KF 755 k7 R33 Hf 755 (flornpU ICaui ^rlynnl SItbtata (?m of HEMY PIAEE Cornell University Library KF 755.A7R33 Leading cases upon the law of wills, 3 1924 018 846 398 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018846398 LbAUlNG CASES DPON THE LAW OF WILLS SELECTED BY Alfred G. Keeves, LL.B. PROFESSOR OF LAW IN THE NEW YORK LAW SCHOOL, NEW YORK CITY EDITOR IN CHIEF George Chase, LL.B. DEAN OF THE NEW YORK LAW SCHOOL, S9 ST. PAUL, MINN. WEST PUBLISHING CO. 1892 74955 COFTBICET, 1893, WEST PTJBLISHma COMPANY. TABLE OF CONTENTS. I. Mental Capacity to Make a Will, - - - 1 n. Ilndue Influence, ----- 11 HL Errors in WUls, - - - - - 18 rv. What Constitutes a Will, - - - - 19 v. Nuncupative or Oral Wills, - - - - 25 "VI. Execution of Wills, - - - - 31 "Vn. Revocation, Republication, and Revival of Wills, - 41 Vm. Mutual Wills — Joint Wills — Valuable Consideration for a Wm, ------ 61 IX. Legacies, - - - - - - 67 (iii)* CASES REPORTED. Page Adams ▼. Field (31 Vt 256) 84 Apthorp, Wellington v, (145 Mass. 69, 13 N. E. Rep. 10) 64 Baldwin y. Spriggs (65 Md. 873, 6 Atl. Ren. 295) 56 Bannister v. Jackson (45 N. J. Eq. 703, 17 Atl. Rep. 692) 8 Barclay, Monroe v. (17 Ohio St. 302) 13 Belts V. Harper (39 Ohio St. 639) 63 Broadbent, Robertson t. (L. R 8 App. Cas. 812) 71 Brown V. Clark (77 N. T. 369) 58 Buzby, Waddington y. (45 N. J. Eq. 173, 16 Atl. Rep. 690) .. 1 Cawley's Estate, In re (136 Pa. St 628, 30 Atl. Rep. 567) 19 Clark. Brown v. (77 N. Y. 369) 68 Collins, Eschbach v. (61 Md. 478) 48 Cook V. Winchester (81 Mich. 581, 46 N. W. Rep.106) 81 Diez's Will. In re (50 K Y. 88) 61 Duncan y. Inhabitants of Township of Franklin (43 N. J. Eq. 143, 10 Atl. Rep. 546) 74 Dyer, QifEord y. (3 R. I. 99) 19 Eldridge, Roquet y. (118 Ind. 147, 20 N. E. Rep. 733) 67 Eschbach y. Collins (61 Md. 478) 48 Field, Adams y. (31 Vt. 356) 84 Gifford y. Dyer (3 R. I. 99) 19 Gilkey, Rich v. (73 Me. 595) 43 Goods of Hunt, In re (L. R. 8 Prob. & Div.250) 18 Hall, Sharp y. (86 Ala. 110, 5 South. Rep. 497) 31 Hammond, Swan y. (138 Mass. 45) 55 Harper, Betts v. (39 Ohio St. 639) 63 Hazleton, Prince y. (20 Johns. 502) 37 Hoitt y. Hoitt (63 N. H. 475, 3 Atl. Rep. 604) 53 Hubbard y. Hubbard (8 N. Y. 196) 35 Hunt, In re Goods of, (L. R 8 Prob. & Diy. 350) 18 Inhabitants of Township of Franklin, Duncan v. (43 N. J. Eq. 143. 10 Atl. Rep, 646). 74 Page Jackson, Bannister t. (45 N. J. Eq. 702, 17 Atl. Rep. 692) 8 Kehoe, Inre(L.R. 18 Ir. 13). 33 Mackay's Will, In re (110 N. Y. 611, 18 N. E. Rep. 433) 40 MacPherson'B Will, In re (4 N. Y. Supp. 181) 7 Middleditch y. Williams (45 N. J, Eq. 736, 17 Atl. Rep. 826) 8 Monroe y. Barclay (17 Ohio St. 303) 13 MuUins y. Smith (1 Drew. & S. 304) 70 Newcomb v. Webster (113 N. Y. 191, 21 N. E. Rep. 77) 41 O'Neil's Will. In re (91 N. Y. 616) 87 Perrine's Ex'rs, WyckofE y. (37 N. J. Eq. 118) 69 Prince y. Hazleton (20 Johns. 503) 27 Richy. Gilkey (73 Me. 595) 43 Robertson y. Broadbent (L. B. 8 App. Cas. 812) 71 Rollwagen y. Rollwagen (63 N. Y. 504) 11 Roquet y. Eldridge, (118 Ind. 147, 20 N. E. Rep. 733) 67 Sharp y. Hall (86 Ala. 110, 6 South. Rep. 497) 21 Smith, Mullins y (1 Drew. & S. 204; 70 Spriggs, Baldwin y. (65 Md. 373, 6 AtL Rep. 395) 66 Swan y. Hammond (138 Mass. 45) 65 Tindall's Ex'rs y. Tindall (24 N. J. Eq. 513) 75 Waddington y. Buzby (45 N. J. Eq. 178, 16 Atl. Rep. 690) 1 Webster. Newcomb y. (113 N. Y. 191, 21 N. E. Rep. 77) 41 Wellington y. Apthorp (145 Mass. 69, 13 N. E. Rep. 10) " 64 Williams, Middleditch y. (45 N. J. Eq. 726, 17 Atl. Rep. 826) 8 Winchester, Cook y. (81 Mich. 581, 46 N. W. Rep. 106) 81 Wingroye v. Wingroye (11 Prob. Diy. 81). . 17 WyckofE T. Perrine's Ex'rs (37 N. J. Eq. 118) «9 (v)« CASES CITED. [Titles marked by a dagger (thus, t) refer to cases cited by the editor and authorttlM eited by eounsel.] Page Acherly v. Vernon, 1 Comyn, 881 60 Aikin v. Weckerly, 19 Mich. 504, 505 82, 88 Allen V. Maddock, 11 Moore, P. C. 427. . .24, 61 fAmbre v. Weishaar, 74 111. 109 84 American Seamen's Friend Soc v. Hopper, 33 N. T. 619-634 6 Andress v. Weller, 8 N. J. Eq. 605 1 Ash, In re, 11 Ir. R. Eq. 60, note 24 jAshburner v. Macguire, 3 Brown, Ch. 108 74 Attorney General v. Johnstone, Amb. 577. . 76 Attorney General v. Jones, 3 Price, 879. ... 28 fAustin V. Oakes, 117 N. Y. 577. 23 N. E. Rep. 193 52 Baker V. Dodson, 4 Humph. 843 27 Bakerv. Hoag, 7 N. T. 561 25 fBaldwin v. Parker, 99 Mass. 79 18 Balliet's Appeal, 14 Pa. St. 451 54 Banks v. Goodfellow, L. R. 5 Q. B. 649, 559, 560 5-7 Banks V. Phelan, 4 Barb. 90 76 Barnes v. Crowe, 1 Ves. Jr. 486 60 Barry v. Butlin, 1 Curt. Ecc. 639. 13 +Basket v. Hassell, 108 U. S. 267, 3 Sup. Ct. Rep. 634 23 tBatchelder, In re, 147 Mass. 465, 18 N. E. Rep. 235 77 +Beck V. McGillis, 9 Barb. 38 74 Bell V. Hewitt, 24Ind. 280 65 •j-Benoist v. Murrin, 58 Mo. 307 7 Bernard v. Minshull, Johns. Eng. Ch. 276, OQQ ^ ^ 7g Belts V.' Harper',"39 Ohio St. 639.'.'.'.'.'.",".'. ... 20 Belts V. Jackson, 6 Wend. 178 46 Bigelow V. Gillott, 123 Mass. 103 60, 63 Blandin v. Blandin, 9 Vt. 310, 311 54 fBoardman v. Woodman, 47 N. H. 130. . .. 7 Bernstein v. Lans, 104 Mass. 314, 216 65 Boughton V. Knight, L. R 8 Prob. & Div. 64-68 5,6 Boyd V. Cook, 3 Leigh, 35 13 Boy er v. Frick, 4 Watts & S. 857 27 Brady V. Cubitt, 1 Doug. 31 67 Breathitt v. Whittaker, 8 B. Mon. 530 64 Brinkerhoof v. Remsen, 8 Paige, 499, 26 Wend.382 59 Broderick v. Broderick, 1 P. Wms. 239, ... 32 Brooks T. DufEell, 23 Ga. 441 82 Brown V. Brown, 8 El. & Bl. 876 45 Brown v. Clark, 77 N. T. 869 66 Brown v. Higgs, 4 Ves. 709 76 Brown V. Ward, 63 Md. 376 6 Brunt V. Brunt, L. R. 8 Prob. & Div. 37. . . . 45 Brush V. Brush, 11 Ohio, 287 54 Brush V. Wilkin B, 4 Johns. Ch. 506, 507, 518, 619 54,67 Brydges v. Duchess of Chandos, 3 Ves. Jr. 417 64 tBundy v. McKnight, 48 Ind. 502 8 Burton v. Newbery, 1 Ch. Div. 234 61 (Vii) Pag Cambridge ▼. Rous, 8 Ves. 85 76 fCampbell v. Campbell, 130 111. 466, 22 N. E. Rep. 630 3 Campbell V. French, 8 Ves. 331 19 Campbell v. Gilbert, 67 Ala. 569 33 Canada V. Canada, 6 Cush. 16 65 Carleton v. GrifiBn, 1 Burrows, 549 87 •j-Carroll v. Bonham, (N. J. Prerog. Ct.) 9 Atl. Rep. 871 81 tCarroll v. House, (N. J. Prerog. Ct.) 32 Atl. Rep. 191 18 Carter v. Thomas, 4 Greenl. 841, 843, 844. . 64 fCartwright v. Cartwright, 1 Philllm. Ecc. 90 8 Caviness v. Rushton, 101 Ind. 500 65 Chaffee v. Baptist Miss. Con., 10 Paige, 90. . 12 Chambers v. Queen's Proctor, 7 Eng. Ecc. R.164 8 Chase v. Kittredge, 11 Allen, 49, 61 32, 33 Cheese v. Lovejoy, 2 Prob. Div. 251 45 Christopher v. Christopher, 2 Dick. 445 ... 57 Clapp V. Fullerton, 34 N. Y. 190 7, 13 Clark V. Smith, 34 Barb. 140 55 Clark V. Wright, 8 Pick. 67. 45 fClarke v. Sawyer, 2 N. Y. Clayton v. Akin, 38 Ga. 820 Clayton v. Liverman, 3 Dev. & B. 558. tCoit v. Patchen, 77 K Y. 583 Cole V. Mordaunt, 4 Ves. 196, note. . . 17 68 64 7 29 Collagan V. Burns, 57 Me. 449 45 Collins V. Osborn, 34 N. J. Eq. 511 3 Combs V. Jolly, 3 N.J. Eq. 625 83 Compton V. Millon, 13 N. J. Law, 71 83 fConway's Will, In re, (N. Y. App.) 26 N. E. Rep. 1028 40 Coppin V. Coppin, 2 P. Wms. 391 75 Cottage Street Church v. Kendall, 131 Mass. 528,580 65 ■fCowles v.Cowles, 66 Conn. 240, 18 Atl. Rep, 414 , 71 Cox's Will, In re, 1 Jones, (N. C.) 321. . . .83, 38 fCruikshank v. Home for the Friendless, """ " ^ " " 77 113 N. Y. 887, 21 N. E. Rep. 64. fDaintree v. Butcher, 13 Prob. Div. 102 41 Dallow's Case, L. R. 1 Prob. & Div. 189 .. . 39 Dan V. Brown, 4 Cow. 483 66 Daniel v. Hill, 52 Ala. 430, 436 22, 23 f Davis V. Calvert, 6 Gill. & J. 269. 17 jDavis V. Hendricks, 99 Mo. 478, 12 S. W. Rep. 887 67 Davis V. Sigourney, 8 Mete. (Mass.) 487 45 tDavy V. Smith, 8 Salk. 395 84 Day, Ex parte, 1 Bradf. Sur. 476, 481, 483 . . 62, 68, 64, 67 Dean v. Negley, 41 Pa. St 812 12, 13, 16 Delafleld v. Parish, 25 N. Y. 9, 35 3, 11 Den v. Vancleve, 5 N. J. Law, 589 2 Denyssen v. Mostert, L. R. 4 P. C. 236, 8 • MooreP. C. (N. S.) 503 64 viil CASES CITED. Page Dew V. Clark, 8 Add. Bcc. 79, 2 Eng. Ecc. 441 5,-6 Diez's Will, 50 N. Y. 88 20,64 Doe V. Barford, 4 Maule & 8. 10 54 Doe V. Edlin,4Adol. & E. 586 53 Doe V. Lancashire, 5 Term R. 49 57 Doe V. Palmer, 16 Adol. & E. 747 55 Downie's Will, In re, 43 Wis. 66 83, 33 +Drew V. Wakefield, 54 Me. 291 77 Drummond v. Parish, 3 Curt. Bcc. 522, 531 26 Duffie V. Corridon, 40 Ga. 133 82 Dufour V. Pereira, 1 Dick. 419, 2 Harg. State Tr. 310, 311 63 fDuguid V. Fraser, 31 Oh. Div. 449 53 Duunv. Bank, 3 Ala. 153 23 Easum v. Appleford, 5 Mylne & C. 56 76 Eccleston V. Petty, Carth. 79 32 Eckert v. Flowry, 43 Pa. St. 46 17 Eddy's Case, 83 N. J. Eq. 701, 33 N. J. Eq. 574 3 Edelen v. Hardey's Lessee, 7 Har. & J. 61 S3 tEdge T. Edge, 38 N. J. Eq. 311 8 Ellis V. Smith, 1 Ves. Jr. 11 37 Ellis V. Walker, Amb. 309 68 Elmore v. Mustin, 28 Ala. 309 33 f Emery's Case, 81 Me. 275, 17 Atl. Rep. 68. . 58 fBvans' Appeal, 58 Pa. St. 238 52 Evans v. Smith, 28 Ga. 98 20, 31, 63, 64 Fairer v. Park, 8 Ch. Div. 812 72 Parmer v. Mills, 4 Russ. 86 73 Fellows V. Allen, 60 N. H. 439, 441 53, 54 Fen ton v. Emblers, 3 Burrows, 1278 65 Fielding v. Preston, 1 De Gex & J. 438 68 Floyd V. Floyd, 7 B. Mon. 290 54 fForbing v. Weber, 99 Ind. 588 52 Forman v. Smith, 7 Lans. 443 12 Forse and Hembling's Case, 4 Coke, 606, 61 56,59 Gage V. Gage, 12 N. H. 371 fGangwere's Estate, 14 Pa. St. 417 Gardiner v. Gardiner, 34 N. Y. 155, 164 fGardiner v. Gardiner, (N. H.) 19 Atl. Rep. 651 Gardner v. Webber, 17 Pick. 407, 418 Gay V. Gay, 60 Iowa, 415, 14 N. W. Rep. 238 !^. fGeorgia Infirmary v. Jones, 87 Fed. Rep. 750. Gilbert v. Knox, 62 N. Y. 125 '.'.'.". Gillham v. Mustin, 42 Ala. 365 22 Glancy v. Glancy, 17 Ohio St. 134 Glass v. Dunn, 17 Ohio St. 413 Gombault v. Public Administrator, 4 Bradf. Sur. 336 t Goodsell's Appeal, 55 Conn. 171, 10 Atl. Rep. 557 Goods of Hayes, 3 Curt. Ecc. 338. ...!!!!!! Goods of Honywood, L. R. 2 Prob. & Div. 251 Goods of Hughes, 13 Prob. Div." 107.". .".'.'.*.*. Goods of Lay, 2 Curt. Ecc. 375 Goods of Sunderland, L. R. 1 Prob. & Div. 198 Goodtitle v. Meredith, 3 Maule &"s.'5'.". "' Gould v. Mansfield, 103 Mass. 408. .. . t Gould V. Safford's Estate, 39 Vt. 498.., Go ward v. Waters, 98 Mass. 596 Graham v. Graham, 10 Ired. 319 83 Graves v. Sheldon, 2 D. Chip. 71, 75. Green v. Proude, 1 Mod. 117, 8 Keb. 310." fGrifflth v. Diflenderffer, 50 Md. 466 64, Habergham v. Vincent, 2 Ves. Jr. 204, 228.. 23 61 Hall V. Burkham, 59 Ala. 849 '23 ■fHallowell r. Hallo well, 88 Ind. 251 . . i . ', ! ! 40 Page Hargroves v. Redd, 43 Ga. 142, 160. 65 f Harmony Lodge's Appeal, 137 Pa. St. 209, 18Atl. Rep. 10 10 fHarrington V. Stees, 82111. 50 81 Harrison v. Rowan, 8 Wash. C. C. 580 2 f Hart V. Hart, 70 Ga. 764 58 •[Haven v. Foster, 14 Pick. 534 61 jHavens v. Van Den Burgh, 1 Denio, 27... 58 Hawes v. Humphrey, 9 Pick. 350 54 Hayes, Goods of, 2 Curt. Ecc. 338. 25 fHayes v. Hayes, 45 N. J. Eq. 461, 17 Atl. Rep.634 71 Hays V. Harden, 6 Pa. St. 409 89 Hedges v. Hedges, Finch, Prec. 269, Qilb. 13 80 Hershy v. Clark, 35 Ark. 17, 23 64 fHe Witt's Will, In re, 91 N. Y. 261 40 Hindmarsh v. Carlton, 8 H. L. Cas. 160. ... 33 Hodsden v. Lloyd, 2 Brown, Ch. 534 59 Hoke V. Herman, 21 Pa. St. 301, 305 70 Honywood, Goods of, L. R. 2 Prob. & Div. 251 47 jHorn V. Pullman, 72 N. Y. 269. 3 How V. Godfrey, Finch, 361 26 Howe V. Earl of Dartmouth, 7 Ves. 137 73 Hoysradt v. Kingman, 22 N. Y. 372 61 Hubbard V. Coolidge, 1 Mete. (Mass.) 84... 65 Hubert v. Treherne, 42 E. U. L. 888 36 f Hughes, Goods of, 13 Prob. Div. 107 40 Humphreys v. Humphreys, 2 Cox, Ch. 185.. 70 Idley v. Bowen, 11 Wend. 227 45 Jackson v. Holloway, 7 Johns. 394, 395,. .50. 60 Jackson v. Jackson. 6 Dana, 957 23 f Jackson v. Jackson, 89 N. Y. 153 41 Jackson v. Kniffen, 2 Johns. 31 55 Jackson V. Patter, 9 Johns. 312 60 James v. James, 4 Paige, 117 76 Jemes v. Shrimpton. 1 Prob. Div. 431 45 Jenkins v. Morris, li Ch. Div. 6T4 5 Jenliins v. I^tetson. 9 Allen, 128, 133 6.5 Johnson v. I'odgson, 2 Mees. & W. 659 36 Johnson's Will, 40 Conn. 587 45 Johnston v. Johnston, 1 Phillim. Ecc. 447.. 54, 55 Jones V. Bruce, 11 Sim. 221, 238 71. 72 Jones V. Tuck. 3 Jones, (N. C.) 303 32 Jordan v. Jordan, 65 Ala. 301 22, 23 fKeiper's Appeal, 124 Pa. St. 193, 16 Atl. Rep. 744 74 Kellum, In re, 52 N. Y. 517 59 Kenebel v. Scrafton. 2 East, 534 .'.'.'.'.".' 58 Kent V. Kent. 62 N. Y. 560 65 fKerr v. Luusford, 31 W. Va. 659, 8 8. E. Rep. 4U3 3 King v. Woodhull, 3 Edw. Ch. 79, 84. 86. '. '. 76 Kinnebrew v. Kinnebrew, 35 Ala. 6l8 23 fKnecht's Appeal, 71 Pa. St. 334 75 Knight V. Crockf ord, 1 Esp. 190 36 Lamb v. Girtman, 33 Ga. 289 82, 33 Lance v. Aglionby, 37 Beav. 65 '73 fLanirdon v. Aster's Ex rs, 16 N. Y. 9 74 Larkins V. Larkins, 3 Bos. & P. 20 50 Lay, Goods of. 2 Curt. Ecc. 375 26 I Leathers v. Greenacre, 53 Me. -561 27 Lee V. Dill, 11 Abb. Pr. 214. '. 13 Lee V. Shivers. 10 Ala. 288 23 fLee's Case, 46 N. J. Eq. 193, 18 Atl. Rep! .^9.5. 10 Lemann v. Bonsall. 1 Add. Ecc. 389, 390. . . 26 Lemayne V. Stanley, 3 Lev. 1 85,36 f Lewis V. Jones, 50 Barb. 645 .'. ' 10 Lewis V. Lewis, 11 N. Y. 330, 321 .'. 41 Lewis V. Lewis, 2 Watts & 8. 455 55 Lewis V. Scofield, 26 Conn. 452 20 63 64 67 fLong V. Zook, 13 Pa. St. 400 '40 CASES CITED. iz Page Longchamp v. Fish, 3 Bos. & P. 415 13 tLoring v. Woodward, 41 N. H. 391 71 Lo vegro ve. In re, 3 Swab. & T. 453 63, 64 +Lo veil v.. Quitman , 88 N. Y. 377 53 Lowe V. Williamson, 3 N. J. Eq. 83 1 Lozear t. Shields, 33 N. J. Eq. 509 5 Lynch v. Clements, 34 N. J. Eq. 431 2, 13 Lyon V. Home, L. R. 6 Eq. 655-681 6 fMcAnnulty v. McAnnulty, 130 111. 36, 11 N. E.Rep.397 58 fMcCurdy v. Neall, 43 N. J. Eq. 333. 7 Atl. Rep. 566 61 f Mackay's Will, In re, 44 Hun, 571 40 jMcMahon v. Ryan, 30 Pa. St. 339 17 McNaughton v.McNaughton, 34 N. Y. 301.. 54 McPherson v. Clark, 3 Bradt. Sur. 99 50 Maddison v. Alderson, 8 App. Cas. 467, 5 Exch. Div. 393; 7 Q. B. Div. 174 66 Mandeville v. Parker, 31 N. J. Eq. 343 33 March v. Huvter, 50 Tex. 243 64 Marston v. Fox, 8 Add. & E. 14 67, 58 Marston v. Roe, 8 Adol. & E. 14 54, 55 Marvin v. Marvin, 3 Abb. Dec. 193 13 +Marx v. McGly nn, 88 N. Y. 357 17 Mason v. Dunman. 1 Munf. 406 37 fMassey's Appeal, 88 Pa. St. 470 77 Maynard v. Vinton, 59 Mich. 148, 149, 36 N. W. Rep. 405, 406 33 Mealing V. Pace, 14 Ga. 596.630 33 •Meck's Aptc,1.97 Pa. St. 313 33 Meisenhelter s Will, In re, 15 Phila. 651.., 31 ■Meurer's Will, 44 Wis. 393 34 nickel. In re, 14 Johns. 334 54 Mickle V. Matlack, 17 N. J. Law, 86 33 Miles' Will. 4 Dana. 1 37 Miller v. McKenzie, 95 N. Y. 575 65 l-Mills V. Millward. 15 Prob. Div. 30 53 Mitchell V. Mitchell, 16 Hun, 97, 77 N. Y. 596.. 41 tMitchell V. Mitchell, 43 Minn. 73, 44 N. W. Rep. 835 17 fMondorf s Will, In re. 110 N. Y. 450, 18 N. E. Rep. 256 17 Mooers v. White. 6 Johns. Ch. 375 60 Moore v. Blauvelt, 15 N. J. Eq. 367 3 Morrell v. Morrell, 1 Hagg. Ecc. 51 35 Mosser v. Mosser, 33 Ala. 551 64 Neate v. Pickard, 8 Notes Cas. Adm. & Ecc. 406 60 Neil V. Neil, 1 Leigh. 6 32 Nelson v. McQiffert, 3 Barb. Ch. 158 43, 45 Newell V. Homer, 120 Mass. 377 45 Norris v. Thompson, 16 N. J. Eq. 318 70 Offutt V. Off utt, 3 B. Mon. 163 37 Ogden V. Saunders, 13 Wheat. 313 38 tO'Hara's Will, In re, 95 N. Y. 403 25 OrndofflE v. Hummer, 13 B. Mon. 636 33 Otto V. Doty, 61 Iowa, 23, 15 N. W. Rep. 578 6 Ouseley v. Anstruther, 10 Beav. 453 73 Paige V. Parker, 8 Gray, 211, 313 65 Pancoast v. Graham, 15 N. J. Eq. 394 1 Panton v. Williams, 3Cuit. Ecc. 530 13, 13 Parker V. Coburn, 10 Allen, 82 ft) Parsell v. Stryker, 41 N. Y. 480 65 Parsons v. Parsons, 3 Greenl. 298, 300. . . .26, 37 tPatten v. Cilley, 46 Fed. Rep. 893 18 Peck V. Gary, 37 N. Y. 9, 23 10,41 Peters V. Westborough, 19 Pick. 364 65 fPhelps V. Robbins, 40 Conn. 200 35 jPhilips V. Parish of St. Clements' Danes, 1 Eq. Cas. Abr. 404, pi. 3 30 fPierce V. Pierce, 38 Mid). 413 10 Portwood v. Hunter, 6 B. Mon. 538 27 Powell v. Powell, L. R. 1 Prob. & Div. 209. . 45 Page Prince v. Hazleton, 20 Johns. 503, 523... 26, 27 tQuinn v. Quinn, 1 Thomp. & C. 437 62 Ragland v. Huntingdon, 1 Ired. 561 82 Raine, Re, 1 Swab. & T. 144 64 Randall v. Beatty, 31 N. J. Eq. 643 55 Reed v. Roberts, 26 Ga. 394 33 Reynolds v. Reynolds, 1 Speers, 353 83 Re vnolds V. Root, 63 Barb. 250. 13 Rice v. Rice, 68 Ala. 316 23 fRichards v. Humphreys, 15 Pick. 133 74 Ridley V. Ridley, 34 Beav. 478 65 fRiggs V. Palmer, 115 N. Y. 506, 23 N. E. Rep. 188 58 RIggs V. Riggs, 135 Mass. 338 33, 34 f Riker v. Cornwell, 113 N. Y. 115, 30 N. E. Rep. 603 77 Roberts V. Cooke, 16 Ves. 451 76 Robinson V. Adams, 63 Me. 369 6 Robinson v. Clarke, 3 Prob. Div. 369 47 Robinson v. King, 6 Ga. 539 33 Robinson v. Schly, 6 Ga. 515 38 Rodgers v. Rodgers, 6 Heisk. 489 55 Rogers, Appellant, 11 Me. 303 63 Rusling V. Rusling, 35 N. J. Eq. 130, 36 N. J. Eq. 603. 607 2, 7 Russell V. Falls, 3 Har. & M. 457 32, 33 Saunderson v. Jackson, 3 Bos. & P. 238 36 fScaife v. Emmons, 84 Ga. 619, 10 S. E. Rep. 1097 27 Schneider v. Norris, 3 Made & S. 386 36 Schultz V. Schultz, 35 N. Y. 653 45 Schumaker v. Schmidt, 44 Ala. 454. .. .30, 64, 67 fScott V. Fink, 45 Mich. 341, 7 N. W. Rep. 799 61 Sedwick V. Sedwick (unreported) 57 fShailer V. Bumstead, 99 Mass. 113 18 f Shakespeare v. Markham, 10 Hun, 311. .. . 67 Shanley V. Baker, 4 Ves. 733 76 Sliepherd v. Guernsey, 9 Paige, 357 75 Shepherd v. Nabors, 6 Ala. 631 33 Sidebotham v. Watson, 11 Hare, 170 68 Singleton v. Tomlinson, L. R. 3 App. Cas. 404 24 Sisters of Charitv v. Kelly, 67 N. Y. 409. .39, 40 fSlade V. Walpole. 61 Law T. (N. S.) 497. . . 74 Sloan V. Maxwell, 3 N. J. Eq. 581 1 Smart v. Prujean, 6 Ves. 565 61 Smee V. Smee, 5 Prob. Div. 84 6, 6 Smith V. Fenner, 1 Gall. 170 65 fSmith V. Robertson, 89 N. Y. 555 58 Smith V. Tebbitt, L. R. 1 Prob. & Div. 398 6 Smith V. Wait, 4 Barb. 88 45 Smith's Will, 52 Wis. 543, 8 N. W. Rep. 616, 9N. W.Rep.665 6 Spraage V. Stone, 1 Amb. 731 67 Stackhouse v. Horton, 15 N. J. Eq. 803 1 fStarbuck v. Starbuck, 93 N. 0. 183 71 Stevens v. Vancleve, 4 Wash. C. C. 362 3 Stout V. Hart, 7 N. J. Law, 414, 434. 70 Stracey, In re, 1 Jur. (N. S.) 1177, Deane & S. 6 63,64 Sturdivant V. Birchett, 10 Grat 67 33 Sugden v. Lord St. Leonards, 1 Prob. Div. 154 45 Sunderland's Case, L. R. 1 Prob. & Div. 198 34 Swails V. Swails, 98 Ind. 511 68 Sweetland v. Sweetland, 4 Swab. & T. 6 . . 39 Swinton v. Bailey, 1 Exch. Div. 113, 48 Law J. 57 60 Symmes V. Arnold, 10 Ga. 506 23 Tally V. Butterworth, 10 Yerg. 501 27 fTaylor V. Mitchell, 87 Pa. St. 518 67 "Terry v. Edminster. 9 Pick. 355, note 54 Thackarey v. The Farmer, Gil p. 534, 528. .25, 26 Thomas Jefferson, The, 10 Wheat. 428 ... . 25 OASES CITED. Page Thompson v. Hawks, 14 Fed. Rep. 903. ... 7 Thompson v. Stevens, 71 Pa. St. 161 65 Thurston v. Thornton, 1 Cush. 89. 65 fTifft V. Porter, 8N. Y. 516 71 Titus' Adm'r v. Titus, 26 N. J. Eq. 117. ... 75 Todd V. Weber, 95 N. T. 181 65, 67 f Tomlinson v. Bury, 145 Mass. 346 71 Tonnele v. Hall, 4 N. Y. 140, 145 38, 40, 61 Towle V. Swasey, 106 Mass. 100 75 Train v. Gold, 6 Pick. 380, 385 65 Truro's Case, L. R. 1 Prob. & Div. 201 24 ■|-Trustees of University of Pennsylvania, 97Pa. St. 187 i 75 Turner v. Cheesman, 15 N. J. Eq. 243 2 Turner v. Martin, 7 De Gex, M. & G. 429. . . 75 Tyler v. Gardiner, 35 N. Y. 559 12, 18 United States v. Grush, 5 Mason, 390 26 United States v. Robinson, 4 Mason, 307. . . 26 United States v. Ross, 1 Gall. 626 26 United States v. Wiltberger, 5 Wheat. 76-94 26 Updike V. Ten Broeok, 32 N. J. Law, 105. . 65 +Van Alst v. Hunter, 5 Johns. Ch. 148 3 Van Cortlandt v. Kip, 1 Hill, 590, 693, 7 HiU, 846 60 Vandemark v. Yandemark, 26 Barb. 416. . . 54 +Van Deuzer v. Jistate of Gordon, 39 Vt 111 27 tVandewalker v. Rollins, 63 N. H. 460, 3 Atl. Rep. 635 77 Van Pelt v. Van Pelt, 30 Barb. 134 12 Van Straubenzee v. Monck, 3 Swab. & T. 12 24 Verdier v. Verdier, 8 Rich. Law, 135 64 tVrooman v. Powers, 47 Ohio St 191, 24 N. E. Rep. 267. 31 Waddington v. Buzby, 43 N. J. Eq. 154, 10 Atl. Rep. 863 1, 10 Walker t. Walker, 14 Ohio St. 157. .20, 21, 63, 64 Page Wallace r. Long, 105 Ind. 522, 5 N. E. Rep. 666 65 Waller y. Waller, 1 Graf. 454 37 Wallis V. Wallis, 114 Mass. 510 45 Walpole y . Orf ord, 3 Ves. 402 60 Wareham v. Sellers, 9 Gill. & J. 98 23 fWaring v. Waring, 6 Moore, P. C. 341. ... 8 Warner v. Beach, 4 Gray, 162. 164 63. S4, 56, 58 Warren v. Taylor, 56 Iowa, 183, 9 N. W. Rep. 138 64 Waterman v. Whitney, 11 N. Y. 157 65 Webster v. Webster, 105 Mass. 538, 543 54 Weir V. Fitzgerald, 2 Bradf. Sur. 52 12 Wells V. Wells, 35 Miss. 638 54 . Werkheiser v. Werkheiser, 6 Watts & a 184 27 Westcott V. Cady, 5 Johns. Ch. 343 42 Weston V. Johnson, 48 Ind. 1 68 f White V. Starr, (N. J. Prerog. Ct.) 20 Atl. Rep. 575 8 Whitenack v. Stryker, 3 N. J. Eq. 8 1 tWhite's Will,-In re, 121 N. Y. 406, 24 N. E. Rep. 935 7 fWhitney v. Twombly, 136 Mass. 145 7 Williams v. Evans, 1 Cromp. & M. 42 61 Willis V. Lowe, 5 Notes Cas. Adm. & Ecc. 428 38,39 Willis V. Mott, 36 N. Y. 486, 491 40, 41 t Wilson V. Mitchell, 101 Pa. St. 495 8 +Wilson's Appeal, 99 Pa. St. 545 17 Winn V. Bob, 3 Leigh, 140 27 Witherspoon v.Witherspoon, 3 McCord, 630 28 Wogan V. Small, 11 Serg. & R. 141, 145 54 Wolf V. Bollinger, 63 111. 372 50 Wright V. Manifold, 1 Maule & S. 294 82 fWright V. Wright, 5 Ind. 389 28 Wychev. Clapp, 43 Tex. 544 64 Yarnall's Will, In re, 4 Rawle, 46 27 tYounger v. Duffle, 94 N. Y. 535 40 t LEADING CASES UPON IHE LAW OF WILLS. I. MENTAL CAPACITY TO MAKE A WILL. (45 N. J. Eq. 178, 16 Atl. Rep. 690.) Waddingto.v v. Buzby. (Court of Eirors a/nd Appeals of New Jersey. Feb. 1,1889.) 1. Testamentakt Capacity. A person who is aged, infirm, and almost blind may make a valid will, if capable of recoUectine; the property she is about to dispose of, under- standing the manner of distributing it as therein set forth, knowing the objects of her bounty, and the nature of the business in which she is en- gaged. 3. Same. Testatrix was 83 years of age, feeble and some- what blind, forgetful to the extent that such aged persons usually are, but she went about the house, knew the members of the family, talked about her business affairs, remembered the amount of her property and where it was invested, ob- jected to the reduction of the interest on her in- vestments, took part in the routine of the house and the payment of bills, and conversed with vis- itors whom she knew. Held, that she had test- amentary capacity. , 3. Same— Pbaud ajtd Undue iNrLUENCE — Rela- tionship OP Draughtsman. The facts that the draughtsman of the will is sole executor, and his wife and son are favored legatees, will not invalidate the will, where there is no more direct and certain evidence of fraud or undue influence, and the testatrix had exclud- ed other relatives in a former will, and had given good reasons therefor, and the draughtsman, who was her nearest relative upon whom she could rely, had advised her in the care of her property, and assisted her in her business. Knapp and Paterson, JJ. , dissenting. Appeal from prerogative court; McGill, Ordinary. 43 N. J. Eq. 1.54, 10 Atl. Eep. 862. A ■written instrument alleged to be the last will and testament of Ruth W. Buzby was offered to the orphans' court of Salem county for probate, by George G. Wadding- ton, executor therein named, and probate was refused on objections raised by Nathan W. Buzby. On appeal the order refusing probate was affirmed by the ordinary, and the proponent appealed to this court. W. T. Hilliard and W. E. Potter, for ap- pellant. C. H. Sinnickson, for appellee. WILLS — 1 SouDDER, J. A careful consideration of the facts in this case has changed my first impression, and led me to a different re- sult from that reached in the courts which have made the prior examinations of the questions presented. It appears, in my judgment, that sufficient weight has not been given to the extent of the right which the law gives to the owners of property to dispose of it by will, the moderate ca- pacity required for theexercise of this right, and the aid they may invoke from others in giving order and legal form to their wishes without subjecting them to the charge of fi*aud and undue influence. At the date of this writing and its execution, April 20, 1882, Ruth W. Buzby was about 83 years old, and she died in 1886. She was feeble and forgetful to the extent that persons ordinarily are at such an advanced age, and she was nearly blind, so that she could not read, or did so with difficulty. But she could at that time go about the house, knew the members of the family, talked about her business affairs, remem- bered the amount of her property and where it was invested, objected to the re- duction of the percentage of interest, took a part in the routine of the house and the payment of bills, and conversed with visitors whom she knew. She liad been an intelligent woman, but not of very strong will, rather reticent than talkative, and becamemore silentand absent-minded as she grew old. She was injured by a fall, and failed in physical and mental strength from that time gradually until her death. The opinions of witnesses as to her mental capacity are of no weight unless sustained by facts on which such opinions are founded ; and those who saw her seldom, or but once, and say she was silent, and appeared absent-minded, give little aid in determining this ques- tion. Lowe V. Williamson, 2 N. J. Eq. 82; Sloan V. Maxwell, 3 N. J. Eq. 581 ; White- nack V. Stryker, 2 N. J. Eq. 8; Andress v. Weller, 3 N. J. Eq.605; Stackhouse v.Hor- ton, 15 N. J. Eq. 202; Paucoast v. Gra- EAW OF WILLS. ham. Id. 294; Stevens v. Vancleve, 4 "Wash. C. C. 262; Den v. Vancleve, 5 N. J. Law, '589; Harrison v. Rowan, 8 Wash.C.C. 580; Turner v. Cheesman, 15 N. J. Eq. 243; Ed- dy's Case, 32 N.J. Eq. 701, 33 N. .1. Eq. 574; Collins V. Osborn, 34 N. J. Eq. 511; and others that might be cited, — are cases in our state where persons who were aged, diseased, blind, and infirm have executed wills, and the rule of capacity by which they may be sustained has been enunci- ated. It is shown to my satisfaction that the testatrix, at the time she executed this writing, was capable of recollecting the property she was about to dispose of, un- derstanding the manner of distributing it therein set forth, the objects of herbounty, and the nature of the business iu which she was engaged. If so, she had the req- uisite testamentary capacity. The pa- per was in fact executed by her as her last will and testament, in the presence of two witnesses present at her house at the same time. The attesting clause does not say that they signed in the presence of the tes- tatrix. One of these subscribing witnesses is dead ; the other is living, but does not remember the circumstances. He is cer- tain as to his signature, and that of the other witness is proved by his son. It is shown by the testimony of the other two persons who were present at the signing of the paper that they were all together in the dining-room when she signed and re- quested them to sign as witnesses to her will. This completes the attestation. It also appears that the will was read to her before signing. She took the will after execution, herself, upstairs, put it in a box with her other papers in a drawer of her room where she slept, and it remained in her possession until her death, about five years after its date. Of the fact of its due execution, and her capacity to make it, there seems to me to be satisfactory proof offered. The more serious question in the case is whether Ruth W. Buzby executed this writing, purporting to be her last will and testament, through the undue influ- ence of George G. Waddington, the pro- ponent. The influence that will vitiate a will must be such as in some degree de- stroys the free agency of the testator, and constrains him to do what is against his will, but what he is unable to refuse, or too weak to resist. 1 Jarm. Wills, § 37; Lynch v. Clements, 24 N. J. Eq. 431; Moore v. Blauvelt, 15 N. J. Eq. 367. It is claimed that this appears in sev- eral particulars. The proponent wrote the will, in which he was made sole exec- utor, and his son and wife were favored legatees. In Rusling v. Rusling, 35 N. J. Eq. 120, 36 N. J. Eq. 603, it was said that the fact that the will was drawn ty a fa- vored legatee.while it calls for suspicious scrutiny of the circumstances, does not, of Itself, invalidate the will. The same rule would apply where the legacies were given, not to himself, but to those who stand in such near relationship to him as a son and wife. We must therefore look for other circumstances. Each case must be judged by its own circumstances, and no general rule can be made applicable to all cases. The testatrix had three chil- dren, — Mary Buzby, Beulah Gaskill, and Nathan Buzby. The son had died some years before her death, leaving a son of the same name, who is the caveator against the probate of this will. Mary Buzby lived with her mother until she died, on March 29, 1882. She cared for her in their home, aided her in the management of her property, but there it no evidence that she exercised undue influence over her. Her entire property was the sum of $5,200 invested iu bon,ds and mortgages, and some household furniture of no great value. Some years before her death she madeawill by which she bequeathed $1,200 to Beulah Gaskill, and the residue to Ma- ry Buzby. That will was drawn by Aaron Fogg, a neighbor. On the evening before Mary died, a codicil was written by Aaron Fogg to this will. He went to the testatrix's house, at the request of the proponent, and it was there executed by Ruth W. Buzby and witnessed by him and his daughter, who went with him for that purpose. The exact form of the codicil is not given, but it was for the benefit ol Mary B. Waddingtun, the proponent's wife, who is the daughter of Beulah Gas- kill, andgranddaughterof Ruth W. Buzby. She was taken by the testatrix when an infant, named after her daughter Mary, brought up by them with care and affec- tion, and remained with them until her marriage. By the will in controversy $1,- 500 is given to Beulah Gaskill, and some furniture; flOO to Ann B. Gaskill, and some silver-ware; $100 to Isabella P. Gaskill, and some silver-ware; fBOO to Asher B. Waddington, her great-grand- son ; $600 to Martha Hancock, in lieu of any charge for services or otherwise she might make against her estate; and the residue to Mary B. Waddington, her granddaughter. Her reason for giving no legacy to her grandson Nathan W. Buzby, the caveator, is stated in her will in these words: "My grandson Nathan W. Buzby heireda legacy for one thousand dollars by the will of his grandfather, Asher Buzby. By the failure of my co-executor, George W. Ward, I have been compelled to pay the greater part of said legacy out of my own resources, and this is the reason my said grandson Nathan W. Buzby is not mentioned as alegateeinthis instrument." This payment was demanded of her by her grandson when it was said that she had but $10 left iu the house for their present support; and there is evidence that, although she was patient at the time, and afterwards treated him with kindness and affection, she was displeased with his demand for the money, and his extravagance in spending it after he had received it. Beulah Gaskill went to live with her mother after Mary's death, and remained with her until her death, with the prouii.se that she would be provided for. She also received $1,50() by the will of her sister, Ma- ry. From this disposition of the pro[)er- ty it will appear that all, excepting $600 given to Martha Hancock ;or services in the family from the time she was a child, was bequeathed to Beu'ah Gaskill and her children; Mary B. Waddington and her MENTAL CAPACITY TO MAKE A WILL. Bon, Asher, namesake of his grandfather, receiving the greater portion of theestate. The exclusion of Nathan W. Buzby was in the former will drawn by Aaron Fogg, with which Waddington had no connec- tion, and Beulah Gasljill's individual por- tion was largely increased after the death of her sister, Mary, by her will and by the terms of this will, though in these pro- ceedings she is hostile to the proponent. These dispositions appear more like the natural operation of the mind and affec- tion of the testatrix than results of the fraudulent contrivance or undue influence of Waddington, who wrote this will. His conduct, his character, and relation- ship to her do not warrant such charges against him without more direct and cer- tain evidence. Until about the Time of Ma- ry's death It does not appear that he took any interest in her business. He lived at Elsinboro, two and a half miles from the testatrix's home in Salem. After Mary's death, he attended to her money matters, collected her interest, and deposited it for her, advised the investment of her money when the security was changed, and with her consent reinvested It for the best rate of interest she could obtain. He was the husband of her granddaughter, and ap- parently the nearest connection with whom she could advise, and on whose judgment she could rely, as the infirmities of age increased. While it would have been more delicate and prudent for him, under the circumstances, to secure the services of a stranger to prepare a will for the testatrix, yet, if she had sufiieient capacity to make it, and this is the volun- tary expression of her wishes in dispos- ing of her property, his mistake or even offlciousness in tendering his services should not be allowed to defeat her pur- pose, long entertained and expressed in a former will, to exclude the caveator from any portion in her property. The decree should be reversed, and the will admitted to probate. Under the peculiar circumstances of this case the caveator will be allowed $250 in lieu of costs, expenses, and allowances In all courts; and the executor will be given his costs and expenses out of the estate. Decree reversed. Knapp and Paterson, JJ., for affirm- ance, The Chief Justice, Depue, Dixon, Garrison, Scddder, Van Syckel, Brown, Clement, Cole, and McGregor, for re- versal. (See, also, White v. Starr, [N. J. Prerog. Ct.] 30 AtU Rep. 875; Horn v. Pullman, 73 N. Y. 369; Van Alst v. Hunter, 5 Johns. Ch. 148; Edge v. Edge, 38 N. J. Eq. 311 ; Wilson v. Mitchell, 101 Pa. St 495; Delafield v. Parish, 25 N. Y. 9; CampbeU v. Campbell, 130 111. 