum v. Stearns, 157, 185. Kettemann v. Metzger, 88, 92, 157, 161, 170, 171. Kevern v. Williams, 402. Key V. HoDoway, 15, 115. Key V. Weathersbee, 205, 206. Keyes v. Kimmel, 164. Keyl V. Feuchter, 194. Keys V. Wright, 559. Kidder v. Douglas, 547. Kidney's WiU, 150. ICiedaisch, In re, 130. Kiedaisch's Will, In re, 117. Kiefel v. Keppler, 413. Kiefer v. Gillett, 544. Kiesewetter v. Kress, 530, 547. Kllborn's Estate, 290. Kilburn v. Dodd, 318, 359. Kilgore v. Kilgore, 446, 449. Killmer v. Wuchner, 332. Kimball v. Ohappel, 379, 514, 516. KimbaU v. Society, 320. Kimball v. Story, 380. i Kimball's Will, In re, 365, 394, 428, 516. Kimberly, Appeal of, 99, 102. Kimberly's Estate, In re, 426. Kimble v. White, 331, 428. Kinard v. Riddlehoover, 277. Kindberg's WHl, In re, 166. Kine v. Farrell, 63, 70. King V. Bock, 414. King v. Cleaveland, 384. King V. Frost, 399. King y. Frick, 411. CASES CITED [The figures refer to pages] 591 King V. Holmes, 159, 163, 176. King V. King, 87, 28o, 318, 326. King V. Ponton, 293. King V. Savage, 384. King V. SkeUie, 539. King's Estate, In re, 63, 390, King's WiU, In re, 90, 167. Kingsbury v. Bazele?, 555. Kingsland v. Rapelye, 376. Kinkele v. Wilson, 334. Kinkead v. Ryan, 448, 449. Kinne v. Kinne, 100. Kinsey v. Lardner, 437. Kinsey v. Woodward, 543. Kiracofe v. Kiracofe, 84. Kirkholder's Estate; In re, 469. Kirkpatriek v. Jenkins' Ex'rs, 120. Earkpatrick v. Kirkpatriek, 405, 422, 423, 450, 547. Kirkpatriek v. Pyle, 19. Kischman v. Scott, 89, 164. Kisecker's Estate, In re, 19, 193. KitcheU v. Young, 525. Kivlin's Win, In re, 300. Kleeberg v. Sehrader, 63. Klett's WiU, In re, 222. BQing V. Schnellbecker, 404. Klinzner's Will, In re, 182, 201. Klock V. Stevens, 343, 367. Knapen's Will, In re, 234. Knapp V. Pattison, 185. Knapp V. ReiUy, 183. Knapp's Will, In re, 263. Knaub's Estate, In re, 522. Knight, Goods of, 34. Knight V. Cameron, 441. Knight V. Hollings, 278, 284, 313. Knight V. Knight, 304, 413. Knight V. Mahoney, 466. Knight V. Pottgieser, 447. Knight V. Selby, 408. Knight V. Tripp, 34. Knight V. Wheedon, 267, 268. Knight's Estate, In re, 89. Knoblauch's Will, In re, 339. BJioderer v. Merriman, 418. Knost V. Knost, 465. Knowles' Estate, In re, 33. Knowlson v. Fleming, 21. Knowlton v. Sanderson, 445. K I K:'ilt'i54, 157, 239, 242 Knox v. Richards, 46, 47. Knox's Estate, In re, 33, 35, l»-i, lad. Koeffler V. Koeffler 415. Koegel V. Egner, 118, 121, 168. Koenig v. Kraft, 421. Koger V. Koger, 338. Kohn's Estate, In re, 185. Kolowski V. Fausz 186, 209. Konvalinka v. Schlegel, 544. Koppel v. Holm, 267. Korf V. Gerichs, 407. Kom's Vm, In re, 521. Koss V. Kastelberg, 363. Koster v. GeUeu, 546. Kostelecky v. Scherhart, 28^ Kramer v. Kramer, 499, 509. Kramer v. Weinert, 92. Krankel's Ex'r v. Krankel, 161. Kratz V. Kratz, 420, 447. Krell V. Codman, 19. Kuhn V. Webster, 452. Kultz V. Jaeger, 14, 161, 179. Kuntzleman's Estate, Jn re, 416. Kunz V. Puster, 423. Kurtz V. Hibner, 339, 348. Kurtz's Estate, 377. ' Kyte V. Kyte, 426. La Ban v. Vanderbilt, 124, 177. Lacey v. Dobbs, 195, 211. La Chapelle v. Burpee, 471. Lackawanna Iron & Coal Co., In re, 433. Lacy V. Comstock, 21. Ladd V. Chase, 318. Ladd V. Ladd, 490. Ladd's Will, In re, 230. Laflin & Rand Co. v. Steytler, 472. La Foy v. La Foy, 520. Lahr v. Ulmer, 549. Laing v. Barbour, 352, 373. Laird v. Laird, 73. Lake v. Ranney, 172. Lakemeyer's Estate, In re, 58. Lamar v. McLaren, 377. Lamar v. Micou, 274, 275. Lamb v. Girtman, 164, 213. Lamb V. Lamb, 3, 119, 372. Lamb v. Lippincott, 130, loT. Lamb v. Lynch, 130. Lamb V. Parker, 247. Lamb's Estate, In re, 398. Lambaert's Estate, In re, 34. Lambden v. West, 458. Lambe v. Fames, 375. Lambe v. Drayton, 412. Lambie's Estate, In re, 237, 261, 308. Lamp V. Lippincott, 167. Lamphier v. Buck, 394. Lamprey v. Whitehead, 449. I>ancaster, In re, 2. Lancaster v. Lancaster, 6si, dab. Land v. Devoynes, 506. Landwehr's Estate, In re, 401. te ^^^^VkX%S, 259, 290, Lane T. Lane, 195, 211. I^ne V. Wilkins, 264. Lane's Will, Matter of, 359. Lang V. Everling, 476. Lang's Ex'r v. Lang, 366. Lani's Will, In re, 1(^, 192, 235. Lange v. Dammier, 289, 301. Lange v. Wiegand, 128, 129, 180. l:IS|don V'Ystor's'Bx'rs, 40, 265. 266. Langdon's Estate, In re, 340. Langford's Estate, 120. Langham v. Sandford, 344. Langley v. Langley, 181. Langley v. Tilton, 421. 592 CASES CITED [The figures refer to pages] Langmaid v. Hurd, 375. Langman v. Marbe, 412. Langslow v. Langslow, 538. Langstroth v. Golding, 533. Langworthy v. Golden, 520. Langworthy v. Chadwick, 4.S1. Lanning v. Gay, 204. Lanning v. Sisters of St. Francis. 356. Lanphier v. Buck, 392. Lantz T. Massie's Ex'x, 450. Lansing v. Haynes, 247, 257. Lapham's Will, In re, 117. Lardner v. Williams, 489. Larkin v. Larkin, 521. Larkin v. McManus, 545. Larkins v. Larkins, 230. Larmour v. Kicb, 452. Larrabee v. Hascall, 12. Larsen v, Jobnson, 425. Lasak, In re, 173, 279. Lasance's Estate,_ In re, 306. Lassiter v. Travis, 301. liatbam v. Schaal, 163. Latimer v. Latimer, 23. Lathrop v.' Merrill, 469. Latoucbe v. Latoucbe, 83. Latour, In re, 217. La Tourette v. La Tourette, 538. Latta V. Brown, 549. Lauck V. I^gan, 21, 22, 23. Laudy's Will, In re, 187, 191, 218. 221. Laugbton v. Atkins, 232, 239, 280. Lautenscblager, In re, 20, 21, 32. Lavender v. Adams, 29. Lavery v. Egan, 453. Law V. Acton, 240. Law V. Bouglass, 413. Law V. Law, 231, 260. Lawrence v. Barber, 326. Lawrence v. Crane, 386, 389, Lawrence v. Hathaway, 533. Lawrence v, Hebbard, 181. Lawrence v. Kitteridge, 269. Lawrence v. Oglesby, 65. Lawrence v. Smitb, 133, 335, 336. Lawrence's Will, In re, 130. Lawrie v. Lawrie, 300. Lawson v. Dawson's Estate, 58. Lawson, v. MuUinix, 72. Lawyer v. Smith, 260. Lay, Goods of, 53. Layman's Will, In re, 113. Leahy v. Campbell, 66. Leahy v. Cardwell, 368. Leach, Goods of, 230. Leach v. Burr, 114, 248. Leach v. .Micklem, 333. Leake v. Gilchrist, 267. Leake v. Robinson, 439, 441. Leake v. Watson, 336, 409, 429. Lear v. Leggett, 469. iLearned's Estate, 181. Leask v. Hoagland, 558. Leask v. Richards, 379. Leathers v. Gray, 329, 416.' Leathers v. Greenacre, 52, 54. Leavitt v. Beirne, 469. ' Lebeau v. Trudeau, 329. Le Breton v. Cook, 360. Lechmere v. Brotheridge, 83. Lodiger v. Canfield, 530. Ledwith v. Claffey, 88, 154. Lei V. Babcock, 429. Xj!!". v. Baird, 389. L»« V. Law, 419. Le- V. McFarland, 539. Lee V. O'Donnell, 453, 481, Lee V. Pain, 350, 500. Lee V. Shivers, 22. Lee V. Templeton, 538. Lee V. Vault Co., 424. Lee V. Welch, 399. Lee's Etetate, In re, 263, 265. Lee's Heirs v. Lee's Ex'r, 100, 107. Lee's Will, In re, 112. Leeming v. Sherratt, 441, 447, i Lefevre's Estate, In re, 120. Leggett V. Davison, 512. Xieggett V. Firth, 412, 425. Legwin v. McRee, 447. Lehman, In re, 440. Lehiflan v. Lindenmeyer, 178. Lehnard v. Specht, 447, Leigh, Goods of, 232. Leigh V. Byron, 378. Leigh V. Savidge, 522. Leighton v. Leighton, 436. Leiijer's Ex'rs v. Irvine, 14& Lemage v. Goodban, 239. Lemann v. Bonsall, 46. Lemayne v. Stanley, 186. Lenehan v. Spaulding, 142. Lenhart's Estate, In re, 92, Lennig's Estate, In re, 134. Lenz V. Sens, 341, 516, 517. Leonard, Ex parte, 184, 206. Leonard v. Hale's Adm'r, 490, Leonard v. Haworth, 548. Leonard v. Leister, 415. Leonard's Estate, In re, 239, Leppes V. Lee, 453. Lepps V. Lee, 449. Le Sage v. Le Sage, 420. Liese v. Miller^ 453. Leslie v. Maxey, 299. Lester v. Town of Pittsford, 128, L'Etourneau v. Henquenet, 452, Levengood v. Hoople, 466. Levering v. Orrick, 398. . Levis' Estate, In re, 167. Levy V. Levy, 486. Levy's Estate, In re, 365, Lewis, Goods of, 228. Lewis V. Barkley, 556. Lewis V. Fisher, 379. Lewis V. Howe, 448. Lewis V. Lewis, 79, 194, 208, 209, 221, Lewis V. Lusk, 370. Lewis V. Pitman, 423. Lewis V. St. Louis, 311. Lewis V. Schofield, 76. Lewis V. Shattuok, 552. Lewis V. Shropshire, 449. T^ewis V. Smith, 544. Lewis V. Standi, 426. CASES CITED [Tbe figures refer to pages] 593 Lewis' Estate, In re, 398, Lewis' Will, In re, 88. Idch V. Lich. 376. Lichter v. Thiers, 377. Liddington's Will, In re, 96. Likefield v. Ldkefield, 61. Lillard v. Reynolds, 327. Lillibridge's Estate, In re, 197. Lilly V. Tobbein, 278. Limas v. Neidt, 412. Lincoln v. Perry, 268, 273, 386, 389. Lindemann v, Dobossy, 287. Lindley t. O'Reilly, 312. Lindo V. Murray, 336. Ijndsay v. Lindsay, 60. Lindsey v. Stephens, 115. Lindsley v. Patterson, 549. Linebarger v. Linebarger, 176. Ldney's Will, In re, 173. Linginfetter v. Linginfetter, 242. Lingle v. Lingle, 170. Lininger, Appeal of, 430. Linkmeyer v. Brandt, 111, 232. Lipe V. Houck, 63, 64, 72. Lippincott v. Davis, 415. Lippincott v. Wikoff, 204. Idppincott's Estate, In re, 363. Lischy v. Schrader, 157, 294. Lisle V. Tribble, 71. Lister v. Bradley, 441. Lister v. Pickford, 355. lithgow V. Kavenagh, 408. Littig V. Hance, 506. Jittle, Appeal of, 416, 441. Little, In re, 147, 548. Little v. Colman, 476. Little V. Geer, 425. Little V. Giles, 340, 407. Little V. Little, 94, 163. Little v. Lockman, 58. Littler v. Dielmann, 466. littlewood's Will, In re, 420. Lively v. Harwell, 241. Livering v. Russell, 177. Livermore v. Somers, 384. Lives V. Bauerle, 491. Livingston, Appeal of, 124, 165, 286 Livingston v. Koenig, 423. Livingston's WUl, In re, 89. Lloyd V. Lloyd, 370, 443, 469. Lloyd V. MiteheU, 409. Lloyd V. Rambo, 328. Lloyd's Estate, In re, 326, 520. Locke V. James, 234. Locke V. Locke, 381. Lockett V. Lockett, 409. Lockhart, In re, 36. Loekhart v. Vandyke, 426. Lockman v. Hobbs, 387. Lockwood, Appeal of, 406. Lockwood, In re, 99, 159. Lockwood V. Lockwood, 311. Lockwood V. Mildeberger, 49J. Lockyer v. Savage, 469. Loder v. Whelpley, 168. Lodge V. Weld, 384. Lodge's WUl, In re, 90 Loeb V. Struck, 422, 452. Gaed.Wills (2d Ed.)— 38 285, Loennecker's Will, In re, 175. Loeser's Estate, In re, 96. Jjoewenstine's Will, In re, 99. Lofton V. Murchison, 409. Logan V. Bell, 250. Logan V. Brunson, 377. Logan V. Logan, 504. Logan V. McGinnis, 127. Logan V. Sills, 413. Logan's Estate, In re, 163, 170. Logue V. Batetaan, 430. Lomax v. Lomax, 339, 358. Lomax v. Shinn, 341, 418. Lombard v. Boyden, 370. Lombard v. Whitbeck, 320, 372, 415, 488. Lombard v. Willis, 401. Lomerson v. Vroom, 319. Lones v. Lones, 243. Long V. Aldred, 249, 262. Long v. Foust, 50. Long V. Labor, 393. Long V. Waldraven, 424. Long V. Zook, 183. Longacre v. Stiver, 520. Longchamp ex dem. Goodfellow v. Fish, 79. Longenecker's Estate, In re, 487. Longford v. Eyre, 212. Longer's Estate, In re, 21, 26. iLoocock V. Clarkson, 503. Look, In re, 192, 195. Loosing V. Loosing, 412, 413, 493. Loeb V. Struck, 422. Lord V. Lord, 202, 209, 543. Lord V. Moore, 409. Lord V. Pearson, 413, 428. Lord V. Simonson, 356, 523. Lord V. Sutliflfe, 500. Lord Carrington v. Payne, 218. Lord Denlingtou v. Pulteney, 76. Lord Orford v. Churchill, 379. Lore V. Stiles, 358. Loree's Estate, In re, 176. .Lorieux v. Keller, 255. Loring v. Arnold, 147, 419. Loring v. Games, 447. Loring v. Coolidge, 482. Loring v. Hayes, 428. Loring v. Society, 297, 554, 556. Loring v. Sumner, 26. Loring v. Thomas, 393. Loring V. Wilson, 526. Lorton v. Woodward, 360, 368, 498. Losee's Will, In re, 209. Losey v. Stanley, 449. • Lott V. Thompson, 387, 405. Louby V. Key, 99. Loucks' Estate, In re, 45a Loughney v. Loughney, 127. . . , . Louisville & N. R. Co. v. Sander's Adm'r, 304 Louisville Trust Co. v. Dohn, 325. . LouisviUe Trust Co. v. Southern Baptist Theological Seminary, 507. Louisville Trust Co. v. Todd, 481. Lovass V. Olson, 395. Love V. Blauw, 23. Love v. Johnston, 174, 266. 594 CASES CITED [Tbe figures reter to pages] Liovegrove, In re, 76. Lovell y. Charlestown, 553. Lovell V. Quitman, 231. Loveren v. Donaldson, 514, 516. Loveren v. Lamprey, 148. Liovering v. Balch, 240. liOvering v. Levering, 372. Lovett's Bx'rs v. Mathews, 299. Iiow V. Ramsey, 522. Lowe v. Cloud, 473. Lowe V. JoUifEe, 203, 219. Lowndes v, Cooch, 271. Lowndes v. Davis, 472. Lowman, In re, 133, 471. Lowry V. Farmers' Loan & Trust Co., 434. Lucas V. Duffield, 329. Lucas V. Goff, 46. Lucas V. Parsons, 105, 108, 111, 117. Lucas V. Todd, 287. Luce V. Harris, 379. Ludlam v. Holman, 486. Ludvrig V. Bungart, 317, 364. Lueft V. Lueft, 489. Luers v. Luers, 361. Lugg T. Lugg, 250. Luke, Goods of, 41. Lumpkin V. Lumpkin, 319. Lumpkin v. Rodgers, 479. Luper V. Werts, 193, 217. Lurie "V. Badnitzer, 256. Lusby V. Cobb, 383. Luscomb V. Fintzelberg, 319. Luscombe's Will, In re, 482, 557. Lushington v. Onslow, 229. Lusk V. .Lewis, 297. Luther v. Kidby, 246. Luther v. Luther, 284. Lutkins v. Leigh, 532. Lutz's Estate, In re, 246. Lycan v. Miller, 334. Lyddy's Will, In re, 118, 130, 161. Lyman v. Coolidge, 370, 391. Lyman's Will, In re, 198, 278. Lynch v. Melton, 461. Lynde v. Estabrook, 431. Lynn v. Beaver, 276. Lynn v. Hall, 396, 404. Lyon V. Brown University, 501. Lyon V. Dada, 152, 158, 164, 238. Lyon V. FideUty Bank, 384. Lyon V. Gleason, 312. Lyon V. Lyon, 380. Lyon V. Ogden, 311. Lyon V. School Ass'n, 557. Lyon's Will, In re, 206, 254. Lyons V. Campbell, 165. Lyons v. Van Kiper, 15. Lyons v. Weeks, 396. M Maben's Estate, In re, 471. McAdam v. Honey, 535. McAleer v Schneider, 349, 361, 418. McAllister v. Butterfield, 151. McAllister v. Rowland, 125. M( Andrew's Estate, In re, 294. McAnnulty v. McAnnulty, 252. Macaree v. TaU, 408. McBee v. Bowman, 286. , McBride v. Smyth, 333. McCabe, Goods of, 41, 235. McCaffrey v. Manogue, 407. McCamant v. NufikoUs, 427. McCann v. Barclay, 416. McCann v. Ellis, 292. McCann v. McCann, 416. McCarn v. Bundall, 207. 227, 304. McCartee v. Society, 144. McCarthy, In re, 95, 127. McCarthy v. McCartie, 521, 525. McCartney v. Osbum, 268. McCarty v. Fish, 419, 437. McCauley, Appeal of, 164. McCauley's Estate, In re, 266. McClain v. Capper, 146, 443. McClary v. Duckworth. 