466, 33 N. B. Rep. 630; Bundy T. McKnight, 48 Ind. 503 ; Kerr v. Lunsford, 31 W. Va. 659^ 8 S. E. Rep. 493.) (45 N. J. Eq. 728, 17 Atl. Rep. 826.) MiDDLEDITCH Ct al. V. WILLIAMS et Sl. {Prerogative Court of New Jersey. June 17, 1889. ) 1. UsrarATnRAi, and TJnjxtst Tbstamentabt Dis- position. A will may be contrary to the principles of Justice and humanity, — it may be both unnatural and unjust, — yet, if it appears to have been made by a person of sufficient age to be competent to make a will, and also appears to be the free ex- pression of a sound mind, it will be upheld, a. Tbstamentabt Capacity — Insane Delusions. If a testator possesses sufficient mental power to take into account all the considerations nec- essary to the making of a proper will, though he is subject to an insane delusion, yet if it appears that such delusion neither influenced him, nor was calculated to influence him, in making his will, the will must be upheld. 3. Same. An insane delusion is a belief in the existence of something which no rational person would, in the absence of evidence, believe to exist, and which springs up spontaneously in the mind, and is net the result of extrinsic evidence of any kind. 4. Same. Where a testator is Induced by evidence of some kind, though it may be false, weali, or insuffi- cient, to believe in the existence of something which in reality has no existence, his belief may show want of discernment, that he is overcred- ulous and easily duped, or that he lacks power to weigh evidence, or to discriminate between what is true and what is false, but it does not show that his mind is unsound. 6. Same — Belief in Spiritualism. A belief in spiritualism, being a conviction founded upon extrinsic evidence, is not an insane delusion. 6. Evidence — ^Dbclabations of Testator. The declarations of a testator are competent to show the condition of his mind, but not to prove undue influence. 7. Same— Suspicion of Fraud. Circumstances raising a strong suspicion, but not producing conviction, that testator was duped in his belief as to spiritual manifestations from his deceased wife, which led him to bestow his bounty upon his mother-in law and brother-in- law in disregard of a natural affection for his daughter, an only child, will not justify the court in denying probate of the will. Appeal from orphans' court, Essex coun- ty ; Kirkpatrick, Buttner, and Ledwith, Judges. Francis E. Marsb, for appellants. J Frank Fort, for respondents. Van Fleet, Vice-Ordinary. The ques- tion presented by the appeal In this case Is whether a decree made by the or- phans' court of Essex county, on the 4th day of June, 188S, admitting to pro- bate a paper purporting to be the last will of William H. Livingston, deceased, is such a decree as the court should, in view of the facts of the case and the law applicable to them, have made. The pa- per in question was executed on the 11th day of January, 18S7, in the city of New York, where the testator then resided. It appears to have been executed in strict conformity to the requirements of our statute regulating the execution of wills. After the execution of the paper in ques- tion, Mr. Livingston removed to the city of Newark, in this state, where he died, on the 4th day of February, 1S88. His wife died in August, 1886, and after that date, up to the time of bis own death, his LAW OF WILLS. family consisted of himself, Ills daughter, Lillian, (his only surviving child,) and his mother-in-law, Marie C. Williams. His daughter, at the lime of her mother's death, was five or six years of age. The testator, by the paper in question, gives all his property, of every kind and descrip- tion, to his mother-in-law, and at her death to her son, William P. Williams, in trust for his daughter, to be held until his daughter has attained the age of 25 years, when, in the language of the will, "said property shall be handed over intact to her: provided, however, that in considera- tion of taking care of Lillian till twenty- five years of age, or until her marriage, said Marie C. WillianiR shall be supported and maintained, in her ordinary manner of living, out of the income derived from said property ; and should Marie O.Will- lams be living when Lillian shall arrive at twenty-five years of age, then Lillian shall give unto Marie C.Williams a satisfactory bond or guaranty for securing to Marie means tor her support during the balance of her lite. Should my daughter, Lillian, die before Marie C. Williams, then my property shall belong io the latter; and should both Lillian and Marie die before William P. Williams, then my property shall belong to the last named, William P. Williams." Mrs. Williams and Will- iam P. Williams are appointed executors. It is not (shown who drew this paper, nor where, nor under what circumstances, it was drawn. One of the subscribing wit- nesses says that he thinks the testator wrote it himself. That is tlie only in- formation we have respecting its prepara- tion or origin. The validity of this paper, as the will of William H. Livingston, is contested on two grounds: First, it is said that it is shown to be the product of an insane mind ; and, second, that it is shown to be the result of the exercise of undue influence. And it is claimed that the contents of the paper itself furnish strong evidence of the truth of both these objections. A will maybe con'rary to the principles of justice and humanity, — its provisions may be shockingly unnatural and extremely un- just; nevertheless, if it appears to have been made by a person of sufficient age to be competent to make a will, and also to be the free and unconstrained product of a sound mind, the courts are bound to up- hold it. The courts must so treat papers of this kind, in order to maintain that great principle which confers upon every citizen, of full age and sound mind, the right to do with his own as he pleases, so long as he does not attempt to apply his property to an immoral or unlawful pur- pose. But in cases vs^here want of testa- mentary capacity or undue influence is al- leged, it is the duty of the court to scan the provisions of the will to see whether or not they furnish any evidence of the truth of the charges made against its validity. The feature of the paper under consider- ation which is most likely to attract at- tention, as tending to show that the dis- position which the testator made of the property is both unnatural and unjust, is the fact that be has, either inconsiderately or designedly, manifested an unnatural preference for his mother-in-law and broth- er-in-law over the issue of his daughter. On scanning the will, it will be observed that it contains no indication whatever that the testator intended, in case his daughter should have issue, but did not survive her grandmother and her uncle, that her issue should take his property. On the contrary, if the will be read accord- ing to its plain words, it woiuld seem to be entirely clear that he intended, if his daughter died in the life-time of either her grandmother or her uncle, that his prop- erty should go, even if his daughter left issue, not to her issue, but first to her grandmother, if she was then living, but, if not living, then to her uncle. Such I understand to be the plain direction of the will. It says: "Should my daughter Lillian die before Marie C. Williams, then my propert.v shall belong to the latter; and, should both Lillian and Marie die before William P. Williams, then my prop- erty shall belong to the last named, Will- iam P. Williams." Death is here spoken of generally, and without restriction as to time. The testator does not say, "If my daughter Lillian shall die, without leaving lawful issue surviving her, before attain- ing twenty-five years of age, then my property shall go either to her grand- mother or her uncle;" but what he says is, if Lillian shall die before her grand- mother or before her uncle, then his prop- erty shall go to her grandmother, if liv- ing, but, if not, then to her uncle. Lilli- an's issue is not mentioned, nor is any provision made for it, either expressly or constructively, though the poesibility that she might have issue before attaining 25 is a thing which, it would seem, must have been before the testator's mind ; for in making provision for her care he limits the period that her grandmother shall take care of her to the time when she at- tains 25, or until her marriage. But sup- pose we say that, according to the settled rule of construction in such cases, the true meaniug of the will is that neither the grandmother nor the uncle will take unless Lillian shall die before attaining 25 years of age, — and that, I think, is the construc- tion which should be adopted, — still it is apparent that under this view the will is not such a one as a father, having an only child, and in the full possession of his senses, and with the instincts and affec- tions common to our nature, would, when entirely free from any sinister influence, have been likely to make; for under this view it vsrill be seen that if Lillian marries, has issue, and dies before attaining 25, her grandmother or her uncle will take the property given by the vrlll to the exclusion of her issue. The will in this respect is, in my judgment, both unnatural and unjust. But this, standing alone, constitutes no reason why the paper should not be given effect as the will of the testator. It may help to show that the testator lacked tes- tamentary capacity, or that his will is not the free expression of his mind and heart, but in a case where it appears that he had the requisite capacity, and that his will is the unfettered expression of his wishes, it amounts to nothing at all. The MENTAL CAPACITY TO MAKE A WILL. paper In qnestton Is, however, assailed on other grounds. It is charged that it is the direct produqt of an insane delusion. The testator was a believer in spiritual- ism ; that is, he believed the spirits of the dead can communicate with the living, through the agency of persons called "mediums," and who possess qualities or gifts not possessed by mankind in general. The proofs show that the testator stated to several persons, prior to the execution of his will, that the spirit of his dead wife had requested him, through a medium re- siding in Forty-Sixth street, in the city of New York, to make provision for his mother-in-law in his will. To one person he said that his wife's spirit had requested him to give all his property to her mother, and to do it in such a way that none of his relatives could get it away from her. To the same person he said, at another time, that the spirit of his wife was con- stantly urging him to make a will iufavor of her mother. To another person he said that the spiritof, his wife had request- ed him to be good to her mother, and see that she was made comfortableduring the remainder of her life, and he also said that he intended to maKe a will, leaving enough to his mother-in-law to niake her comfortable, because his wife wanted him to do so. The testator's wife, b.v her will, gave all her property to the testator, subject, however, to an annual payment of $500 to her mother, and the like sum to her brother, William P. Williams, during their joint lives, and, after the death of either, then to the payment of $1,000 an- nually to the survivor during his or her life. The evidence shows, I think, beyond doubt, that the testator believed, fully and thoroughly, that the messages which were delivered to him, as communications Irom his wife, actually came from her spirit, and that her spirit knew constant- ly all that he was doing. The important question which this branch of the case presents for decision is, was such belief an insane delusion? The prevailing doctrine in England, up to the time the court of queen's bench decided Banks v. Goodfellow, L. B. 5 Q. B. 549, was that any degree of mental unsound- ness, however slight, and even if it exer- cised no influence over the testator in making his will, and was wholly uncon- nected with the disposition he had made of his property, would, nevertheless, be fa- tal to the validity of his will. The course of reasoning which led to the adoption of this doctrine is stiated as follows by Cock- BUEN, C. J., in Banks v. Goodfellow, (page, 559:) "To constitute testamentary ca- pacity, soundness of mind is indispensably necessary. But the mind, though it has various faculties, is one and indivisible. If it is disordered in any one of these fac- ulties, if it labors under any delusion aris- ing from such disorder, though its other faculties and functions may remain undis- turbed, it cannot be said to be sound. Such a mind is unsound, and testamentary incapacity is the necessary consequence. " A different doctrine was established by Banks v. Goodfellow. It was there held that if a testator possesses sufficient men- tal power to take into account all the considerations necessary to the proper making of a will, though he is subject to some delusion, yet if it appears that such delusion did not influence him, and was not calculated to influence him, in making his will, his will is entitled to be regarded as a valid testamentary act, and should be upheld. The principle established by that case is expressed in the following sen- tence of Chief Justice Cockburn's opinion : "If it be conceded, as we think it must be, thattheonly legitimateor rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be pres- ent to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than oth- ers with regard to this right." All subse- quent cases arising in Eugland have been decided according to this principle, and it is now the established law of that coun- try. Boughton V. Knight, L. R. 3 Prob. & Div. 64; Jenkins v. Morris, 14 Ch. Div. 674; Smee v. Smee, 5 Prob. Div. 84. The same principle has, in its substance, been recognized by the court of errors and ap- peals of this state. Chief Justice Beaslby, in pronouncing the judgment of that court in Lozear v. Shields, 23 N. J. Eq. 509, de- clared that partial insanity was insufli- cient of itself to justify a decree setting aside a sale of real property or any other act. He said: "Mania does not, per se, vitiateany transaction ; Eorthe question is whether such transaction has been affected by it. Where a pure defense of mental in- capacity is interposed, I think the true test in this class of cases is whether the party had the ability to comprehend, in a reasonable manner, the nature of the affair in which he participated. This is the rule, in the absence of fraud; for fraud, when present, introduces other principles of de- cision." My own view as to the true rule on this subject may be stated as follows: Even if it appears that a testator was subject to an insane delusion when he made his will, but it is also made to appear that his delusion was not of a character likely to influence him, and did not in- fluence him, in the disposition which he made of his property, his will should be declared valid. But this is somewhat aside from the question mainly in contest on this branch of the case, namely, is a belief in spiritual- ism an insane delusion? Sir John Nich- OLLjin the celebrated case of Dew v. Clark, 3 Addams, Ecc. 79, (2 Eng. Ecc. K. 441, J ae- fined" insane delusion "as follows: ""Wher- ever the patient once conceives somethine extravagant to exist, which has still no existence whatever but in his own heated imagination, and wherever, at the same time, having once so conceived, he is inca- pable of being, or at least of being perma- nently, reasoned out of that conception, such a patient is said to be under a delu- 6 LAW OF WILLS. slon, In a pecnllar, half-technical sense of the term, and the absence or presence of delusion, so understood, forms, in my judgment, the true and only test or crite- rion of present or absent insanity. " Dr. Haggard's report of the opinion pro- nounced in Dew v. Clark attributes some- what different language to Sir John Nich- oi.L. The following is the definition, as he reports it : " When persons believe things to exist which exist only, or at least in that degree exist only, in their own imag- ination, and of the non-existence of which neither argument nor proof can convince them, they are of unsound mind ; or, as one of the counsel accurately expressed it, ' it is only the belief of facts which no ration- al person would have believed, that is in- sane delusion.'" 1 Williams, Ex'rs, 35; 1 Eedf. Wills, 71. Sir James Hannrn, in Boughton V. Knight, L. B. 3 Prob. & Div. 64-68, adopted the definition as re- ported in 3 Addams as the true one. He said he believed it would solve most, if not all, the difficulties which could arise in investigations of the kind now under consideration. Chief Judge Denio, in So- ciety V. Hopper, 33 N. Y. 619-624, said : " If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the as- sumption of their existence, he is, so far as they are concerned, under a morbid de- lusion ; and delusion, in that sense, is in- sanity." And CocKBURN, C. J., in Banks V. Goodfellow, (page 560,) says: "When delusions exist which have no foundation in reality, and spring only from a diseased and morbid condition of the mind, to that extent the mind must necessarily be taken to be unsound." According to these definitions, it is only a delusion or conception which springs up spontaneously in the mind of a tes- tator, and is not Ihe result of extrinsic evidence of any kind that can be regarded as furnishing evidence that his mind is diseased or unsound; in other words, that he is subject to an insane delusion. If, without evidence of any kind, he imag- ines or conceives something to exist which does not in fact exist, and which no rational person would, in the absence of evidence, believe to exist, then it is manifest that the only way in which his irrational belief can be accounted for is that it is the product of mental disorder. Delusions of this kind can be accounted for upon no reasonable theory, except that they are the creations of some derange- ment of the mind in which they originate. To illustrate: In Sraeev. Smee, 5 Prob. Div. 84, the testator imagined himself to be the son of George IV., and that when he was born a larj^e sum of money had been put in his father's hands for him, but which his father, in fraud of his rights, had distributed to his brothers; and in Smith V. Tebbitt, L. R. 1 Prob. & Div. 398, the testatrix imagined herself to be one of the persons of the Trinity, and her chief legatee to be another. The delusion, in both instances, as will be noticed, was indisputably a -wild and baseless fancy, not the product of evidence of any kind, but obviously theoffspring of a disordered condition of mind. But where a testator is induced, by false evidence or false state- ments, to believe a fact to exist which does not exist, or where, in consequence of his faith in evidence which is true, but which is wholly insufficient to prove the truth of what he believes, he believes a fact to exist which in reality has no ex- istence, his belief may show want of dis- cernment, that he is overcredulous and easily duped, or that he lacks power to analyze and weigh evidence, or to dis- criminate between what is true and what is false, but it furnishes no evidence what- ever that his mind is diseased. His belief may show lack of judgment or want of reasoning power, but not that his mind is unsound. The testator's belief in spiritualism was not a morbid fancy, rising spontaneously in his mind, but a conviction produced by evidence. The proofs show that when he first commenced attending what arecalled "stances" he was inclined to be skeptical. Afterwards his mind seemed to be in au unstable condition, — he sometimes be- lieved and at others doubted ; and that it was not until the spirits gave an ex- traordinary exhibition of their power, by printing or painting on a pin, worn by his mother-in-law on her neck, in brilliant letters, which sparkled like diamonds, the word "Dickie," a pet name of his dead wife, that his last doubts as to the reality of the manifestations were removed. Be- lieving, as I do, that these manifestations were correctly described by Vice-Chan- cellor GiFFARD, in Lyon v. Home, L. K. 6 Eq 6.55-681, when he called them "mischiev- ous nonsense, well calculated, on the one hand, to delude the vain, the weak, the foolish, and the superstitious, and, on the other, to assist the projects of the needy and of the adventurer, "still it seems to me to be entirely clear that it cannot be said that a person who does believe in their reality is, because of such belief, of unsound mind, orsubject to an insane delusion. No court has as yet so held. No cases on this subject were cited on the argument. Those which I have examined uniformly bold that a belief in spiritualism is not insanity. The court in Eobinson v. Ad- ams, 62 Me. 369, said : "Belief in spiritual- ism is not insanity, nor an insane delusion. * * * The term 'delusion,' as applied to insanity, is not a mere mistake of fact, or the being misled by false testimony or statements to believe that a fact exists which does not exist. " And in Brown v. Ward, 53 Md. 376, it was said : " The court cannot say, as matter of law, that a per- son is insane because he holds the belief that he can communicate with spirits, (of the dead,) and can be and is advised and directed by them in his business transac- tions and in the disposal of his property." Substantially the same view was ex- pressed in Otto V. Doty, 61 Iowa, 23, 15 N. W. Kep. 578, and also in the matter of Smith's Will, 52 Wis. 543, S N. W. Eep. 616, and 9 N. W. Eep. 665. The utmost length to which any court has as yet gone on this subject istodeelarethatabelief in spir- itualism may justify the setting aside of a will when it is shown that the testator, MENTAL CAPACITY TO MAKE A WILL. tb rough fear, dread, or reverence of the Bpirit with which he believed himBelt to be in communication, allowed his will and judgment to be overpowered, and in disposing of his property followed implic- itly the directions which he believed the spirit gave him ; but in such case the will is set aside, not on the ground of insanity, but of undue influence. Thompson v. Hawks, 14 Fed. Rep. 902. There is no evidence in this case which will support a conclusion that the testa- tor, at the time he executed his will, was subject to an insane d'elusiou. Nor do I think there is any evidence in the case which will support a judgment declaring that the will in question is the result of undue influence. There is no proof tending to show what influence the spirits or the medium exercised over the testator in making his will, except that which pro- ceeded from the testator's nwn mouth. His declarations are competent to show the condition of his mind, but not to prove undue influence against either per- sons or spirits. Kusling v. Rnsllng, 36 N. J. Eq. 603-607. For the purpose of prov- ing undue influence, they are without the least force. Neither the medium, nor Mrs. Williams, (the mother-in-law,) nor any other person who was present at any of the stances, has been examined as a wit- ness. No legal evidence of what occurred at any of them is before the court. The charge of undue influence is mainly direct- ed against Mrs. Williams. She is said to be a believer in spiritualism, and the proofs show that she went with the testa- tor frequently when he went to the medi- um to consult the spirit of his dead wife. There are some things in her conduct which are calculated to create strong sus- picion. Without apparent causeshe seems to have entertained feelings of strong dis- like towards all the testator's relatives. On the day of his wife's funeral she or- dered his sister out of the house, without cause or right, and in utter defiance of the proprieties of the occasion, and after his sister refused to go she put herself so near to the testator and bis sister as to be able to overhear everything they said. From that time forward, up to the time of tes- tator's death, Mrs. Williams continued to reside with him, and his sister never, after the funeral, went to his house, nor, so far as appears, did any of his other relatives. When the testator died Mrs. Williams not only neglected to send notice of his death to any of his relatives, but did what she could to conceal his death from them. After the testator's death she admitted that she had persuaded or gotten him to insert the clause in his will which defers the turning over of his property to his daughter until she is 25, stating that the reason she did so was because shethought that when the daughter was of age some old fool might come after her for her mon- ey, and she wanted to protect her against such persons; and it also appears that she was present when the spirits gave the lestator such evidence of their presence as he regarded conclusive, by printing on a pin on her neck, in brilliant letters, the pet name of his wife. These things nat- urally breed suspicions and create fears. They show that it is possible that every message the testator received, purport- ing to come from the spirit of his dead wife, came, not from the dead, but from the living, and that everything that was done to dispel the testator's doubts, and to induce him to believe in the reality of the spiritual manifestations which he wit- nessed, was, from beginning to end, a pre- arranged scheme of deception and fraud. But there is no proof in the case which will support a judgment that such was the fact. There is enough to raise a strong suspicion, but not enough to pro- duce conviction. Undue influence, like fraud, cannot, in a case where no relation of trust exists, be presumed; but must be proved. I strongly suspect that the tes- tator was duped. It may also be true that he was undu'y influenced. I believe that the examination of Mrs. Williams, or the medium, as a witness, would. In all probability, have made many things whlcli now seem dark and obscure, plain and clear. The question, however, wheth- er or not the paper in question is the will of the testator, must be decided by the evidence before the court. Taking that as the sole guide to the judgment to be pro- nounced,! think it is the duty of the court to affirm the decree made below. (See, also, Coit v. Patchen, 77 N. Y. 533; In re White's Will, 131 N. Y. 408, 24 N. E. Kep. 935; Benoist v. Murrin, 58 Mo. 307 ; Banks v. Goodfellow, L. B,. 5 Q. B. 549 ; Boardman v. Woodman, 47 N. H. 120; Clapp v. Fullerton, 34 N. Y. 190; Whitney v. Twombly, 136 Mass. 145.) (4 N. Y. Supp. 181.) In re MacPherson's Will. (Surrogate's Court, New York County. Jan. 2, 1889.) 1. Testamentabt Capaoitt — Insanity — ^Ltjcid In- tervals. A will made by an insane person dnring a lucid Interval may be valid, but the facts estab- lishing intelligent action must be shown. 2. Same. Before executing her will, testatrix showed symptoms of insanity, which were displayed es- pecially by causeless outbursts of passion, but tbese occasions were alternated by continued periods of sanity. Her oral and subsequent written directions for the drafting of the will were rationally given, and the will was reason- able, and Bocorded with her previously expressed intentions. The subscribing witnesses, one of them a law clerk, testified to her mental capac- ity when the will was executed. Held, that the will should be admitted to probate, the sanity of testatrix at its execution being sufficiently estab- lished. The will of Sara J. MacPherson, de- ceased, was offered for probate by John MacPherson, father of the executrix there- in named, who was an infant. Elizabeth Hammond contested it on the ground of want of testamentary capacity. The let- ter referred to in the opinion as having been left at the house of Judge Angell, consisted of disconnected and irrelevant expres- sions, wholly without meaning. :.AW OF WILLS. Blair & Rvdd, tor proponent. James R. Angell, for contestant. Ransom, S. A perusal of the testimony taken in this case must lead any mind to tlie conclusion that the testatrix, for a considerable period before her death, was an excitable, sickly woman, who, on slight provocation, and often with no ap- parent cause, flew into fits of passion, and displayed many symptoms of a dis- eased mind. Conversation upon topics connected with certain of her relatives in- variably excited her to some outburst. No person in the enjoyment of her senses would have composed the letter which appears to have been left at the house of Judge Angell by the deceased. Neverthe- less, the unanimous testimony of the wit- nesses (with, possibly, the single excep- tion of Mrs. Angell) is to the effect that, while these manifestations of an unhealthy mind were chronic from the date of her first illness, she was sometimes, for con- tinued periods of time, in the possession of her faculties. In the light of these facts, the law as laid down in the case of Gombault v. Public Administrator, 4 Bradf. Sur. 226, might be taken as the text upon which to write a decision of this cause, viz. : "A will made in a lucid in- terval may be valid, but the facts estab- lishing intelligent action must be shown. The nature and character of the instru- ment, and of its dispositions, have great influence, * * * and it is important to ascertain whether the contents of the will harmonize with the state of the decedent's affections and intentions otherwise ex- pressed. " In the case at bar the subscrib- (See, also, Cartwright v. Cartwright, 1 Pbillim. Eco. 90; Waring v. Waring, 6 Moore, P. C. 341; Gombault v. Public Administrator, 4 Bradf. Sur. 226; In re Gangwere's Estate, 14 Fa. St. 417.) ing witnesses prove the due execution of the will, and that at the time the testatrix had mental capacity to make a will. One of the subscribing witnesses was a law clerk, and presumably familiar with the legal requisites. The will was drawn by Mr. Rudd, after an interview with testa- trix, who called at his office for the pur- pose of giving Instructions therefor. Thereafter he received a note from testa- trix, containing substantially similar di- rections, and the will was drawn accord- ingly, and sent to her by a messenger, who superintended its execution at the house of decedent. At this interview with Mr. Rudd he testifies that she conversed rationally upon the subjects introduced. That the will is in accord with her ex- pressed intentions appears by the testi- mony of her brother, as well as by the evidence of Mr. Rudd. In the case of Chambers v. Queen's Proctor, 7 Eng. Ecc. R. 164, cited in Gombault v. Public Admin- istrator, supra, the decedent died by his own hand the day after he executed the will. There had been indications of insan- ity immediately before and after its execu- tion. The court said: "If done during a lucid interval, the act will be valid, not- withstanding previous and subsequent insanity," — and the will was upheld main- ly on the ground of the reasonable dispo- sitions contained in the instrument, the absence of proof of delusion at the time of the factum, and the rational manner in which the. act was performed. Every in- cident specified in that case is supplied here for the purpose of supporting the will, and I am of opinion that the will should be admitted to probate. (45 N. J. Bq. 702, 17 Atl. Rep. 692.) Bannister et al. v. Jackson. (Prerogatme Cnwrt of New Jersey. May 24, 1889. ) 1. Testamentakt Capacitt — Intoxication. The test of testamentary capacity is that the testator can comprehend the property that he is about to dispose of, the objects of his bounty, the meaning of the business in which he is en- gaged, the relation of each of these factors to the others, and the distribution that is made by the will. The effect of present intoxication and mental disease, induced by habitual indulgence in intoxicants, must be measured by such test, for both may exist in some degree without destroy- ing testamentary capacity. S. Samb. Testator bequeathed 1500 to his wife, and the same sum to his daughter, and the balance of the estate, valued at $15,000, was divided among'his brothers. He was addicted to the excessive use of intoxicating liquors, which had impaired, to some extent, both his mental and physical pow- ers. But while at times he seemed to be afflicted with dullness and loss of memory, at other times he exhibited a keen, shrewd capacity for business, and a strong will. About the time of making the will he sold out his business to good advantage, and afterwards was identified with business en- terprises, being elected director of a building association. The will provided that the money left to the daughter should be free from the con- trol of her husband, although the latter was dead at the time of making the will j but this was in part explained by his separation from his wife and daughter, and by the fact that the daughter had separated from her husband. When the will was executed the testimony showed that he had been drinking a little, but not to such an extent as to disorder his faculties or pervert his judg- ment. Held, that lack of testamentary capacity was not shown. Appeal from orphans' court, Essex coun- ty ; KiRKPATBicK, BuTTNER, and Ledwith, Judges. Proceedings for the probate of the will of George M. Bannister, offered by John Jackson, executor, named therein, con- tested by Caroline F. Bannister and Car- oline J. Marsh, heirs at law. The or- phans' court admitted the will to pro- bate, and contestants appealed. C. W. Riker, for appellants. M. T. Bar- rett and Henry Youug, for respondent. McGiLL, Ordinary. This appeal is from a decree of the orphans' court of Essex county, which directs that a paper pur- porting to be the last will and testament of George M. Bannister be admitted to probate. The paper was executed in ac- cordance with the requirements of the statute, on the 24th of April, 1884, and on the 22d day of March, 1887, the testator died of chronic alcoholism at the German hospital, in the city of Newark. The ap- MENTAL CAPACITY TO MAKE A WILL. 9 pellants are his widow and only child. By the disputed paper, $500 is bequeathed to the widow, and declared to be in addition to her dower right, and $500 is given to the daughter, Caroline J. Marsh, who was then a widow, and provision is made that that sum shall be her own property, free Irom the control of her husband, Edward Marsh. The residue of the estate is divid- ed equally between the four brothers of the testator, who reside in England, with the proviso that, in case two of the broth- ers, who are named, should die before the testator, without leaving issue, then their share shall be divided equally be- tween the surviving brothers or their heirs. John Jackson, a friend and .former busi- ness agent of Mr. Bannister, is named as the executor of the will, and power is given him to sell real estate. The estate disposed of is valued at from $12,000 to $15,000, and consists entirely of personal property. When the will was made the testator and Mr. Jaclison were the equi- table owners of a farm at Brookdale, in this state, the legal title to which was in the name of one McCartney, who held it in trust for him, and the testator alone was the equitable owner of a house and lot in the city of Newark, the legal title to which was then held in trust for him by Mr. Jackson. The admission of the will to probate is resisted upon the ground that at the time of its execution Bannister did not possess testamentary capacity. It is insisted that he had become an ha- bitual drunkard, was afflicted with chron- ic alcoholism, and at the very moment of the paper's execution was so far intoxi- cated that he did not comprehend the act In which he was engaged. Bannister was married to the appellant Caroline F. Bannister, in 1S55. She had been married before, but was then a widow. By her he had a daughter, the appellant Caro- line J. Marsh. Until 1S75 he was a pros- perous slipper manufacturer in Newark. In that year he commenced to use intoxi- cating liquors to excess, and a year later left his wife and daughter, to live with a woman of disreputable character, and from that time until his death he contin- ued in excessive indulgence in intoxicating drink. Witnesses describe the quantity of liquor that heconsumed as "enormous. " When sober he was nervous, sleepless, and irritable. His hand trembled contin- uously. He spoke of seeing strange fig- ures and imps, and otherwise exhibited characteristics of the habitual inebriate. Yet, notwithstanding his condition, he managed to keep his business together, and, at about the time of making the pa- per in question, to sell it at considerable advantage. Sometimes he appeared -to be afflicted with dullness and loss of mem- ory, and at other times he exhibited a keen, shrewd capacity for business, and a strong will. In the spring of 1884 he de- clared that he had determined to go to Europe for the benefit of his health, and then made the advantageous sale of his business above spoken of, and at about the same time transferred to his mistress, In settlement of all her claims upon him, the furniture of the house in which they Lad lived together. He then made the will in dispute, and then, for the benefit of his health, went for two weeks to his Brookdale farm, and then to England. During all the time that he was separated from his wife aud daughter, except while he was in England, he contributed to their support, remitting to them weekly a certain allowance. While he was in England his daughter wrote to him for assistance, and he answered her by the fol- lowing letter, which should be inserted here because of its value in ascertaining his condition of mind and capacity at the time he wrote it: "London, July 12th, 1884. Carrie: Your letter just received. Glad to hear that all is well. You will please to understand that I am so placed that I cannot occupy but one home. I have for over nine years gave you and your ma a good living. Now there is a change. If your mother wants me, I will make arrangements to couie, and I will make her as hapijy as a man can make his loving wife. Yours, G. M. B. P. S. I have seat by mail to Mr. Jackson to carry out all arrangements that you might make Now, to you, my D. Can you lay your head on your pillow at night, and say to your God that you have been a loving, faithful child? If you can, then your God is not mine. G. M. B." In Au- gust of the same year he returned to New- ark, and immediately took up his resi- dence with his wife and daugliter, and re- mained with them until some time in the following December. He had not been able to break his pernicious habits, and while he thus lived with them he was sel- dom sober. In December he returned to his mistress, and resided with her until he died, in the spring of 1887. For some years before he went to England he had been the vice-president aud a director of the Mutual Building & Loan Association of Newark. When he went to England he resigned those offices, but upon his return from England was re-elected a di- rector of the corporation. The president of that association says that he was valued as a man of excellent judgment, and was frequently selected to act upon committees to audit accounts and ap- praise the value of property upon which loans were to be placed. He was not thought by this witness to be incompe- tent to transact business until a month or two before his death. After his return he was employed by Thomas Phaup, a slipper manufacturer, as the manager and foreman of his business, and for fifteen months was paid $15 a week in that ca- pacity. During this employmenthe loaned Phaup $1,000, taking security for the loan, and so managed that he ultimately be- came the owner of Phaup's business. Up to the time of his death he kept a bank account in his own name. His money was chiefly invested in mortgages placed by himself, the interest from which he or his friend Jackson collected. While he was in England Jackson managed his af- fairs, and rendered him regular accounts. His securities were always kept in Jack- son's safe. The proofs satisfy me that at the time the will was made Bannister had become addicted to the excessive use of intoxicat- 10 LAW OF WILLS. ing liquors, and that to some extent such inUulsence had impaired both his men- tal and physical powers, and had probably contributed to the degradation of his moral character, but at the same time I am satisfied that the impairment of his mental faculties did not extend so far as to render him incompetent to perform a legal act when he was not under the im- mediate influence of intoxication. The test of testamentary capacity in this state is that the testator can comprehend the property he is about to dispose of, the ob- jects of his bounty, the meaning of the busi- ness in which he is engaged, the relation of each of these factors to the others, and the distribution that is made by the will. The capacity required is moderate, and, though the testator be subject to many infirmities, though he be feeble, absent- minded, forgetful, aged, diseased, blind, or otherwise infirm, if he yet possess . the powers required by this test, he will be held to have testamentary capacity. Waddington v. Buzby, 43 N. J. Eq. 154, 10 Atl. Rep. 862. I am entirely satisfied thaf Mr. Bannister had testamentary capacity when he made the document in dispute. Much strsss was laid by the counsel for the appellant upon the faci that the will pro- vided that the money which was left to the testator's daughter was to be free from the control of her husband, when in fact, at the time the will was made, that husband had been dead two years. The daughter's marriage, her separation from her husband, the husband's death, and the making of the will, all occurred while Bannister lived apart from his wife and daughter. The testimony that he had been informed of the death of his son-in- law comes from the daughter alone. Pos- sibly she may be mistaken as to her state- ment of it, or possibly it may have been conveyed to him at a time when he was under the influence of strong drink, and incapable of appreciating or remembering the information. His separation from his wife and daughter, and the daughter's separation from her husband, created a situation of affairs in which the death of the son-in-law would fail to disturb exist- ing relations, so as to emphasize it and impress it upon his memory. I cannot but believe that the testator's failure to remember the death when he made his Will must be attributed to otlier causes than disease of mind or incapacitating failure of memory. The remaining inquiry is whether at the very time of the making of the will the testator was under the influence of liquor. Thethree persons present at the execution of that paper have been sworn. John Otto, the justice of the peace and convey- ancer who drew the will, was not directly questioned upon the subject, but he says that Bannister came to his office at about 10 o'clock in the morning, and told him that he was going to Europe, and that he desired to arrange his affairs before he left, and then gave Otto directions for the will, and, as Otto says, the ideas to put in it. Otto then told him that he must have another witness, and he went out, saying that he would get Frank J. Merz. Mr. Merz was a saloon-keeper near by. He says that Bannister came in his saloon at about 11 o'clock in the morning, and called him aside, and asked him if be would be a witness to his will, and that he (Merz) assented, and went with him. He further says that Bannister was a little excited, and that he (the witness) thought that he had been drinking a little, for he smelt the liquor upon him, and Bannister seemed to be nervous. John Jackson, who was also present at the execution of the will, states that Bannister either came to him or met him that morning, and requested him to accompany him (Bannister) to Mr. Otto's office, where he proposed to have his will drawn. He told Jackson that he was going to Europe, and that he wished Jack- son to be the executor of the will. Jackson sas's that the testator was sober, and knew what he was doing. When the will was completed Mr. Otto read it, and after it had been executed Bannister paid Otto for drawing it, and handed the will to Jackson. It maybe that Bannister had been drinking immediately before his will. Merz says that he had been drinking a lit- tle, — was a little excited; to use his ex- pression, was "kind o' nervous, " — but Ue does not pretend to say that Bannister did not appreciate the business in which he was engaged. To Jackson he seemed to be sober, and that which he did and said throughout the transaction seems to clearly indicate that he was not intoxicat- ed ; at all events, to such a degree as to disorder his faculties or pervert his judg- ment. In Peck V. Gary, 27 N. Y. 9, 23, Chief Justice Denio said: "Itisnotthe law that a dissipated man cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influ- ence when performing such acts. It fixed mental disease has supervened upon in- temperate habits, the man Is incompetent and irresponsible for his acts. * * * If he is so excited by present intoxication aa not to be master of himself, his legal acts are void, though he may be responsible for his crimes." My conclusion, after a careful examination of this case, is that at the time the will in dispute was made Mr. Bannister's habitually excessive in, dulgence in strong drink had not pro- duced a fixed mental disease sufficient to destroy his testamentary capacity, and that at the very moment of the execution of that document he was not so intoxicat- ed that the act in which he was engaged was vitiated. I will therefore affirm the decree of the orphans' court. (See, also, Lee's Case, 46 N. J. Eq. 193, 18 Atl. Rep. 525; Harmony Lodge's Appeal, 127 Pa. St. 269, 18 AtL Rep. 10; Pierce v. Pierce. 38 Mich. 412; Lewis v. Jones, 50 Barb. 645; Peck v. Gary, 27 N. Y.9.) UNDUE INFLUENCE. 11 II. UNDUE INFLUENCE. (68 N. T. 504.) ROLLWAGEN V. EOLLWAGEN e* a/. (Court of Appeals of New Forfc. Jan. 18, 1376.) 1. Undue Influence in I'RocuRiNa WiLLr— What Constitutes. To make the influence exercised over a testator undue and illegal, it must be such as to destroy his free agency ; it is immaterial how little the influence may be, if free agency is thereby de- stroyed. 8. Same — Evidence. Undue influence may be shown by all the facts and circumstances surrounding testator, the nat^ ure of the will, his family relations, the condi- tion of his health and mind, his dependency upon and subjection to the control of the person sup- posed to have wielded the influence, the oppor- tunity and disposition to wield it, and the acts and declarations of such person. It is not suiH- cient to avoid a will that it results from the le- gitimate influence which affection or gratitude gives a relative over the testator. But if one take advantage of the affection or gratitude of another, to obtain an unjust will in his favor, using his influence to control and subdue the mind of the testator, so as substantially to de- prive him of free agency, then the fact that afliec- tion or gratitude was the moving cause makes it no less a case of undue influence. 8. Same. In 1S71 testator, an uneducated man, who could neither read nor write, worth about $700,000 in, real estate, married a niece of his deceased wife, who for several years had been his housekeeper. At that time he was a confirmed invalid, having nearly lost the power of speechj and his infirm- ities increased until his death, in October, 1873. In the year 1873 it appeared from the evidence of his intimate friend that he could not speak a word, nor utter an intelligible sound. In April, 1873, he discharged his old business agent, and employed a brother of Ms wife, a man of no bus- iness capacity, to take charge of his property, and a large and expensive residence was pur- chased and furnished. In the fall of 1872, and again in June, 1873, the brother employed attor- neys to draw wills for testator in favor of the wife, by which the residuary estate was tied up until his youngest grandchild should come of age, the brother being made trustee. The wife gave all the directions for making the will, claim- ing to understand the sounds made by testator, none of which were intelligible to the attorney, nor did testator at such time utter any word or intelligible sound. In September, 1873, a codicil was drawn under similar circumstances, increas- ing the gift to the wife. None of testator's chil- dren or grandchildren were present at the execu- tion of the wills or codicil, nor did it appear that they knew of them. Held, that it did not appear that testator understood and assented to the pro- visions of the instruments, and that they were procured by undue influences. Appeal from supreme court, general term, first department. Instruments purporting to be the last •will and testament of Frerlerick Eoll- wagen, deceased, and a codicil thereto, were, by the executors therein named, offered for probate to the surrogate of New York county, and probate was re- fused. On appeal to the supreme court, the decree of the surrogate was affirmed, and the proponents appealed to this court. la 1871 testator, an uneducated man. ■who conld neither read nor write, worth about $700,000 in real estate, married a niece of his deceased wife, who for several years had been his housekeeper. At that time he was a confirmed invalid, having nearly lost the power of speech, and his infirmities increased until his death, in October, 1873. In the year 1872 It appeared from the evidence of his intimate friend that he could not speak a word nor utter an intelligible sound. In April, 1873, he discharged hiwold business agent, and em- ployed a brother of his wife, a man of no business capacity, to take charge of his property, and a large and expensive resi- dence was purchased and furnished. In the fall of 1872, and again in June, 1873, the brother employed attorneys to draw wills for testator in favor of the wife, by which the residuary estate was tied up until his youngest grandchild should come of age, the brother being made trustee. The wife gave all the directions for mak- ing the wiil, claiming to understand the sounds made by testator, none of which were intelligible to the attorney, nor did testator at such time utter any word or intelligible sound. In September, 1873, a codicil was drawn under similar circum- stances, increasing the gift to the wife. None of testator's children or grandchil- dren were present at the execution of the wills or codicil, nor did it appear that they knew of them. Wm. H. Arnoux a,n6 Wm. A. Beach, for appellant. Henry L. Clinton and Oeorg-e i^. Langbein, for respondents. Earl, J. The decedent probably had suflirient mind to make a will, and this is not denied by contestants' counsel. His mind was, however, undoubtedly im- paired and his will enfeebled by paralysis and disease; to what extent we are un- able to determine. If, therefore, the only objection to the probate of this will was mental incompetency to make it, the ob- jection could not prevail. A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the in- strument speaks the language and con- tains the will of the testator, probate must be refused. The laws in reference to the distribution of the estates of persons dying intestate are founded upon prin- ciples of public policy and justice, and must regulate the transmission of prop- erty, unless a person before death has, in the mode prescribed by law, himself pro- vided how his property after death shall be disposed of. As said by Judge Davies in Delafield v. Parish, 25 N. Y. 9, 35; "It is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved and great difficulties oppose themselves to so doing.'" And this was substantially 12 LAW OF WILLS. thelanguage of Lord Brougham inPanton V. WilllaniB, 2 Curt. Ecc. 530. Ordinarily, when a testator subscribes and executes a will in the mode required by law, the facts of such subscription and execution are sufficient proof that the instrument speaks his language and expresses his will; but when a testator is deaf and dumb, or unable to read or write and speak, some- thing more is demanded. There must then not only be proof of the factum of the will, but also that the mind of the tes- tator accompanied the act, and that the instrument executed speaks his language, and really expresses his will. This will is somewhat complicated in its terms, and 1 am satisfied that there was no time in the year 1873 when the decedent could utter the words or give expression to the language therein contained. Even if, ac- cording to some of the evidence, he could at times talk some, it was only at intervals, and to a limited extent. However it may have been at other times, he could not talk or utter an intelligible sound on the days when the will and codicil were executed, and the attorney who drew the will could not hold aay conversation with him, and received all his instructions from his wife. It is true that the will and codicil were read tohim,and that heisclaimed to have assented by the nod of his head, and the nasal sound without meaning; but it was shown that when in health he had a habit of nodding with his head when he did not mean assent, and hence that furnished no certain indication of his assent to what was read. The will disposes of a large estate in a method by no means simple and direct; and the proof that he under- stood and assented to its provisions should be quite cleai- and satisfactory be- fore it should be admitted to probate. Barry v. Butlin,! Curt. Ecc. 639; Chaffee v. Baptist Miss. Con., 10 Paige, 90; Boyd v. Cook, 3 Leigh, 35; Van Pelt v. Van Pelt, 30 Barb. 134; Longchamp v. Fish, 2 Bos. & P. 415. It is said in 1 Jarm. Wills, 29, "that, in proportion as the infirmities of the tes- tator expose him to deception, it beeomee imperatively the duty, and should be anx- iously the care, of all persons assisting in the testamentary transaction, to be prepared with the clearest proof that no imposition has been practiced, but that the testator did in fact fully understand every portion of the paper which he exe- cuted as his will." In Weir v. Fitzgerald, 2 Bradf. Sur. 42, the learned surrogate says: "Something more is necessary to es- tablish the validity of the will, in cases where, from infirmities of the testator, his impaired capacity, or the circum- Btannes attending the transaction, the usual inference cannot be drawn from the mere formal execution. Additional evi- dence is therefore required that the testa- tor's mind accompanied the will; that he knew what he was executing, and was cognizant of the provisions of the will." Satisfactory evidence of this kind has not been produced in this case, and hence pro- bate was properly refused. But if we assume that the will and codi- cil were formally executed, and that the mind of the testator accompanied the act, and that the contents of the instrnmenta were known to him and assented to by him, probate would still have to be re- fused on account of undue influence. It is impossible to define or describe with pre- cision and exactness what is undue influ- ence, what the quality and the extent of the power of one mind ov^r another must be to make it "undue" in the sense of the law, when exerted in making a will. Like the question of insanity, it is to some de- gree or)en and vague, and must be decided by the application of sound principles and good (sense to the facts of each given case. Lynch v. Clements, 24 N. J. Eq. 431. But the influence exercised over a testator which the law regards as undue or illegal must besuch as to destroy his freeagency; but, no matter how little the influence, if the free agency is destroyed it vitiates the act which is the result of it. In 1 Jarm. Wills, 36, it is said "that the amount of undue influences which will be sufficient to invalidate a will must, of course, vary with the strength or weakness of the mind of the testator; and the influence which would subdue and control a mind natu- rally weak, or one which had become im- paired by age, sickness, disease, intemper- ance, or any other cause, might have no effect to overcome or mislead a mind nat- urally strong and unimpaired." The un- due influence is not often the subject of di- rect proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health aud mind, his dependency upon and subjection to the control of the person supposed to have wielded the influence, the opportuni- ty and disposition of the person to wield it, and the acts and declarations of such person. Marvin v. Marvin, 3 Abb. Dec. 192; Reynolds v. Root, 62 Barb. 250; Tyler V. Gardiner, 35 N. Y. 559; Forman v. Smith, 7 Lans. 443; Lee v. Dill, 11 Abb. Pr. 214; Dean v. Negley, 41 Pa. St. 312. It is not suflicient to avoid a will that it is obtained by the legitimate influence which affection or gratitude gives a rela- tive over the testator. A competent tes- tator may bestow his property upon the objects of his aHection, and he may, from gratitude, reward those who have ren- dered him service; but it one takes ad- vantage of the affection or gratitude of another to obtain an unjust will in his favor, using his position to subdue and control the mind ofthe testatorso as, sub- stantially, to deprive him of his free agen- cy, then the fact that affection or grati- tude was the moving cause makes it no less a case of undue influence. In this case, in the space of about a year, we find the testator executing three successive instru- ments, in which the share of his wife goes on increasing. We cannot presume that his bounty to his wife and her relatives was prompted by affection. On his part, his marriage was a matter of convenience, and he had lived with his wife less than two yeaTs when the last instrument was executed, and less than one when the first was executed. It is not a case where hus- band and wife had lived together for years after a marriage prompted by mut- ual affection, which had been increased UNDUE INFLUENCE. 13 by years of tender care and a thousand aots ol love and kindness, until the hus- band deemed no bounty he could bestow upon his wife too great. It is the case of a scheming woman, marrying an old man, her uncle, broken in body and enfeebled in mind, and then scheming to secure an un- due share of his property for herself and her relatives. We cannot presume that the testator was influenced by gratitude. It is true that she rendered him faithful and valuable service. She was diligent and kind in her constant attention to his wants; so she was before her marriage, at $14 per month. By his marriage with her he had elevated her to a condition of independence, and had secured to her, by operation of law, an income by law far in excess of her reasonable wants. A change from $14 per month to $12,000 per year was certainly all the reward which mere gratitude would prompt or be expected to bestow. How, then, is this ^ill to be ac- counted for? She was the constant at- tendant of the testator; his only organ of communication with others. He was en- tirely dependent upon her for all his wants. She procured the appointment of her brother as his agent,, and thus had the entire control and management of his estate. She introduced her brother and mother into the household, and his own children, though not formally shut out of his house, were probably not welcome visitors, judging from the death-bed scene, when she refused to send for them to see their dying father. Upon all occasions, so tar as disclosed in the evidence, he was submissive to her will. She procured the will to be drawn, instructed the scrivener, and had it executed when he was speech- less. IJesides the large bounty conferred upon her, the cotvvs of the estate is tied up, and placed in the control of her broth- er. She was alone with him, and had every opportunity, in the helpless condi- tion of his body and the enfeebled condi- tion of his mind and will, to impose upon him, and subdue him entirely to lier will. We have no direct proof of what she did, because no witnesses were present, and she was not sworn. These and the other circumstances above alluded to, and all the inferences to be drawn from the im- mense mass of evidence given before the surrogate, convince us that this will and the codicil were the result of undue influ- ence, imposition, or fraud of some kind, and that they should not be admitted to probate. It matters not that she did not take for her.self and relatives a larger share of his estate. She took enough to show her grasping disposition and overpower- ing influence. I freely admit that there are some diflS- cnlties standing in the way of the conclu- sion which we have thus reached, and that strong arguments were urged, with great ability, for the proponents by their learned counsel; but the difficulties lying in the pathway of the proponents are still greater. An immense estate should not be disposed of by a will more or less un- just, and tied up by complicated provip- ions, except upon clear and satisfactory proof that it is really the will of a compe- tent testator, exercising his free agency. As said by Lord Brougham in Panton v Williams, supra : " It is much less material that those who seek to impeach a testa- mentary instrument should be unable to explain certain things in their case, and should be forced to admit that their argu- ment is not, in every point, consistent with all the facts, than that they who seek to establish the will should give no rational, consistent, or intelligible solu- tion of those difficulties which incumber their supposition and obstruct the path towards the conclusion they would- have us arrive at." ' Our attention is called to certain rulings of the surrogate excluding questions put to witnesses by the counsel of proponents, and the claim is made that gross errors were committed prejudicial to the pro- ponents. I have carefully considered all of them, and believe that most of the rul- ings were clearly right, and if any of them were wrong they were not of such a char- acter as materially to affect the case, and hence are not grounds for reversal upon this appeal. Clapp v. Fullerton, 34 N. ?. 