546. McClary v. Stnll, 106, 302, 335. MeClaskey v. Barr, 309. McClellan v. Larcher, 413. McClelland, Appeal of, 480. McClelland v. McClelland, 136. McClelland's Ex'x v. McClelland, 459. McClench v. Waldron, 406. McClernan v. McQernan, 475. McClintock's Estate, In re, 546. McClure, In re, 420. McClure v. McClure, 163. McClure v. Spivey, 299. McComb V. McComb, 448. McConnell v. Stewart, 438. McConnell v. Wilcox, 424. McConnell v. Wildes, 174, 177. MacConnell v. Wright, 410. McCoon V. Allen, 88, 114. McCormick, In re, 487. McCormick v. McEUigott, 455. MicCormick Harvesting Mach. Co. v. Gates, 425. McCorn v. McCorn, 523. McCoy V. Jordan, 118. McCoy's W;il, In re, 184. McCravey v. Otts, 467. McCrea's Estate, In re. 386. McCuUoch, Appeal of, 257. McCuHoch V. Campbell, 114, 156, 157. Mc&illough, Appeal of, 466. McCuUough's Adm'r v. Anderson, 422. McCuUough's Heirs v. Gilmore, 468. McCune's Devisees v. House, 51, 225, 267. , ' ' ' McCurdy v. McCallum, 478. .McCurdy v. Neall, 221, 263, 264. McOutehen v. Loggins, 286. McCutcheon v. Pullman Trust & Sav- ings Bank, 318. McDaniel v. Allen, 447. McDevitt, In re, 163. McDonald v. King, 491. McDonald v. McDonald, 290, 293, 391. McDonald v. Shaw, 537. McDpnald v. Taylor, 448. McDonald v. White, 282, 283. McDonnell v. Farrow. 287. McDougaU, In re, 552. CASES CITED [The figures refer to pages] 595 MoDougall's Will, In re, 192. McDowell v. Stiger, 442. McElwain v. Society, 457. McEnroe v. McEbroe, 165. McFadden v. Hefley, 503. McFadin v. Catron, 95, 154, 163, 173, 175. 217. McFarland t. Bush, 208. McFarland t. McFarland, 332, 407, 527. McFarlin, In re, 545. McFatridge v. Holtzolaw, 404. McFillin's Estate, In re, 399. McGee v. Porte^ 184. McGehee v. McGehee, 239. McGillis V. McGilUs, 385, 452. McGlaughlin v. McGlaughlin's Legatees, 530. McGoldrick v. Bodkin, 520. McGough V. Hughes, 341. McGovran's Estate, In re, 103, 372, 391, 436. McGowan, In re, 556. McGown V. Underhill, 116. McGrath v. Quinn, 549. McGrath v. Reynolds, 11. McGraw v. Miner, 420. McGraw's Estate, In re, 144. McGraw's WUl, In re, 96. McGuire, Appeal of, 466. McGuire v. Evans, 330. McHugh T. Fitzgerald, 128, 129, 171. McHugh V. McCole, 477. Mcllroy's Estate, In re, 107. Mclntire v. Mclntire, 235, 282, 303, 391, 403. Mcintosh V. Charleston, 144. Mcintosh V. Moore, 120, 259, 307. Mcintosh's Estate, In re, 328, 378. Mclntyre v. Mclntyre, 233, 413. Mclntyre's Estate, In re, 16, 20. Mackay v. Mackay, 556. Mackay's WiU, In re, 192 McKee's Estate, In re, 400. McKeen v. Frost, 218, 219. McKenna v. McMichael, 241. McKenna's Will, In re, 161, 195. McKensey v. McKensey's Ex r, 445. MacKenzie v. Jersey City Presbytery, 138 Mackenzie v. Mackenzie, 500. McKeough's Estate v. McKeough, 35b.; McKethan v. Ray, 319. McKie V. Gregory, 558. McKieman v. Beardslee, 514. Mackin's Estate, In re, 299. McKinley v. Coe, 531, »34. McKinney's Estate, In re, 300. McKinnon v. McKinnon, 20. McKinnon v. Thomnson, 148. Macknet v. Macknel, 545 McKnight V. McKnight, 422. McKnight v. Bead, 37b. McKniihfs Ex'rsv. Walsh, 435. McLain v. Howald, 37b McLane v. Cropper, 487. McLane's Estate, In re, 157, 161. McLarney's WiU, In re, 253. McLaughlin v. Penney, 440. McLean v. Barnard, 206. Maclean v. Fisher, 147. McLean v. Robertson, 501, 503. Maclean v. Williams, 405. Macleay, In re, 468. McLenahan v. McLenahan, 533. McLeod V. Dell, 54. Maclin, In re, 469. McLouth T. Hunt, 434. McMahon v. McMahon, 279. McMahon's Estate, In re, 497. McMaster v. Scriven, 96, 168, 286. McMechen v. McMechen, 114. McMeekin v. Smith, 408. McMillan v. Farrow, 423. McMillan v. McDill, 124. McMillan v. McMillan, 387. McMulkin, In re, 198, 211. McMurdo, Goods of, 53. McMurry v. Stanley, 328, 475. McMurtrie v. McMurtrie. 327. McNally v. McNally, 359, 521. McNamara, Succession of, 73. Macnamara v. Lord Whitwortli, 329. McNaughton v. McNaughton, 148, 324. McNeal v. Pierce, 515. McNeal v. Sherwood, 399. McNeely t. Pearson, 305, 307. McNeilledge v. Galbraith, 380. McNutt V. McComb, 412. McOnie v. Whyte, 24. McPherson's Will, In re, 110. McQueen v. Lilly, 341. McQueen v. McQueen, 542, 543. McQueen v. Wilson, 159, 165. McQuerry v. Gilliland, 542. McQuerry v. Wilson, 522. McReynolds v. Graham, 440, 553. McTaggart v. Thompson, 119. McVean v. Wagoner, 520. Maddock, Goods of, 208, 213. Maddox v. Maddox, 92, 113, 158, 163, 173. Maddox v. Maddox's Adm'r, 465, 473. Maddox v. Yoe, 421, 465. Mader v. Apple, 190. Madison v. Larmon, 134, 6J,a, 003. Magee v. McNeil, 60, 61. Magee v. O'Neill, 473 Magnus v. Magnus, 39, 40. Magnuson v. Magnuson, 516. Maguire v. Moore, 404. Mahoney v. Holt, 504. Mahoney's Will, In re, 94. Main, Appeal of, 20. • Mainwaring v. Beevor, WZ. Maitland v. Baldwin, 336. Major V. Williams, 242. Majoribanks v. Hovenden, 24. Major's Ex'r v. Ma:or's Adm r, 4d9. Mallery v. Young, 150, 174. Mallory v. Mallory, 481. Mallow V. Walker, lo8. Malcolm t. Malcolm, 329. Malcolm v. O'Callaghan, 466. Malcomsen v. Graham, 170. Male V. Williams, 449. Male's Will, In re, 46, 47, 50. 596 CASES CITED [Tlie figures reter to pages] Malin v. Malin, 147. Malins, Goods of, 220. Malone v. Cornelius, 287. Malone's Adm'r v. Hobba, 225, 231. Man's Estate, In re, 448. Managle v. Parker, 229. Manatt t. Scott, 94, 119, 121, 123, 170. Mandelick's Will, In re, 188. Manderson v. Liukens, 446. Mandeville v. Parker, 214. Mandlebaum v. McDonell, 413, 490. Manhattan Real Estate & Bldg. Ass'n V. Cudlipp, 445, 448. Manierre v. Welling, 413. Manifold, Appeal of, 500. Manley's Ex'r v. Staples, 106, 110, 117. Mann v. Balfour, 308. Mann v. Hyde, 516. Mann v. Jackson, 465. Mann v. Martin, 423. Mann v. Thompson, 403. Manner's Estate, In re, 239. Manners v. Manners, 193. Manning y. Bader, 378. Manning v. Randolph, 433. Manning v. Thesiger, 499. MaHuox V. Greener, 360. Manogue v. Herrell, 173, 175. MaHsbach v. New, 140, 336. Mansbach's Estate, In re, 113. Mansfield v. Shelton, 422. Manship v. Stewart, 265, 297. Manuel v. Wulff, 143. MaVchant, Goods of, 42, 43. Marion v. Williams, 326, 327. Markham v. Hufford, 442, 459, 472. Markley's Estate, In re, 430, 524. Marks v. Bryant, 49. Marks v. Marks, 274. Marqueze, In re, 56. Marquise De Portes v. Hurlbut, 319. Marquis of Titchfield r. Homcastle, 353. Marsh v. Bellinger, 404. Marsh t. Hoyt, 445, 448. Marsh t. Marsh, 30. Marsh v. Taylor, 433, 555, 556, 657. Marsden, Goods of, 34. Marshall, In re, 496. ' Marshall v. Augusta, 447. Marshall v. Berry, 11. Marshall v. Hanby, 163. Marshall v. Hopkins, 332. Marshall v. MarshaU, 309. Marshall v. Mason, 2ll. Marshall v. Bench, 510. MarshaU's Ex'rs v. Hadley, 322, 323, 328 367 Marston, in re, 200, 203. Marston v. Fox, '147. Marston y. Marston, 473. Marston v. Norton, 81, 82, 84. Marston v. Roe, 250, 251. Martin, Goods of, 6l. Martin, In re, 496. 497, 498, 502, 530. Martin v. Barnhill, 430. Martin v. Battey, 549. Martin T. Bowdem, 87, 165, 198, Martin r, Drinkwater, 600. Martin v. Faries, 23. Martin v. Fort, 428. Martin v. Hamlin's Ex'rs, 29. Martin v. Martin, 552. Martin v. Moore, 474, 485. Martin v. Osborne, 353. Martin v. Seigler, 466. Martin v. Stovall, 312. Martin v. Tliayer, 88, 102, 150. Martin v. Trustees, 395. Martindale v. Warner, 323. Martineau v. Rogers, 334. Martineau v. Simonson, 518. Martinez v. De Martinez, 51, 287. Martin's Ebtate, In re, 557. Marti's Estate, In re, 476. Marx V. McGlynn, 155, 165. Mason, In re, 367. Mason v. Ammo'n, 378, 409. Mason v. Baily, 386. 389. Mason v. Paschal, 482. Mason v. Robinson, 338. Mason v. Wheeler, 492. Mason v. Williams, 156, 173, 176. Massie v. Griffin, 62. Masters v. Masters, 27. Masterson v. Townshend, 337. Mathes v. Smart, 328. Mathews v. Krisher, 548. Mathews v. Mathews, 5iO. Matt^on V. Brown, 333. Matthews v. Capshaw, 490. Matthews v. Hudson, 414. Matthews v. Targarona, 503. Matthias, Goods of, 40. Mauck V. Melton, 68. Maule V. Maule, 234. Maurer v. Reifschneider, 54. Maxwell v. Hill, 15, 79, ^203. Maxwell v. McCreery, 447. Maxwell v. Maxwell, 60. Maxwell's Estate, In re, 284. May V. Bradlee, 111, 119, 127. May T. Lewis, 419. May V. Sherrard's Legatees, 498. May V. Slaughter, 147. May V. Town Site Co., 410. May V. Wood, 440. May's Heirs v. May's Adm'r, 316. Mayd, In re, 61. Mayer v. Hover, 405. Mayes v. Kam, 359, 421. Maynard v. Tyler, 102, 150, 161. Ma'ynard v. Wright, 385. Mayo V. Jones, 115. Mayor of Hamilton v. Hodsdon, 351. 'Mayott v. Mayott, 380. Mays V. Mays, 20O. Meach v. Meach, 12, 13. Meacham v. Graham, 428. Mead v. Maben, 471. Mead v. Robertson, 479. Meade's Estate, In re, 14. Meads v. Earle, 186. Mealing v. Pace, 22. Mears v. Mears, 116. Mecum v. Stoughton, 497. Medill T. Snyder, 99, 285, 559. CASES CITED rHe flgureg refer to pages] ;Medlock v. Merritt, 298, 559, Jaee v. Gordon, 475. Meehan v. Brennan, 489. Meek v. Briggs, 485. Meek v. Perry, 165. Meeker v. Boylan, 119. Meeker v. Breintnall, 492. Meeker v. Draffen, 382. Meeker v. Meeker, 92, l22, 128, 130, lol. Meeks v. Meeks, 369. Me£Eord v. Dougherty, 378. Meinertzagen v. Walters, 509. .Melanefy v. Morrison, 127. Melcher, In re, 452. Meldon v. Devlin, 493. Mellen v. Banning, 317. MeUen v. Mellen, 318, 539. Mellon V. Reed, 557. Mellor V. Smyth, 48. Mellows V. Mellows, 147. Melton V. Camp, 450. Meluish v. Milton, 153. Melville, Goods of, In re, 278. Melville's Estate, 246. Mence v. Mence, 230. Mendell v. Dunbar, 213. Mendenhall, Appeal of, 557. Mendenhall v. Mendenhall, 546. Mendenhall v. Tungate, 9^. Mendinhall's Appeal, 244, 245. Mendum v. Com., 128. Mengel, Appeal of, 512. Menge's Will, In re, 195, 212. iMercantite Bank of New York v. Bal- lard's Assignee, 447. Mercantile Trust & Deposit Co. v. Brown, 452. Mercer v. Kelso's Adm'r. 100. Merchant v. Merchant, 11. Mercur's Estate, In re, 430. Meredith v. Meredith, 329. Merkel, Appeal of, 332. Merriam, In re, 297. Merriam v. Merriam, 497, 498. Merrick, In re, 394. Merrill v. American Baptist Missionary Union, 455. Merrill v. Emery, 430, 461. Merrill v. Hayden, 256, 320, 615, 616. Merrill v. Putnam, 278. Merrill v. Eolston, 103. Merrill v. Wisconsin Female 458, 459, 472. Merrill v. Wooster, 399. Merriman, Appeal of, 173, 179. Merriman, In re, 223. Merritt v. Bncknam, 521. Merritt v. Clason, 186. Merritt v. Merritt, 432. Merritt v. Richardson, 553. Merryfield's Estate, 29. Mersman v. Mersman, 339. Merton v. O'Brien, 527. Meserve v. Meserve, 325. „ ,„. Messner v. BlUott, 114, 115, 122, 160. Metcalf V. Sweeney, 381. Metcalf s Will, In re, 91. College, 697 Metcalfe v. Metcalfe, 469. Methodist Episcopal Church v. Hebard, 498, 501. Methodist Protestant Church of Hen- derson v. Young, 146. Metropolitan Say. Bank v. Murphy, 20. Mettler v. Warner, 360, 445. Metzen v. Schopp, 135, 419, 425. Meunier, Succession of, 335. Meurer-s WiU, In re, 212, 221. Meyer, In re, 149, 296. Meyer v. Fogg, 206. Meyer v. Henderson, 284, 291. Meyer v. Rusterholtz, 365. Meyers v. Maverick, 343. Michael v. Marshall, 164, Middleditch v. WiUiams, 102, 105, 106, 174, 282, 283. / Middleton, Ex paTte, 513. Middleton's Heirs v. Middleton'a Dev- isees, 449. Midgett V. Midgett, 427. Mifflin V. Mifflin, 423. Milbum V. Milbum, 257. Mileham v. Montague, 119. Miles, Appeal of, 227, 231. Miles V. Boyden, 264, 265, Miles V. Strong, 3r4. Miles V. Treanor, 158. Miles' Will, In re, 186. Millay v. Wiley, 206. Miller, Matter of, 230. Miller v. Brown, 262, MiUer v. Buell, 547. Miller v. Carlisle, 377. Miller v. Cooch, 524. Coulter, 287. Drane, 317, Gehr, 301, 302. Gilbert, 448. Harding, 416. Hirsch, 334. Lamprey, 412. Metcalf, 384. Miller, 164, 340, 385, 432. Oestrich, 88. Phillips, 251, 255. Rowan, 317. Shumaker, 55. Stephens, 546. Travers, 151, 339, 348. Van Dyk, 221. Von Schwarzenstein, 301. Western College of Toledo, 19. White, 108. Worrall, 370, 447. Miller's Adm'r v. Potterfield, 424. Miller's Ex'r v. Malone, 506. Miller's Estate, In re, 48, 95, 157, 176, 197, 365, 455, 470. Miller's Guardian v. MiUer's Trustee, 521. Miller's Will, In re, 105, 110. 112, 121, 370, 465. Millett V. Ford, 417. Milligan, Goods of, 53. Mills, Appeal of, 99. Mills T. Bailey, 430. Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller Miller 598 CASES CITBD [The figures refer to pages] Mills T. Britton, 434. Mills V. Franklin, 410. Mills V. Millward, 227, 232. Milner y. Davis, 549. Milnea v. Foden, 32. Miltenberger v. Miltenberger, 15, 27. Milwaukee Protestant Home v. Becher, 518. Mims V. Hair, 419. Mims v. Machlin, 481. Miner, In re, 343. Miner v. Brown, 427. Miner's Will, In re, 852, 363, 371. Minges v. Mathewson, 423. Minkler t. Simons, 317. Minor v. GuthriS, 258, 259. Minot T. Minot, 444. Minot V. Paine, 434. Minot V. Parker, 280. Minton's Trust, In re, 419. Missionary Soc. of M. E. Church v. CadweU, 346. Mitchell V. Campbell, 411. Mitchell T. Corpening, 118. MitcheU v. Donohue, 26, 59. MitcheU v. Card, 150. Mitchell V. Hoggard, 427. MitcheU v. Kimbrough, 90. Mitchell T. Mitchell, 28, 172, 411, 438, 489. Mitchell V. Pirie, 63. AlitcheU t. R. Co., 411. Mitchell V. Thomas, 79. MitcheU v. Vest, 511. MitcheU t. Vickers, 46, 50. MitcheU'g Estate, In re, 531. Moale T. Cutting, 209, 220. Mock V. Garson, 209. Moehring, In re, 422, 430. MofEat V. Cook, 411. Moffett T. Bates, 539. Moffett V. Elmendorf, 391. Moffett V. Moffett, 48, 54. Mohn T. Mohn, 146. Mole v. Thomas, 227. Molineaui v. Kaynolds, 517. Molineux v. Molineux, 37, 39. Monarque v. Monarque, 817. Mondorf's WiU, In re, 163, 300. Monroe v. Barclay, 146, 157, 163. Monroe v. Liebman, 55. Montgomery v. Foster, 282, 283. Montgomery v. MUlikin, 270. Montgomery v. Montgomery, 419. Montgomery v. Perking, 209. Montgomery's Trustee v. Brown, 512. Montrose t. Byrne, 297. Moody V. Macomber, 21. Mooers v. White, 264. Mooney v. Purpus, 405. Moor V. Hawkins, 146, 147. Moore, Goods of, 238. Moore, In re, 512. Moore T. Alden, 321, 503. Moore v. Allen, 285. Moore v. Baker, 537, 545. Moore v. Cleghorn, 408. Moore v. ERrl. 288. Moore v. Ennis, 397. Moore r. Gary, 418, 426, 444, 465. Moore v. Gubbins, 119, 174. Moore v. Heineke, 118, 162, 289, 290. Moore v. King, 211, 213. Moore v. Lewis, 387. Moore v. Lyons, 329, 446. Moore t. McDonald, 157, 176. Moore v. McNulty, 294. Moore v. Moore, 360. Moore v. PoweU, 356. Moore v. PuUen, 555. Moore T. Waldstein, 148. Moore's Adm'r v. Sleet, 334, 444, 445. Moore's Estate, In re, 335, 451, 454. Moore's Ex'rs v. Blauvelt, 157. Moore's Ex'r v. Moore, 496, 502. Moore's WUl, 243. Moorehead's Estate, In re, 455. Moores v. Gwynne, 467. Moores T. Hare, 447. Moorhouse v. Lord, 273. Moorman v. Crockett, 556. . Mooy V. GaUagher, 423. Moran v. Moran, 412, 469, 470, 479. Morath's Ex'r v. Wilber's Adm'r, 459. More T. More, 220. More's Estate, In re, 521. Moredock v. Moredock, 375. Morehouse v. Morehouse, 415. MoreU v. MoreU, 217. Morey v. Morey, 525. Morey v. Sohier, 237, 254, 281. Morey's Estate, In re, 166. Morffew v. K. Co., 422. Morgan, In re, 429. Morgan v. Boys, 101. Morgan v^ Davenport, 254. Morgan v. Dodge, 299. Morgan v. Huggins, 361. Morgan v. Ireland, 254. Morgan v. McNeeley, 410. Morgan v. Morgan, 134, 350. Morgan v. Bobbins, 396. Morgan v. Stevens, 46. Morgan's WiU, In re, 163. Moriarty v. Moriarty, 87, 113. Morison v. Turnour. 186. Moritz v. Brough, 120. Morley v. Calhoun, 460. Morley v. Rennoldson, 465. Morrell v. Dickey, 33. Morrill v. PhiUips, 452. Morris v. BoUes, 835, 391. Morris v. Burroughs, 470. Morris v. Eddins, 419. Morris v. Higbie, 532. Morris v. Le Bel, 413. Morris v. Morton Ex'rs, 116, 122, 157. Morris v. Stokes, 124, 177. Morris v. Sickly, 340, 341, 524. Morrisey's WiU, In re, 371. Morrison v. Bartlett, 34. Morrison v. Bowman, 469. Morrison v. Coke Co., 410. Morrison v. Schorr, 360, 411, 418. Morrison v. Semple, 352. Morrison v. Truby, 471. Morrison's Estate, In re, 392. Morrison's WiU, In re, 220. ca3:ei8 cited llbe figures refer to pages] 599 Morrow, Appeal of, 60. Morrow t. McMahon, 328, 384. Morrow's Estate, In re, 190. 266. Morse v. Blood, 468. Morse v. Hayden, 462, 471, 530. Morse ▼. Lyman, 315. Morse v. Mason, 326. Morse v. Morrell, 433, 481. Morse v. Natick, 424. Morse v. Tilden, 502. Mortgage Trust Co. of Pennsylvania v. Moore, 525. Morton, In re, 228. Morton v. Heidorn, 158, 219. Morton v. Ingram, 201. Morton v. Morton, 378. Morton v. Onion, 249. Morton v. Woodbury, 369, 370, 373. Morton's Estate, In re, 379. Morton's Ex'rs v. Morton's Es'r, 548. Morvant, Succession of, 22. Morwan v. Thompson, 250. Mosby V. Paul's Adm'r, 410. Moseley v. Stewart, 423. Moses v. Julian, 299. Mosier v. Bowser, 405. Moss, In re, 391. Moss V. Lane, 559. Motz's Estate, In re, 158, 161. Moulton V. Chapman, 448. Moultrie v. Hunt, 269. Mounseyy. Blamire, 386. Mt. HoUy Safe Deposit & Trust Co. V. Deacon, 365. Mower v. Verplanke, 311. Mowry, In re, 497, 556. Mowry v. Norman, 177. Moyer v. Swj[Kart, 15, 164, 293, 300. Moyses v. Neilson, 282. Muellenschlader's Estate, 302. Mueller v. Pew, 175, 285. Muhlke V. Tiedemann, 413. Mnlholland's Estate, In re, 125. Mullarky v, Sullivan, 446. Mullen, In re, 79. Mullen y. Johnson, 155. MuUer v. MuUer, 308. Mulligan v. Leonard, 46, 48, 55. Mullin's Estate, In re, 128, 184, 195, MuUins V. Cottrell, 100. Mnllina v. MuUins, 336. Mullock V. Souder, 247. Mullreed v. Clark, 140, 455. Mulvane v. Eude, 408, 412, 418, 428. Munday's Ex'rs v. Munday, 254. Mundorff v. Kilboum, 74. Mundy V. Mundy, 181, 226, 227. Munhall's Estate, In re, 48. Munro v. Munro, 274. Murdock v. Bridges, 34, ,199. Murdy, Appeal of, 290. Murfield's Will, In re, 223 , Murguiondo v. Nowland s Jiix r, lat. Murphey v. Brown, 335. Murphree v. Senn, 114, 117, IJD, 16V. Murphy, In re, 440, 441. Murphy v. Carlin, 479. Murphy v. Deichler, 272. Murphy v. Gabbert, 25. Murphy v. Murphy, 206. Murphy's Estate, In re, 36, 114, 297, 390, 391, 516. Murphy's Ex'r v. Murphy, 281, 283. Murphy's Will, In re, 28, 94, 166, 167, 168, 192. Murray, In re, 36. Murray, Succession of, 56. Murray v. Oliver, 264. Murray v. Bronson, 385. Murray v. Kluck, 431. Murray v. Miller, 486. Murray's Will, In re, 281. Murry v. Hennessey, 114, 184, 217, 281. Murtha V. Donohoo, 65, 73. Mushrush v. Thompson, 282. Mustain v. Gardner, 427. Musther, In re, 392. Myers v. Adler, 445. Myers v. Cronk, 72. Myers v. Hanger, 155, 170, Myers v. Myers, 503. Myers v. Norman, 355. Myers v. Vanderbelt, 29. Myrick v. Heard, 323, 387. N Nalle's Representatives v. Fenwick, 218. Napier v. Little, 339. Nash, In re, .399. Nash V. Hunt, 131. Nash V. Nash, 452. Nash's Will, In re, 311. Nat V. Coons, 269. National Safe Deposit, Saving & Trust Co. V. Sweeney, 289, 291. Nattis, In re, 257. Naul V. Naul, 124. Naylor v. Godman, 396, 398, 455. Neal V. Hamilton Co., 333, 427. Needham v. Ide, 131, 333. Neely v. Boyce, 419. NefE's Appeal, 264. Neil V. Neil, 214. Nelson v. McDonald, 149. Nelson v. McGiffiert, 241. Nelson v. Nelson, 443. Nelson v. Pomeroy, 439. Nelson v. Potter; 310, 312. Nelson v. Public Adm'r, 237. Nelson v. Russell, 448. Nelson's Etetate, In re, 238, 239, 387. Nelson's Will, In re, 161, 223. Nes V. Ramsay, 385. Nesbit V. Wood, 526. Neville v. Dulane/s Ex'rs, 559. Kevins' Estate, In re, 411, 421. Nevins' WiU, In re, 194. Nevitt V. Woodburn, 335, 469. Nevius V. Gourley, 463. New Albany Trust Co. v. Powell, 505. Newburgh v. Newburgh, 151, 339. Newcomb v. Newcomb, 298. Newcomb v. Webster, 230, 240. Newcomb's Ex'r v. Newcomb, 87, 119, 131. 600 CASKS CITED [Tlie flgnree refer to pasea] Newcomb's "Will, In re, 524. Newell V. Homer, 307, 308. New England Mortg. Sec. Co. v. Gor- don, 426. Newhouse v. Godwin, 219. Newlin's Estate, 255. Newlove V. Mercantile Trust Co., 558. Newman v. Iron Co., 298. Newman v. Newman, 424. Newman v. Willets, 311. Newsom v. Holesapple, 414. NeWson v. Thornton, 525. Newton v. Clarke, 214. Newton v. Marsden, 467. Newton v. Newton, 63. Newton v. Seaman's Friend Society, 37. Newton v. Society, 38. Newton's Ex'r v. Field, 67. New York Life Ins. & Trust Co., In re, 272. New York Life Ins. & Trust Co. v. Viele, 385 New York, L. & W. R. Co., In re, 415. Nicewander v. Nicewander, 87. Nicholas v. Adams, 11. Nicholls V. " Judson, 511. Nichols V. Allen, 148, 362, 483. Nichols V. Binns, 119. Nichols V. Eaton, 469. Nichols V. Emery, 21. Nichols V. Guthrie, 398, 401, 446. Nichols T. Nichols, 16. Nicholson, In re, 395. Nicholson v. Cousar, 452. Nicholson v. Drennan, 420. Nicholson's Will, In re, 395, 396. Nickersou v. Bowly, 548. Nickerson v. Bragg, 502, 517. Nickerson v. Buck, 182. Nieman, In re, 213. Nieman,T. Schnitker, 94, 119, 121. Nightingale v. Burrell, 418. Nightingale V. Phillips, 29. Niles V. Mason, 140, 335. Nisbet, In re, 263. Nixon V. Bobbins, 441. Nixon V. Snellbaker, 191. Noble v. Pickes, 22. Noble r. Metcalf, 70. Noble V. Phelps, 264. Noble V. Teeple, 426. Noble V. Tipton, 338. Noble's Estate, In re, 2(J0, 201, 429. Nock V. No,ck, 216. Noe V. Kern, 479. Nolan V. Gardner, 48. Nolte's Will, In re, 162. Noon's Estate, In re, 330. Noon's Will, In re, 187, 243, 263. Nordquist's Estate v. Sahlborn, 546. Norman's Will, In re, 128, 131. Norris v. Beardsley, 314. ' Norris v. Harris, 267. Northcutt v. Northcutt, 184. Northern Trust Co. v. Wheaton, 445. Norton v. Bazett, 215. Norton v. Mortensen, 376. Norton v. Paxton, 96, 114. Nott V. Fitzgibbon, 414. Nourse, In re, 465. Nowack V. Berger, 63. Noyes v. Barber, 277. Noyes v. Southworth, 254. Noyes' Estate, In re, 26, 58. Noyes' Will, In re, 237, 258. Nudd V. Powers, 473. Nugent V. Cloon, 490. Nunn V. Ehlert, 191, 192. Nunn V. O'Brien, 479. Nunnery v. Carter, 460. '' Nusly V. Curtis, 496, 504 Nutt V. Norton, 249. Nye V. Koehne, 428. Cades v. Marsh, 366.' Cakes v. Cakes, 506. Oberdorfer v. Newberger, 154, 174. Oberdorf's Estate, In re, 103, 230, 235. O'Boyle v. Thomas, 412. O'Brien, Appeal of^ 156, 168. O'Brien, In re, 530. O'Brien v. Dougherty, 520. ' O'Brien v. Dwyer, 88. O'Brien v. Foley, 67. O'Brien v. Galagher, 211. O'Brien v. Knotts, 545. O'Brien v. Spalding, 206, 286. O'Callaghan v. O'Brien, 288. O'Connell 7. Dow, 202. O'Connor v. Madison, 96, 130. O'Connor's Willi In re, 53, 54. O'Day V. O'Day, 504. O'Dea's Will, In re, 102. O'Dell V. Gofif, 106, 120, 126. Odell V. OdeU, 188. Odell's Estate, In re, 295. Odenwaelder v. Schorr, 240. O'Dwyer v. Geare, 82. Oetjen v. Diemmer, 442. Oetjeii V. Oetjen, 230. Offiler, In re, 392. 0£Eutt V. Divine's Ex'r, 247. 0£Eutt V. OSEiitt, 47. Ogden V. Pattee, 367, 555. Ogle V. Reynolds, 360, 490. , Ogle's Estate, In re, 18. Oglesby v. Turiier, 56. Ogsbnry v. Ogsbury, 359. O'Hagan's Will, In re, 220, 221. O'Hara's Will, In re, 480. O'Hearn v. O'Hearn, 323. Old Colony Trust Co. v. Bailey, 158, 279. Oldham v. York, 327, 359. Goods of Olding, 211. Olerick v. Ross, 217. Olliffe V. Wells, 43, 483. Olllver, In re, 207. Oliver v. Powell, 519. Oliver's Will, In re, 223. Olmstead v. Brush, 534. Olmstead t. Webb, 170. CASEIS CITED [The figures refer to pages] 601 Olmstead's EJstate, In re, 230, 250, 301, 302. ■Olmsted v. Olmsted, 386. Olmsted's Estate, In re, 232, 258, 801, 302. Olney v. Hull, 446, 452. Olney v. Lovering, 384, 386. Olsen y. Youngerman, 453. Ondeidonk v. Onderdonk, 473. O'Neill V. Smith, 48. Onions v. Tyrer, 229, 233. ■Opp V. Chess, 296. Orchard v. Wright-Dalton-Bell-Anchor Store Co., 355. Orchardson v. Cofield, 99, 105, 107, 293. •Ord, In re. 432. Oiord) Orford v. Churchill, 379. ■O'Riley v. McKiernan, 474. ■OrndorfE v. Hummer, 205, 214. O'Rourke v. Beard, 474. Orr V. Moses, 331. Orser v. Orser, 221. Orth V. Orth, 33, 161. Ortt V. Leonhardt, 194. Osborn v. Cook, 22. , . „ . r^ ■Osburn v. Rochester Trust & Safe De- iiosit Co., 23fe Osgood V. Bliss, 250. _ _^„ -Osgood V. Breed, 81, 82, 84, 513. Osgood V. Breed's Heirs, 512. •Osgood V. Manhattan Co., 124. Oskamp's Will, In re, 297. Oswald, Goods of, 150. Otis V. Prince, 465. ■Otis V. Smith, 355. Otis' Will, In re, 96. Otterback v. Bohrer, 482. Otto V. Doty, 267. Otts V. Otts, 147. _ ^^ „ . ■Ouachita Baptist College v. Scott, 94. Ouseley v. Anstruther, 364. Outcalt V. Outcalt, 393. Outland v. Outland, 522. OveraU v. Bland, 131. Overbury v. Overbury, 250. Overheiser v. Lackey, 341, 4 Savings Bank of Newport v. Hayes, 445. Savory, In re, 183. Sawin v. Cormier, 423. Sawtelle v. Ripley, 318. Sawyer v. Cubby, 440. Sawyer v. Freeman, 515. Sawyer's Legatees v. Sawyer's Heirs, 266. Saxon V. Whitaker's Es'r, 117. Saxton V. Webber, 137, 336, 515. Sayles v. Best, 410, 558. Scaife v. Emmons, 46, 48. Scammell v. Wilkinson, 82. Scanlan v. Wright, 142. Scattergood v. Kirk, 164, 200, 204. Schaefer v. Bernhardt. 516. Schaefer v. Schaefer, 328. 333, 420. SchaefEner, Appeal of, 316. Schapiro v. Howard, 339. Seharmann, In re, 487. fchedel's Estate, In re, 377. cheible v. Rinck, 549. Schermerhorn v. Getting, 140. Schermerhorn v. Negus, 468. Scherrer v. Brown, 254. Schieffelin v. Schieffelin, 155, 159, 17b, 182, 206. Schierbaum v. Schemme, 175, 194, 195, 197. Schildnecht v. Eompf's Ex'x, 108. Schillinger v. Bawek, 37, 41, 239. Schloss V. Stiebel, 382. Schlottman v. Hoffman, 343. Schmaunz v. Goss, 410. Schmehl, Appeal of, 522. 608 CASES CITED rnie figures refer to pages] Schmid's Estate, In re, 424. Schmidt v. Idmmer, 521. Schmidt v. Schmidt, 154, 433. Schnee v. Schuee, 209, 308. Schneider v. Manning, 93, 100, 128, 129. Schneider v. Vosburgh, 119. Schofield V. Thomas, 215, 217. Schofield's Will, In re, 229. Scholl, Appeal of, 549. SchoU, In re, 377. SchoU's Will, In re, 145, 377, 378. School Directors of Borough of West Chester v. James, 275. Schoonmaker v. Mitchell's Adm'z, 367, Schoppert v. Gillam, 338. Schorr v. Carter, 420. Schorr v. Etling, 357. Schott's Estate, In re, 330. Schreiber's Will, In re, 112. Schuchhardt v. Sehuchhardt, 156, 158, 159 294. Schuknecht v. Schultz, 284. Schuldt's Estate, In re, 398. Schult V. Moll, 410. Schultz, Appeal of. In re, 479. Schultz V. Schultz, 259, 295. Schulz's Estate, In re, 553. Schumaker v. Grammer, 518. Schumaker v. Schmidt, 76, 77. Schusler's Estate, In re, 112. Schweigert's Estate, In re, 221, 365. Schweitzer v. Bonn's Ex'rs, 545. Schwencke v. HafEner, 387, 398, 401. Scoggins V. Turner, 261, 304. Scott, Appeal of, 33. Scott V. Bryan, 491. Scott v. Harkness, 84. Scott V. Hawk, 182, 193, 222, Scott T. Ives, 142. Scott V. I/ogan, 437. Scott V. McKee, 126. Scott V. McNeal, 299. Scott v. Maddoi, 259, 307. Scott V. Neeves, 347. Scott v. Roethlisberger, 458. Scott v. Scott, 107. Scott V. Vaughn, 544. Scott's Estate, In re, 27, 114, 404. Scott's Will, In re, 237. Scoville V. Mason, 357, 365. Scripps V. Wayne Probate Judge, 312. Scruby v. Pordham, 232. Scruggs V. Yancey, 360. Seabrook v. Grimes, 430. Seagrist, In re, 96. Seagrist's Wijl, In re, 130. Seal V. Goebel, 177. Seale-Hayne v. Jodrell, 381. Seaman's Estate, In re, 444. Seamonds v. Hodge, 476. Search, Appeal of, 201. Sear's Estate, In re, 221. Sears v. Chapman, 477. Sears v. Dillingham, 201, 205. Sears v. Hardy, 483. Sears v. Putnam, 516. Sears v. Russell, 136. Sears v. Sears, 28, 180, l87. Seaver v. Griffing, 482. Seaward v. Davis, 430. Seay v. Cockrell, 415. Sechler v. Eshleman, 418. Second United Presbyterian Church v. First United Presbyterian Church, 346. Security Co. v. Cone, 449. Security Co. v. Pratt, 318, 319, 320. Security Co. v. Snow, 237. Seebrock v. Fedawa, 158, 217, 300, 347. Seefried v. Clarke, 478. Seeger v. Leakin, 429. Seeley