190; Gardiner v. Gardiner, Id. 155, 164. The judgment must be affirmed, with costs. (17 Ohio St. .303.) MoNKOE et al. v. Barclay et ah (Supreme Court of Ohio. Deo. Term, 1867.) 1. Fraud or Undue Influence in Proourino Will. To invalidate a will for fraud or iindue influ- ence, it must appear that the fraud or undue in- fluence had some effect upon the testator in pro- ducing the very act of making his will. 3. Same. A will cannot be Impeached for undue influ- ence, unless the influence under which it is made is such and is so exerted as to induce a disposi- tion by the testator of his property contrary to his own wishes and desires. It is immaterial how the influence was acquired, if it was exerted in a manner overcoming or destroying the free exercise of testator's will in the disposition of his property. 3. Same — Unlawful Marital Eelations. The fact that the influences producing a will sprang from an unlawful marital relation be- tween testatrix and legatee will not render the will void, unless such influences were exerted in restraint of the free exercise of her will by the testatrix. Dictum in Dean v. Negley, 41 Pa. St. 313, disapproved. 4. Same — ^Instructions to Juet. On the contest of a will the court refused to charge that if a man knowingly and wrongfully marries and cohabits in a state of adultery with. a woman who is the lawful wife of another man, and by the influence of such marriage and cohab- itation procures a will from her in his favor, and disinheriting her real husband, that will is void for illegal influence. Held no error, for, unless the influence placed testatrix under some re- straint overcoming her free agency, it would not invalidate the will, and such restraint could not necessarily be implied from the assumed facts, and that the question of the existence of such restraint was properly left to the jury. Error to district court, Mahoning county. Action brought by George Monroe, Catherine Monroe, and Erastus Jacobs against John McClelland and Francis Barclay in the court of common pleas to Itt LAW OF WILLS. set aside the will of Mary McClelland, de- ceased, on the ground of fraud, undue in- fluence, and want of testamentary capac- ity. It appeared at the trial before a jury that deceased married Erastus Ja- cobs in 1838, and that they lived together until 1852, when he went to California; that deceased and McClelland were mar- ried by defendant Barclay, a justice of the peace, in 1856, and lived together as hus- band and wife until her death. The plain- tiffs gave evidence tending to show that McClelland married Mary for her property only; that he combined with others to induce her to make a will; that she was advised to marry him, and that she had a right so to do; that McClelland was about 35 years of age at the time of the marriage, and that Mary was over 57; that she was deformed, filthy, drunken, profane, and lewd; and that they lived together most unhappily. The defendants gave evidence tending to establish her capacity to make a will, and to show thai before and ever since her marriage with McClelland she exprPS.sed her determina- tion not to give her property to the plain- tiffs. They further gave evidence tending to rebut all fraud or undue influence upon the testatrix. Verdict and judgment for defendant. On error to the district court, the judgment was affirmed, and plain- tiffs filed their petition in error. Geo. M. Tuttle and John M. Stall, for plaintiffs in error. F. E. Hutcbins, for de- fendants in error. Day, C. J. The original case was a pro- ceeding in the court of common pleas, to contest the validity of the last will of Mary McClelland, deceased, upon three grounds: (1) That at the time of execut- ing the will she was not of sound mind and memory; (2) that she was fraudu- lently induced to make the will; (3) that the will was procured by undue influence of defendants upon the testatrix. The issues joined by the parties upon these grounds were tried to a jury, and a ver- dict was rendered in favor of the defend- ants, sustaining the will. The testimony is not fully set forth in the bill of exceptions. It is therefore to be presumed that the finding of the jury was, under the charge of the court, war- ranted by the evidence. The only errors insisted on here arise uijon exceptions taken by the plaintiffs to the refusal of the court to charge the jury as requested by them and to the charge as given. The plaintiffs submitted to the court 21 propositions in writing, which they requested the court to give in its charge to the jury. It is stated in the rec- ord that "the court refused to charge as requested, except as stated" in the charge given to the jury; and that the plaintiffs excepted to the "refusal to charge as re- quested, and to the charge, so far as the same is contrary to said request."' The charge and the propositions submit- ted by the plaintiffs are fully set forth in the bill of exceptions, but no reference is made in the charge to anyone of the prop- ositions; so that it is not specified in the record which one of the propositions the court refused to give as requested. This is left to be discovered, by seeing what part of the plaintiffs' requests were not embraced in the charge given. It will be seen, moreover, that the plaintiffs except- ed to the charge so far only as the court omitted to adopt the written proposi- tions submitted by them, and so far as the charge was contrary thereto. It is not deemed necessary, for the purpose of presenting the questions made by the ex- ceptions, to recite here said propositions or the charge in full. Suffice it to say that most of the propositions were sub- stantially given in the charge to the jury as requested. This does not seem to be strenuously controverted by the counsel for the plain tiffs.-except as to the proposi- tions numbered from 16 to 20, inclusive. Indeed, the whole controversy, arising out of the neglect of the court to charge as requested, and upon the charge as given, may be fairly presented by stating these five propositions, and the charge relating to them. The propositions are as follows: "(16) If, previous to the will being made, John McClelland, or any per- son acting in concert with him, took ad- vantage of imperfect, though not abso- lutely unsound, judgment on the part of the testatrix, and, by advice known by tnem to be false, induced her to believe that she owed to Erastus Jacobs no duty as a wife, and she made the will under the continued influence of that persuasion, the will is void. (17) That for this pur- pose it makes no difference whether it re- lates to matters of fact merely, or whether it related to matters of judgment only, provided it related to matters about which she, in her imperfect condition of judgment, might be, and actually was, misled by the advice. (18) If, at the time of making the v:\\\ in question, Mary Jacobs, the testatrix, from false advice, knowingly given by John McClelland, or by any other person acting with him, be- lieved that Erastus Jacobs was not her lawful husband, when in fact he was, and that John McClelland was her lawful hus- band, when in fact he was not, the will Is void. (19) It makes no difference whether the false advice thus given was in relation to some matter of fact or in relation to some matter of law, concerning her re- lation to Jacobs and McClelland, provided she, being then possessed of impaired pow- ers of judgment, believed the advice to be true, and acted accordingly. (20) If a man knowingly and wrongfully marries and coliabits in a state of adultery with a woman who is the lawful wife of an- other man, and whose husband has not forfeited his claims to her comfort and society, and, by the influence of such mar- riage and cohabitation, procures a will from her in his favor, and disinheriting her real husband, that will is void for ille- gal influence. " It Is to be observed that these proposi- tions make no allowance for any other facts or circumstances which might mod ify the assumed facts, but assert that the facts assumed would, under any circum- stances, invalidate the will. Under the sixteenth proposition, it is assumed that It would make no difference when, or for what purpose, the testatrix UNDUE INFLUENCE. 15 was induced to believe that she owed to Erastus Jacobs no duty, no matter il it was for a purpose having no reference to a disposition of her property ; still it is as- sumed that, if the advice was ever given tor any purpose, and the false belief con- tinued, the will is void, although the ad- vice had no effect whatever in producing the will. Under the severucenth proposi- tion it is claimed that the will would be void if the testatrix was misled by the false advice, without assuming that she was thereby induced to make the will, or that such advice had the least influence on the testamentary act. Indeed, these two propositions.taken together, assume that, If the testatrix was, at any time and for any purpose, misled by the false advice of McClelland as to her duty to Jacobs, and remained under such false impression when the will was made, though it had no relation thereto, and in no way tended to produce it, still the will was void. The same may be said, substantially, as to the eighteenth and nineteenth prop- ositions. In the nineteenth, which is the moKt explicit, it is not assumed that, in actinp: upon the false advice, she did so in relation to the will. It is undoubtedly ■well settled that, to invalidate a will for fraud or undue infinence, it must appear that the fraud or undue influence had some effect "upon the testator in producing the very act of making his will." Eedf. Wills, 516, 524, 525, 527. But, however this may be, the most that can be claimed of these four propositions is that they are based on that kind of undue influence which amounted to fraud upon the testatrix. Thi- is the gist of them; and upon a fair construction of the charge, so far as they tended to induce the will, they were sub- stantially given to the jury. It is difficult, therefore, to see wlierein the plaintiffs were not permitted to have all the benefit of these propositions, to which ihey were entitled. Upon this point the court charged the jury "to inquire whether any fraud or nii.sreprerientations were resorted to to in- duce the execution of this will. It such fraud was exercised, then it would, how- ever slight, destroy the validity of the will; that is, if it was sufficient to and has, in your judgment, tended to induce the execution." Here the court, in reply to these four requests, told the jury that if "any fraud or misrepresentations were re- sorted to to induce the execution of the will, • • • however slight, * • * If it tended to induce the execution" there- of, the will was void. If these requests are construed as relating to the act of the tes- ta trix in making the will, then the i)lain- tifls had the full benefit of them in the charge. In that case, the record does not show aflirmatively that they were refused by the court, or that they are embraced in the exceptions taken by the plaintiffs. But the point that seems to be chiefly relied on by the plaintiffs is made on the twentieth proposition. Upon the facts there assumed, it was claimed, as a pre- sumption of the law, that the will was produced by illegal, and therefore undue, influence. The court did not accede to this proposition, but left the question of undue influence to be detei-mined by the jury, under the following Instructions re- fating to this and other propositions: "Inquire whether, through the exercise of force, or by fear produced, or in any manner, such an influence was exerted over her as to induce her to make a dispo- sition of her property contrary to her own will and inclinations; or whether such an undue and overruling influence was exercised upon her mind as to control or overpower her own inclinations and judgment, or induce her, without or con- trary to her own intention and will, to execute the paper. If either of these prop- ositions are found in the affirmative, it would defeat the will." Construing the charge strongest against the plaintiffs, it would seem that the court intended to be understood as holding the law to he that, in the absfnce of fraud, no mat- ter by what influence a testator may be exercised, BO long as it does not overpower his inclinations and judgment, and induce a disposition of his property contrary to his own wishes and desires, his will can- not be invalidated for undue influence. Indeed, it is not denied but that the charge, as applied to ordinary cases, may be sustained by both reason and authori- ty; butit isclaimed that a distinction is to be taken between influences that are law- ful and those that are unlawful. The gist of the claim is that the will was void because it was induced by influ- ences growing out of an unlawful rela- tion. No matter for what reason the tes- tatrix may have been abandoned by her husband, or why she may desire to disin- herit him and lier kindred, or what obli- gations may have arisen from the unlaw- ful relation; no matter if the will was made without any influence of the devisee other than that which sprung from their association; and no matter if it was made in accordance with her own incli- nations and judgment, — still it is assumed that the will would be void. If no other objection than this was urged against a gift of property between living parties, it would hardly be contended that it would be void. It is difficult to see why a be- quest or devise should be subjected to a more stringent rule. Every will, it may fairly be presumed, is prompted by influ- ences strong enough to induce its provis- ions, and it would seem, therefore, that the most that ought to be claimed from such influences in the contest of a will is to have them submitted to the jury, to enable them to determine whether the tes- tator was misled, or so influenced thereby as to affect his own free choice and judg- ment in the disposition of his property. The power to make a will is granted by the statute to "any person of full age and sound memory;" and, under its provis- ions, the will is to be admitted to record as valid when "dul.y attested and execut- ed, and the testator at the time of execut- ing the same, was of full age and sound mind and memory, and not under an.y re- straint." Swan & C. St. p. 1615, §§ 1, 15 Restrictions are imposed upon none, but all are alike left to the exercise of their own free wills and inclinations in the dis- position of their property. The power thus given to dispose of property does 16 LAW OF WILLS. not depend upon the dlspositJon made thereof, nor is it restricted to those who may employ it only for just and wise pur- poses; hut all upon whom the right is conferred may use it without "any re- straint." Indeed, it is contemplated by the statute that this is the only way in which it can be exercised. Freedom from restraint is essential to the validity of a will. So careful is the law in this re- spect, that it will not uphold a will that has been induced by restraint upon the testator, whether in the form of fraud practiced upon him or any other influence that destroys the free exercise of his own will. Kedf. Wills, 524, 527. It would be inconsistent with the right conferred by the statute, and with the spirit of the construction it has hitherto received, to sanction restraints upon a testator, based alone on the character of the motives or causes that may have induced any disposi- tion of his property that he may make while in the free exercise of his own inclina- tions and judgment. }Ie may give his property to whomsoever he pleases; and his motives or reasons therefor, so long as he is "not under any restraint, " are matters of his own conscience, for which he is not accountable to the law. His will, executed in conformity to the stat- ute, if it be his own, and not in any sense the will of another, cannot be invalidat- ed, however much its provisions may be disapproved by others. It is claimed in the proposition under consideration that the will, upon the facts therein assumed, would be void for "illegal influence. " In the solution of the question made by this proposition, much of the difficulty disappears when we con- sider what "influence, " as applied to tbe invalidation of wills, is "illegal." Every will, as before remarked, Is the result of in- fluences strong enough to produce it. Since, then, it is the policy of the law to secure to every one the right to dispose of his property in accordance with his indi- vidual will, that influence alone is illegal which places the fresdom of a testator's will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or character of any in- fluence operating upon a testator, if it does not place him "under any restraint. "' It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influenceover a tes- tator, unless such influence is exerted in a manner that tends to restrain the free exercise of his will in the disposition of his property. It is claimed in this proposi- tion that the influence that produced the will was illegal only because it sprung from an unlawful relation. If this be so, then the principle would be equally appli- cable to any other unlawful relation, and would destroy a will made underinfluences springing therefrom, although the testa- tor, without bping placed under restraint, could not be persuaded to make a will otherwise than as prompted by such in- fluences. However reprehensible such in- fluences may be, if a testator voluntarily chooses to be actuated by them, it is a privilege he may enjoy under the law that secures to every one alike the right to dis- pose of his property without restraint up- on his own judgment and conscience. It is undoubtedly well settled that a will can- not be invalidated becauseit was produced by influences springing from a lawful marital relation, unless such influence has been unduly exerted. The influence aris- ing from an unlawful marital relation maybe as strong as that of the other; but, unless it impairs more than the other the free exercise of the testator's will, it ia diflicult to see how the influence arising from the unlawful relation is necessarily such undue influence as will invalidate a will, while that of the other will not. It would seem, upon the principles already stated, that the question would be essen- tially the same in either case, whether the influence had been, in fact, exerted in re- straint of the testator's will. However justly an adulterous marital relation may be reprobated, it by no means follows that every will produced by influences arising from that relation is tainted with snch turpitude that to uphold It would "do violence to the morality of the law." This Is the theory upon which the claim of the plaintiffs rests. But the moral test will not in all cases avail. If the principle he correct, it makes no difference which party makes the will; whether the devise be from the woman to the man, or the man to the woman, it would be equally void. It would be easy to suppose cases where considerations of moral obligation, as well as that of public duty, would require a man to make suitable provision for a woman with whom he had sustained this relation. In such cases it would do no violence to the morality of the law to sustain such provision, though it be made by will, and induced solely by influences springing from theunlawful cohabitation. It may, however, be admitted that tlie influences growing out of an unlawful marital relation do not stand, and should not be permitted to stand, upon an equal footing with those coming from the law- ful relation; but the question recurs whether the difference is in matter of law or of fact. If it be the former, then every will induced by an unlawful relation is void, though the testator might not have been "under any restraint;" but this, it has been shown, is contrary to the gen- eral policy of the law. If it be the latter, then the proof of the unlawful relation should go, with the other evidence, to the jury, to enable them to determine the question of undue influence. We think this would be in accordance with the law, and, in general, best subserve the ends of justice. We have not been iurnlahed with au- thorities, nor do we see any sufHcient rea- son, to warrant us in making this class of cases an exception to the general prin- ciples relating to the validity of wills. It is true that the position of the counsel for the plaintiffs is strongly supported obiter in the able opinion delivered in the case of Dean v. Negley, 41 Pa. St. 312. The point there ruled, however, went to the extent only that proof of the making a will ^nder and in the direction of an unlawful rela- tion like that in this case was such evi- dence of undue influence " that it may jus- UNDUE INFLUENCE. 17 tify a verdict against the validity of the will;" audit was held, therefore, that It was error to exclude it from the jury. That the same court must hold the ques- tion to be one "of fact, merely," and not "a presumption of law," is shown in a still morerecentcase, where it was declared that "undue influence, to avoid a will, must be such as to overcome the free agency of the testator at the time the in- strument was made." Eckert v. Flowrv, 43 Pa. St. 46; Redt. Wills, 534. The propo- sitions which the counsel for the plaintiffs requested the court to give Initsctiarge to the jury, although separately numbered, were in fact, many of them, a connected series of propositions, dependent one upon another, some of which, we have shown, the court could not properly give. Other independent propositions were properly refused, as has been shown, and the re- maining ones wereembraced inthecharge. There was, tlierefore, no error in refusing to charge as requested. For the reasons already stated we think that there was no error in the charge as given to the jury by the court of common pleas. It follows that the district court rightfully affirmed the judgment of that court, and that the judgment of the district court must there- fore be affirmed. White, Welch, Brinkbkhoff, and Scott, JJ., concurred. (See, also, Mart v. McGlynn, 88 N. T. 357; MoMahou v. Ryan, 30 Pa. St. 339; Wilson's Appeal, 99 Pa. St. 545; In re Mondorf s Will, 110 N. T. 450, 18 N. B. Rep. 356; Davis v. Calvert, 5 Gill & J. 369; Griffith V. Diffenderffer, 50 Md. 466; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. Rep. 885; Eckert T. Flowry, 43 Pa. St. 46; Clarke v. Sawyer, 3 N. Y. 498.) (11 Prob. Div. 81.) WiNGROVE V. WiNGROVE Ct al. {Court of Probate. Nov. 19, 1885.) I. Undue Influence in Procuring Will — Immor- al Considerations. To establish undue influence sufficient to in- validate a will it must be shown that the tes- tator was coerced into doing that which he did not desire to do. The mere fact that in making his will he was influenced by immoral consider- ations does not amount to such undue influence, so long as the dispositions of the will express his actual wishes and purposes. B. Same. To establish such undue influence it is not sufficient to show that a person has the power to imduly overbear the mind of the testator; but it must be further shown that that power was so exercised as to produce tlie will in question. Plaintiff, as a legatee, offered for pro- bate the will of Elizabeth Wingrove, dat- ed September 15, 1S69, and alleged that a codicil, dated October 9, ISSO, which re- voked some of the gifts to him, was pro- cured by undue influence of defendants. Defendants denied that the codicil was procured by undue influence, and claimed probate of it together with the will. The action was tried by a common jury, who found a verdict for the plaintiff, which was subsequently set asidt, and a new trial ordered by a special jury. Mr. Mtirpby, Q. C, and Mr. Gye, for plaintiff. Mr. Inderwick, Q. C, and Mr. Pritcbard, for defendants. Sir James Hannen, (President,) In ad- dressing the jury said: Gentlemen of the jury, I mnst ask your particular attention to the exposition which lam about to give you of the law upon this subject of undue influence, for I find, from now a long experience in this court, that there is no subject upon which there is a greater misapprehension. The misapprehension to which I have refern'd arises from the particular form of the ex- pression. We are all familiar with the use of the word "influence. " We say that one person has an unbounded influence over another, and we speak of evil influ- ences and good influences; but it is not WILLS — 2 because one person has unbounded Influ- ence over another that, therefore, when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean : A young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favor, to the exclusion of his rela- tives. It is unfortunately quite natural that a man so entangled should yield to that influence, and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies. A man may be the com- panion of another, and may encourage him in evil courses, and so obtain what is called an "undue influence" over him, and the consequence may be a will made in his favor. But that, again, shocking as it is, perhaps even worse than the oth- er, will not amount to undue influence. To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favor, because, if the testator has only been persuaded or induced, by considerations which you may- condemn, really and truly to intend to. give his property to another, though you may disapprove of the act, yet it is strict- ly legitimate, in the sense of its being le- gal. It is only when the will of the per- son who becomes a testator is coerced in- to doing that which he or she does not de- sire to do that it is undue influence. The coercion may, of course, be of different kinds. It may t>e in the grossest form, such as actual confinement or violence; or a person in the last days or hours of life may have become so weak and feeble that a very little pressure will be sufficient to bring about the desired result; and it may even be that the mere talking to him at that stage of illness, and pressing some- thing upon him, may so fatigue the bi'ain that the sick person may be induced, for quietness' sake, to do anything. This 18 LAW OF WILLS. would equally be coercion, though not actual violence. These illu8tra,tions will sufficiently bring home to your minds that even very im- moral considerations, either on the part of the testator or of some one else offering them, do not amount to undue influence unless the testator is in such a condition that, if he could speak his wishes to the last, he would say: "This is not my wish, but I must do it. " If, therefore, the act is shown to be the result of the wish and will of the testator at the time, then, how- ever it has been brought about,— tor we are not dealing with a case of fraud, — though you may condemn the testator for having such a wish, though you may con- demn any person who has endeavored to persuade and has succeeded in persuading the testator to adopt that view, still it ia not undue influence. There remains an- other general observation that I must make, and It is this: That it is not sufB- cient to establish that a person has the power unduly to overbear the will of the testator. It is necetisary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power that the will, such as it is, has been produced. (See, also, Shailer v. Bumstead, 99 Mass. 113; Patten v. Cilley, 46 Fed. Kep. 893; Baldwin v Parker, 99 Mass. 79; Tyler T. Qardiner, 85 N. Y. 559; Carroll v. House, [N. J. Frerog. Ct.] 33 AU. Hep! III. ERRORS IN WILLS. (L. R. 8 Prob. & Div. 250.) In re Goons of Hunt. (Court of Probate. May 4, 1875.) Execution by Mistake of Will PbeparBd for Anotheb. Two sisters agreed to make their respect- ive wills so that, upon the death of either, the other should have the joint property for life. One of them prepared both wills in her own hand- writing', but upon her death it was found that each sister had executed the will prepared for the other. The will executed by the deceased would, if carried into effect, accomplish her wishes in most respects, but not as to one legacy. Held that, as deceased did not know and ap- prove of the contents of the document she exe- cuted, probate should be refused. Application to probate will. Sarah Hunt and Ann Hunt, spinsters and sisters, residing together, in 1873 agreed to make their respective wills, the object being that, in the event of the death of either of them, thesurvivorshould enjoy the joint property for life. Two wills were prepared in the handwriting of Sarah. The legacies in each were iden- tical, save that where one gave a legacy to a certain charitable institution the other gave a similar legacy to another charitable institution ; and in each case a life-interest was given to the survivor in the bulk of her sister's property. After the death of Sarah Hunt the two wills were found together, indorsed, "The wills of Sarah and Ann Hunt;" but on opening them it was discovered that each sister had executed the will prepared for the other. Most of the persons interested in an in- testacy consented that the document exe- cuted by the deceased should be recog- nized as her will, and probate thereof be grunted to the executors named in it; but some of the persons were abrc^d, and £Ould not be communicated with. Bayford, for the motion. Sir J. Hannen. I should be glad to give effect to the intentions of the testa- trix, by granting probate of this Instru- ment, if I could, but I must not allow my- self to be led away from what appears to me to be very plain ground by such a de- sire. No donbt there has been an unfor- tunate blunder. The lady signed as her will something which in fact was not her will. If I were to attempt to read it as her will, it would lead to a variety of ab- surdities. She leaves to her sister, Sarah, that is, to herself, a life-interest in a por- tion of her property, and all the furniture, plate, etc., which she holds in part with herself. lam asked to treat this as a misdescription. If by accident a wrong name had been introduced, and it was clear what person was intended, the court would give effect to the instrument, pro- viding the mistake could be corrected. But it would be contrary to truth in this case if I acted on such an assumption. If I were to put such a construction upon this will, I should be assuming, in order to do substantial justice, what every one who hears me would know is contrary to the fact. And no court ought to base its judgment on something- wholly artificial, and contrary to what every one must see is the real state of the circumstances. It is enough to say that there has been an un- fortunate blunder. A paper has been signed as the lady's will which, as it hap- peaa, if treated as her will, woull to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is sug- gested that it might be treated as if the deceased did not know and approve of that part of the will. But she did not in fact know and approve of any part of the contents of the paper as her will ; for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it. I reject the motion, but I allow the execu- tors costs out of the estate. WHAT CONSTITUTES A WILL. 19 (2 R. I. 99.) GiFFORD V. Dyke. (Surrreme Cov/rt of Rhode Island. March Term, 1853.) Mistake of Testatrix in Believing her Only Child to be Dead. Testatrix made a -will in which she gave noth- ing to her only son, whom she believed to be 5ead, since he had been absent from home, leav- ing a family, for 10 years, and had not been aeard from during that -time. He was in fact ilive, and contested the probate of the will. Held, that the mistake as to his death could not oe shown dehors the will, and that, as such mis- cake did not appear upon its face, and as it also iid not appear what would have been the will of testatrix but for the mistake, the will should be admitted to probate. Appeal from court of probate, Little Compton county. Abigail Irish, wlio died December 6, 1850, made a will, two days prior to her death, by which, after making small bequests to the children of Robin Gifford and to oth- ers, she gave the residue of her property to her brother-in-law, John Dyer, and her two nephews, Jesse and Alexander Dyer. Robin Gifford, her only child, was not mentioned in the will. The will was offered for probate by John Dyer, execu- tor therein named, and was contested by Robin Gifford. It appeared in evidence that at the date of the will he had been absent from home, leaving a family, for 10 years, unheard from, and was generally considered dead, his estate having been administered upon. Testatrix had resided with John Dyer for some time previous to her death. The scrivener who drew the will testified as follows: "After I had read the will to her, she asked If It made any difference if she did not mention hpr son. I asked if she considered him living. She said she supposed he had been dead for years. She said, if It would make any difference, she would put his name in, 'for they will break the will if they can.' I think that was the expression she used. I think she said what she had given to her grandchildren was in lieu of what he would have, but am not positive. I think her son left in 1841, and was not heard of, to my knowledge. She was speaking of a home at Mr. Dyer's, and said what she had given him would pay him well. She said her grandchildren had not been to see her while she was sick." The court, of probate admitted the will, and Robin Gifford appealed. Mr. SbeSeld, tor appellant. A. C. Greene- tor appellee. Greene, C. J. It is very apparent in the present case that the testatrix would have made the same will had she known her son was living. She did not intend to give him anything if living. But if this were not apparent, and she had made the will under a mistake as to th« sup- posed death of her son, this could not be shown dehors the will. The mistake must appearon the face of the will, and it must also appear what would have been the will of the testatrix but for the mis- take. Thus, where the testator revokes a legacy, upon the mistaken supposition that the legatee is dead, and this appears on the face of the instrument of revoca- tion, such revocation was held void. Campbell v. French, 3 Ves. 321. IV. WHAT CONSTITUTES A WILL. 0S6 Pa. St. 638, 20 Atl. Rep. 567.) In re Cawley's Estate. (Supreme Cov/rt of PennsyVvamta. Oct. 6, 1890.) 