v. Hincks, 460, 472. Seguine v. Seguine, 198. Segur's Will, In re, 92, 106. Sehr V. Lindemann, 87, 161. Seibert v. Miller, 315. Selden v. Coatler, 186. Selden v. Illinois Trust & Savings Bank, 283 Sellards v. Kirby, 168, 169. Sellars v. Sellars, 127. Selleck's Will, In re, 174. Sellers' Elx'r v. Reed, 438. Selman v. Robertson, 135, 399. Semmes v. Semmes, 233. - Semi)er v. Coates, 423. Semple's Estate, 528. Serfass v. Serfass, 416. Sergeant v. Steinberger, 426. Serle v. St. Eloy, 533. Session's Estate, In re, 388. Settle V. Shafer, 331. Sevening v. Smith, 292. Severance v. Severance, 163. Sewall V. Robbins, 125, 127, 238. Sewall V. Wilmer, 272, 488. Sewell V. SUnglufE, 22, 61. Seymour's Estate, In re, 157. Seymour, Succession of, 237. Shacklett v. Roller, 308. Shade's Estate, In re, 429. Shaffer, Succession of, 29. Shaffer v. Bacon, 302. Shaffer v. Corbett, 203. Shafter's Estate, In re, 211. Shaftsbury v. Shaftsbury, 506, 507. Shahan v. Swan, 68, 69. Shailer v. Bumstead, 124, 174, 175, 177. Shakespeare v. Markham, 74. Shallcross v. Palmer, 236. Shalters v. Ladd, 417, 420. Shanahan v. Kelly, 475. Shaner v. Wilson, 420. Shangle v. Hallock, 445. Shanks v. Mills, 398. Shanley, Appeal of, 130. Shanley v. Shanley, 339. Shannon v. Bonham, 422. Shannon v. Pickell, 377. Shannon's Will, In re, 165. Shapleigh v. Shapleigh, 329, 349, 423, Shapter's Estate, 122. Sharp, Appeal of, 96. Sharp V. Hall, 22. Sharp V. Sharp, 296. Sharp V. Wallace, 266. Sharp V. Wightman, 558. CASES CITED [The figures refer to pages] 609' Sharp V. Withington, 448. Sharpless' Estate, In re, 290. Shattuck V. Balcom, 482. Shattuck V. Stedman, 440. ■Shattuck V. Wall, 427. Shaver v. McCarthy, 88. Shaw, In re, 232. Shaw V. Camp, 41, 300. Shaw V. Ekjkley, 394, 447. Shaw V. Erwin, 412. Shaw V. Moderwell, 302. Shaw V. Weigh, 408. Shea v. Bergen, 284. SheafFs Estate, In re, 481. Sheaffe v. O'NeU, 142. Sheehan v. Kearney, 114, 119, 159, 174, 183. Sheeley v. Neidhammer, 418. Sheer v. Sheer, 181. Sheets v. Wetsel, 430. Sheets' Estate, In re, 474. Sheldon v. Newton, 490. Sheldon v. Sheldon, 40. Sheldon v. Stockbridge, 144. Sheldon's Will, In re, 159, 168. SheUenberger v. Bansom, 145. Shelley v. Bryer, 379. Shelley's Case, 409, 415. Shell's Estate, In re. 119, 157, 161, 179. Shelton v. Homer, 491. Shelton v. Sears, 541; Shenk v. Shenk, 522. Shepard v. Shepard, 379, 463, 472. Sheppard, In re, 289. Sherman, In re, 67, 327. Sherman v. American Congregational Ass'n, 437, 461, 462. Sherman v. Baker, 373, 401, 503, 553. Sherman v. Lewis, 538. Sherrat v. Bentley, 330, 331. Sherrer v. Bartlett, 521. Shields v. McAuley, 420. , ShiUaber's Estate, In re, 40, 280, 335. Shillito V. Shillito, 528. Shipp V. Gibbs, 448. Shires v. Glascock, 213, 214. Shirley v. Ezell, 125, 152. Shirley v. Shattuck, 486. Shorten v. Judd, 254. Shotwell's Estate, In fe, 183. Shoup V. De Long, 416. Shove V. Pincke, 249. Showalter v. Showalter, 540. Shreiner, Appeal of, 333. Shreiner v. Schreiner, 94. Shreve's Bx'rs v. Shreve, 498. Shrewsburt (Earl of) v. Hope-Scott, 460 Shudall V. JekyU, 508. Shuld V. Wilson, 527. Shull V. Johnson, 379. Shumate v. Bailey, 351, 352. Shurte v. Fletcher, 303. Shute V. Sargent, 269, 274. Shuttleworth v. Greaves, 538. Siblfey V. Maxwell, 339. Sibley v. Somers, 20. Sickles V. New Orleans, 269. Sickles' Will, In re, 162. Siddall V. Harrison, 315. Gaed. Wills (2d Ed.)— 39 SiddaU's Estate, In re, 135. Siddons v. Ctyckrell, 447, 466. Siders v. Siders, 406. Sieb's Estate, In re, 106. Siedler v. Syms, 136. Siefke v. Siefke, 336. Sieker, Estate of, 288. Silliman v. Whitaker, 409, 418. Silva V. Hopkinson, 415. Silva's Estate, In re, 211, 225. Silvers v. Canary, 440. Silverthom v. McKinster, 490. Silverthorn's Will, In re, 95. Sim V. Russell, 123, 172, 177. Simcox V. Bell, 380. Simcox's Estate, In re, 217. Simmonds v. Cock, 438. Simmons v. Burrell, 317. Simmons v. Leonard, 191, 199, 211. Simmons v. Morgan, 360. Simmons v. Rudall, 235. Simmons v. Spratt, 550. Simms v. Buist, 416. Simon v. Middleton, 174. Simons' Will,- In re, 375. Simonsen v. Hutchinson, 524. Simpkins v. Bales, 493. Simpson v. Foxon, 239. Simpson v. Moore, 434.' Simrell's Estate, In re, 234. Sims V. Birdsong's Adm'r, 301. Sims V. Georgetown College, 415. Sims V. Sims, 479. Singer, In re, 210. Singer v. Taylor, 320, 373. Singleton v. Tomlinson, 42. Sinnet v. Bowman, 92. Sioux City Terminal R. & Warehouse Co. V. Trust Co., 139. Sires v. Sires, 423. Sir John NichoU in Den v. dark, 99. Sir William Wynne in Cartwright v. Oartwright, 118. Sisters of Charity of St. Vincent de Paul V. Kelly, 42, 211. Sites V. Eldredge, 354. Sizer's Will, In re, 200. Skaats' Will, In re, 92, 166, 173. Skaggs V. Deskin, 362, 545. Skeggs V. Horton, 305, 307, 309. Skeif s Heirs v. Ohall, 316. Skellpnger v. Skellenger, 548. Skerrett's Estate, In re, 24. Skinner, In re, 430. Skinner v. Harrison, 343. Skinner v. Lewis, 94, 102, 193, 198, 221. Skinner v. McDowell, 422. , Skinner v. Ogle, 40. Skinner v. Society, 41, 198, 199, 264. Skinner v. Spann, 363. Skipwith V. Cabell's Ex'r, 60, 245. Skrymsher v. Northcote* 370. Slater v. Slater, 506. Slaughter v. Garland, 271. Slaughter v. Stephens, 224, 225, 248. Slayton v. Singleton, 312. Slinger's Will, In re, 111, 171. SlinglofE V. Bruner, 116, 120, 176. 205. Slinn, Goods of, In re, 17, 21, 22. 610 CASES CITED [Tbe figures refer to pages] Sloan V. Maxwell, 91. Sloan v. Sloan, 207. Sloan V. Thornton, 295. Sloan's Estate, In re 199. Slocomb V. Slocomb, 270. Slocum y. Hagaman, 553. Sloniger v. Sloniger, 64, 252. Slote V. Eelss, 449. SmaU V. Allen, 152. SmaU V. Jose, 367. SmaU V. McCaUey, 287. Small V. Small, 452. Small V. Thompson, 424. Small's Wm, In re, 166. Smalley v. SmaUey, 202. Smart v. Clark, 334. Smathers v. Moody, 420. Smee v. Smee, 108. Smeer v. Bryer, 190. Smelie's Ex'r v. Reynolds, 81. Smiley v. Gambill, 226. Smith, In re, 41, 160, 222, 397, Smith V. Allen, 388, 448. Smith V. Baxter, 20. Smith V. Beardsley, 431. Smith T. Bell, 2. Smith V. Boyd, 296. Smith V. Butler, 545. Smith V. Cairns, 521. Smith V. Campbell, 381. Smith V. Clemson, 249. Smith y. Curry, 331. Smith V. Dalby, 14. Smith V. Day, 90, 114. Smith V. Dennis, 356. Smith V. Downey, 11. Smith V. Du Bose, 145, 146. Smith V. Dugan, 369. Smith V. Fenner, 226. Smith V. Floyd, 422, 493. Smith T. Fox's Adm'r, 378. Smith V. Furnish, 540. Smith V. Goodell, 203. Smith T. Gorham, 30. Smith v. Greeley, 375. Smith V. Greer, 410. Smith V. Hanlesty, '424. Smith V. Harrington, 483. Smith V. Harris, 184. Smith V. Haynes, 370, 391. Smith V. Henline, 163, 176. 177, 294. Smith V. Holden, 22, 32, 215, 340. Smith V. Hunter, 388. Smith V. Jaekman, 521. Smith T. James, 96, 285. Smith V. Jones, 201. Smith V. Keller, 176. Smith V. Kenny, 468. Smith V. Kimball, 348. Smith V. Kimbell, 455. Smith V. Lansing, 378, 379, 556.v Smith V. Tjawrence, 444. Smith V. McChesney, 238. Smith V. Mclntyre, 493. Smith T. McKltterick, 556. Smith V. Parsons, 440. Smith V. Pierce, 69, 74. Smith V. Pvice. 408. Smith T. liunnels, 418. Smith V. Ryan, 17& Smith V. Secor, 326. Smith V. Shriver, 335. Smith V. Shuppner, 119. Smith V. Smith, 3, 22, 32, 59, 99, 131, 162, 168, 179, 338, 342, 393, 413. Smith T. Smith, 444, 449, 459, 472, 510, 518, 532, 537. Smith V. Streatfield, 338. Smith V. Tebbett, 10S-. Smith V. Thorn, 376. Smith V. Towers, 469. Smith V. Williams, 516. Smith's Estate, In re, 303, 440, 544, 545. Smith's Ex'rs v. Smith, 157, 171, 172, 351. Smith's Will, In re, 52, 102, 103, 107, 166. Smith & Dormer v. Parkhurst, 444. Smithsonian Institution v. Meech, 469. Smythe v. Smythe, 424. Snedeker v. Congdon, 428. Sneed v. Bwing, 271, 272. , Sneer v. Stutz, 485. Snell, In re, 190. Snell V. Weldon, 102, 126, 163. Snelling, In re, 96, 167. SneUing's Will, In re, 88. Snider v. Burks, 218, 222, 261. Snider v. Snider, 386, 387, 429, 513. Snodgrass v. Brandenburg, 407. Snorgrass v. Thomas, 467. Snow V. Benton, 121. Snow V. Durgin, 447. , Snow V. Hamilton, 281. Snow V. Snow, 439. Snow's Will, In re, 216. Snowball's Estate, In re, 120, 152, 172. SnowhiU v. Snowhill, 264. Snyder v. Baer, 410. Snyder v. Erwin, 162. Sr^fder's Estate, In re, 448, 497. Society for Promoting Theological Edu- cation V. Attorney General, 135. Sober, In re, 38, 59, 240. Sohier v. Burr, 270. Sohier v. Trinity Church, 457, 475. Solicitors' Loan & Trust Co., Appeal of, 411. - Solis V. Williams, 309. Somerville v.'Somerville, 273. Sommers v. gchrader, 528. Soper V. Brown, 384. Soper V. Halsey, 541. Sorrelle's Ex'rs v. Sorrelle, 559. Sonlard v. United States, 352. Soule, In re, 96, 166, 169, 283, 284. Soutenburgh v. Hopkins, 162. Southard v. N. J. Cent. R. Co., 147. Southard's Will, In re, 313. Southern Mut. Life Ins. Ass'n v. Dur- din, 13. Southgate v. Karp, 335. Southworth v. Southworth, 87, 114, 127. Soward v. Soward, 209. Sowell T. Sowell's Adm'r, 295. Spaan v. Anderson, 414. Sparhawk v. Sparhawk, 201, 202. Sparks' Will, In re, 165, 178. Spath V. Zeigler, 559. Spear v. Fo^, 452. ^ Speer v. Speer, 95, 543. SpeUier's Estate, In re, 168. Spence v. Robins, 442. Spencer, In re, 103, 106, 502, bpencer v. ' Si)encer v. Spencer v. Si)em;er v. Spencer v. CASES CITED [The figures re(er to pages] 611 / / 555. Association, i42, 518. Greene, 440. Kimball, 419. See, 473. Terry's Estate, 118. Spengler v. Kuhn, 485. Sperling, Goods of, 208. Sperl's Estate, In re, 170. Speyer v. McNamara's Adm'r, 414. Spinks V. Eobius, 509. Spinney v. Eaton, 496. Spong V. Spong, 525. Sponsler's Appeal, In re, 500. Spooner v. 'Phillips, 434. Sprague v. Luther, 182. Sprague's Estate, In re, 247. Spraker v. Dow, 63. Spratt V. Spratt, 87. Spratt's Will, In re, 158. Sprenkle, Appeal of, 509. Sprigg V. Sprigg, 460. Sprigge V. Sprigge, 259. Springsted's Will, 168. Sprinkle v. Hayworth, 74. Squier v. Harvey, 466. Stacey t. Cunningham, 291. Stac^ouse v. Horton, 106. Staffan v. Zeust, 84. Stahl's Apileal, 466. Staigg V. Atkinson, 269, 271. Stamford v. White, 246. Stanfield, In re, 556. Stanley v. Colt, 475. Stanley v. Morse, 299. Stanley v. Stanley's Adm'r, 448. Stansbury v. Hubner, 417. Stanwood v. Stanwood, 391. Stapleton v. Cheales, 439. Stark T. Conde, 459, 460. Stark's Will, In re, 367. Starkweather v. Society, 273. Starr v. Willoughby, 494. Staser v. Hogan, 132, 170, 171, 174, 294. V. V. Clarke District Court, 282. Holmes, 140, 335, 518, 548. Joyce, 334. Lancaster, 282. Lewis, 131. McGl.ynn, 296. Main, 555. Soper, 130. Ueland, 543. Willrich, 447. State Bank V. BUss, 76. State ex rel. Percy v. Hunt, 543. Stead V. Curtis, 58. Steadman v. Steadman, 158. Stebbins v. Stebbins, 255. Steel V. Linn, 415. Steele v. Helm, 115, 176. State State State State State State State State V. State V. State V. State V, 259. 524. Steele v. Korn, 527, 528. Steele V. Price, 227. Steele V. Steele's Adm'r, 545, 547. Steei? V. Steen, 382. Stehlin V. StehUn, 553. Stein T. Stein, 489. Steiner v. Steiner Land & Lumber Co., 530. Steinke'si Will, In re, 260. Steinkuehler v. Wempner, 106. SteinmetzV Estate, In re, 377, 411. Steinway v. Steinyay, 429. Stephens, In re, 279. Stephens v. Stephens, 192. Stephens v. Taprell, 229, 260. Stephenson, In' re, 375, 391. Stephenson v. Norris, 513. Stephenson v. Stephenson, 218. Sternberg's Estate, In re, 241. Stetson V. Eastman, 517. Stetson V. Stetson, 243, Stevens v. Dewey, 316. Stevens v. Fisher, 503. Stevens v. Flower, 424, Stevens v. Hale, 337. Stevens v. Lee, 68. Stevens v. Leonard, 95, 123, 127, 177. Stevens v. Stevens, 139, 184, 188, 261. Stevens v. Van Cleve, 127, 223. Stevenson v. Abingdon, 380. Stevens' Estate, In re, 256. Stevenson v. Earl, 20. < Stevenson v. Fox, 395. Steward v. Knight, 410, 411; 415. Steward v. Middleton, 84. Stewart, Succession of, 26, 163, 206. Stewart v. Crysler, 523. Stewart v. Jordan, 153. Stewart v. Lyons, 163. Stewart v. MulhoUand, 263. Stewart v. Powell, 252. Stewart v. Powers, 387. Stewart v. Stewart, 30, 32, 161, 192, 213, 314, 328, 347. Stewart's Estate, In re, 67, 267, 351. Stewart's Will, In re, 94, 96, 162, 198, 219. Stichtenotb v. Toph, 510. Stickel v. Crane, 521. Sti(ikney's Will, In re, 144, 244, 263. Stigers v. Dinsmore, 408. Stiles T^. Beed, 66, 70. Still V. Woodville Corp., 274. Stillman, In re, 221. Stillwell V. Bateman, 67. Stilphen, In re, 498. Stilwell V. Mellersh, 264, 265. Stimpson v. Murch, 459. Stimson v. Rountree, 428. Stinson's Estate, 189. Stirling v. Stirling, 128, 168, 169„ 191. Stivers v. Gardner, 466. Stockbridge, In re, 395. Stockton V. Thorn, 130. Stockwell V. Ritherden, 227. Stockwell's Will, In re, 192. Stoddard v. Nelson, 380. Stoddart v. Grant, 239. 612 CASES CITED [The figures refer to pages] StofE V. McGinn, 318. Stokes V. Cheek, 475. Stokea v. Van Wyck, 399. Stokes V. Weston, 445. Stomphousen's Estate, In re, 21, Stone, In re, 404. Stone V. Bradlee, 183, 446, 451. Stone V. Cook, 283, 560. Stone v. Forbes, 492. Stone V. Lewis, 399. Stone V. Littlefield, 419, 487. Stone V. McEckron, 420. Stone V. Parker, 364, 365. Stone V. Pennock, 511. Stone V. Todd, 71. Stone V. Vandermark, 540, 544. Stonehouse v. Evelyn, 186. Stoner v. Wunderlich, 4l5. Storrs V. St. Luke's Hospital, 283, 285. Storrs Agricultural School v. Whitney, 138 Story V. Story, 72, 289. Stoueh T. Zeigler, 417. Stout V. Cook, 401. Stout V. Hart, 505. Stout v. Stout, 133, 136, 555. Stoutenburgh v. Hopkins, 84, 87, 95, 158, 162. Stoutenburgh v. Moore, 491. Stover V. Kendall, 230. Stracey, In re, 76. Stratford v. Powell, 540. Stratton v. Grimes, 466. Stratton v. McKinnie, 319, 395, 475. Stratton v. Stratton, 322. Stratton's Estate, In re, 58, 341. Straus V. Host, 447. Strawbridge's Estate, In re, 365. Strawn v. Shank, 203. Streatfield v. Streatfield, 542. Streatley, Goods of, 209. Street v. Gordon, 479. Stride v. Cqoper, 262. Stringer v. Gardiner, 349. Stringfellow v. Early, 303, 304. Stringfellow v. Somerville, 2. Strong, Appeal of, 209, 233. Strong V. Williams, 510. Strong's Will, In re, 209. Stroup V. Stroup, 19, 21, 25. Stuart, Goods of, 40. Stuart V. Brown, 378. Stuart V. Robinson, 523. Stuart V. Stuart, 375. Stuart V. Walker, 430. Stuart's ;WiU, In re, 320. Stubbs V. Largon, 38. StuU V. Veatch, 312. Stumpenhousen's Elstate, In re, 21, 26. 328, 423. Sturdevant, Appeal of, 88, li5, 116. Sturdlvant v. Birchett, 215. Sturdivant v. Neill, 312. Sturges V. Sturges, 148. Sturgia v. Carp, 83. Sturgis V. Work, 240, 348. Sudner's Ez'r t. Gumiingham, 116. Sugden v. Lord St. Leonards, 307, 308. Suisse V. ' Lowther, 499. Sullivan v. Foley, 170. Sullivan v. Garesche, 446. Sullivan v. Jones, 445. Sullivan v. Latimer, 511. Sullivan v. Parker, 145, 377. Sullivan v. Sullivan, 204, 205. Sullivan's Estate, In re, 26, 35. Summerhill v. Hanner, 365. Summers v. Copeland, 289. ■" Summers v. Higley, 411. Summers v. Smith, 415, 455. Summit v. Yount, 322, 465. Sumner v. Crane, 71, 297, 298. Sumpter v. Carter, 322, 445, 450. Sunday's Estate, In re, 19, 34. Suiiderland, Goods of, 39, 41. Surclam V. Cornell, 448. Sutherland v. Sutherland, 544. Sutton V. Chenault, 181. Sutton V. Dickerson, 456. Sutton V. Hancock, 256, 297. Sutton V. Hayden, 69. Sutton V. Read, 548. Sutton V. Sadler, 115. Sutton V. Sutton, 90. Suydam v. Voorhees, 530. Suydam's Will, In re, 168. Svanburg v. Fosseen, 70. Swails V. Swails, 510. Swaim's Will, 29. Swain v. Cormier, 423. Swain v. Edmunds, 220. Swallow V. Swallow, 391. Swan V. Fidelity Trust & Safety-Vault Co., 277. Swan V. Hammond, 249, 250. Swan V. Sayles, 252. Swann' v. Housman, 17. Swanson, Succession of, 58. Swanzy v. Kolb, 200. Swarthout v. Rainer, 425. Swarthout v. Swarthout, 422. Swasey v. Jagues, 396. Swearingen v. Inman, 158, 172. Sweeney v. Warren, 530. Sweet V. Burnett, 365. Sweet V. Dutton, 389. Sweet V. Sweet, 229. Sweigart v. Frey, 433. Swenson, In re, 325. Swenson's Estate, In re, 400. Swett v. Thompson, 447. Swift V. Wiley, 199, 211. Swinburne, In re, 405. Swinfen v. Swinfen, 363. ■ Swinton v. Bailey, 230. Swinton v. Egleston, 370. Swire's Estate, In re, 189. Swoope, Appeal of, 509. Swygart v. Willard, 112, 122. Sydner's Ex'r v. Cunningham, 118. Syer v. Gladstone, 539. Sykes, In re, 236. Sykes v. Van Bibber, 503. Syme v. Broughton, 116. Symes v. Green, 115. Symmes v. Arnold, 22. Synge v. Synge, 74. CASES CITED [The figures refer to pages] 613 Tabler v. Tabler, 47. Tabor v. Tabor, 411. In re Tacke'a Will, 300. / Taff V. Hosmer, 113, 116. Taft V. Jflorse, 459. Taller, In *e, 497. Tainter v. CTlark, 491. Talbot V. Earl of Radnor, 539. Talbot V. Snodgrass, 428. Talbott V. Hamill, 360, 458. Tallent v. Fitzpatrlck, 493. Tallman v. Tallman, 317, 363. Tallman's Estate, In re, 89. Tallman's WiU, 159, 167. Tally V. Butterworth, 50. Tamplin, Goods of, 36. Tanton v. Keller, 266, 507, 508. Tapley v. Eagleton, 358. Tappenden v. Walsh, 83. TarbeU v. Forbes, 30& Tartton v. Gilsey, 491. Tarrant v. Backus, 482. Tarrant v. Ware, 221. Tarver v. Tarver, 61. Tasker's Estate, In re, 112. Tate V. Hilbert, 11. Tate V. Tate, 391. Tatnall t. Hankey, 280. Taubenhan v. Dunz, 354, i Tayloe v. Johnson, 334. Taylor t. Bell, 420. Taylor v. Boggs, 333. Taylor v. Brown, 411. Taylor v. Cox, 91, 285. Taylor t. Crlbbs, 403. Taylor v. Higgs, 66. Taylor t. Horst, 339. Taylor v. Kelly, 153, 154. Taylor v. McClintoek, 99, 105, 116. Taylor v. McCowen, 456. Taylor v. Martin, 479. Taylor v. Meads, 83. Taylor v. Minor, 302. Taylor v. Mitchell, 70. Taylor v. Pegram, 94, 118, 121, 178. Taylor v. Popham, 461. Taylor v. Richards, 481. Taylor v. Taylor, 201, 205, 241, 242, 358, 444, 453, 513, 559. Taylor v. Tolen, 508. Taylor v. Trich, 107. Taylor's Estate, In re, 188, 373. Taylor's Goods, In re, 228. Teacle's Estate, In re, 237. Teal V. Richardson, 415, 416. Teats V. Flanders, 67. Tebow V. Dougherty, 327. Teckenbroch v. McLaughlin, 285, 292, Teel V. Hilton, 362, 496. -Teele T. Hathaway, 440. Xehan T, Tehan, 548. Temple v. Temple, 112. Teopfer's Estate, 254. Terhune v. Commercial Nat. Safe De- posit Co., 239. Terrell v. Reeves, 412. Terry t. Davenport, 90. Terry v. St. Stephen's Protestant Epis- copal Church, 431. Teske v. Dittbemer, 66. ) Thayer v. Pinnegan, 523. Thayer v, Paulding, 555. Thayer v. Pressey, 384. Thayer v. WeUington, 37, 40, 517. , Thellusson v. Woodford, 388. • Theobald v. Pugman, 142, 523. Theriot, Succession of, 56. , Thomas, Goods of, 220. Thomas, In re, 222, 531. Thomas v. Beynon, 343. Thomas v. Black, 256. < Thomas v. Carter, 105. Thomas v. Feese, 73. Thomas v. Gregg, 434. Thomas v. Howell, 461, 462. Thomas v. Jones, 264. Thomas v. Levering, 239, 385. Thomas v. Miller, 405, 420. Thomas v. Scott, 343. Thomas v. Thomas, 234, 235, 260, 281, 344, 379, 402, 449. Thomas v. Trust Co., 320. Thomas v. Williamson, 296. Thomas' Bx'r v. Thomas' Guardian, 333. Thomman's Estate, In re, 448. Thompson, Appeal of, 531. Thompson, Ez parte, 52, 53. Thompson, In re, 393. Thompson, Succession of, 461. Thompson v. Bennett, 162, 178, 292. Thompson v. Betts, 340, 499. Thompson v. Crump, 416. \ Thompson v. Gaut, 469. Thompson v. Ish, 87, 154. Thompson v. Kaufman, 349. Thompson v. Kyner, 113. Thompson v. McDonald, 377. Thompson v. Owen, 218. Thompson v. Eemsen, 314. Thompson v. Stevens, 64. Thompson v. Swoope, 144. Thompson v. Thompson, 123, 124, 182, 19^7. Thompson v. Thornton, 380, 515. Thompson v. Tucker-Osbom, 66. Thompson's Adm'r v. Churchill's Estate, 330, 501. Thompson's Estate, In re, 368, 530. Thompson's Trusts, In re, 85. Thompson's Will, In re, 169. Thomson, In re, 113. Thomson v. Hill, 438. Thomson v. Ludington, 452. Thomson v. Peake, 415. Thomson v. Thomson, 332, 347, 348, 359. Thorington v. Thorington, 450. Thorn v. Garner, 557. Thomdike v. City of Boston, 273. I Thomdike t. Loring, 138. 614 CASES CITED [Tbe figures reler to pages] thohie, Goods of, 52. Thome's Case, 61. Thome's Estate, In re, 161. Thomhill v. Thomhill, 393. Thornquist v. Oglethorpe Lodge No. 1, 482. • Thornton, Goods of, 232. Thomton, Lost Wills of, 306, 307. Thornton v. Burch, 357. Thomton v. Curling, 271. Thornton v. Thornton, 174. Thomton v. Zea, 318, 320, 402. Thrall t. Spear, 419. Thrasher v. Ballard, 311. Thrasher v. Ingram, 326, 331. Throckmorton v. Holt, 259, 260. Thurber v. Battey, 526. Thurston v. Tubbs, 17. Thwartes v. Over, 381. Thyng v. Lane, 447. Tibbe v. Kamp, 158, 165, 171. Tichenor t. Brewers' Ex'r, 376. Tienken, In re, 448. Tieman v. Roland, 543. Tiffany v. Emmet, 320, 377, 383, 392. Tighe's Will, In re, 236. Tilden v. Green, 375. Tildeu T. Tilden, 461. Tilley v. Ellis, 346. Tilley v. King, 458. Tilley v. Simpson, 363. Tillinghast, In re, 429, 497, 505. Tillson V. HoUoway, 515. Tilton, In re, 423. Timewell v. Perkins, 351. Tims T. Tims, 194. Tindal v. Neal, 448. Tindall v. Miller, 446. Tindall v. TindaU's Ex'rs, 370. Tindall's Ex'rs v. Tindall, 516. Tingley v. Harris, 452. Tinney's Estate, In re, 147. Titlow V. Titlow, 124. Titlow's EJstate, In re, 302. Titus v. Gage, 121, 123, 125. Titzell V. Cochran, 417. Tobias v. Ketchum, 480. Tobin, In re, 216. Tobin V. Haack, 199, 200. Tod V. Winchelsea, 213. Todd V. McPall, 520. Todd T. Rennick, 308. Todd V. Sawyer, 423. Todd V. Todd, 118. Todd's Estate, In re, 557. Todhunter v. D. M. I. & M. R. Co., 134. Tofield V. Tofield, 355. Tolman v. Tolman, 505. Tomas v. Williams, 441. Tomkins v. Merriam, 344. Tomkins v. Miller, 489. Tomlinson, Estate of, 230. Tomlinson v. Bury, 366, 503. Tomlinson's Estate, In re, 230. Tompkins' Estate, In re, 448, 513. Toms y. Owen, 476. Toma V. Williams, 441. Toney v. Spragins, 538. Tonge, Goods of, 238. Tonnele v. Zabriskie, 273. Toole V. Perry, 401. Toomes' Estate, 128. Torrance's Estate, In re, 142. Torrey v. Bumey, 178. ■ Torrey v. Peabody, 519. Torrey v. Torrey, 317, 318, 354. Tourtelot v. Mnke, 551. Tousey's Will, In re, 150. Towers v. Hogan, 33. Townley, In re, 221. Town of Pawtucket v. Ballou, 213. Townsend v. Downer, 327. Townsend v. Downer's Estate, 299. Townsend v. Early, 469. Townsend v. Pearce, 185. Townsend v. Rackham, 21. Townsend v. Townsend, 155, 375. Townsend v. Vanderwerker, 63. Townsend's Estate, 161. Townsend's Will, In re, 88. Townshend v. Howard, 228. Townshend v. Townshend, 116, 127. Townshend v. Windham, 381. Towsou V. Moore, 156, 175. Tozer v. Jackson, 33, 35. Tracey v. Shumate, 544. Tracy v. Murray, 547. Trammel v. Trammel, 511. Traphagen v. Levy, 466, 551. Traver, In re, 444. Travers v. Wallace, 416. Travis v. Morrison, 439. Traylor, In re, 338. Traylor's Estate, In re, 354. Treadaway v. Payne, 540. Treasy v. Treasy, 548. Treat v. Vose, 485. Trenholm v. Morgan, 12. Trenor's Estate, In re, 192. Trenton Trust & Safe Deposit Co. v. Armstrong, 439. Trenton Trust & Safe Deposit Co. v. Sibbits, 391, 395. Tresldder's Estate, In re, 170. Trevanion v. Vivian, 371. Trevelyan v. Trevelyan, 227. Trexler v. Holler, 455, 471. Trezevant v. Rains, 88, 117, 118, 157, 183 > » » ' Triba v. Lass, 319. Tribe v. Tribe, 214. Trice v. Shipton, 226. Trieh's Ex'r v. Trich, 105. Trimmell, Goods of, 215. Trinitarian Congregational Church, In re,^ 203. Trisb v. Newell, 91. Trost V. Dingier, 167. Trout V. Rominger, 411. Trowbridge v. Trowbridge, 140. Trubey v. Richardson, 132, 166. Trufant v. Nunneley, 140. Truman, In re, 377. Truro, Goods of, 39, 41. Trustees of Amherst College v. Smith 527. CASES CITED [The figures refer to pages] Trustees v. Denmark, 297 r^^lll ^"«=h Home V. Morris, 553. Trustees of Amherst College v. Smith; 615 527. Trustees of Central Methodist Episcopal Church v. Harris, 412. Trustees of Pembroke Academy v. Erv- som School Dist, 478. Tri^ees of Phillips Academy v. King, Trustees of Reformed Church of Union- town V. Wise, 77. Trustees of Western Maryland College v. McKinstry, 14, 180. Trustees Unitarian Soc. v. Tufts, 507. Trusty v. Trusty, 327. Tucker v. Aid Soc, 323, 344. Tucker v. Bishop, 402. Tucker v. Sandidge, 114. Tucker v. Tucker, 205. ^ Tucker'a Will, .In re, 445. Tudor T. Tudor, 230. Tuell V. Hurley, 504. Tugman t. Hopkins, 82. Tugwell V. Scott, 378. Tuit T. Smith, 70. Tullis V. Kidd, 128. Tunno, In re, 503. Tuohy V. Hanlon, 301. Tupper V. Tupper, 237. Turell's WiU, In re, 57. Turner, Appeal of, 92, 154, 156. Turner, Goods of, 231. Turner v. Burr, 386. Turner v. Cheeseman, 127.. Turner v. Cook, 192. Turner v. Gibb, 523, 524. Turner v. Hause, 421. Turner t. Laird, 521, 532. Turner t. Martin, 503, 515. Turner v. Safety Vault Co., 553. Turner v. Savings Institution, 413. Turner's Guardian v. King, 302. Tumey t. Sparks, 322. Turrell's Will, In re, 196. Tussey v. Owen, 69, 72. Tnthill V. Forbes, 301. Tuttle V. Berryman, 280. Tuttle T. Raish, 22. Tuttle V. Woolworth, 378, 399, 401. Tweddell v. Trust Co., 336. Twiss V. Simpson, 334, 428. Tyler v. Gardiner, 172. T^ler v. Merchants' Tailors' Co., 234 Tyler v. Tyler, 254. Tyler v. Wheeler, 84. Tyler's Estate, In re, 220. Tynan v. Paschal, 307. Tyndale v. Wilkinson, 329. Tyrrell v. Painton, 160. Tyrone t. Waterford, 409. Tyson's Case, In re, 428. Tyson's Ei^tate, In re, 414. Tyson v. Tyson, 114, 116, 159, 314 Tytherleigh r. Harbin, 393. u Ulmer, Appeal of, 117. Underwood v. Curtis, 140. Underwood v. Bobbins, 387. Underwood v. Thurman, 175. 220, 292. Underwood v. Underwood, 430. Ungrich, In re, 552. Union Safe Deposit & Trust Co. v. Dud- ley, 384. Union Trust Co. of New York v. St Luke's Hospital, 349. United States v. Duncan, 544. United States Fidelity & Guaranty Co. V. Douglas' Trustee, 401. United States Trust Co., In re, 392. Dnited States Trust Co. v. Maresi, 336, 480. United States Trust Co. v. Tobias, 384. United States Trust Co. of New York v. Wheeler, 449. Upchurch v. Upchurch, 186, 209. Updegraff v. McCorniick, 359. Upham's Estate, In re, 331, 517, Upington v. Corrigan, 147. Upton V. Bernstein, 219. Urann y. Coates, 485. Utermehle v. Norment, 283. Utley V. Titcomb, 500. Valentine, In re, 398, 558. Vanauken, Matter of, 130. Van Axte v. Fisher, 444. Van Beuren's Estate, In re, 239. Vance v. Anderson, 310. Vance t. Upson, 295. Vance's Estate, In re, 553. Van Cortlandt v. Kip, 264. Van Deu?er v. Gordon's Estate, 52, 54. Vandeveer v. Higgins, 249. Vandevort, In re, 461, 462, 470. Vandiver v. Vandiver, 343, 345, 347. Van Doren v. Olden, 434. Vandrufe v. Binehart, 183. Van Duyne v. Vreeland, 69. Van Dyke, Appeal of, 542. Van Gallow v. Brandt, 340, 404, Van Geison, In re, 193. Vangieson v. Henderson, 416. Van Giesen v. White, 447. Van Gillurve v. Becker, 523. , Van Guysling v. Va,n Kuren, 91/ Vanhille, Succession of, 58. Vanhook v. Vanhook, 436. Van Houten v. Post, 509. Van Houten's Will, 219. Van Kleeck v. Dutch Reformed Prot- estant Church, 264. Van Matre v. Sankey, 274. Van Ness' Will, 154. Van Nest v. Van Nest, 502, 503. Van Nostrand v. Board, 343, 383. Van Nostrand v. Marvin, 451. Van Olinda T. Carpenter, 415. 