1. What Constitutes a Will — When Irrevo- cable. Whether any given writing is a will or a con- tract must be determined by the character of its contents, rather than from Its title, or any formal words with which it may begin or conclude. Although a contract and a will are essentially unlike, they may bo combined so as to give a test- amentary character to what purports to be a contract, or to convert a will into an irrevocable agreement. 2. Joint Execution — Mutual Bequests — Revo- cation. A brother and sister, owning separate proper- ties, made a will together, which read as fol- lows: "I, Benjamin Cawley, should I be the first to die, and I, Mary Cawley, should I be the first to die, give, devise, and bequeath, and to the survivor of either of us, all the rest and residue ' of the decedent's estate, both real and personal, to have and to hold and enjoy the same during the life of the survivor, " etc. ; and di- rected that, at the expiration of the life-estate, the residue should be divided into nine parts, "three of which parts I give and bequeath, " etc., the sinsrular umber being used through the whole instrument. Held, that the Instrumenu was the separate will of each, and the survivor, as to her property, had a right to make a new will containing a different disposition thereof. Certiorari sur appeal to orphans' court, Union county. The facts are thus stated in the opinion of the court below: "This case arises In the foUowini? manner: On the 16th ol March, 1886, Benjamin Cawley and his sis- ter, Mary Cawley, both unmarried, made what may be termed a 'joint will and tes- tament,' duly executed, and by which it is directed that, ' upon the death of either, the survivor shall pay all the debts of the decedent if the estate will reach, and bury decedent properly, and provide tomb- stones. Secondly. It Benjamin should be the first to die, or if Mary should be the first to die, each gives to the survivor all the rest and residue of his or her estate for life, and, If needed, the body of the estate so far as is necessary,' and at the death of the survivor, after burial, tombstones, and so forth are paid for, the residue is di- vided into niue parts, and given to rela- tives and parties named; and Horace C. 20 LAW OF WILLS. Cawley named executor. Benjamin Caw- ley died tlie 12th of August, 1887, and on the 22d August, 1887, the joint will was duly proved as the will of Benjamin, and its orovision as to hlH estate carried into effect; Mary, the survivor, receiving Ben- jamin's estate for life, as provided in his will. Mary Cawley, however, on the 5th of September, 1887, made a separate will, and revoked the joint will, and died on the 29th January, 1888; and the joint will was offered as Mary's will, and admitted to probate by the register, on the 1st of Feb- ruary, 1888, and letters testamentary is- sued to Horace B. Cawley, the executor therein named. But, on the same day, Mary's second will, of the 5th of Septem- ber, A. D. 1887, was also offered for pro- bate; buttheregisterrefused to consider it, and treated the joint will as irrevocable, and thai it must stand as Mary's last will and testament. From this decision, and ad- mission of the joint will as Mary Cawley's will, and therefusal to allow theproving of her second will, this appeal has been taken to the orphans' court." J. Merrill Linn and S. H. Orwig, for ap- pellants. Charles S. Wolfe, P. L. Hacken- burg, and Andrew A. Leiser, for appellees. Williams, J. The question presented by this appeal is one that has not arisen in Pennsylvania until now. It is impor- tant to a correct understanding of the real ground of controversy to bear in mind the peculiar characteristics of a con- tract, and those of a will. A contract is an agreement between parties for the do- ing or not doing of some particular thing. The undertaking of one party is made in consideration of something to be paid or done by or on behalf of the other party, so that the obligation to do and the right to require performance are reciprocal. A will, on the other hand, is simply a statement of a purpose or wish of the maker as it ex- ists at the time. As often as his purpose or wish changes, he may change the ex- pression of it. When and why a change shall be made depends on himself alone. He is answerable to no one for his deter- mination to make one rather than another disposition of his property. After he has written out his will, and executed it in ac- cordance with the forms of the law, it does not bind him ; but, so long as he lives, he may change his own purj)ose, with or without a reason, and his last purpose properly written out and execut- ed is his "last will and testament, "because death makes any further change imp(jssi- ble. The bindingforce of a contract comes from the aggregatio mentium of the par- ties. The binding force of a will comes from the fact that it is the last expressed purpose of the testator in regard to the disposition of his property after his own death. While he lives, it is without force or value, but it begins to speak when he ceases to do so, and thereafter is heard in his stead. Although these instruments are so unlike, they may be, and sometimes are, combined so as to give a testamenta- ry character to what purports to be a contract, or to con vert a will into an irrev- ocable agreement. Whether any given writing is a will or a contract must be determined by the character of its eon tents, rather than from its title, or any formal words with which it may begin or conclude. The familiar form of a will is that by which the testator directs how his property shall be disposed of after his death, and may be distinguished or de- scribed as the simple will of the maker. If two or more persons own property in common, they may convey it by joining in a deed, or by executing separate convey- ances at their convenience. They may transmit the title, each for himself, by a separate will ; and there is no objection, on principle, to their joining in a testa- mentary disposition of it. Such a will might be properly called a "joint will," because executed jointly by several own- ers, as a means of transferring their sev- eral titles to one devisee. The validity of a joint will was at one time denied in Eng- land, and has been denied in some of the United States, but the reasonsfor such de- nial relate rather to questions of probate than to the power of the several testators, and do not seem to have been regarded as settling the question in the countries where the decisions were rendered. 1 Williams, Ex'rs, 10. Whether after the death of one or more of the makers of such a will the surviving maker may make a valid revocation as to his own title or share of the property devised is an unset- tled question, and is not involved in the case before us, for the property to which this will relates was not held in common by the testators. Another class of ques- tions is presented when two or more per- sons make reciprocal testamentary pro- visions in favor of each other, whetherthey unite in one will or each executes a sepa- rate one. Such wills may be described as " mutual " or " reciprocal. " Their validity does not seem to be doubted after the death of the respective testators; but the extent of the power of revocation in the survivor after the death of one or more of the testators is a question still in con- troversy, and upon which different conclu- sions liave been reached. In Evans v. Smith, 28 Ga. 98, the will was signed by tvi'o, and presented by the survivor for probate. No revocation was attempteci, and the only question really before the court was the validity of the paper as the will of the deceased signer. The court held it valid, characterizing it as a "double will." In Lewis v. Scofield, 26 Conn. 452, a similar will was presented, and its validity upheld by the court. In Betts V. Harper, 39 Ohio St. 639, the tes- tators were tenants in common. After the death ot both, it was probated as the sep- arate will of each, and the earlier case of Walker v. Walker, 14 Ohio St. 157, which had denied the validity of such a will, was distinguished and qualified. The will of a husband and wife making reciprocal pro- visions for each other, and executed by both, was sustained in Diez's Will, 50 N.Y. 88. In Schumaker v. Schmidt, 44 Ala. 454, two persons, who describe themselves as "friends of many years standing," joined in a Will by which th» survivor was to take the property of the one dying first. Auerback, one of the joint makers, made a later will, with a different dispo WHAT CONSTITUTES A WILL. 21 eitlon of his property, and died. The sur- vivor insisted on the irrevocability of the first will, and claimed the estate, but the court upheld the last one. The point in controversy was stated in the opening sentence ol the opinion of the court as f(jl- lows: "Was the writing between Schu- maker and Auerback a compact, and not a will, or a will containing a compact, and therefore irrevocable?" The conclu- sion of the court was that the writing was not a compact, but a will, and therefore revocable at pleasure. It is worthy of note that the only consideration expressed for the mutual provisions made by the fir.st will was the " mutual esteem " which each entertained for the other. This might change in degree, or cease altogeth- er, at any time. While it existed, it ex- plained the mutual or reciprocal provis- ions contained in the will. It afforded not a consideration, but a reason, for them. The will now before us was executed by a brother and sister. They were single, had lived many years together, and were feeling the infirmities of age. One owned a house and lot worth about $3,000. The other owned bank-stock of about the same value. Their household goods seem not to have been the exclusive property of either. They appear to have lived to- gether in the house, and used the income from the bank-stock without keeping an account with each other. By their will they provided that the survivor should have the property of the one first to die during life, and that it should then go over to remainder-men named. The learned gentleman by whom it was drawn seems to have had Walker v. Walker, 14 Ohio St. 157, in his mind, and to have drawn the paper with thepurpose of steer- ing clear of the difficulty suggested by it. To this end the will is made to speak for each devisor separately, thus: "I, Benja- min Cawley, should I be the first to die, and I, Mary Cawley, should I be the first to die, give, devise, and bequeath and to the survivor of either of us, all the rest and residue of the decedent's estate, both real and personal, to have and to hold and en- joy the same during the life of the surviv- or, without impeachment for waste, and with leave to use the body of the estate for necessity." After the payment of debts and expenses, and the expiration of the life-estate, the will directs that the residue be divided into nine parts, and then pro- ceeds: "Three of which parts I give and bequeath to John Cawley; two parts to Hepburn Cawley; one part to Horace Cawley; one part to Mary Henson; » * » one part to Ada Gilmore; » * * and one part to Emma Harter. " H. C. Ca wley was made a trustee for Ada, and her share was devised to him thus: "I give and be- queath to H. C. Cawley, in trust, "etc.; and the will then defines the nature of the trust, and uses the words,"! distinctly declare that the above trust is an active one." The singular number is invariably used throughout the will, each testator speaking for himself or herself only, and neither attempting to speak fur the other or of the other's property. Each seems to have desired to make the same disposition of what he or she owned. Both adopted the same written expression of that de- sire, and executed it. The will so made must be regarded, therefore, as the sepa- rate will of each testator, as fully as though the will of each had been separately drawn up and signed. There was no joint prop- erty or joint devise. It is not, therefore, a joint will. It is not a contract between the nialjers in form or in effect. No con- sideration passed from one to theother.and none is suggested, except the affectionate interest which this aged brother and sis- ter felt for each other. This moved them to provide for each other's comfort by a life-estate in the survivor, but beyond that each ga ve to the remainder-men only what each owned. Such a will is properly de- scribed by the phrase in Evans v. Smith, supra, as a "double will." It must be construed and treated as the separate will of each testator who signed it, in the same manner as though a separate copy had been executed by each. It was therefore revocable by both. Benjamin Cawley did not revoke, and his will is to be executed in accordance with its terms. Mary Caw- ley has exercised the power of revocation, and changed the ultimate destination of her property. Her last will must be fol- lowed, therefore, in the distribution of her estate. The decree of the court below is affirmed, at the cost of the appellant. (86 Ala. 110, 5 South. Rep. 497.) Shabp et al. v. Hall. (Supreme Court of Alabama. Feb. 26, 1889.) 1. What Constitutes a Will — Deed or Will. An instrumaut in writing coni^eying property, but reserving to the maker "the use, control, and consumption of tbe same "during the maker's life- time, may be either a deed or a will, the class to which it belongs being determinable upon all the circumstances surrounding the parties and at- tending its execution. But the intention ol tha maker is the controlling inquiry; and that inten- tion is to be gathered primarily from the lan- guage of the instrument itself. 2. Same — Evidence. Upon that question it is proper to consider the facts that the maker of the instrument was with- out near relatives; that she was attached to the donee, who was a member of her household; that she employed the scrivener to write a will, and executed the instrument drawn by him, knowing its contents, and had it attested ; that she did not deliver it, but had it placed in an envelope with an indorsement that it was not to be opened until her death; that she carefully preserved it until she died ; that the maker did not dispose of all her property; and that a clause in such in- strument stated that it was intended in part to dispense with the necessity of taking out letters of administration on the maker's estate after her death. Appeal from probate court, Colbert county; John A. Steele, Judge. Proceedings to probate an alleged will of Ann E. Hornsby, deceased. The instru- ment in question was signed by Mrs. Hornsby, under seal, attested by two wit- nesses on an acknowledgment of her signa- ture, February 23, 18S6, and was in the following words : " The state of Alabama, Colbert county. These presents show that, in consideration of the love and affection I have to Julia M. Hall, I do here now 22 LAW OF WILLS. give and deliver to her thefollowing prop- erty, to-wit, a certain lot, or part of lot, situated in the city of TuBCumbia, linown as part oi lot No. 317, according to tlie plat of said city, [describing it by metes and bounds,] together with all the tene^ ments and hereditaments thereunto ap- pertaining, all of which I now hold and possess. But I do hereby reserve the use, control, and consumption of the same to myself, for and during my natural life; and this is done in part to do away with the necessity of taking out letters of ad- ministration after my death. Teste my hand and seal, this day of Febru- arv, 1886." Mrs. Hornsby died in July, 1887. Letters of administration on her estate as an intestate were granted soon after her death, to Robert B. Lindsay, who, while searching among her papers, found the above instrument in a locked drawer, inclosed In an envelope on which were written the words, "Not to be opened until after my death." Mrs. Hornsby's name was not signed to the memoran- dum, nor was it in her handwriting. The administrator delivered the paper to Julia M. Hall, August 2, 1888, and it was pro- pounded for probate by her. G. A. and U. M. Sharp, who claimed as next of kin, contested the probate on the following grounds: "(1) Because said written in- strument is not in fact the will and testa- ment of said Ann E. Hornsby; (2) because said instrument was not duly executed, so as to pass title to said real estate under the laws of Alabama; (3) because said in- strument was not executed by said Ann E. Hornsby; (4) because said instrument is not testamentary in its character; (5) be- cause said instrument was not executed as required by law of a last will and tes- tament." An issue was duly formed. On the trial of the cause the contestants ob- jected, and excepted to the admission in evidence of the circumstances of the mak- ing of the instrument contested ; of the re- lation the petitioner bore the deceased, Ann E. Hornsby ; of the n on -deli very of the instrument ; and of the other facts as shown by the opinion. There were also separate exceptions reserved to the admis- sion of the testimony of the witness Davis to the effect that he considered the instru- ment a will, and that he intended to draft a will. The defendants requested the fol- lowing charge in writing, and excepted to the court's refusal to give the same: "(6) The fact, if it be a fact, that Mrs. Hornsby did not dispose of all the prop- erty, must be considered with the other evidence by the jury to ascertain whether or not the instrument was intended to be a will." There was atrial by jury, and a verdict for the proponent, followed by a judgment admitting the will to probate. Contestants appeal. Kirk & Almon, for appellants. J. B. Moore, for appellee. Stone, C. J. There are few, if any, ques- tions less clearly defined in the law-books than an intelligible, uniform test by which to determine when a given paper Is a deed, and when it is a will. Deeds, once execut- ed, are irrevocable, unless such power is reservad in the instrument. Wills are al- ways revocable so long as the testator lives and retains testamentary capacity. Deeds take effect by delivery, and are op- erative and binding during the life of the grantor. Wills are ambulatory during the life of the testator, and have no effect until his death. Out of this has grown one of the tests of testamentary purpose, namely, that its operation shall be post- humous. If this distinction were carried into uniform, complete effect, and If it were invariably ruled that instruments which confer no actual use, possession, enjoy- ment, or usufruct on the donee or grantee during the life of the maker are always wills, "and never deeds, this would seem to be a simple rule, and easy of application. The corollary would also appear to result naturally and necessarily that if the in- strument, during the life-time of the mak- er, secured to the grantee any actual use, poss3ssion, enjoyment, or usufruct of the property, this would stamp it irrefutably as a deed. The authorities, however, will not permit us to declare such inflexible rule. A declaration of trust by which tha grantorstipulates to hold in trust tor him- self during life, with remainder to a donee, or succession of donees, certainly secures no use, enjoyment, or usufruct to the re- mainder-man during the grantor's life. Yet it is a deed, and not a wilL 1 Bige- low,Jarm. Wills, 17, and notes; Gillham v, Mustin,42 Ala. 365. Can a tangibledistinc- tion be drawn between such case and a di- rect conveyance, in form a deed, by which A. conveys toB.,to take effect at the death of A.? 'The human mind is not content with a distinction that rests on no sub- stantial difference. Conveyances reserv- ing a life-estate to the grantor have been upheld as deeds. 2 Devlin, Deeds, §983; Robinson v. Schly, 6 Ga. 515; Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349. In Daniel v. Hill, 52 Ala. 430, 436, this court said : " A deed may be so framed that the grantor reserves to himself the use and possession during his life, and on his death creates a remainder in fee in a stranger." Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudged to be wills. The form ol the instrument stands for but little. Whenever the paper contemplates posthu- mous operation, the inquiry is, what was intended? 1 Blgelow, Jarm. Wills, 20, 25; Habergham v. Vincent, 2 Ves. Jr. 204; Jor- dan V. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; Shepherd v.Nabors,6Ala. 631; Kinnebrew v. Kinnebrew,35 Ala. 638. The intention of the maker is the controlling inquiry, and that Intention is to be gath- ered primarily from the language of the in- strument itself. Dunn v. Bank, 2 Ala. 152. The intention cannot be proved by a wit- ness speaking directly thereto. But this does not, in cases of Inapt phraseology, — such as the present instrument discloses, — preclude proof of instructions given to the draughtsman, in reference to the nat- ure of the paper he was expected to pre- pare. In Green v. Proude, 1 Mod. 117, 3 Keb. 310, the paper had striking charac- teristics of a d'-ed; but the court said: WHAT CONSTITUTES A WILL. 23 •Here being dlrectlonB given to malje a ■will, and a person sent for to that end and purpose, this is a good will. " Speak- ing of this case, Jarman (1 Bigelow's Ed. p. 19) says: "The court seems to have beeu influenced by the circumstance that the person who prepared it was instructed to make a will. " In Wareham v. Sellers, 9 Gill & J. 98, the court decided that testi- mony should have been received of "con- versations of the deceased, made at the time of executing the said paper, and from the other circumstances, that the said P. S. made and executed the said paper as and for his last will and testament, and intended it as such." In this case the con- troversy was whether the paper was a deed or a will. To the same effect is With- erspoon v. Witherspoon, 2 McCord, 520. So all the attending circumstances maybe put in proof as aids in determining whether the maker intended the paper should operate as a deed or a will, when- ever it is so framed as to postpone actual enjoyment under it until the death of the maker. Gillham v. Mustin,42 Ala. 365; Daniel v. Hill, 52 Ala. 430; Campbell v. Gil- bert, 57 Ala. 569; Jordan v. Jordan, 65 Ala. 301; Rice v. Rice, 68 Ala. 216; Lee v. Shivers, 70 Ala. 288; 1 Bigelow, Jarm. Wills, 25; Gage v. (Jage, 12 M. H. 371; Mcalinff v. Pace, 14 Ga. 596, 630; Symmes T. Arnold, 10 Ga. 506; Jackson v. Jackson, 6 Dana, 257. Another pertinent inquiry: It a paper cannot have operation as a deed, but may as a will, then in doubtful cases we should pronounce it a will, ut res irtagis valeat. Bigelow, Jarm. Wills. 21, 22, 24, 25; Attorney General v. Jones, 3 Price, 379; Gage v. Gage, 12 N. H. 371; Symmes v. Arnold, 10 Ga. 506. The instrument soughtto be established as a will is in form a, nondescript. It clear- ly shows on its face that the donee or grantee was to have no actual enjoyment of the property — no usufruct — during the life of the maker. Its language is: "I do hereby reserve the use, control, and con- sumption of the same to myself for and during my natural life." We hold that the paper, on its face, falls within the indeter- minate class, which, according to circum- stances, may be pronounced a deed or a will. We also hold that, on the trial of the issue, it was competent to prove that the maker w^as without lineal or other very near relatives; thatshe was attached to the donee, who was a member of her household ; thatshe sent tor the draughts- man of the paper, and employed him to write her will, and that, in pursuance of such employment, he wrote the paper in controversy ; that she signed it with a knowledge of its contents, and had it at- tested ; that she did not deliver it, but had it placed in an envelope, and indorsed, "Not to be opened till after ray death;" and that she carefully preserved it in such envelope until her death. Now, all these facts and circumstances, if proved and be- lieved, were competent and proper for "the consideration of the jury in determining the issue of devisavit vel non. And the fact, if believed, that the paper had never been delivered, and thereforecould not take effect as a deed, should also be considered in arriving at the maker's intention. in excluding from contestants' except- ive allegation the averment that the pa- per is a deed, the probate court commit- ted a technical error. That was the real issue in the case. This ruling, however, did the contestants no injury, as they had the benefit of the defense it sought to in- terpose. 3 Brick. Dig. p. 405, § 20. * * » # « » 'The paper over which the present con- tention arose contains the following clause: "And this [the execution of the paper] is done in part to do away with all need or necessity of taking out letters of administration after mydeatli." This clause is a circumstance which the jury may look at and consider in determining whether Mrs. Hornsby intended that Julia M. Hall should take or enjoy any interest during the former's life. It is not conclu- sive, but must be weighed with the other evidence. It would probably be more weighty if it made provision for Mrs. Hornsby's entire estate. Attempts— fruit- less, of course— are sometimes made to dis- pense with administration, even in docu- ments that are unmistakably testament- ary. Charge No. 6, asked by contestants, should have been given. The remaining charges asked by them were, in the light of the evidence, calculated to confuse or mislead, and were rightly refused on that account. We have now considered all the ques- tions we deem necessary. In a very few of the many rulings the probate court erred. Reversed and remanded. (See, also, Meck'p Appeal, 97 Pa. St. 813; Basket v. Hassell, 108 U. S. 267, 2 Sup. Ct Eep. 634; •R right V. Wright, 5 Ind. 389.) (L. R. 13 It. 18.) In re Kehoe. (Cowrt of Probate. Jan. 28, 1884.) 1. Incokpobation 01' Documents bt Kepeeenob IN Will. To incorporate a document in the probate of a will, three things are necessary: (1) that the will should refer to the document as then in ex- istence; (2) proof that the document propounded was in fact written before the will was made; and (3) proof of the identity of such document with that referred to in the will. 2. Same. Testator beijneathed all property he died pos- sessed of to his executors, to be disposed of in charity in such manner as "I may direct them; and, in case I may not leave directions or in structions, tben they may dispose of it in such manner as they think fit. " He signed a paper bearing the same date as the will, and in his own handwriting, containing directions for the management of his property for charitable pur- poses, and headed, "Directions to the executors of my last will, executed the 13th of February, 1879 — How they are to manage my affairs. " Seld, that the will did not sufHciently describe the paper of directions as then existing, and that 24 LAW OF "WILLS. parol evidence was not admissible to identify it as the document referred to in the will, and the incorporation of the directions with the probate should be refused. Motion for probate, and that certain di- rections be ordered to be incorporated in the will of the testator, the Kev. J. Ke- hoe. An affidavit of the Rev. Simon Me- Wry was filed, as follows: "That, to the best of my knowledge and belief, the pa- per writing marked 'A,' now produced and shown to me, entitled 'Directions to the executors of my last will and testa- ment, executed this 13th day of February, 1879— How they are to manage my af- fairs,' signed John Kehoe, P. P., and dated February 13, 1879, which is all in the handwriting of the said Rev. John Kehoe, was written out by him previous to the execution of his will; and immediately after such execution copies of said will and said direction, previously made by the said testator, and by one Maurice Kealy, were placed by testator in an en- velope, and handed to me for safe custo- dy." The Rev. Patrick F. Nolan, who was appointed executor of the will by the codicil of the 2()th of July, 1883, made the following affidavit: "The testator, by his will having bequeathed all his prop- erty in trust to be disposed of in such manner as he might direct, did give a di- rection in writing as to the disposal of the same, as of same date as of the will, viz., the 13th of February, 1879, and upon which direction, marked v.itli the letter 'A,' I have indorsed my name. ' William P. Ball, for executor. Warken, J. The Rev. John Kehoe, the testator, made a will dated the 13th of February, 1879, which contained this clause: "I hereby bequeath to the Right Rev; James Walsh and the Rev. Michael Conroy all property I die possessed of," "In trust to be disposed of in charity in such manner as I may direct them ; and. In case I may not leave directions or in- structions, then they may dispose of it in charity in such manner as they may think fit;" and the same persons are named ex- ecutors. One of these executors — Mr. Conroy — having died, the testator made a codicil, dated the 20th of July, 1883, by which he nominated the Rev. Patrick Nolan an executor of this will. The tes- tator signed a paper bearing the same date as the will, containing directions for the management of bis affairs foT char- itable purposes. This paper is in the handwriting of the testator, and is head- ed, "Directions to the executors of my , last will, executed on the 13th day of Feb- ruary, 1879 — How they are to manage my affairs." The court has been moved for probate of the will and codicil of the testator, with the paper of directions In- corporated. The law of the subject of the incorpora- tion of papers, so far as it is necessary to consider it on the present application, is thus stated in Jarman on Wills, (vol- ume ], p. 90:) "Three things are necessa- ry: (]) That the will should refer to some document as then in existence; (2) proof that thedocument propounded was in fact written before the will was made; and (3) proof of the identity of such document with that referred to in the will." The affidavit of the Rev. Simon McWry is slightly ambiguous, (In re Ash, 11 Ir. R. Eq. 60, note,) in consequence of the introduc- tory words, "to the best of my knowl- edge and belief;" but still, it that affida- vit be admissible in evidence, I think it sufficient to prove that the paper of di- rections was in existence when the will was executed. It is certainly sufficient proof that it was in existence before the ex- ecution of the codicil; and the cases, in- cluding that of Lady Truro, L. R. 1 Prob. & Div. 201, to which I was referred by Mr. Ball, have established that, in consid- ering this question of incorporation, the words of the will which refer to direc- tions must betaken as if brought down to the date of the codicil, — as if repeated in the codicil. It does appear to me that, if the affidavit of Mr. McWry be admis- sible, the evidence is sufficient to identify the paper of directions signed by the tes- tator as the directions to which he re- ferred in his will. Therefore, if this affi- davit is admissible, two of the requisites for incorporation are found in the case be- fore the court, viz., proof of the fact of the existence of the paper when the will was made, and proof of the identity of the paper with that referred to in the will. As to the necessity of these two of the elements mentioned in Jarman there can be no doubt. I may refer to Singleton v. Tomlinson, L. R. 3 App. Cas. 404, in the house of lords. It remains to consider the third circum- stance mentioned in the passage I have quoted from Jarman. Does the will refer to or describe this paper of directions as then existing? If it does not, can the court receive any parol evidence on the subject of these directions? As a matter of construction, it is clear that the will does not refer to any document as then in existence. The words are, " as 1 may direct, """in case I may not have directed." But "may" and "may not" imply that at the time the will was written any di- rections had not been given or written, and certainly do not suggest that any ex- isted at the time of execution. In Sun- derland's Case, L. R. 1 Prob. & Div. 198, the words, "as shall be ticketed in papers in my own handwriting," were held in point of construction not to describe as then existing certain papers which did then exist as a matter of fact. If, then, this will does not refer to any papers as then existing, can the court receive parol evidence, — that is to say, as Sir C. Cress- well puts it, (3 Swab. & T. 12,) "to aid in the construction of what the tes- tator has written?" In my ofnnion, the cases of Allen v. Maddock, 11 Moore, P. C. 427; Van Straubenzee v. Monck, 3 Swab. & T. 12; and The Goods of Sunder- land, L. R. 1 Prob. & Div. 198,— establish the law as laid down by Lord Penzance at the conclusion of his judgment in the last-mentioned case: "In order to let in parol evidence to ascertain the truth, so far as it can be ascertained by such evi- dence, with regard to an unexecuted test- amentary document, the passage in the NUNCUPATIVE OR ORA.L WILLS. 25 will by which reference is made to it must describe it as a written document then existing." The paper of directions in the present case is not so described, and it must 1)6 excluded from probate. It is ordered by the court that the said Rev. Patrick F. Nolan, one of the execu- tors in said codicil named, be at liberty to apply for probate of the said will and codicil, dated, respectively, the 13th day of February, 1879, and 20th of July, 1883, without incorporating in such probate the said paper writing dated the 13th of Feb- ruary, 1879, and marked "A." (See, also, Phelps v. Robbins, iO Conn. 250; In re O'Hara's Will, 95 N. Y. 403.) V. NUNCUPATIVE OR ORAL WILLS. (8 N. T. 196.) HtJBBARD V. Hubbard. (Court of Appeals oj New York. March, 1853.) 1. Nuncupative Wills — Who mat Make. Under 3 Rev. St. N. Y. p. 60, § 33, providing that no nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual service, or by a mariner while at sea, the wills of soldiers in actual serv- ice and of mariners at sea are governed by the principles of the common law. 3. Same — Mariner at Sea. A nuncupative or oral wiil may be made by the master and owner of a coasting vessel while she is on a voyage, and lying at anchor in an arm of the sea, where the tide ebbs and flows. 3. Same — Form of Bequest. It is sufficient that testator, in prospect of death, in answer to what disposition he wishes to make of his property, states his wishes. No particular form of bequest is necessary, nor is it necessary for him to request any persons present u> witness that it is his will. Appeal from supreme court, second judi- cial district. Proceedings before the surrogate of Suf- folk county by Maria J. Hubbard to establish an alleged nuncunatlve will of her deceased husband, William L. Hub- bard. William L. Huobard was master and owner of a coasting schooner of Greenport, Long Island. While on a re- turn trip from Philadelphia with a load of coal, and lying at anchor inside the Dela- ware breakwater on account of bead- winds, he was taken sick with Asiatic cholera, and died the same day. The ves- sel was anchored in tide-water about a mile from the main-land, the same dis- tance from the open sea, and three miles from the nearest place of settlement on shore. While deceased was suffering from bis disease, and about an hour before lie died, being of sound mind and memory, he was asked if he had a will, and replied that he had not. He was then asked as to the disposition of his property, and in reply stated, in the presence of the sur- rounding seamen, that he wished his wife to have all his personal property. Beck with, his mate, asked him if he wished her to have his real property too, and he replied, "Yes, all." Beck with then asked him what he should tell his wife, and he replied, "Tell her I loved her to the end." Beckwith again asked him whom he wanted to settle his affairs, and he replied, "I want you to do it. " He did not ask any one to bear witness that what he Btated was his will. These conversations being proved by four witnesses, the surrogate adjudged them a good nuncupative will. Elias Hubbard, father of the deceased and his heir at law, appealed to the special term, where the decree of the surrogate admitting the will to probate was re- versed. On a further appeal the judgment of the special term was reversed, and Elias Hubbard appealed to this court. S. J). Craig-, for appellant. G. Miller, for respondent. Mason, J. It is provided in this state by statute that no nuncupative or un- written will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual service, or by a mariner while at sea. 2 Rev. St. p. 60, § 22. As to tlie wills of soldiers in actual service and mariners at sea, they are left entirely un- tramiueled by our statutes, and aregov- erned by the principles of the common law. The exception in our statute of willsin favor of soldiers and mariners was taken from the 29 Car. II. c. 3, and is pre- cisely the same and the same exception is retained in England by their new statute of wills. 1 Vict. c. 26, § 11. The testator was a mariner, within the meaning of the statute. The courts have given a very liberal construction to this exception in behalf of mariners, and have held it to in- clude the wholftservice, applyingequally to superior officers, up to the commander in chief, as to common seamen. In re Goods of Hayes, 2 Curt. Ecc. 33N; 1 Williams, Ex'rs, 97. It has been held to apply to the purser of a man of war, and embraces all seamen in the merchant service. Mor- rell V. Morrell, 1 Hagg. Ecc. .'il ; In re Goods of Hayes, 2 Curt. Ecc. 338 ; 1 Will- iams, Ex'rs, 97. This will was made at sea. In legal parlance, waters within the ebb and flow of the tide are considered the sea. Bouv. Law Diet. tit. "Sea;" Ang. Tide-Waters, 44-49; Thackarey v. The Farmer, Gilp. 528; The Thomas Jefferson, 10 Wheat. 428; Baker v. Hoag, 7 N. Y. 561. Lord Hale says the sea is either that which lies within the body of the county or without it; that an arm or branch of the sea within the" /a oces fcerr«," where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county, but that part of the sea which lies not within the body of a coun- 26 LAW OF WILLS. ty Is called the main sea, or ocean. Harg. Law Tracts, c. 4, p. lo; Smith, Const. § 588. He add8,"Thatlscalledanarm of the sea where the sea flows and reflows, and BO far only as the sea flows and reflows;" and in this he follows the exact definition given by the Booli of Assizes, 22 Id. 93; and this is the doctrine recognized by the courts of this country. Thacliarey v. The Farmer, Gilp. 524; U. S. v. Grush, 5 Ma- son, 290; C. S. V. Wiltberger, 5 Wheat. 76-94; U. S. v. Robinson, 4 Mason, 307; U. S. V. Ross, 1 Gall. 620. The courts in England have gone to the utmost verge of construction in extending this exception in behalf of seamen. In a case which came before the prerogative court of Canterbury in 1840, when the de- ceased was mate of her majesty's ship Calliope, and while the vessel was in the harbor of Buenos Ayres, he obtained leave to go on shore, when he met with a seri- ous fall, and was so severely injured that he died on shore a few days after. Imme- diately after the accident he wrote on a watch bill with a pencil his will, and which was unattested, but which was cut out and certified to by the officers on board the ship, and the court held it a good will of a seaman at sea, and ordered it to probate. In re Goods of Lay, 2 Curt. Ecc. 375. The common-law doctrine in regard to nuncupative wills was borrowed from the civil law. Drumraond v. Parish, 3 Curt. Ecc. 522, 531, et seq. By the civil law, the strict formalities, both in the exe- cution and construction of nuncupative wills of soldiers, were dispensed with ; and although they should neither call thelegal number of witnesses, nor observe any other solemnity, yet their testament was held good if they were in actual service. Just. Inst. lib. 2, tit. 11; 1 Lomax, Ex'rs,40. The civil law was extremely indulgent in regard to the wills of soldiers. If a soldier wrote anything in bloody letters upon his shield, or in the dust of the field with his sword, it was held a good military testament. 1 Bl. Comra. 417; 1 Lomax, Ex'ra, 40, 41. The common law, however, has not extended this privilege so far as the civil. 1 Bl.Comm. supra. Blackstone says that soldiers in actual military serv- ice may make nuncupative wills, and dis- pose of their goods, wages, and other per- sonal chattels without those forms, so- lemnity, and expenses which the law re- quires in other cases. The rules, however, which are to be ob- served in making wills by soldiers and mariners, are the same by the common law; and yet it must be confessed that the formalities which are necessary to be observed in the making of wills by soldiers and seamen are not defined with any very satisfactory precision in any of the English elementary treatises upon the subject of wills. Swinborne says that those solem- nities only are necessary which are Juris gentium. Swinb. Wills, pt. 1, § 14. Before the statute the ecclesiastical courts to whose jurisdiction the establishment of personal testaments belonged required no ceremonies in the publication thereof, or the subscription of any witnesses to at- test the same. 1 Rob. Wills, 147. A will of personal estate, if written in the testa- tor's own hand, though It had neither his name nor seal to it, nor witnesses present at its publication, was held effectual, pro- vided the handwriting could be proved. 1 Rob. Wills, 148. And so if written by an- other person by the testator's directions, and without his signing it, it was held good. Id. 148. It is laid down in books of very high authority that a nuncupative testament may be made, not only by the proper motions of the testator, but also at the interrogation of another. Swinb. Wills, pt. 1. § 12, p. 6; Lomax, Ex'rs, 38; 1 Williams, Ex'rs, 102. And Swinborne says, "As for any precise form of words, none is required, neither is it material whether the testator speak properly or improperly, so that his meaning appears," (2 Swinb. Wills, pt. 4, § 26, p . 643 ;) and he says, con- cerning the solemnities of the civil law to be observed in the making of testa- ments, soldiers are clearly acquitted from the observation thereof, saving that, in the opinion of divers writers, soldiers, when they make their testaments, ought to require the witnesses to be present. 1 Swinb. Wills, pt. 1, § 14, p. 94. It is neces- sary, however, that the testamentary ca- pacity of the deceased and the animus testandi at the time of the alleged nuncu- pation should be clearly and Ratisfactorily proved in the case of nuncupative will. 1 Williams, Ex'rs, 102; Leraann v. Bonsall, 1 Addams, Ecc. 389, 390. In the present case the evidence most clearly shows that the deceased was of sound mind and memory, and I think the evidence in the case satisfactorily estab- lishes the a/jjm us festantfz at the time of the alleged nuncupation. He told his mate, Beckwith, to tell his wife that he loved her till the end. He was extremely sick, and undoubtedly apprehending death; and, when asked if he had a will, he replied that he had not; and, on be- ing asked wiiat disposition he wished to make of his property, he said he wished his wife to have all of his personal prop- erty, and at the same time requested Beckwith to settle his affairs and see to his business. It should be borno in mind that as well the testator as all of the wit- nesses present were seamen, and were un- doubtedly acquainted with the rights of mariners in regard to making their wills. They evidently understood it to be a will, and spoke of it as such ; and I think the animus testandi is satisfactorily estab- lished. The evidence is quite as strong in the case under consideration as it was in the case of Parsons v. Parsons, 2 Greenl. 298, 800, where the testator was asked to whom he wished to give his property, and replied, "To my wile; that is agreed upon ; " and the supreme court of Maine sustained the will in that case. I am aware that it is said in some of the books that it is essential to a nuncupative will that an executor be named. But this is no more essential than in a written will. Rolle, Abr. 907; How v. Godfrey, Finch, 361 ; Prince v. Hazleton, 20 Johns. 522. I am inclined to think, however, that theevi- dence is sufficient, in the present case, to show that the testator intended to make Beckwith his executor, but it is not nec- essary that he should have named one. NUNCUPATIVE OR ORAL WILLS. 27 It Js not necessary to decide whether the mariner must make his will in his last Bicicness and in extremis, as was held to be the case under our former statute o( wills, (Prince v. Hozleton, 20 Johns. 503,) and as is required underthestatutes of sev- eral of our sister states, (Bover v. Frick, 4 Watts & S. 357; Baker v. Dodson, 4 Humph. 342; Offutt v. Offutt, 3 B. Mon. 162; In re Will of Yarnall. 4 Rawle. 46; Werkheiser v. Werkheiser, 6 Watts & S. 184; Winn v. Bob, 3 Leigh, 140; Mason v. Dunman, 1 Munf. 456; Portwood v. Hun- ter, 6 B. Mon. 538; Tally v. Butterworth, 10 Yerg. 501 ; Parsons v. Parsons, 2 Greenl, (See, also, Van Deuzer v. Estate of Gordon, 3S 1097; Leathers v. Greenacre, 53 Me. 561.) 298;) for there can be no doubt, upon the evidence in this case, but this will was made both id extremis, and in the last sickness, and under circumstances which precluded the making of a written will. I think that the factum of this nuncupative will is clearly establitihed by the evidence in the case, and also the testamentary ca- pacity of thedeceased, and that iheanimus tf-sta::di at the time of the alleged nuncu- pation is sufficiently apparent from the evidence in the case, and that the judg- ment of the supreme court should be af- firmed. Judgment affirmed. I Vt. Ill; Scaife v. Emmons, 84 Ga. 619, 10 S. B. Rep. (30 Johns. 502.) Prince, Pub. Administrator, v. Hazl,eton et ux. {Court of Errors of New Yorlc. Nov. 11, 1823. ) 1. Hl'Ncupative Wills — Validity. At coajmoti law, and under a statute (Laws N. Y. Sess. 3tj, c. 23, § 14) declaring that a nuncu- pative will shall not he valid unless "made in the time of the last sickness of the deceased, " a nun- cupative will is not good unless it be made when testator is in extremis, or overtaken by sudden and violent sickness, and has not time to make a written will. 2. Same. An alleged nuncupative will offered for pro- bate had all the legal requisites aud formalities. The evidence to support it showed that it was made six days before testator's death, while he was declining from a disease of the liver, but under no immediate apprehension of death. Tes- tator was of middle age, had a fair education and habits of business, and had accumulated a fortune, and at the time of his death was boarding in New York city. He had been sick about five weeks, and was attended by a physician and a hired nurse. Another woman, living apart from her husband in such boarding-house, also acted as his nurse. No acquaintance with this woman prior to his siclcness was shown, but to her he left his entire property. Held, that the alleged will wa-^ not made under such circumstances as to entitle it to probate as a nuncupative will. Appeal from court of probates. Application by Benjamin Prince, public administratorin the city of New York, for administration on the estate of William Jones, who died in New York city, April 17, 182C Mary Hazleton appeared before the surrogate with her husband, George Hazleton, and offered for probate an al- leged nuncupative will of Samuel Jones, with the deposi tion of four witnesses there- to, taken ex parte before a commissioner, May 4, 1820, as folio ws : " The last will and testament of William Jones, late of the city of New York, gentleman, by word of mouth, made and declared by him, on or about the eleventh day of April, last past, in presence of us, the undersigned. Jacob S. Arden, William Lee, George Wateres, and Ellen Taylor, who have hereunto sub- scribed our names as witnesses to such last will and testament: 'I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton. I do this in consequence of the good treatment and kind attentions I have received from her during my sickness. She is worthy of it. No other person shall inherit my property. I wish you all in the room to take notice of this.' In witness whereof we have hereunto set our hands, this seventeenth day of May, in the year of our Lord one thousand eight hundred and twenty." The surrogate refused to sustain the alleged nuncupative will, un- der Laws N. Y. Sess. 36, c. 23, § 14, which provided that a nuncupative will shall not be good unless "made in the time of the last sickness of the deceased. " Proponents ap- pealed to the court of probate, where the decree of the surrogate was reversed, and the will admitted. Prince appealed to this court. Huffman and T. A. Emmet, for appel- lant. Henry & Van iJuren, for respond- ents. Kent, Ch. The question to be discussed is, whether the nuncupative will of Will- iam Jones, as stated to have been made on the lltli of April, 1820, can be admitted to probate as being valid in law. It be- comes a complicated question, under the circumstances, and involves in the inquiry matter of fact mixed with matter of law. I shall consider it to be my duty to speak frankly and freely on the whole subject of the case, but, at the same time, with a sincere respect for the character of the court whose opinion is now under review, and from which I shall be obliged very greatly to dissent. William Jones was an Irishman by birth, and a religious Catholic by profession. He was born in the county of Dublin, in Ire- land, and received a school education about 30 years before his death, and which carries us back to the year 1790. He had then living parents, brothers and sisters, and he was the youngest of the family. He was apprenticed to a house-carpenter in the city of Dublin, and served a regular appren- ticeship of seven years. When this serv- ice expired, he worked as a journeyman, for nine or twelve months, and then emi- grated to the United States. This brings us, in the history of his life, to year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except the will) to cast any shade over the memorj of this man. I allude to the change of his paternal name, O'Connor, for that of Jones, It does not appear, precisely. 28 LAW or WILLS. when he chansed his name, but I refer it back to that period as the probable time, und presume that he and his family were more or less implicated in the peril of the rebellion, which broke out in Ireland in 1798, in consequence of an ill-fated attempt to effect a revolution in that kingdom. It is probable that he may have emigrated for safety; and, for greater safety, laid down the name of O'Connor, which was then memorable in the Irish annals, on the side of the unfortunate. But, be this con- jecture as it may, we find him first at New York, then for two years at Savannah, then living, for 12 or 14 years, in the island of Cuba, and learning the Spanish lan- guage, and where he probably made his fortune. He is next traced, on his return to the United States, to the cities of Balti- more, Philadelphia, and New York; and in all of them he seems to have had busi- ness, pecuniary concerns, and friends. These are the few and imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding-house of Mrs. Fox, in Cherry street, in New York, the latter end of March, 1820. Jones, while at the house of Mrs. Fox, claimed to be worth, altogether, .ffiS.OOO, in property ex- isting in New York, Philadelphia, Balti- more, andtheisland of Cuba ; and, to show that this claim had pretty fair pretensions to truth, there was actually found at his lodgings, at his death, bank-books, show- ing deposits to his credit, in one or more banks of New York, to between thirteen and fourteen thousand dollars. He had been sick at Mrs. Fox's about five weeks, when he is said to have made the will now under consideration. During that time he had one Ellen Taj'lor, a colored woman, for his hired nurse; and there was a Mrs. Hazleton, who had rooms, and boarded in thesame house, who also acted as his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to board at Mrs. Fox's does not appear, nor have we in the case any distinct lineaments of tlie character which Mrs. H. sustains, or the business or purpose of her life. She rented the two front rooms in the board- ing-house, and yet, her brother says, she followed no kind of business. Slie has had two husbands, and her present (me is said to be a seafaring man by one of her wit nesses, and another of them says that he had been voyages at sea, and had been on the gaol limits, and was then following his trade of a whitesmith at Savannah. Why she lives in this detached situation, without a family of her own, and a hus- band to live with and provide for her, as is quite common with married persons, must be left to conjecture. She was able, all at once, and, as It would seem, with- out any adequate cause, and without any remarkable display of goodness, or even of attention, to gain a wonderful ascend- ency over the" affections of this sick man. If her story be true, and the will genuine, she obliterated from Jones' breast the sense of friendship, the charities of religion, the deep-rooted traces of nation- al affection, every tender recollection of the ties of blood, of bis natal soli, of the school-fellows of his youth, of father and mother, brother and sister, relative and friend. He was persuaded, at one nod, to pour the accumulated treasures of his va- ried life into the lap of this mysterious woman,— the acquaintance of a day. The will, as certified by the four witness- es, is in these words: "I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Ma- ry Hazleton. I do this in consequence of the good treatment and kind attentions I have received from her during my sick- ness. She is worthy of it. No other per- son shall inherit my property. I wish you all in the room to take notice of this." This will carries marks of fraud un its very face. I^et us examine It attentive- ly. This sweeping donation is made for what? For good treatment and kind at tentions received from her during nia sickness. This sickness had lasted only five weeks, and it was not so bad but that he was able occasionally to ride out. No person apprehended any immediate danger. He had a hired nurse, a colored woman, who was by him totally forgot- ten. What could this other woman have possibly done, in the course of five weeks, to awaken, in any rational mind, a sense of such enormous obligation, or to call forth such stupendous remuneration? I am forcibly struck with the folly and false- hood of the motive assigned. But the will goes on, and adds, "she is worthy of it." And where does her great merit appear, and from what circumstance does sheen- title herself to this extravagant eulogy? The very declaration that she was worthy to possess all his estate proves that Jones must have been insane, or that the whole is a base fabrication. The will goes on further, and says, " No other person shall inherit my property." And why these words of special exclusion of the rest of the world? They seem to imply a heart- lessness and misanthropy, very unnatural and very iijiprobable for any man to ex- press in the contemplation of death, and who was in the enjoyment of the comforts and the smiles of fortune; and especially for anative-born Irishman, who wasin the midst of his emigrant countrymen, and could not but have heard and felt the claims of religion, of charity, of the wid- ow, and the orphan. He then adds, "I wish you all to take notice of this,"— a speech which looks so much like contriv- ance that it does, of itself, throw a suspi- cion over the whole piece. This man must have been previously told that the stat- ute required that, in making a nuncupa- tive will, the testator must bid the per- sons present to bear witness that such was his will. It was made in the middle of the day, when he was quite comfort- able, and far from the apprehension of death, and, in this respect, with all punc- tilious and technical adherence to forms. It had the requisite number of witnesses and the address to the by-standers. Jones must have deliberatively determined on a nuncupative instead of a written will, and have previously known and studied all the circumstances that were requisite to make it valid, or else this will has been since got up for him, like a puppet-show, NUNCUPATIVE OR ORAL WILLS. 