616 CASES CITED [The figures refer to pages] Van Osdell v. Champion, 469. Van Rensselaer v. Van Kensselaer, 554. Van Schaack v. Lieonard, 537. Van Steenwyck v. Washburn, 543. Van Straubenzee v. Monck, 41. Van Syckel v. Van Syckel, 382. Van Wickle v. Van Wickle, 254. Van Winkle v. Schoonmaker, 81. Varner v. Beyil, 267. Vamer v. Varner, 122, 174. Varnon v. Varnon, 30, 230, 234, 280, 307, 308. Varrell v. Wendell, 380. Vaughan v. Bridges, 330, 419. .Vaughan v. Vaughan's Hx'x, 398, 420. Vawser v. Jeffrey, 249. Vedder, In re, 107. Veeder v. Meader, 413. Vernon v. Jones, 247. Vernon v. Kirk, 184. Verrill v. Weymouth, 440. Verrinder v. Winter, 255. Vestal V. Garrett, 239, 322, 349. Vestry of St. John's Parish v. Bostwick, 39, 40, 297, 316. Vidal, Succession of, 55. Vidal V. Girard's Ex'rs, 484. Viele V. Keeler, 239. Villa, Succession of, 146. Villar V. Gibley, 376. Vinton's Appeal, 434. Violett V. Bookmad, 470. Vitt v. Clark, 512. Vivian, Appeal of, 175, 178, 179, , Vogel V. Lehritter, 191, 210. Voglesong's Estate, In re, 92. Vogt V. Graff, 416. Vollmer, Succession of, 56. Vom Saal's Will, In re, 470. Von der Horst v. Von der Horst, 438, 554. Von de Veld v. Judy, 90, 92, 117, 118. Von Keller's Will, In re, 431. Von Phul v. Hay, 351. Voorhees, In re, 236. Voorhis' Will, In re, 94, 195, 196, 197, 237, 294. Vosburg V. Mallory, 11. Vosburg's Will, In re, 184. Vreeland's Estate, In re, 487. Vrooman v. Powers, 50, 200. w Waddell v. Waddell, 521. Waddingtou v. Buzby, 96, 167. Wadsworth v. Murray, 449. Waggoner v. Waggoner, 538, 540. Wagner v. McDonald, 60. Wagner's Estate, In re, 81. Wagstaff V. Wagstaff, 362. Wahl V. Brewer, 315. Wait T. Belding, 148. Waite V. Frisbie, 152, 181, 184, 212. Wait's Will, In re, 223. Walcott V. Ochterleny, 237. Walcott T. Bobi^son, 453. Waldron's Will, In re, 307. Wales V. Templeton, 359. Walfor V. Hemmer, 422. Walford v. Walford, 554. Walker, Goods of, 187. Walker v. Alverson, 449. Walker v. Downer, 523. Walker v. Lewis, 454. Walker v. Mower, 437., Walker v. Pritchard, 419, 422. Walker v. Upson, 547. Walker v. Walker, 76, 213, 214, 285, 332 Walker v. Walker's Ex'r, 129. Walter's Estate, In re, 208, 377, 559. Walkerly, In re, 133. Walkerly's Estate, In re, 136, 559. Wall, In re, 470. Wall V. Dimmitt, 176. Wall V. Wall, 22, 180, 296. Wall's Appeal, 66. Wallace v. Du Boise, 509. Wallace v. Foxwell, 442, Wallace v. Hawes, 410. Wallace v. Long, 68, 69. Wallace v. Minor, 453. • Wallace v. Noland, 388. Wallace v. Payne, 278. Wallace t. Rappleye, 64, 74. Wallace v. Sheldon, 300. Wallace v. Smith, 468. Wallace v. Wallace, 496, 503. Wallace v. Whitman, 126. Wallace's Estate, In re, 520. Waller, In re, 346, 348. Wallen y. Wallen, 115, 158, 175. Waller v. Martin, 424. Waller v. Waller, 187. Walling V. Scott, 490. Wallis V. Luhring, 89, 176. Wallis V. Wallis, 237, 308. Walls V. Walls, 173. Wain's Estate, 370, 517. Walpole V. Cholmondeley, 266. Walpole V. Orford, 264. Walpole V. Oxford, 63. Walsh T. Peterson, 329. Walston's Lessee v. White, 323. Walter v. Walter, 383. Walters v. Walters, 164. Walters' Estate, In re, 522, 528. Walter's Will; In re, 27. Walton V. Hall's Estate, 277, 311, Walton V. Kendrick, 223. Walton V. Walton, 246, 495, 506. Walton's Estate, In re, 169, 263, 264. Walts V. Walts, 172, 178. Wampler v. Wampler, 79. Wanger v. Marr, 77. Ward V. Board, 210, 217, 299. Ward V. Bush, 515. Wai'd V. Congregational Church, 316. Ward V. Heame, 299. Ward V. Moore, 246, 247. Ward V. Poor, 290. Ward V. Putnam, 188. Ward V. Turner, 11, 12. CASES CITED [The figures reter to pages] 617 Ward V. Ward, 24, 254, 330. Ward's Will, 111 re, 249, 254. Warden v. Hinds, 72. Warden v. Overman, 388. Wardens & Vestry of St. Paul's Church V. Attorney General, 337. Wardwell v. Hale, 440. Wardwell v. Wardwell, 2. Ware, In re, 384. Ware v. Ware, 123. Ware V. Wisner, 268, 297. Wareham v. Sellers, 22. Waring v. Waring, 99, 104. Warnen's Adm'r v. Bronson, 515, Warner, In re, 492. Warner v. Beach, 251, 258. Warner v. Warner's Estate, 230. Warner v. Willard, 351. Warren v. Baxter, 201, 203. Warren v. Ellis, 88. Warren v. Ingram, 425. Warren v. Morris, 503. Warren v. Prescott, 516. Warren's Adm'r v. Bronson, 458. Warwick v. Ely, 555. Warwick v. Warwick, 58, 187. Washbon v. Cope, 316, 326, 395. Washburn v; Van Steenwyk, 271. Washburn v. Weeks, 71. Washington's Estate, In re, 479. Waterfield v. Rice, 521. Waterman v. Alden, 559. Waterman v. Hawkins, 255. Waterman v. Whitney, 120, 174, 223, 260. Waters v. Cline, 67. Waters v. Reed, 162, 163. Waters v. Stickney, 277, 295. Watertown v. Greaves, 274. Watkins v. Blount, 379. Watkins' Will, In re, 161. _, Watkins' Adm'r v. Watkins' Bx'rs, 429. Watson, Appeal of, 480. Watson, In re, 142, 294. Watson V. Aldersori, 282, 283. Watson V. Anderson, 130. Watson V. Hayes, 441. Watson V. Lancoln, 509. Watson V. Pipes, 213. Watson V. Reed, 500. ,^„ Watson V. Watson, 24, 355, 424, 492, 509, 540, 544. ^ Watson's Ex'r v. Watson, 125. Watson V. Williamson, 386. Watson's Estate, In re, 42& Watt V. Pittman, 528. Watt, Estate of, 238. Watt's Estate, In re, 239, 489, 556. Watterson v. Watterson, 15, 160. Watts, In re, 396. Watts V. Griffin, 465. Watts V. Howard, 487. Waugh V. Moan, 91, 119. Wax's Estate, In re, 93, 131, 132. Wayman v. Follansbee, 481. Weakley v. Buckner, 481. Weatherford v. Boulware, 452. Weathers v. McFarland, 162. Webb V. Archibald, 372. Webb V. Carney, 356. Webb V. Hayden, 340. Webb V. Jones, 254, 508. Webb V. Neal, 484. Webb V. Webb, 353, 430, 438, 439, 440, 554, 556. Webbe v. Webbe, 417. Webber v. Jones, 398, 449, 553. Webber v. Webber, 398. Webber Hospital Ass'n v. McKenzie, 477. Weber v. Strobel, 156. Webster v. Brown, 419. Webster v. Lowe, 35, 59. Webster v. Wiggin, 410, 555. Webster v. Yorty, 168, 191, 218, 258. Webster's Trustee v. Webster, 4il. Weddall v. Nixon, 280. Wedekind v. Hallenberg, 386. Wedmore, In re, 503. Weed V. Hoge, 367. Weed V. Scofield, 369, 383. Weeding, In re, 366. Weedman's Estate, In re, 92. Weeds v. Bristow, 379. Weeks v. Wrankel, 487. Weeks v. Jewett, 431. Weick V. Henne, 55, 56. Weigel'v. Weigel, 14. Weil, In re, 117. Weil V. King, 445. Weingaertner v. Pabst, 69. Weir V. Chidester, 46. Weir V. Fitzgerald, 219. Weir's Will, In re, 110. Weiser v. Zeigler, 134. Welbom v. Townsend, 361, Welch V. Adams, 556, 557. Welch V. Brimmer, 400, 415. Welch's Will, In re, 160. Weller v. NoEEsinger, 469, 485, 542. Weller v. Weller, 387. Welling V. Owings, 46. Wellington v. Apthorp, 68, 71, 72. Wells, In re, 164, 341, 514. Wells V. Anderson, 335. Wells V. Hawes, 37. Wells V. Houston, 438. Wells V. OfEutt, 415. Wells V. Thompson, 113. Wells V. Wells, 532. Wells Fargo & CO. v. Walsh, 312. Welsh V. Brown, 557. Welsh V. Crater, 383. Wendler v. Lambeth, 421. Wendling v. Bowden, 164. Wenger v. Thompson, 489. Wenning v. Teeple, 153, 162, 290. Wentworth v. Fernald, 322, 435. Wentworth v. Read, 341, 520, 522. Wentworth v. Shibles, 13. Wescott V. Higgins, 392. Westcott, In re, 71. West V. Knoppenberger, 93. West V. Place, 302, 303. West V. Handle, 352. West V. Rassman, 404. 618 CASES CITED [The flgurea refer to pages] West V. West, 82, 163, 241. West V. Wright, 21. Westerman's Will, In re, 163. Western Maryland College v. McKin- stry, 14. Westlake v. Westlake, 350. Weston, In re, 233, 260. Weston V. Johnson, 508, 509. Weston V. Teufel, 160. Weston V. Weston, 437. Wetherill's Estate, In re, 449. Wetmore v. St Luke's Hospital, 602. Wettach v. Horn, 387. Wetter v. Walker, 383. Weybright v. Powell, 455. Whalen, Ex parte, 315. Whall V. Converse, 481. Wheeler v. Alderson, 14. Wheeler v. Allan, 393. Wheeler v. Bent, 230. Wheeler v. Bingham; 466. Wheeler t. Brewster, 371. Wheeler v. Fellowes, 136. Wheeler t. Hollia, 275. Wheeler v. Perry, 434. Wheeler v. Walker, 457. Wheeler v.' Wheeler, 251. *• Wheeler vi Whipple, 167. Wheeler v. Wood, 339, 497. Wheeler's Will, In re, 96, 176, 343. Wheelwright v. Wheelwright, 17. Whelan, In re, 300. Whelen v. Phillips, 557. Whelen's Estate, 28, 479. Whetsell v. Louden, 545. Whetstine v. Wilson, 73. Whipple V. Eddy, 106. Whitaker v. McKinney, 295. Whitbread v. Lord St. John, 402. Whitcomb v. Rodman, 347. Whitcomb v. Whitcomb, 72. Whitcomb's Estate, In re, 479. White, Goods 'of, 208. White, In re, 3, 99, 103, 160, 498. White V. Barford, 250. White T. Bower, 204. White V. Casten, 227. White V. Cole, 165, 294. White V. Com., 410. White V. Crawford, 332. White T. Grossman, 27. White v. Driver, 117. White V. Holland, 340, 405. White V. Holton, 337. White V. Howard, 143, 267, 273. White V. Institute, 552. White V. Institute of Technology, 473, 484, 504. White V. Irvine, 479. White V. Keller, 143, 325, 872. White V. Mass. Institute Technology, 3, 395 White V. Old, 379. White V. Repton, 52. White V. Roes, 162, 174. White V. Rukes, 389. White V. Stanfield, 389, 453. White V. Starr, 94, 163. White y. Trustees of British Museum, 192 White V. Underwood, 399. White V. White, 499. White V. Wilson, 110. White v. Winchester, 505. White's Estate, In re, 463. White's Will, In re, 114, 161, 228. Whitehome v. Harris, 381. Whitelaw'a Adm'r v. Whitelaw's Adm'r, 124. Whitelaw's Ex'r V. Sims, 131, 160. Whiteman v. Whiteman, 340. Whitesell v. Strickler, 542. Whitesides v. Cooper, 452. Whitesides v. Whitesides, 375. Whitfield V. Means, 426. Whiting V. Whiting, 456. Whitley v. Whitley, 542. Whitney v. Hanington, 29, 30. Whitney v. Twombly, 87, 104. Whitney v. Whitney, 317. Whitney's Will, In re, 42, 189. Whiton V. Snyder, 467. Whiton V. Whiton, 63, 68, 73. Whittaker v. Gutheridge, 424. Whittemore v. Bean, 146. Whittemore v. Russell, 255, 419, 430, 431, 552. Whittle V. Whittle's Bx'rs, 404. WhytaU v. Kay, 38. Whyte v. PoUok, 22, 26. Wickes' Estate, In re, 166, 277. Wickes, Estate of, 274. Widdowson's Estate, In re, 166. Widmayer's Will, In re, 96, 117. Wieting v. Bellinger, 527. Wiggin V. Perkins, 447. Wiggin V. Swett, 433. Wiggins V. Wiggins, 531, 533. Wikoff, Appeal of, 264. Wikoff*^ Appeal, 29, 188, 190, 235. Wilbanks,v. Wilbanks, 542. Wilber v. Wilber, 140. Wilbur V. Wilbur, 114, 172, 176, 302. Wilce V. Wilce, 354. ' Wilcox, In re, 391, 468. Wilcox V. Wilcox, 496. Wilcox's Will, In re, 221, 234. Wilcoxon V. Wilcoxon, 123, 172. Wildberger v. Cheek's Ex'rs, 380. Wildman, In re, 394. Wild's Case, 418. Wiley V. Gordan, 202. Wiley V. Gregory, 422. Wiley's Estate, In re, 46, 48, 49. Wilkerson v. Clark, 409. Wilkes V. Bannister, 380. Wilkins v. Hukill, 293. Wilkins v. Knipe, 461. Wilkins v. Wilkins, 513. Wilkinson v. Adam, 38. Wilkinson v. Adam, 145. Wilkinson v. Chamliers, 410. Wilkinson v. Dent, 538. Wilkinson v. Joughin, 153. Wilkinson v. Rosser's Ex'r, 368. Wilkinson v. Service, 88, 120. CASES CITED tThe figures refer to pages] 619 Wilkinson's Estate, In re, 366. Wilka V. Burns, 2. Will V. Sisters of Order, etc., 203. Will V. Sisters of Order of St. Benedict, • 165. Willard v. Darrah, 335, 346. Willard v. Eastham, 83. Willbor, In re, 514. Willcox v. Willcox, 432. Willesford, Goods of, 39. Willets, In re, 239. Willett V. Sandford. 245. Willett's Estate, In re, 497. Willey's Estate, In re, 40, 191, 280, 322. Willford's Will, In re, 162. Williams, In re, 28, 167, 183, 196. Williams v. Ashton, 235. Williams v. Brice, 361. Williams y. Committee, 476. 'Williams v. Cowden, 465. Williams v. Crary, 511. Williams v. Elliott, 454. Williams v. Etoberson, 540. ' Williams v. Evans, 39, 41. Williams v. Jones, 482. ' Williams v. Knight, 384. WiUiams v. McKeand, 371, 516. WilUams t. Miles, 217, 237, 239, 243. Williams v. Noland, 14, 18. Williams v. Noland, 18. Williams v. Robinson, 111, 114, 116. Williams v. Saunders, 270. Williams v. Schatz, 16, 17. WUUams v. Spencer, 126, 127. Williams v. Tolbert, 25. WiUiams v. Williams, 28, 72, 75, 107, 243, 314, 524. „„ .,„ Williams' Bi'r v. Williams, 107, 118. Williams' Heirs v. Hardy, 57. Williams' Estate, In re, 68. Williams' Will, In re, 241. Williamson v. Nabers, 124. Williamson ▼. Nelson, 546. Williamson v. Tunis, 411. Williford v. Phelan, 81. Willis V. Clymer, 486. Willis V. Lowe, 190. WiUis V. Mott, 211. Willis V. Richardson, 89-^. Willitt's Estate, In re, 259. Willock V. Noble, 82, Wills T. Foltz, 397, 403. Wills V. WiUs, 397, 445. Wilmer v. Borer, 67. Wilmot V. Wilmot, 334. Wilsey v. Ellis, 87. Wilson V. Anderson, AL. Wilson V. Bull,. 398^ Wilson V. Curtis, 360, 421. Wilson V. Fosket. 255. Wilson V. I.oss.,524 527. Wilson V. Hays' Exr, 292. Wilson V. Heath, 67 Wilson T. Mitchell, 79. Wilson V. Smith, 509. Wilson V. Stevens, 346. Wilson V. Turner, 428. Wilson V. White, 454. Wilson V. Wilson, 384, 545. Wilson's Estate, In re, 117, 119, 122. Wilson's Will, In re, 222. Wilson, WiU ot 235. Wilt V. Cutler, 311. Wiltbank's Appeal, 434. Wilton V. Humphreys, 235, 286. Wilts V. Wilts, 498. Winch, In re, 118. Wiuchell V. Winchell, 449. Winchester's Case, fel. Winchester v. Hoover, 419. Winder v. Scholey, 479. Winder v. Smith, 327. Windham v. Windham, 499. Winelaud, Appeal of, 188, 190. Wing V. Deans, 82. Wingrove v. Wingrove, 155. Winn, Goods of, 60. Winn V. Bob, 47. Winn V. Schenck, 65. Winn V. Tabernacle Infirmary, etc., 458. Winne v. Winne, 64, 73. Win slow V. Donnelly, 299. Winslow V. Goodwin, 146. Winslow v.- Kimball, 204, 205. .Winsor v. Mills, 136. Winter v. Dibble, 415. Winters v. Winters, 286. Winter's Estate, In re, 399. Wintle, In re, 441. Winton V. Clifton, 538. Wirth V. Wirth, 257. Wise's Estate, In re, 521. Wisner v. Kleinhans, 367. Wise V. Leonhardt, 401. Witherspoon v. Brokaw, 467. ^ Witherspoon's Heirs v. Witherspoon » Ex'rs, 22. Withy V. Mangles, 383. Witt V. Gardiner, 214. Witter V. Mott, 262. Wittman v. Goodhand, 225. Wixon V. Watson, 327. Woelpper, Appeal of, 399. Woessner v. Wells, 513. Wold V. Berkholtz, 545. Wolf V. Bollinger, 234. Wolfe V. Allcock, 332. Wolfe V. Hatheway, 332. Wolfe V. Mueller, 539. Wolfer V. Hemmer, 413. Wolfinger v. Pell, 487. Wolverton's Estates, In re, 346. Woman's Foreign Missionary Soe. of M. E. Church v. Mitchell, 383, 476. Woman's Union Missionary Soc. v. Mead, 320. ,^„ ^^„ Wombacher v. Barthelme, 152, lp8. Wood, In re, 258, 506. Wood v. Baron, 409. Wood V. Bullard, 400, 453. Wood v. Carpenter, 125, 289. Wood V. Hammond, 318, 502, 503, 5o5. Wood V. Hubbard, 516. Wood V. Lane, 294. 620 CASES CITED [Tbe figures refer to pages] Wood T. Rhode Island Hospital Trust Co.. 183. Wood T. Rlgg, 178. Wood V. Robertson, 424. Wood V. Salter, 118. Wood V. Sawyer, 43. Wood V. Schoen, 400. Wood T. Searer, 514. Wood T. Trust Co., 478. Wood V. Wood, 242, 270, 4T9. Wood V. Zibble, 175, 177. Wood's Will, In re, 370. Woodbridge v. Jones, 493. Woodbridge v. Spooner, 34. Woodbridge v. Winslow, 135, 376. Woodburn's Estate, In re, 544. Woodbury v. Obear, 129. Woodcock, In re, 377. Woodcock V. Woodcock, 353, 365. Wooddy V. Taylor, 115. Woodfill V. Patton, 228, 230. ' Woodford v. Buckner, 114, 158. Woodhouse v. Meredith, 367. Woodlief v. Merritt, 317. Woodman v. Woodman, 447, 450. WoodruflE V. Hundley, 191, 220, 222, 228, 261, 293. Woodruff V. Migeon, 559. Woodruff V. Woodruff, 488. Woods V. Evans, 64. Woods V. Gilson, 484, 521. Woods V. Matlock, 63. Woodward, In re, 380. Woodward v. Darcy (Lord), 3. Woodward v. Goulstone, 308. Woodward v. James, 405, 485, 526. Woodward v. Sullivan, 120, 123. Woodward's Estate v. Holton, 555. Woodward's Will, In re, 120, 163. Woodworth's Estate, In re, 498, 504. Wool V. Fleetwood, 415, 468. Wooldridge v. Hancock, 55. Woolley V. Paxson, 395. WooUey v. Woolley, 220. Woolsey's Will, In re, 1,95, 197. Wooster v. Fitzgerald, 492. Wooten V. House, 466. Wooten v; Reed, 413. Wootton V. Redd's Bx'r, 338. Word V. Whipps, 183. Worden v. Van Gieson, 222. Workman v. Cannon's Lessee, 323. Worley v. Daniel, 24. Worley v. Taylor, 255. Worsely v. Johnson, 380. Worth V. Worth, 525. Worthington v. Klemm, 15. > Worthington'S' Elx'rs v. Worthington's DeviseM. 293. Wotton, Goods of, 188. Wren v. Bradley, 467. Wright V. Barrett, 323. Wright V, Brown, 455. Wright V. Charley, 455, 471. Wright V. Denn, 407. Wright V. Gooden, 447. Wright V. Hicks, 335. Wright V. Manifold, 215. Wright V. Masters, 361. • Wright V. Mayer, 467. ^ Wright V. Methodist Episcopal Churdlk 143. Wright T. Merceln, 385. Wright V. Shelton, 354. Wright V. Simpson, 295. Wright V. Wilkin, 475. Wright V. Wright, 63, 193, 263. Wright's Estate, In re, 63, 100. Wuesthoff V. Insurance Co., 27. Wyatt V. Norris, 368. Wyatt's Estate, In re, 471. Wyche v. Clapp, 77. Wyckoff V. Perrine's Ex!rs, 505. Wyckoff V. Wyckoff, 307, 359, 521, 522. Wyeth V. Stone, i388. Wylie's Will, In re, 195. Wyman v. Gould, 131. Wyman v. Johnson, 417. Wyman v. Symmes, 206. , Wyman v. Woodbury, 373. Wyndham v. Chetwynd, 193. Wynn v. Bartlett, 429. Wynn v. Wynn, 23. WyraU v. Hall, 3. Tamall, Appeal of, 326. Yarnall's Will, In re, 50. Yates In re 427. Yates' V. Shern, 322, 377, 393, 897. Xates V. Thomson, 337. Tearance v. Powell, 65. Yerkes' Appeal, 302. Yerkes v. Yerkes, 448. Yetter's Estate, 379. Yetzer v. Brisse, 426. Yglesias v. Dyke, lOL Yore V. Cook, 269. Yorkney v. Hansard, 499. Youmans v. Youmans, 358. Younce v. Flory, 513. Youndt V. Youndt, 306. Young, In re, 448. Young's Appeal, 403. Young's Estate, In re, 24, 42, 174, 645.. Young's Will, In re, 187, 279. Young V. Benton, 521. Young V. Hillier, 489. Young V. HoUoway, 298. Young V. Insurance Co., 422. Young V. Kiukead's Adm'r, 408. Young V. Miller, 105. Young V. Quimby, 327. Young V. Robinson, 428. Young V. ^heldon, 491. Young V. Wark, 27, 298., Young V. Young, 358. Younger v. Duffie, 2, 187. Youngerman's Estate, In re, 508L Youse V. Forman, 231. CASES CITED [Tbe figures refer to pages] 621 Zabriskie ▼. Huyler, 317, 339, 614. Zane y. Kennedy, 489. Zartman t. Ditmars, 440. ^ayitx ▼. Preston, 419. Zogler T. Eckert, 559. 1 Zerega, In re, 277. Zerega v. Percival, 58. Zillmer v. Landguth, 468. Zimmer T. Sennott, 476. Zimmerman v. Hafer, 40, dj^, rfoo- Zimmerman's Will, In re, 142. Zirkle v. leonard, 130. Zollikofer's Wm, 312. INDEX [the figubes eefeb to faqes] A ABATEMENT, See Legacies. ACCUMULATIONS, 138. ACKNOWLEDGMENT OP SIGNATURE, 191. See also Execution of Wills. ACTIONS, For construction, see Construction. For probate, see Probate. ADEMPTION, See Legacies. ADOPTION, Effect of, as revocation, 256. See also Children. ADVANCEMENTS, 511. Debts as, 513. Interest on, 513. AFTEB-AOQUIRED PBOPERTY, 360. ALIENATION, See also Perpetuities. Restraints upon, 133, 467. ALIENS, As beneficiaries, 141, 142. As testators, 85. ALTERATIONS, 233. Presumptions as to time of, 235. AMBIGUITIES, 342-345. ANIMUS TESTANDI, Essential to wiU, 13. Tests to determine presence of, 16. Will made in jest, 15. ANNUITIES, Defined, 431. Direction to purchase, effect of, 432. * Distinguished from income, 431. Distinguished from rent charge, 432. Duration of, how determined, 432. APPURTENANCES, 355. ASSIGNMENT, By legatee or devisee, 557. WiU in form of, 31. Gabd. Wills (2d Ed.) (623) 624 INDBX [Tbe figures refer to pat ATTESTATION, See Execution. ATTORNEY, See Witnesses; Undue Influence. ATTORNEY'S FEE, In actions to construe will, 320. In probate proceedings, 300. B BENEFICIARIES, Aliens as, 142. Contribution among, 534. Corporations as, 143. ^ Description of, 374, 390. Incompetent by public policy, 144. Under trusts, see Trusts, Witnesses as, 144, BEQUEST, Defined, 3. See Devise; Legaciea. BLIND TESTATOR, 79. CANCELiLATION, 229, Se'e Revocation. CAPACITY (TESTAMENTARY), Drunkenness as affecting, 112. Evidence of, see Evidence. Guardianship as affecting, 111. Insanity as affecting, 97-100, Insane delusion as test of, 99. Defined, 97, 99. Eccentricity, 100. Illustrations of, 107. Jealousy, 103. Mistake, 102. Prejudice, 103. ReUgious beliefs, 106, Lucid interval as affecting, 109, 110. Monomania as affecting, 104, 105. Defined, 104. Old age, as affecting, 94, 96. SenilA dementia as affecting, 108. Sickness as affecting, 94, 96. Test of, 87, 88. Ability to meet, necessary, 89, Applied to particular will, 90. Applied to time of execution, 89, Business capacity as, 91. Contractual capacity as, 92. CAPITA, Per, see Class. CHANGE, In statute after execution, 181. CHARITIES, 141. INDEX 625 [The figures refer to paEea] CHirJDREN, See Construction (of Particular Words). Adopted, As heirs, 388. As issue, 257. As a class, 401. Birth of. Effect upon wiU, 250, 257. Illegitimate, As heirs, 387. Unborn, as beneficiaries, 144. CHRISTIAN SCIENCE, 106. CLASS, Beneficiaries as, 390. Defined, 390. Lapse in case of legacy to a, By statute, 394. At common law, 394. Limitation to children a^ a, 401. Limitation to heirs as a, 399. Substitutional legacies to a, 392. Taking per capita or per stirpes, 403. Time for ascertaining membership of, 396. CODICIL, 3. See Incorporation by Reference; Republication; Willa. COMMUNITY PROPERTY. 362. CONDITIONAL LIMITATION, 456. CONDITIONAL WILLS, 59-62. See also Wills. CONDITIONS, In general, Precedent, Defined, 457, Performance of, 459, 460. Tests to determine, 458. Subsequent, Affecting remainders, 449. Defined, 457. Performance of, 461-463. Waiver of, 463. Particular conditions, Affecting, Alienation, 467. Contest of will, 469. Creditors, 469. Marriage, 464-467. Presentation of claims, 470. Involving, Change of name, 472. Death without issue, 470. Pursuit of study, 472. Residence, 473. Religious belief, 473. Support and maintenance, 471. Traits of character, 472. ' Miscellaneous, 473. Gabd.WiI'Ls(2d Ed.) — 40 626 INDEX [The figures refer to pages] CONFLICT OF LAWS, As affecting, Corporate beneficiaries, 273. Election, 271. Equitable conversion, 273. '^ Lapse, 271. Powers of appointment, 272. Trusts, 270. Wills of personalty. In matter of domicile, 269. Of execution, 269. Of revocation, 271. Wills of realty, In matter of interpretation, 268, Of execution, 267. CONSTRUCTION, Actions for, 314. Attorney's fees in, 320. Costs in, 320. Decree in, 319. Jurisdiction in, 316. Parties to, 318. Procedure in, 3l9. As afEecting, Classes, 390. Vested interests, 4.36. Defined, 322. Enumeration of particulars, effect of, upon, 353. Extrinsic evidence as affecting, 339. Admissible when, 340. In case of equivocations, 342-345. To remedy imperfect description, 345-347. Declarations of testator, 348. Inadmissible when, 339, 349. General rules of, 324. Against intestacy, 326. As between conflicting provisions, 33L Blood of testator preferred, 334. Change of words, 332. Disinheritance of heir, how effected, 335. General intent controls, 326. Gift implied when, 337. Legal construction preferred, 335. Reason for, effect of, 338. Rejection of words, 332. Transposition of words, 332. Will construed as a whole, 330. Speaks when, 324. Words, how construed, 327, 329. How supplied, 332. Of words, in general. As affecting after-acquired proi>erty, 360. Operative on personalty, 363. Realty, 354, 358. Of particular words, Appurtenances, 355. Brother, 379. ChUdren, 376. Cousin, 380. Crops, 357. INDEX 627 [The figures reler to pages] CONSTRUCTION— Continued, Descendants, 376. Effects, 352. Emblements, 357. Estate, 351. Family, 375. Farm, 357. Grandchildren, 378. Heirs, 386, 399. Homestead, 356. House, 356. Household goods, 864 Husband, 381. Income, 368. Interest, 368. Issue, 384. Kin, next of, 383. Lfands, 355. Life insurance, 367. Money, 365. Mortgages, 367. Nephews, 379. , Nieces, 379. Personal effects, 363. ' Personal representatives, 383. Premises, 356. Profits, 359. Property, 352. Real estate, 355. Relatives, 380. Rents, 359. Securities, 367. Servants, 381. Sister, 379. Stock, 366. Survivorship, vsrords of, 445. Things, 363. Tenements, 355. Use, 360. Wife, 381. Purpose of, 322. CONTEST OF WILL, Conditions affecting, 469. Estoppel of beneficiaries, 559. See also Probate. CONTINGENT INTERESTS, 436, 442. CONTRACT, To make will, see Wills. Capacity to make, 92. CONTRIBUTION, See Beneficiaries. CORPORATIONS, As beneficiaries, 141, 143, 273. ' As trustees, 484. Description of, 382. COSTS, In actions to construe wills, 320. In probate proceedings, 300. 628 INDEX [The figures refer to pages] CONVETANCB, Effect of as revocation, 246. CRIMINALS, As testators, 85. CROPS, 357. CUMULATIVE LEGACIES, See Legacies. D DEAF AND DUMB TESTATOR, 79. DEBT, Of testator. Charged on realty, when, 531. Exoneration of realty from liens, 532, Payable from, personalty, 529. Remedies of creditors, 534. Satisfaction of, by legacy, 510. DECLARATIONS, See Evidence. DEED, As distinguished from will, 20. Will in form of, 32. DEMONSTRATIVE LEGACY, See Legacies. DEPENDENT RELATIVE REVOCATION, 232, 245. DEVISE, As affected by ademption, 510, Defined, 3. Executory, 454. Lapse of, effect, 517. Vested or contingent, 436. See Remainders. DEVISEE, Defined, 3. Right of, to possession, 551. 'Right of, to transfer, 558. DIVIDENDS, See Income. DIVORCE, As revoking will, 257. DOMICILE, How determined, 274. Of infants, 274. Of married women, 274. DRUNKENNESS, 112. DUPLICATE WILLS, 36. ECCENTRICITY, See Capacity (Testamentary). ELECTION, Defined, 536. Effect of, 541. E INPEX 629 [The figures refer to pages] ELECTION— C!ontimied, Governed by what law, 271. How effected, 539. Necessary when, 537. Parties under disability, by, 542. SurvlTing spouse, by, Acts amounting to, 545. At compion law, 543. By statute, 543. Effect of, 547. Right a personal one, 546. Value of estate as affecting, 544. Time for making, 541. EMBLEMENTS, 357. END OF WILL, See Execution of Wills. ESTATES, Base fees, 414. Fees simple, 407. Language necessary to create. At common l^w, 407-409. By statute, 410-412. Limitation over, void, 412. Power of disposition as creating, 413. Restraints in alienation of, 467. Shelley's Case, rule in, as affecting, 415. Fees tail, 417. For life. In personal proi)erty, 429. Coupled with power, 430. Security for remainderinen, 431. In real property, Coupled with general power, 422. Limited power, 424. Language necessary to create, 418. ESTOPPEL, Of beneficiaries to contest will, 559. 0£ parties to probate, 283. EVIDENCE, As affecting construction, see Construction, Of animus testandi, 22. Of execution. Burden of proof, 217. Declarations of testator, 222. Other relevant evidence, 223. Witnesses, testimony of, 218, 219. Of mistake, 150. Of revocation. Burden of proof, 258. Evidence relevant to prove, 260. Declaration of beneficiary, 261. Testator, 260. Of testamentary capacity. Adjudication of insanity, 124. Api>ointment Of conservator, 125. Burden of proof, 113. Effect of statutes, 116. 630 INDEX [The figures refer to pages] RVIDENCE— Continued, Character of will, 118. Declarations, Of beneficiaries, 123. Of testator, 119. Opinion evidence, 126. Form of question, 132. Of experts, 128. Of non-experts, 130. Other relevant matters, 121. Prior insanity, 117. Subsequent insanity, 117. Of undue influence. Burden of proof, 158. Character of will, 172. Circumstances of execution, 170. Condition of testator, 170. Declarations of beneficiary, 176. Of testator, 174. Other evidence admissible, 177. Inadmissible, 179. Prior intention of testator, 173. Presumptions, see Presumptions. To establish Idst will, 306. Declarations of testator, 308. To /identify documents incorporated, 41i To show mistake, 150. To show will conditional, 61. EXECUTION OF WILLS, Attestation, Defined, 199. Bequired, when, 199. Witnesses (attesting). Competent, when, 200. Competency of. How determined, 201. Must exist, when, 201. Disqualification of. By reason of crime, 202. By reason of interest, 202. Husband and wife as, 204. Infants as, 202. Lunatics as, 202. Other parties as, 205. Signature of, Defined, 207. Form of, 207, 208. Place of, 209. Presence of testator, in, Acknowledgment not enough, 213. Necessary, 212. Of blind testator, 216. What constitutes, 213-216. Time of, 211. Attestation clause. Not necessary, 217. ' Significance of, 220. Essentials, ISO. Effect of change in statute after execution, 181. Elvidence of, see Evidence. INDEX 631 [Tlie figures refer to paces) EXECUTION OF WILLS— Continued. Publication of will, When required, 193. When insufficient, 196. When sufficient, 194. Bequest that witnesses sign. When required, 196. When insufficient, 198. WTien sufficient, 197. Sealing, not necessary, 185. Signature of testator. Acknowledgment of, 191. Request to sign, as, 192. When signed by another, 19Z When sufficient, 191, 193. Blanks as affecting, 190. By another, 184. Defined, 182. ~ Form of, 182, 183. Making before witnesses, 191. Place of. At common law, 185. By statute, 187. Sealing as, 185. Time of, 185. EXECTJTOR, 278, 490, 540. BXECLTORT DEVISES, 454. EXONERATION OF RBALTX, 532. F FEES, See Attorney's Fee. FEES "SIMPLE, ETC. See Elstates. FELONS, Wills of, 85. FOREIGN WILLS, Probate of, see Probate. FORM, 26. See also Wills. FRAUD, 152, 153. G GENERAL LEGACY, See Legacies. GIFTS CAUSA MORTIS, Definition, 10. Delivery necessary, 12. Distinguished from bequests, 10. GUARDIAN AND WARD, See Undue Influence. GUARDIANSHIP, As affecting testamentary capacity. 