29 by the art and cunning of some juggler behind the scene. [His honor here went minutely, and at large, into the examination of the testi- mony in the cause, and particularly of that of the four witnesseH to the will, and observed that, from the nature, the improbabilities, the inconsistencies, and the absurdity of the etory, and the char- acter and conduct of the witnesses, he drew the conclusion that the testimony of those witnesses was utterly unworthy of credit, aud that the will was evidently the production of fraud and perjury. Alt- er having disposed of the question of fact, his honor proceeded as follows :] But if we were to admit, against the truth of the fact, that the will of the 11th of April was actually and fairly made, ac- cording to the certificate of the four wit- nesses, it would then become a question of law whether it amounted to a valid nuncupative will. A "nuncupative will" is defined by Perkins, (Con v. s. § 476.) in his book which was published under Hen- ry VIII., to be properly 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 will, and declar- eth by word what his last will is." So, ■ again, in Swinburne, (Wills, p. 32,) whose treatise was published in the time of King James I., it is said that this kind of testa- ment is commonly made when the tes- tator is now very sick, weak, and past all hope of recovery. I do not infer from these passages that unwritten wills were always bad at common law, unless made in a case of extremity, when death was just overtaking the testator. In ignorant ages, there was no other way of making a will but by words or signs. Reading was so rare an accomplishment in the earliest ages of the common law that it conferred great privileges, and the person who possessed it was entitled, under the name of benefit of clergy, to an exeuip-. tion from civil punishment. But these ancient writers mean to be understood that in the ages of Henry "VIII., Elizabeth, and James letters had become so general- ly cultivated, and reading and writing so widely diffused, that nuncupative wills were 'p"operly, according to Perkins, and commoidy, according to Swinburne, ct)n- fined to extreme cases, and to be justified only upon the plea of necessity. And this has been the uniform language of the En- glish law-writers from that time down to this day, so that it has become the ac- knowledged doctrine that a nuncupative will is only to be tolerated when made inextrewis. Thus in Bacon's Abridgment, which was first published in 1736, and compiled chiefly from materials left by Lord Chancellor Baron Gilbert, a nuncu- pative will is taken from Perkins, and defined to be when a man is sick, and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he stayed the writ- ing of his testament, desires his neiglibors and friends to bear witness of his will, and declares the same presently before them. 7 Bac. Abr., by Gwillim, 305. The same definition is adopted by Wood In his laborious work on Conveyancing, (volume 6, p. 574;) and in Blackstone's Commentaries, (volume 2. pp. 500, 501,) a nuncupative will is defined to be one declared by the testator in extremis be- fore a sufficient nuujber of witnesses. Aft- er reciting the substance of the provisions of the statute of 29 Oar. 11., (and which we have re-enacted,) he adds: "Thus has the legislature provided against any frauds in setting up nuncupative wills by so numerous a train of requisites that the thingitsell hasfallen into disuse, and hard- ly ever heard of, but in the only instance where favor ought to be shown to it, — when the testator is surprised by sudden and violent sickness." And, while I am citing so many English definitions of nun- cupative wills, it cannot be thought use- lees, and will not be deemed unaccept- able, that I should also refer to the very respectable opinion of the late chief justice of Connecticut, who declares, when speak- ing of nuncupative wills as understood in the English law, that they are allowed only in cases where, in extreme and dan- gerous sickness, the testator has neither time nor opportunity to make a written will. 1 Swift, Syst. 420. It appears to me that these various writers must be satisfactory to every one, as to the true sense and meaning of a nun- cupative will under the English law. It is not easy to recur to more accurate sources. The probate of wills being in England a matter of ecclesiastical cognizance, cases on that point rarely appear in the reports of decisions in the courts of common law. I have, however, been able to select two or three cases of nuncupative wills, which I shall submit to the consideration of the court. Cole V. Mordaunt, 4 Ves. 196, note, was the case of a nunciipative will, in the 2Sth year of Car. II., and it is well worthy of notice that this was only one year before the 29th Car. II., when the statute relat- ing to nuncupative wills was passed, and is said to be the principal case which gave rise to that statute. The case was this : Mr. Cole, at a very advanced age, married a young woman, who, during his life, did not conduct herself with propriety. After his death, she set up a nuncupative will, said to have been made in extremis, (for those are the words used in the reiiort of the case,) and by which the whole estate was given to her, in opposition to a writ- ten will made three years before, giving 3,000 pounds to charitable uses. The nun- cupative will was proved by nine wit- nesses, but the court of probate rejected the will, and, on ajipeal to the delegates, a trial was had at the bar of the king's bench, and it appeared that most of the witnesses for the nuncupative will were perjured, and Mrs. Cole herself was guilty of subornation of perjury It was upon the occasion of this shocking and foul con- spiracy that Lord Chancellor Nottingham said "he hoped to see one day a law that no written will should ever be revoked hut by writing. " He was gratified in see- ing such a law the succeeding year; and I will venture most respectfully to add that, if this rnncupative will be established, I. so LAW OF WILLS. should also hope to see one day a law that uo nuncupative will should be valid in auy case. The case I have cited contains a monitory lesson; and it very much re- sembles, in its principal features, the one before us. In Philips V. Parish of St. Clements' Danes, 1 Eq.Cas. Abr. 404, pi. 2. which was cited upon the argument, and arose in 1704, one Doctor Shallmer, by will, in writing, gave £200 to the parish, and Prew, a reader in the church, coming to pray with him, he said, he gave £200 more towards building the church, and died on the next day. This was a case of a nun- cupative will which only failed tor want of three witnesses. But this testator was evidently in extremis. The particulars are not stated, except only that an officer of the church came to pray with him, and that he died the succeeding day; but thosetwo circumstances well warrant the Inference. There is a very close analogy between these nuncupative wills and a gift upon the death-bed or a donatio causa mortis; and these gifts are defined by the court of chancery in Hedges v. Hedges, Finch, Prec. 269, Gilb. 12, in the very terms of a proper nuncupative will. A donatio causa mortis is where a man lies in extremity, or being surprised by sick- ness, and not having an opportunity of making his will, but lest he should die be- fore he could make it, gives away per- sonal property with his own hands. If he dies, it operates as a legacy. If he recov- ers, the property reverts to hi in. Upon the strength of so much authority, I feel myself warranted in concluding that a nuncupative will is not good unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sick- ness, and has not time or opportunity to make a written will. The statute of Car. II., so often referred to, and w hich we have literally adopted, requires a nun- cupative will to be made by a testator in his last sickness, and in his own dwelling- house, or where he had been previously res- ident for 10 days, unless surprised by sick- ness on a journey, or from home. The last sickness, in the purview of the statute, has been always understood (for so I infer from the cases cited) to apply to the last extremity mentioned in the books; and it never was meant to uphold these wills, made when there was no immediate ap- prehension of death, and no inability to reduce the will to writing. A case of ne- cessity is the only case, according to Blackstone, in which any favor ought to be shown them. If they are alleged to have been made in a case unaccompanied with necessity, the presumption of fraud attaches to the very allegation. Let us suppose, by way of illustration, the in- stance of a person gradually declining un- der the operation of some slow-paced dis- ease, as the affection of the liver, or the consumption of the lungs, or the dropsy, or the cancer. The patient is himself, we will suppose, under no immediate appre- hension of death, nor is any such alarm excited in others. He is comfortably seat- ed in his chamber, in the niidst of a popu- lous city, and with ample means to com- mand every kind of assistance. He has had a fair common education, and knows well how to read and write. He has been a man of good understanding, habits of business, and of successful enterprise, and has accumulated a fortune. He is well versed in the knowledge and in the affairs of mankind. He has pen, ink, and paper at hand, with an adroit physician at his elbow, and a favorite friend at his side, on whom he wishes to bestow his fortune. He is in the middle of life, with his intel- lect perfectly sound. He proposes, or it is proposed to him, to make his will. Would such a man, in such a case, ever dream of making a nuncupative will? Would any honest or discreet friend ever advise him to it? If that should be his wish, or if that should be the suggestion of others, would the law tolerate such an indulgence, under the notion that he was in his last sickness? Surely, the good sense of the law, as the books explain that law, and the cautious and jealous pro- visions of the statutes of frauds, never in- tended a nuncupative will for such an occasion. The law wisely discriminates between written and unwritten wills, and permits the latter only in cases of urgent necessity. To abolish that distinction would be to abolish protection to prop- erty, to encourage frauds and perjuries, and to throw us back upon the usages of the unlettered ages. If nuncupative wills can be permitted at all, in the cases of chronic disorders, which make silent and slow, but sure and fatal, approaches, it is only in the very last stage and extremity of them. In no other period can such a disorder be deemed, within any reasonable construction of the statute of frauds, a man's last sickness. Such dis- eases continue for months, and sometimes for years. In one of Captain Cook's voy- ages, he states that he lost his first lieu- tenant, Mr. Hicks, near the conclusion of the voyage of three years, and almost with- in sight of the English coast. But, he adds, that, as his disease was the con- sumption, and aa it exi.sted when he left fengland, it might be truly said that he was dying during the whole voyage. What would the law call that man's last sickness? Not the whole voyage, surely, and, probably, it would be narrowed down to the lastday,and to the last hour, of his existence. We must give a reason- able interpretation to the statute in refer- ence to the mischief and to the remedy. We cannot safely apply a man's last sick- ness to the whole continuance of a pro- tracted disease, without giving to the statute an absurd construction. I do, therefore, most confidently insist that Jones was not in this last sickness on the 11th of April, within the sense or within the policy of the statute, and that he was not then entitled to make a nuncupative will. There is one other consideration that imparts to this subject of nuncupative wills a momentous character, and ought to incline us to give to them as little coun- tenance as possible. As soon as a nun- cupative will is made, it becomes the in- terest of the legatee that the party's sick- ness should prove to be his last sickness; for, if he recovers, the will, of course, falls to the ground. Noc so with a written EXECUTION OF WILLS. 81 will. Tliat remains good until revoked, and it cannot be revoked but by writing. Let us for one moment pause over this consequence of nuncupative wills, and ob- serve with what a deleterious Influence they must suddenly act upon the heart, and what a powerful appeal they at once make to the selfish and dark passions of the human raind. The title of the legatee depends altogether upon the precipitate death of the testator. Every day that his life is prolonged more and more im- pairs the character of the will, and it van- ishes if he becomes convalescent. Suppose the testator was understood to possess a large amount of cash in hand, and that he gives it all, by a nuncupative will, to a stranger to whom the law would not have given it. Suppose that stranger to be his physician, or, as in the present case, his nurse, what hold has the testator on her fidelity, her kindness, or her integ- rity? Her interest and her wishes (if in- deed her wishes procured the will) must be to destroy, and not to heal, her benefac- tor. The legacy operates as a bounty up- on his death. One cannot contemplate a nuncupative will under this aspect with- out sensations of horror. Well might such a man exclaim, as Jones is said to have done, repeatedly, "My life depends upon that woman." I am accordingly of opinion, both upon the law and upon thefact, that the decree of thecourtof probate, directing the nuncupa- tive will of William Jones to be admitted to probate, was erroneous, and ought to be reversed; and that the decree of the surrogate of the city and county of New York, of the 17th October, 1S20, directing the application to admit the said nuncupa- tive will to probate to be dismissed, and that letters of administration of tbegoods, chattels, and credits which were of Will- iam Jones, deceased, be granted and is- sued, according to law, as in cases of In- testates, be confirmed. Decree of reversfil. For reversal, 23. For affirmance, 7. (Bee, also, Carroll v. Bonhan, [N. J. Prerog. Ct.] 9 Atl. Bep. 371 ; In re Will of Melsenhelter, 15 Phlla. 651; Gould v. Safford's Estate, 89 Vt. 498; Vrooman v. Powers, 47 Ohio St. 191, 24 N. B. Rep. 267. Someoases, however, hold that a nuncupative will made during the testator's last illness is not invalid because he may have had time to reduce it to writing. See Harrington v. Stees, 82 111. 50.) VI. EXECUTION OF WILLS. (81 inch. 681. 46 N. W. Rep. 106.) Cook v. Winchester et al. (Supreme Cowrt of Michigan. July 2, 1890.) L Execution of Wills — Attestation. If the witnesses to a will sign within the hear- ing, knowledge, and understanding of testator, and so near as not to be substantially away from him, they are considered to be in his presence. 2. Samb. How. St. Mich. S 5789, requiring wills to be at- tested and subscribed by two or more witnesses "in the presence of the testator^" is sufBciently complied with if the witnesses sign the will io a room adjoining that in which testatrix is lying, with the door between standing open, and in a line of vision from the bed of testatrix, though it is physically impossible for her to see the act of signing, she being unable to move herself in the bed so as to get within the line of vision, where the witnesses sign at testatrix's request and with her knowledge, and where, after sign- ing, liiey return to testatrix's room, and inform her that they have signed, and the will is again read to her, and she is shown the witnesses' sig- natures, and expresses satisfaction. Case made from circuit court, Kent county ; Grove, Judge. Petition by Ariston J. Cook to admit to probate the alleged will of Alzina Page, deceased. Contested by Laaden Winches- ter and Clarissa Winchester. Probate was refused by the probate judge, and, on appeal to the circuit court, this action was afl5rmed. Proponent appealed to this court. Maber 4t Felker, for appellant. Butter- eeld & Keeney and Thompson & Temple, for respondents. Morse, J. This controversy Involves the validity of a will, the sole question being whether or not it was duly execut- ed, or rather witnessed, under the laws of this state. There is no question of fraud or undue infiuence in the case, nor did the testatrix lack mental capacity to execute a will. It must be conceded from all the testimony in the case that che will was drawn by an honest, disinterested, and trustworthy man ; that he was thu chosen instrument of Mrs. Page to draft it, that she had frequently consulted and advised with him before as to the disposition of her property, and had told him how she intended to bequeath it; that the will as made was just as she wanted it, and as she had long intended to make it; that it was read to her before she signed it and after she signed, at both of which times she expressed herself as fully satisfied with it ; that she signed it in the presence of the persons who witnessed it, and that she requested them to witness it; that she asked them after it was executed if they had witnessed it, and received an affirma- tive answer, and was then shown their signatures, and their names were read over to her. If the will is not sustained, the property will certainly go, nnder the law, where she did not wish it to go. It is therefore the duty of the courts to up- hold it if possible. It is claimed that the requirements of our statute were notcom- plied with in the witnessing of this will. The statute provides (How. St. § 5789) that three things are requisite to the valid- 82 LAW OP WILLS. Ity of a will : (1) That it shall be In writ- ing; (2) that It shall be signed by the tes- tator, or by some person in his presence, and by his express direction ; (3) that it shall be attested and subscribed, in the presence oJ the testator, by two or more competent witnesses. The will was drawn by James Toland, supervisor of the township of Byron, Kent county, who lived only a few rods from Mrs. Page, and with whom she had fre- quently talked about making her will, and how she wished it drawn. On June 30, 1888, she sent for him. Mrs. Page had been an invalid for many years, and at this time was confined to her bed, and unable to leave it without help. Toland found her in a bedroom adjoining, and opening by a door into, the kitchen, — a kitchen bedroom, — which communicated with no other room. He asked Mrs. Page, who said that she was ready to make her will, and wished him to draw it, if she wanted it drawn in the same manner as she had before told him to draw it. She said, "Yes, " and he proceeded. There was no table In the room where Mrs. Page was, and he drew the will on a table in the kitchen. This table was near the bed- room door, but when the door was open it was impossible for any one lying squarely on the bed to see the table or any one sit- ting at it. Mrs. Page could not move in bed, and was not able to see the table. Toland drew the will, and took it into the bedroom, and read it to Mrs. Page. She was satisfied with the will. Not be- ing able to handle a pen very well, she re- quested Toland to write her name. He went to the kitchen table and wrote it. He then came in, and she made her mark. Three ladies were present in the room, Mrs. Weaver, Mrs. McConnell, and Mrs. Miller. Mrs. Page requested Mrs. Weaver and Mrs. McConnell to witness the will. Mrs. Weaver did not wish to sign it for some reason, and Mrs. Page then signified that she wished Mrs. Miller to witness it. Mrs. Miller and Mrs. McConnell then stepped into the kitchen and signed the will as witnesses. Mr. Toland and the witnesses then went into the room again, and Toland read the will over to her again, and asked her if it suited her. She said it was all right, — just as she intend- ed it should be. Toland showed the names of the witnesses to her, and also read them to her. He testified that previ- ous to his showing it to her she asked the witnesses if they had signed it, and they told her they had. The door was open between the kitchen and bedroom when the witnessing was done. Mrs. Miller's testimony agrees with Toland, except she says that she stood in the door when the will was being read over after the wit- nesses had signed it, and did not hear Mrs. Page ask her or Mrs. McConnell if they had signed as witnesses, but heard Toland tell her that they had witnessed the will, and read their names to her. Mrs. Mc- Connell (now Mrs. Merritt) states that when they went back into the bedroom after witnessing the will, and Toland read it all over to Mrs. Page again, she said it was all right, and just as she wanted it; the witnesses and everything were all right. "She asked me If we had signed it, and I told her we had. Mrs. Miller and Mr. Toland were there. " The room in which Mrs. Page was lying was eight feet square. The kitchen was about fifteen feet square.' The distance from where the witnesses sat while signing the will to the bed of Mrs. Page was about twelve feet. The will was denied probate by the judge of probate of Kent county, and on appeal to the circuit court bis action was af- firmed. It is claimed that the will was not exe- cuted — witnessed— in the presence of the testatrix. It is true that it was physical- ly impossible for her to see the witnesses when they were in the act of signing it without moving herself upon the edge of the bed, which she was unable to do. And it is argued by counsel for the contestants that there are no cases to be found in the books, except possibly two, which can be claimed as authority for the admission of the will to probate. That the statute hag been uniformly held to require that "the condition and position of the testator when his will is attested, and in reference to the act of signing by the witnesses, and their locality when signing, must be such that he has knowledge of what is going forward, and is mentally observant of the specific act in progress, and, unless be is blind, the signing by the witnesses must occur where the testator, as he is circum- stanced, may see them sign if he choose to do so. If in this state of things some change in the testator's posture is requi- site to bring the action of the witnesses within the scope of his vision, and such movement is not prevented by his phys- ical infirmity, but is caused by an indis- position or indifference on his part to take visual notice of the proceeding, the act of witnessing is to be considered as done in his presence. If, however, the testator's ability to see the witnesses subscribe is de- pendent upon his ability to make the req- uisite movement, then if his ailment so operates upon him as to prevent this movement, and on this account he does not see the witnesses subscribe, the will is not witnessed in his presence. " Aikin v. Weckerly, 19 Mich. 504, 505. A large num- ber of cases are cited in support of the counsel's claim, to-wit: Mandevil'.e v. Par- ker, 31 N. J. Eq. 242; Wright v. Manifold, 1 Maule & S. 294; Reynolds v. Reynolds, 1 Speers, 253; Robinson v. King, 6 Ga. 539; Brooks V. Duffell, 23 Ga. 441; Reed v. Rob- erts, 26 Ga. 294; Jones v. Tuck, 3 Jones, (N. C.)202; Eccleston v. Petty, Carth. 79; Broderick v. Broderick, 1 P. Wms. 239; Lamb v. Girtman, 33 Ga. 289; Neil v. Neil, 1 Leigh, 6; Orndorff v. Hummer,12 B.Mon. 626; In re Downie's Will, 42 Wis. 66; Duffle V. Corrlrton, 40 Ga. 122; Edelen v. Har- dey's Lessee, 7 Har. & J. 61 ; Russell v. Falls, 3 Har. & McH. 457; Graham v. Gra- ham, 10 Ired.219; InreCox's Will, 1 Jones, (N. C.) 321; Raglandv. Huntingdon, llred. 561 ; Chase v.Kittredge.H Allen, 49; Comp- ton V. Mitton, 12 N. J. Law, 71; Combs v. Jolly,3N.J.Eq. 625; Mickle v. Matlack, 17 N. J. Law, 86; Hindmarsh v. Carlton, 8 H. L. Cas. 160. It muse be conceded that these cases all fully support the contention that the will EXECUTION or WILLS. 33 must be witnessed In the same room •with the testator, or, H out of the room, where he can see them sign if he desires to do so; he must be In a position where it is possible to see them. The fact that the will, after being witnessed out of the tes- tator's sight, is brought to the view of the testator, and he looks >ipon the sig- natures of the witnesses, and they then acknowlefdge the witnessing of it before him, will not cure this defect in its execu- tion, according to the authority of someof these cases. See Chase v. Kittredge, 11 Allen, 61: In re Cox's Will,l Jones, (N. C.j 321; Graham v. Graham, lOIred.219; Rus- sell V. Falls, 3 Har. & McH. 4,57; Lamb v. Girtman, 33 Ga. 289; In reDownie's Will, 42 Wis. 66. The extreme rule laid down in some of these cases cited by counsel for contest- ants, notably Graham v. Graham, supra, a North Carolina case, was criticised, and I think justly so, by Justice Champlin in Maynard v. Vinton, 59 Mich., at pages 148, 149, and 26 N. W. Rep., at pages 405, 406, but for the purposes of that case the doctrine of Aikin v. Weckerly was ad- hered to. In Maynard v. Vinton, the tes- tatrix was in a position where she might Lave seen the witnesses sign, as they were within the range of her vision if she saw fit to look, as was also the case with the testator in Aikin v. Weckerly. The pre- cise question raised by the record in this case has never been presented to this court, and neither of tbe two cases above mentioned seems to stand in the way of a just and liberal construction of the statute in this case in favor of the validi- ty of the execution of this will of Alzina Page. I agree with Judge Champlin that " presence, " as used in the statute, has been too narrowly construed by many of the courts as meaning that the witnesses must be under the eye of the testator. I find two cases referred to on the argu- ment where the facta are almost identical with those found by the circuit judge in this case, and in both of which the will was sustained. In the first, (Sturdivant V. Birchett, 10 Grat. 67,) the will was at- tested by the witnesses subscribing their names as such in a different room from that in which the testator was lying at the time of such signing. The testator could not see the witnesses in the act of signing, either from the bed on which he lay or from any other placf within the room. The testator signed the will in the presence of the witnesses, and requested them to attest it. They went together into another room for that purpose, it being inconvenient to do so in the room where the testator w as lying. When they subscribed their names no other per- son was in the room, and they immediate- ly returned to tlie mom where the testa- tor was. They were gone from that room not over two minutes. They took the will to the testator, who was lying in bed, and, both of the witnesses being together, one of them said to him, "Mr. Sturdivant, Jiere is your will witnessed ;" at the same time pointing with his finger tothenames of the witnesses, and holding the will open before him, the names of said wit- oesses being on the same page, and close WILLS^3 to that of the testator. He took tho will in his hands, and looked at it as if he was examining it. He then closed or fold- ed It. On being told that he was ill, ana had better give the will to some one to keep for him, he asked whether if he got well he could take it back from the person to whom he might give it. Being an- swered in the affirmative, he said : "It is my will, and I wish it to stand, but J may hereafter, on getting well, wish to make some slight alteration in it." He then handed the will to a friend. In the other case, of Riggs v. Riggs, 135 Mass. 238, (decided June 21, 1883,) the witnesses to the will saw the testator sign it, and v* ere in the room with him at the time. They signed it as witnesses in a room ad- joining the one testator was in, and at a distance of about nine feet from him, the door being open. The testator was in bed, and in such a position that if he had been able to turn his head round he might, by so turning it, have seen the wit- nesses when they signed their names, and also the will itself, unless during a part of the time when their bodies obstructed theTiew; butfrom the effect of an injury which he had received he could not in point of fact turn his head suflBciently to see them and the will at the time when they were signing their names as witnesses. After the witnesses had signed the will it was handed to the testator as he was ly- ing upon the bed, and he read their names as signed, and said he was glad that it was done. These cases differ from the one at bar onlj' in the fact that the will was taken, after witnessing, into the hands of the tes- tator, who in one case looked at it, and in the other read the names, while in Mrs. Page's case the names were shown her while the will was in the hands of the scrivener and read to her, as well as the names of the witnesses to it. The differ- ence is unimportant. In all three of the cases the maker of the will knew what he or she was doing, and what was being done, being conscious of all that took place, and no claim of fraud is made or en- tertainable in any of them. The major- ity of the Virginia supreme court (three out of five judges) sustained the will in the first case, and held that the statute was substantially complied with, in a very able and exhaustive opinion by Justice Lee. In his opinion the learned justice shows conclusively from the authorities that the words "in presence of" do not necessa- rily imply that the testator and the wit- nesses must be in thesame room, nor that actual sight or inspection of the process of signing is peremptorily required, because it is well settled that a blind man may make a will. He holds that the recogni- tion by the witnesses of their signatures to the will made within the immediate sight and presence of the testator, imme- diately after they have signed it in an ad- joining room, furnishes as complete a se- curity against the frauds and impositions sought to be guarded against by the stat- ute as the actual manual operation of writing their names by the witnesses un- der his eye. The identity of the witnesses is also equally assured in both modes. In 34 LAW OF WILLS the Massachusetts case the court was unanimous in sustaining the will. In re- ferring to the holding by some of the courts that an attestation was insufficient when the testator did not and could not see the witnesses subscribe their names, Chief Justice Morton, speaking for the court, says: "We are of opinion that so nice and narrow a construction is not required by the letter, and wfiuld defeat the spirit, of our statute. * » * The statute doesnot make the test of thevalid- ity of a will to be that the testator must see the witnesses subscribe tbeir names. They must subscribe 'in his i)resence,' but in cases where he lias lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribein the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence. * * * In a case like the one before us, there is much less liability to deception or imposition than there would be in the case of a blind man, because the testator, by holding the will before his eyes, could de- termine by sight that the will subscribed by the witnesses was the same will execut- ed by him. » * * The door was open, and the table was within the line of vision of the testator, if he had been able to look, and the witnesses were within his hearing. The testator could hear all that was said, and knew and understood all that was done; and, after the witnesses had signed it, * * * it was handed to the testator, and he read their names as signed, and said he Was glad it was done. For the reasons before stated, we are of opinion that this was an attestation in his presence, and was sufficient." So, in this case, the witnesses were in the lineof the testatrix's vision if she could have moved to one side of the bed, which she could not do, as in the Massachusetts case the witnesses were in the range of the testator's vision if he could have turned his head, but he could not. I am better sastisfled with the liberal construction of the statute and the reasoning of these two cases than I am with the authorities cited to the opposite, and sustaining the "nice and narrow "interpretation of the statute; and in the case at bar, such holding, as it will in most cases, reaches the justice and equity of the case, which adds to my sat- isfaction. No fraud was perpetrated, and none well could have been, under the cir- cumstances of the execution of this will But in holding the will invalid, a fraud ia committed upon the testatrix, as well as her chosen beneficiary, by the law, and her property is disposed of contrary to her wish and intention, to those from whom she sought to keep it away. It is not the purpose or province of the law to do this when it can be avoided. In the definition of the phrase "in the presence of" due re- gard must be had to the circumstances of each particular case, as it is well settled J)y all the authorities that the statute doesnot require absolutely that the wit- nessing must be done in the actual sight of the testator, nor yet within the same room with him. If, as before shown, they sign within his hearing, knowledge, and understanding, and so near as not to be substantially away from him, they are considered to be in his presence. But we hold that the execution of this will was valid expressly upon the ground that not only was the act of signing by the wit nesses within the hearing, knowledge, and understanding of the testatrix, but after such signing the witnesses came back into the room where she was with the will, which was on one sheet of paper; that the will was then again all read over to her by the scrivener, and the names of the wit- nesses read to her and their signatures shown to her, and she informed by the witnesses, or one of them in the presence of the other, that the will had been signed by thei'; and that she then said it was all right, "justas shewantedit; witnesses and everything was all right. " This seems to us to have been a substantial compli- ance with the statute, and a witnessing in the presence of the testatrix. The cir- cuit judge returns in his findings of fact that his decision was based entirely on the ground that the will wasnot properly wit- nessed under the statute; that, the will not being admitted in evidence for tliis reason, the case proceeded no further, the proponent taking an exception, and rest- ing. The contestants announced that they were prepared to show that the tes- tatrix was incompetent to make a will. The judgment of the circuit court will be reversed, and a new trial granted. The other justices concurred. (See, also, Riggs v. Riggs, 135 Mass. 109; Meurer's Will, U Wis. 393.) 388; Davy v. Smith, 3 Salli. 395; Ambre v. Weishaar, 74111. (21 Vt 256.) Adams v. Field. {Supreme Court of Vermont. Feb. Term, 1849.) 1. Execution of Will — Signing bt Testator. Where a statute does not require, lor the proper execution of a will, that it be "signed at the end" or "subscribed" by the testator, but merely that it be "signed" by him, be may write his signature at the beginning of the will, or in any other part; and if this be done for the purpose of priving finality to the will, and no further sign- ing is contemplated, it is sufficient; and, even if a further signing is contemplated, still the tes- tator may subsequently adopt the signature al- ready written as his final signature, and then no further signing will be necessary. 