111. 632 INDEX [The flares refer to pages] H BQEIR, See Construction (of Particular Words). As affecting bequests, 389. Includes illegitimate children when, 387. HISTORY OF WILLS, 4. HOLOGRAPHIC WILLS, Allowed by statute, 57. Defined, 4, 57. Form immaterial, 58. HUSBAJNTD AND WIFE, See Attestation ; Construction (of Particular Words) ; Undue Influence, As heirs, 386. I IDIOTS, 97. ILLEGITIMATE CHILDREN, Birth of as afEecting revocation, 257. See also Children. IMPLICATION, Gifts by, 337, 450. INCOME, 433. Dividends as, 433. For support, 435. INCONSISTENCY, Of later will as revocation, 238. INCORPORATION BY REFERENCE, 37-43. INFANTS, As testators, 86. Election by, 542. Of age, when, 86. INSANE DELUSIONS, See Capacity (Testamentary). INSANITY, See Capacity (Testamentary). INSURANCE, Life, 367. INTEREST, As affecting character of legacy, 441. Construction of term, 368. On advancements, 513. On legacies, 554. INTERLINEATIONS, 233. INTESTACY, Presumption against, 326. ISSUE, See Construction (of Particular Words). Failure of, 451. As affecting executory devises, 455. INDEX 633 [The figures refer to pagei] JEALOUSY, ( See Capacity (Testamentary). JOINT TENANCY, 426. JOINT TENANT, Will of, when void, 148. JOINT WILL, 75-77. See also Wills. JUDGMENT OF PROBATE, Not subject to collateral attack, 298, 312. JURY, In proceeding to contest will, 285. LAPSED LEGACY, See Legacies. LEGACIES, Abatement of, 501. Intent of testator controls, 501. Order of, in absence of express intent, 502. Ademption of. Defined, 504. How effected, 504. By change of subject-matter, 505. By satisfaction, 507, 508. In case of legacy to creditor, 510. As affected by termination of prior interest, 553. By creditor to debtor, effect of, 558. Charged upon realty. Blending of realty and personalty, effect of, 523. Implied intention to charge, 523. Language sufficient to charge, 520. Specific devises, charged on, 525. Charged upon specific personalty, 526. Charge, how enforced, 526. Personal liability of beneficiary, 527. Defined, 3. Interest on, 554. In case of specific legacies, 556. Kinds of. Cumulative, 495, 499. Demonstrative, 495, 498. General, 495, 496. Lapsed, As affected by residuary clause, 370. Defined, 514. Disposition of, 516. Effect oi lapse, 514. In case of legacy to a class, 394. Specific, 495, 497. Substitutional, see Cumulative Legacies. To a class, 392. o,^ x^n Vested or contingent (see Remainders), 439-442. Interest as affecting character of, 441. 634 INDEX [The figures reter to pages] LEGACIES— Continued, Time the substance of the gift, when, 439. Void, 517. As affected by residuary clause, 370, 518. Time of payment of, 552. LEGATEE, Defined, 3. Right of, to possession, 551, Right of, to transfer, 557. LETTER, Will in form of, 33. LIBELOUS MATTER, In will, how expunged, 298. LIFE ESTATE, See Estates. LIFE INSURANCE, See Insurance. LIMITATION, In contest of wills, 284. In probate of wills, 279. LOST WILL, See Evidence; Probate. Presumption of destruction by testator, 43, 259. Proof, Of contents, 30&-308. Of execution, 306. LUCID INTERVAL, 109, lia LUNATIC, 98. MARRIAGE, See Conditions; Revocation. MARRIED WOMEN, As testatrices, 80, 83. Election by, 543. MATERIAL, Upon which will may be written, 28b MISTAKE, Avoids will, when, 149, 150. Inoperative, when, 150. Kinds of, 149. Revocation by, 244. MONEY, 365. MONOMANIA, 104, 105. See also Capacity (Testamentary). MORTGAGES, Construction, 367. Exoneration of realty from, 532. MUTILATION, 226. See Revocation. MUTUAL WILLS, 75-77. MYSTIC WILL, 4, 57. M INDEX 635 [The figures refer to pages] N NUNCUPATIVE WILL, In general, Animus testandi essential, 46. Defined, 4, 44. Effect upon written wills, 51. History of, 44. In Louisiana, 55-57. * Last sickness, as affecting, 47, 48. Number of witnesses to, 50. Operative on personalty only, 54. Place of making, 49. Reduction to writing, 51. Rogatio testium, 49, 50. Statute of frauds, provisions of relating to, 45, 46, Of soldiers and sailors, 51-54. OLD AGE, See Capacity (TestamentaVy). ORDER, Will in form of, 34. P PARENT AND CHILD, See Undue, Influence. PARTIAL WILLS, 36. PERPETUITIES, RULE AGAINST, 133. Accumulations, 138. ^ Alternative contingencies, 137. ' Application to gifts to charities, 138. Estate must vest when, 135. Separable limitations, 137. Statutory substitutes for, 139. Suspension of estate for term, 136. Time of testator's death determines remoteness, 137. Vested interests not affected by, 134. PERSONAL PROPERTY, Absolute title to, how created, 428. Annuities, see Annuities. Bequest of, governed by what law, 269. Life estate in, 429. No estate tail in, 428. PERSONAL REPRESENTATIVES, See Construction (of Particular Words). PHYSICIAN, See Undue Influence. PLACE OF SIGNATURE, By testator, 185. By witnesses, 209. See also Execution of Wills. POWER, As affecting life estate in personalty, 430. Of attorney, will in form of, 32. Of general disposition, as creating a fee, 413, 422. Of trustee, not to be delegatefK 485. 636 INDEX [Tbe figures refer to pagea] POWER— Continued, Over land, Defined, 488. In tenant for life, 493. Kinds of, 488. Language creating, 488. Of sale, 489. How executed, 491. Not to fail for want of donee, 490, Who may execute, 490. To dispose of, by will, 492. \ PRECATORY WORDS, 27, 477. PREJUDICE, See Capacity (Testamentary). PRESENCE OF TESTATOR, What constitutes, 213. See also Execution of Wills. PRESUMPTION, Against intestacy, 326. As to alterations, time of, 23S. Of due execution, 222. Of knowledge of contents of will, 181. Of revocation, when wiU is not found, 241, 259. Of sanity, 114. Regarding mutilation, by whom done, 260. PRIEST, See Undue Influence. PROBATE, In general. Agreements not to contest, effect of, 303., Defined, 276. Documents to be probated, 280. Effect of, 296-298. Form of, 276. Jurisdiction of, 277. Libelous matter expunged in, 296. Limitation of, 279. Nonsuit, none, 279. Parties to, 281. Estoppel of, 283. Will propounded for, by whom, 278. Actions to contest. Estoppel to bring, 283. Evidence in, 286. Jury trial in, 285. Limitation of, 284. Open and close, right to, 285. Of foreign wills. As affected by federal Constitution, 309. Defined, 309. In testator's domicile, when necessary, 312. Procedure, 311. Re-probate not subject to collateral attack, 312. Of lost or destroyed wills, 304. Evidence to establish, 306. Declarations of testator, 308. Proof of part of lost will, 308. Testator's knowledge of destruction as a|^cting, 306. INDEX 637 [The figures refer to page*] PROBATE— Continued, Procedure, ' Appeal, 293. Attorney's fees, 300. Costs, 300. Issue for jury, 290. Judgment, 291. Not subject to collateral attack, 298. New trial, 294 Notice, 287. Petition, 287. Pleadings, 289. Verdict, 291. Revocation of, 294. PROMISSORY NOTE, Will in form of, 33. PROPERTY, Undisposed of by will, 519. What may be disposed of by will, 146. QUALIFIED FEE, See Base Fee.- R REAL PROPERTY, Devise of, governed by what law, 267. RECIPROCAL WILLS, 75. RELATIVES, See Construction (of Particular Words). RELIGIOUS BELIEFS, See Capacity (Testamentary). REMAINDERS, Contingent, Character of contingency, 452-454. Defined, 451. Intentionto create, how indicated, 451. Vested, By implication, 450. Condition subsequent as affecting, 449. Defined, 443. Test of, 443-448. To class, after-bom members, 448. RENTS AND PROFITS, 359. REPUBLICATION OF WILLS, Consequences of, 264. What legacies not revived by, 266. Defined, 261. How effected. By codicil, 263, 264. Effect upon prior codicils, 264, 265. By re-execution, 263. Legislation regarding, 262. REQUEST THAT WITNESSES SIGN, 196. See also Execution of Wills. 638 INDEX [Th6 figures refer to pases] RESIDUARY CLAUSE, As affecting lapsed and yoid legacies, 370. As affecting realty, 372. Defined, 369. Effect of, 369. Form of, 372. Particular residuary clause, 371. REVOCATION OF PROBATE, 294. REVOCATION OF "WILLS, Alterations and interlineations as affecting, 233-235. Defined, 224. Dependent relative revocation, 232. Intent to, necessary, 231. Methods of, 224. By change of circumstances, 249. Divorce, 257. Marriage, As affecting man's will, 250. As affecting woman's will, 249. Marriage and birth of issue, Common law rule, 250. Statutory rules, 252-255. Adoption of child, effect of, 256. Illegitimate issue, effect of, 257. Intent to omit issue, 255. Other changes insuflScient, 258. By cancellation, 229. By mutilation, Adoption of, 227. By whom to be caused, 226. Defined, 226. Of wiU in duplicate, 229. Sufficient, when, 227, 228. By subsequent wiU or other writing, 236. Conveyance, 246. F'ormal instrument of revocation, 237. Subsequent Will or codicil, 237. Dependent relative revocation, 245. Inconsistent provisions as affecting, 233. Revocation of revoking will, 241. Mistake, as affecting, 244. Partial revocation, 230. Prevented by fraud, 225. SATISFACTION OF LEGACIES, See Legacies (Ademption of). SEAL, See Execution. SENILE DEMENTIA, 108. SHELLEX'S CASE, RULE IN, As affecting realty, 415. As affecting personalty, 429. SICKNESS, See Capacity (Testamentary). INDEX 639 [The figures refer to pages] SIGNATURE, See Uxecution. SPIRITUALISM, 106. STATUTE OF FRAUDS, Application to contracts to make wills, 68k STIRPES, Per, see Class. SUBSTITUTIONAL, LiEGACIES. See Legacies. SUPPORT, Condition for, see Conditions. SURVIVORSHIP, Words of, 445. T TAIL, Estates, 417. TAXES, Exoneration of realty from, 533. TECHNICAL TERMS, How construed, 329. TENANCY IN COMMON, 426. TESTAMENTARY CAPACITY, See Capacity (Testamei^tary). TESTATOR, Defined, 3. Who may be, 78. Aliens, 85. Blind men, 79. Criminals, 85. Deaf and dumb men, 79. Infants, 86. Married women. At common law, 80. Under statutes, 83. TITLE, To subject-matter, on testator's death, 55QL TRUSTS (TESTAMENTARY), Active, 480. As established by oral testimony, 479. Duration of, 481. Essentials of, 474. ImpUed, 480. Passive, 480. Resulting, 483. Termination of, 481. Words adequate to create, 474. Precatory words as creating, 477. The beneficiary under, Necessity of, 486. Power of, to dispose of estate, 488. ' Right of, to income, 487. Who may be, 486. The trustee. Compensation of, 485. 640 INDEX [Tbe flgures refer to pages] TKUSTS (TESTAMENTARY)— Continued, Estate of, 484. Power of, not to be delegated, 485. Who may be, 484. TRUSTEE, See Trusts (Testamentary). u UNCERTAINTY IN WILL, Effect of, 338, 374. UNDUE INFLUENCE, As affecting part of will, 157. Burden of proof of, 158. Confidential relations, as affecting, 159. Attorney and client, 165. Guardian and ward, 164. Husband and wife, 160. Parent and child, 163. Physician and patient, 166. Priest and parishioner, 165, Relations, other, 167. Defined, 154. Distinguished from persuasion, 155. Effect of, 154. Evidence of, see Evidence. Existence, question for jury, 157. Illicit relations as affecting, 162. Must operate when, 157. Will written by beneficiary, as affecting, 168. V VERDICT, In wiU contest, 291. VESTED INTERESTS, 436. See Legacies and Devises; Remainders. VOID LEGACY, See Legacies. ^ w WILL, Blanks in, 29. Conditional wills, 59-61. Part of, conditional, 62. Contract to make, 63. Application of the statute of frauds, 68L Certainty of, 65. Consideration of, 64. Construction of, 69. Evidence of, 66. Executed, 70. , Remedies for breadh of, At common law, 71. Damages, 72. Parties and pleading, 72. In equity, 73. Parties, 74. Defined, 1, 2. INDEX 641 [The figures refer to pages] WILL— Continued, Distinguished from deed, 20, 23, 24. Duplicate wills, 36. Execution of, see Execution. Form of, 26, 31. Assignment, 31. Deed, 32. Informal wills, 35. Letter, 33. Order, 34. Power of attorney, 32. Promissory note, 33. Separate sheets, 29. Writing, When necessary, 30. When sufficient, 28. History, Of wills of personalty, 9. Of wills of realty, 5 et seq. Holographic wills, 4, 57. Illegal provisions in, 335, 336. Incorporation into, by reference, 37-43. Joint wills, 75-77. Lost will, see Lost Will. Mutual wills, 75-77. Mystic wills, 4, 57. Nuncupative wills, 4, 44. See Nuncupative Wills. Partial wills, 36. Probate of, see Probate. Eeeiprocal wills, 75. Republication of, see Republication. Revocation of, see Revocation. Speak from what time, 324. Subject-matter of, 146. Construction as affecting, 351. Title to, on testator's death, 550. What may not be, 147. Uncertainty in, effect of, 338. WITCHCRAFT, 107. WITNESSES, Subscribing, see Execution. As beneficiaries, 144. When competent, 200. WORDS, See Construction. Gakd. Wills (2d Ed.)— 41 TTBST PUBLISHINO CO., PKINTEBB, ST. PAUL, mBK. KF 755 G22 C.2 Author Vol. Gardner, George Enofc Title Copy Handbook of the law of will Date Borrower's Name