2. Same. A will which was wholly In the testator's handwriting, but was written in its different parts at different times, began with the words, "I, Samuel Adams, * * * do hereby make this, my last will and testament. " Then fol- lowed the clauses disposing of his estate, and at the end was the usual testimonium clause, viz., "In testimony whereof I have hereunto set my hand and seal, " etc. ; but there was no signature after this clause. It appeared, however, that the testator produced the instrument to three subscribing witnesses, and declared it in their presence to be his will, and requested them to witness it as his will, and that they did attest it in his presence, and in the presence of each other. Held, that the testator thereby adopted the sianature written by him at the beginning of EXECUTION OF WILLS. 3S the will as his final signature, tp authenticate and complete the will, and that this was a suffi- cient signing of the will, under the Vermont statute ;i the whole subject-matter of the will be- ing at this time in his mind, and the will being completed by one simultaneous act. 8. Same — Attestation by Witnesses. It is not necessary that the testator sign the will in the presence of the attesting witnesses ; if the will be so signed as to satisfy the statute, and the testator declared it to be his will before the witnesses, this is equivalent to signing it before them and is sufacient. This is an appeal from a decree of the probate court of the district of Fairhaven, which approved and allowed an instru- ment in writing presented as the last will and testament of Samuel Adams, deceased. It was objected by the appellant (1) that said instrument was not signed by said Samnel Adams, nor by any other person in his presence, and with his express di- rection ; (2) that it was not subscribed by three credible witnesses in the presence of said Samuel Adams and of each other ; and (3) that it was not the last will and testa- ment of said Samuel Adams. The instru- ment commenced: "I, Samuel Adams, of Westhaven, • » » do hereby make this, my last will and testament;" and con- cluded as follows: "In testimony whereof I have hereunto set my hand and seal, and publish and declare this to be my last will and testament, this 12th day of Sep- tember, in the year of our Lord eighteen hundred and thirty-seven. Signed, sealed, published, and declared by the said Sam- uel Adams, as his last willand testament, in presence of us, who have hereunto sub- scribed our names as witue.'ises thereof, at the request and in the presence of the tes- tator, and in the presence of each other. [Seal.] " This last clause purported to be signed by three witnesses; but the name of Samuel Adams did not appear in any place upon the instrument, except in the first clause of the will, and in the attesting clause, as above shown. The case was tried before a jury, and evidence was received which tended to prove that the will, though written at different times, was wholly in the testator's handwriting, and that it was subscribed by the three attesting witnesses in the presence of the testator and of each other, and at his re- quest, he declaring it at the time to be his will. The judge instructed the jury that the writing by Samuel Adams of his name in the attestation clause was a suffi- cient and legal signing under the statute of the state; also that it was not neces- sary that the writing of his name in the beginning of the instrument should have been one simultaneous act with the writ- ing by him of the whole instrument, in order to constitute the same a legal or sufficient signing, nor was it necessary that the whole actor intended Instrument •The Vermont statute, at the date of this de- cision, read as follows; "No will, except such nuncupative wills as are hereinafter mentioned, shall be effectual to pass any estate, real or per- sonal, nor to charge or in any way affect the same, unless it be in writing and signed by the testator, or by some person in his presence and by his express direction, and attested and sub- scribed by three or more credible witnesses, in the presence of the testator and of each other. " should have been in his contemplation when he so wrote his name; and that, even if the different parts of the instrument were written at different times, yet if the jury should find that the instrument com- menced in his name, and was wholly writ- ten by him, and that, after it was com- pleted, he produced the same to the three witnesses, and declared it to be his will in their presence, and requested them to wit- ness it as hiswill,and that they subscribed their names to the Instrument in his pres- ence, and in the presence of each other, as witnesses to his last will, the jury should also find that the instrument was suffi- ciently signed and executed by him as a will. The jury found that the instru- ment was signed by Samuel Adams, and that it was attested and subscribed agree- ably to the statute, and is the last will and testament of said Samuel Adams, de- ceased. Exceptions by appellant. L. C. KellosS! and E. N. Briggs, for ap- pellant. R. Pierpoint and I. T. Wrigbt.tor appellee. Bennett, J. • • • Questions arise under the charge of the court; and the first Is, what will satisf.v the statutory re- quirement of signing? Was the name of this testator in the beginning of the will a sufficient signing to satisfy the statute? In the case of Lemayne v. Stanley, 3 Lev. I, the will was in' the handwriting of the testator, and such a signing was held sufB- cient, within the statute of 29 Car. II., which required all wills of land to be signed. In that case, as in this, the will commenced, "I, John Stanley, make," etc. After that decision the law was re- garded as settled in England; and the case of Lemnyne v. Stanley has not only since been followed in that country, but also in our sister states which have, by legislative enactment, adopted the statute of Car. II. The rule Was so effectually es- tablished that courts of justice, though repeatedly solicited, could not be induced to break in upon it. In England they have found that astatute was necessary to change the law in this particular; and in the reign of the present queen one has been passed requiring a will to be signed at its foot. The same has been done by some of our neighboring states. It was said in England, and the same has been said in the argument of this cause, that the case of Lemayne v. Stanley was an evasion of the statute, and opnned a door for the perpetration of frauds, and was so nonsensical that it ought nut to be fol- lowed. If that decision had the effect to open a door for the commission of frauds, this certainly is a cogent reason why it should not have been made in the first place, or since followed. But I am not aware that such has been its effect. Where the whole vsill is in the hand writing of the testator, and is attested by three wit- nesses in the presence of the testator, and published by him as his last will, in their presence, it is difficult for me to see how the fact that the signing at the top of the will is held a sufficient signing can open a door to fraud. It must be shown that the will possesses finality before it can be operative; and, to give it this quality, the 36 LAW OF WILLS. testator mast, at least, at the final execu- tion of the will, adopt the writing of bis Dame, at the beginning of the will, as a signing, and so intend it. I think in New York they have, or have had, a statute which requires a will to be subscribed by the testator; and this, their courts have said, requires a will to be signed at the toot. This was doubtless according to the etymology of the word "subscribed ;" though, if I mistake not, the supreme court of that state held that the introduc- tion of the word "subscribe" in their stat- ute, instead of "sign," should not change the construction from that which had been given to the statute of Car. II.; but the court of errors thought otherwise. The etymology of the word "sign" does not necessarily require the signing to be at the bottom of the instrument, and it is much a matter of taste as to the place of sign- ing. If the question were res integra, we might think the bottom of the will was the place where the statute Intended it should be signed by the testator; but to me it seems rather immaterial in which place the will is signed, provided it is shown to have the necebwary authenticity. The law, as established in, the case of Stanley's Will, has become a rule of proper- ty, and stare decisis seems wisest to me. When our statute of wills was enacted, the statute of Car. II. had received a long, fixed, and well-known construction; and when we adopt an Englishstatute we take it with the construction which it had re- ceived, and this upon theground that such wa.s the implied intention of the legisla- ture. We think the case of Lemayne v. Stanley should be binding upon this court. To impugn or overthrow it would be to impugn or overthrow a rule of property which has long been settled and acted up- on. This should never be done unless up- on the most urgent necessity. Thecase of Lemayne v. Stanley does not stand aloue. In Knight v. Crockford, 1 Esp 190, it was held that where a writing began, "I, A. B., agree," etc., it was a sufficient signing, within the statute of frauds; and there are other cases to the like effect, which, in principle, are like the case of Lemavne v. Stanley. See 1 Jarm. Wills, 70. The counsel for the appellant seem con- strained to admit, in substance, that the signing of a will at the beginning may, if so designed, be a sufficient signing, within the statute of Car. II.; but they insist that, in the case before us, the testator in- tended to sign this will at the foot, and that consequently the will was incomplete and wanting in finality until it was so signed. I think it is hardly possible not to see that, at the time the testa tor in- serted his name at the beginning of the will, a further signing of it was in con- templation before it should have authen- ticity ; and if the jury have not, by their verdict, found the will to be complete and finished at the time of its publication, it should not have been established. In the treatise Modern Probate of Wills (page 154) the writer says: "Although the tes- tator may have commenced his will thus, 'I, A. B., make,' etc., with an intent of re- peating his signature at the end of the will, yet if he subsequently acknowledge the instrument as his will to the attesting witnesses, without allusion to the signa- ture, we presume that the will was suffi- ciently signed." In 1 Jarman on Wills (page 701 it is said: "If the testator con- templated a further signature, which he never made, the will must be regarded as unsigned;" and so, doubtless, are the au- thorities, as well as the reason of the thing. But he well remarks that the rea- soning seems only to apply where the in- tention of repeating the signature re- mained unchanged to the last; for a name, originally written with such design, might afterwards be adopted by a testa- tor as the final signature; and such, the writer says, " would probably be the pre- sumed intention, if the testator acknowl- edged the instrument as his will to the at- testing witnesses, without alluding to any further act of signing. " We think this is a sound view of the subject. It the will, as the jury must have found in this case, was attested by three witnesses in the presence of the testator, and in pres- ence of one another, and published by the testrrtor in their presence as his last will and testament. It was to all intents and purposes an adoption of such a signature as was then affixed to the will; and if the will then had such a signature as could be held sufficient under the statute, nothing further need be done. The will then be- comes complete, and possesses all the finality which can be required. It is the same thing, in effect, as if the signature had been originally made animo signandi. The case of Hubert v. Treherne, 42 B. C. L. -388, is regarded by the appellant's coun- sel as a leading case to show that this will was incomplete. The names of the parties to the agreement were stated in the beginning of the articles; and it con- cluded, "as witness our hands," but no signatures followed. The court, it is true, held that this agreement was not signed, within the statute of frauds, for the rea- son that the words, "as witness our hands," imported that a further signing was intended. I fully accord with this decision; but it should be remembered that there was nothing in that case to show an adoption of the signatures in the commencement of the articles as the final signatures. Tindal, C. J., says: "There was no sufficient original signing, and no subsequent recognition." Colt- MA.v, J., remarks that "there was no suffi- cient authority to give out the copy in be- half of the party to be charged with the agreament;" and Erskine, J., says he is "not prepared to say that, if the articles had been delivered by any proper au- thority, the signing would not have been sufficient." Had the case shown a sub- sequent recognition of the articles, 1 can have but little doubt the decision would have been different. The cases of Saunder- son V. Jackson, 2 Bos. & P. 23«, and Schneider v. Norris, 2 Maule & S. 286, rest upon the ground of a subsequent recogni- tion. Though the case of Johnson v. Dodgson, 2 Mees. & W. 659, is much re- lied upon by the appellant, yet it recog- nizes all the principles necessary to sus- tain the charge of the county court. Lord Abingeb remarks that the cases have de- EXECUTION OF WILLS. 37 rided that, a'.though the signing be In the beginning or middle of the instrument, vet it is as binding as if it were at the oot ; the question being always open to ihe jury whether the party, not having signed it regularly at the foot, meant to je bound by it as it stood, or whether it was left so unsigned because he refused to complete it This principle we apply to the case before us. The jury have found that the testator produced the will in question tc the witnesses, and declared it to be his will, and requested them to wit- ness it as his will. This shows that the testator did not then contemplate a fur- ther signing of the will, and is, in effect, a finding bj the ji^ry that the testator adopted the instrument as it was then signed as his will ; and, if so, then the signinj. was suflBcient to satisfy the claims of the statute. It might, perhaps, have beeii urged with, some propriety that, though this will contains the usual atf tes- tiinonium clause yet that, upon its face, it furnishefc nc evidence from that circum- stance that a further signing was intended at the time the testator drew up his will. This clause is written on the original will, it appears, s... close to the seal that there is no roon. for his signature opposite to the seal, oi very near to it; but, as the case was not put to the jury upon any such ground, it is not necessary to con- sider it. The case is right, going upon the ground that the nd testimonium clause to this will furnished evidence prima facie that at the time it was written a further signing was in the raind of the testator. The case of Waller v Waller, 1 Grat. 454, has been pressed upoi. us; but we cannot accede to the doctrine of that case. It is there said that the finality of the testa- mentary intent mus* bt ascertained from the face of the papei , and that, to consti- tute a sufficient signijig under their stat- ute, it must appea. fron' the frame of the instrument, and upou itt face, that the signing was intended tc give it authen- ticity as a signature, anc' that ii was com- plete withe ul any further signature, and tha< the pape' itseli must show all this. We think thai unless- there is something peciiliaT in thr statute of that state, this case is unsound, anfl stands opposed to the whole current ol decision under the statute of Car. II The case of Sarah Miles' Will, 4 Dana, 1, which the appellant has referred tht court to, contains the sound doctrine on this subject. Her will was drawn by a neighbor, at her request, and under her dictation, and commenced thus, "In the name of God, I, Sarah Miles," etc., and concluded with the usual ad tes- timonium clause. It was read to and ap- prover" by lier, but not then signed or at- tested After this she acknowledged the paper aR her will, in the presence of the witnesses who attested it in her presence and at her request; she being at that time unable to write. The principle adopted by th( court was that though her name in the beginning of her will was not intended, when written, to be her signature, yet, as it was so designed at the time of the publication, and there was then no intention on her part further to sign her will, it was a sufficient signing ■within their statute, which was a copy of the English statute. This is in accord- ance with the English cases. It has been argued that the writing of the testator's name in the beginning of the will could not be an act recognisiing the whole substance of the instrument, unless the whole factum was simultaneous with it, and was also in the contempla- tion of the testator at the time he wrote his name. It may be true that when the signing of thename in the beginning of the will is, in and of itself, to be taken as a signing of the will within the statute, without any suhsequent recognition, it must appear that the testator had the whole objec-t of the instrument in pros- pect when he wrote his name, and that the instrument must be completed by one simultaneous act; yet, suppose it to be so, it cannot apply to a case like this. Here the signature did not become a suffi- cient signature, within the statute, until it was adopted as such at the time of the publication of the will; and then the whole subject-matter of the will was in the mind of the testator, and the will was completed by one simultaneous act. Since the cases of Ellis v. Smith, 1 Ves. Jr. 11, and Carleton v. Grifiin, 1 Burrows, 549, the law has been settled that the testa- tor need not in fact sign the will in the presence of the attesting witnesses; and it is there held, if the will be so signed that it can in any event satisfy the stat- ute, and the testator declare it to be his will before three witnesses, that this is equivalent to signing it before them, and satisfies the statute. This case has been very fully examined by the counsel, and every consideration has been urged that could bear upon the question before us; and we may well admire the learning and ability which have been displayed in the argument, yet we do not feel at liberty to depart from well-established landmarks. The statute of Car. II. had received a set- tled construction when our statute was passed, and we must regard that con- struction as binding upon us. If we should change a rule of property, because we might think that the more obvious and popular meaning of the word "sign" might import a signing of the instrument only at its foot, we should, in my opinion, be far from duty. The result is, the judgment of the coun- ty court is afiirmed. (9t N. T. 516.) In re O'Neil's Will. {Court of Appeals of New York. March 6, 1883. ) 1. EXECDTIOK OF WiLLS— AUTHENTICATION NOT AT End OP Will. While the primary rule governing the inter- pretation and construction of wills admitted to probate recognizes and endeavors to carry out the intention of the testator as expressed in the will, yet, in the construction of the statute regulating their execution, the court considers the inten- tion of the legislature, rather than that of the testator. 2. Same. A will was drawn upon a printed blank con- sisting of four pages, the formal commencement being printed upon the first page, and the formal termination printed at the end of the third page. 38 LAW OF WILLS. The intervening blank space was filled in in writ- ing, and, as it did not afford sufficient room, a part of one of the material provisions was car- ried over to the top of the fourth page, and occu- pied one-third thereof, at the top, the page being left blank below it. The names of the testator and of the subscribing witnesses were written at the bottom of the third page, below the formal termination of the will; but the matter written on the fourth page was not authenticated in any- way, nor connected with the unfinished article on the third page by any word or symbol. BelA not a subscription at the "end of the will," as required by 2 Rev. St. N. T. p. 63, § 40 ;i and that the portion preceding the signatures could not be admitted to probate, but that the will, so far as execution was concerned must be deemed valid or invalid as a whole. Tonnele v. Hall, 4 N. Y. 140, distinguished. Appeal from supreme court, general term, third department. Proceedings before the surrogate of Es- sex county for the probate of an instru- ment purporting to be the will of James O'Neil, deceased. The will was drawn upon a printed blank of four pages, with a printed heading and formal commence- ment at the top of the first page, and a printed formal termination at the foot of the third page, where the testator and the witnesses signed. The intervening blank spaces on the first, second, and" third pages were filled with the peculiar provisions of the will, but, being insufficient for all of the writing, about two-thirds of the last writ- ten article was carried over to the fourth page. Such article was as follows: "(13) And 1 authorize and empower my execu- tors hereinafter named to sell, conve.y, as- sign, and transfer my real property for the bequests hereinbefore named and men- tioned, either at priTate — [Here followed, at the end of the third page, the appoint- ment of executors, the signature of the tes- tator, the attestation clause and signa- tures of subscribing witnesses, and then at the top of the fourth page appeared the following par.igraph :]— Or public sale, and in the manner which they will deem the most profitable and advantageous to my said estate; but in no case shall my said executors be process by law or otherwise to sell and convey and dispose of my said real property before the lapse of five years after my death, unless my said executors shall seefitand proper to sell and dispose of the same by virtue of the power and authority hereinbefore given them as aforesaid." The will so drawn was read to testator, the portion written at the top of the fourth page being read as if written in the blank space preceding the printed matter on the third page. The surrogate 'The statute of New York requires a will either of real or personal property, or both, to be exe- cuted and attested in the following manner: (1) It shall be subscribed by the testator at the end of the will. (2) iSuch subscription shall be made by the testator in the presence of each of the at- testing witnesses, or shall be acknowledged by him to have been so made to each of the attest- ing witnesses. (3) The testator, at the time of making such subscription, or at the time of ac- knowledging the same, shall declare the instru- ment so subscribed to be his last will and testa- ment. (4) There shall be two attesting wit- nesses, each of whom shall sign his name as a wit- ness at the end of the will, at the request of the testator. 2 Rev. St. p. 63, § 40. admitted the will to probate, and con- testants appealed to the general term where the decree of the surrogate was reversed. Proponents appealed to this court. Mattben Hale, for appellants. Samuel Hand, for respcedentB. RuGEE, C. J. The matterin controversy arises between some of the heirs at law and the executors over the alleged improp- er execution of what purports to be the will of James O'Neil. The instrument was drawn upon a printed blank, consist- ing of four pages, the formal commence- ment being printed on the first page, and the formal termination, also printed, ap- pearing at the foot of the third page; and the intermediate space being originally left blank for the insertion of such special provisions as the testator might desire to make. When presented for probate, the entire blank space was filled in, and, it be- ing apparently insufficient in extent to contain all of the provisions sought to be introduced into the will, the thirteenth seems to have been carried oyer and fin- ished on the first eight or ten lines of the fourth page. That portion of the will seems in no way to be authenticated, and leaves a blank space of two-thirds of a page below the written lines. The names of the testator and of the witnesses were subscribed towards the bottom of the third page, below the formal printed ter- mination of the will, and there only. The portion of the thirteenth paragraph. Im- mediately preceding the printed termina- tion, was manifestly incomplete, and the lines written on the fourth page were ob- viousl.y a continnatiou of this broken par- agraph. The two portions were not, however, sought to be connected by means of a reference, an asterisk, woris, or symbol, indicating the relation to each other. Material provisions are contained in the writing on the fourth page. Upon this state of facts, the question is raised that this is not such a subscription and signing by the testator and witnesses, at the "end of the will," as is required by our statute. 2 Bev. St. p. 63, § 40. The application of some of the element- ary principles governing the interpreting of statutes would seem to furnish a safe and certain guide for the determination of the question presented. The words of the statute must be construed in their plain, obvious sense, according to their signification among the people to whom they were directed. Ogden v. Saunders, 12 AVheat. Sli!; Story, Const. § 449-. Also that construction must be adopted which will effectuate, as far as possible, the in- tent of the framers of the statute, and ob- viate the anticipated evils which were the occasion thereof. Tonnele v. Hall, 4 N. Y. 140. The legislative intent was doubtless to guard against frauds and uncertainty in the testamentary disposition of property, by prescribing fixed and certain rules by which to determine the validity of all instru- ments purporting to be wills of deceased persons. Reviser's notes, Willis v. Lowe, 5 Notes Gas. Adm. & Ecc. 428. The question^ then, ariseM whether the "end of the will" referred to in the statute means the actual EXECUTION OP WILLS. 39 physical termination of the instrument, or that portion thereof which the testator intended to be the end of the will. While it is possible that, in isolated cases, the latter construction might sometimes pre- clude the perpetration of a wrong, it cer- tainly would not satisfy the general object of the statute of furnishing a certain fixed and definite rule applicable to all cases. While the primary rulegoverningtheintei^ pretation of wills, when admitted to pro- bate, recognizes and endeavors to carry out the Intention of the testator, that rule cannot be invoked in the construction of the statute regulating their execution. In the latter case courts do not consider the intention of the testator, but that of the legislature. In considering the question stated upon authority, some cases are found which apparently sustain the contention of a p- pellant's counsel. In all of them, how- ever, there was a failure to observe the rules of construction which we consider controlling. We think, however, that the weight of authority favors the theory that the statute fixes an inflexible rule by which to determine the proper execution of all testamentary instrumenta. The cases cited from the English Reports, ex- cept certain ones hereinafter referred to, do not afford much assi-stance in constrn- ing our statute, from the fact that they cover a period during which material changes were wrought in their statutes, and the further fact that those statutes differ in material respects from our own. The statutes of 15 & 16Vict. c.24, among other things, provided that no signature "shall be operative to give effect to any disposition or direction which is under- neath, or which follows it, nor shall it give effect to any disposition or direction inserted afterthe signature shall be made. " From this alone might be deduced argu- ments suflicient to dispose of the ques- tion involved in this case, if our statutes contained similar provisions. As early as 1847, Sir Jbnner FcsT.in the case of Willis V. Lowe, supra, says: "dases have occurred before the real purpose of the act had been ascertained, in which the court has given construction to the stat- ute, as far as possible, to fulfill the real in- tention of the parties ; but the court is un- der the necessity of looking at the clear intention of the act. The court was of the opinion, at first, that the intention of this part of the act was to remove the difficulty which had arisen under the stat- ute of frauds, by the conetruction of which the signature at the commencement of a will was equally good with the signature at its end. But there was another reason for the provision, viz., to guard against fraud. The act required the signaturetobe at thefootorendof the will, to prevent any addition to the will being made after its execution in presence of witnesses. " In Dallow's Case, L. E., 1 Prob. & Div. 189, Immediately following the signatures of the testator and the witnesses was the clause, "My executors are, " A., B., and C. The will contained clauses in the body re- ferring to the executors as "hereinafter named, " but they were named in no other place except after the signature. It was held that the clause naming the executors could not be admitted to probate. Sir J. P.WiLbK saying: "The question is wheth- er, nnder St. Leonard's act, (15 & 16 Vict.,) the clause appointing executors can be ad- mitted to probate. Although parol evi- dence may show that the clause appoint- ing executors was written before the sig- nature, it is not made manifest by any words in the will of thetestatorso describ- ing that clause when he referred 'to my executors hereinafter named.' And parol evidence cannot be- received for that pur- pose ; and it seems to me, also, that it would be directly contrary to the statute, which requires the will to be signed at the foot or end, to permit probate of this clause." In Sweetland v. Sweetland, 4 Swab. & T. 6, Sir J. P. Wilde says: "I have no doubt the testator did intend to execute in prop- er form the will; the question is whether he has done so." In Hays v. Harden, 6 Pa. St. 409, Gibson, C. J., says : " Signing at the end of the will was required to prevent evasion of its provisions. " In Glancv v. Glancy, 17 Ohio St. 134, Day. C. J., says: "The testator is required by this portion of the statute to sign his will at the end thereof. The reason of this requisition is obviously to prevent improper alterations of a will." The provision is a judicious one, and care should be taken not to break in upon it by a lax interpretation. We think this question has been substan- tially determined in this court in the case of Sisters of Charity v. Kelly, 67 N. Y. 409. FoLGEK, J., says: "Can we say that the end of the will has been found until the last word of all the provisions of it has been reached? To say that where the name is, there is the end of the will, is not to observe the statute. That requires that where the end of the will is, there shall be the name. It is to make a new law to say that where we find the name, there is the end of the will. The statutory provision requiring the suDscriplion of the name to be at the end is a wholesome one, and was adopted to remedy real or ttireat- ened evils. It should not be frittered away by exceptions. " It will be seen, in all of the cases cited, there was no reason to doubt the testa- tor's intention to make a valid disposition of his property; and yet in each case the will was denied probate, because in the execution thereof the testator did not con- form to the provisions of the statute, in failing to place his signature at the phys- ical end of the will. It is claimed bythecounsel for appellant that the clause in question maybe regard- ed as an interlineation, and thus held to be constructively a part of the body of the will. We think that this claim cannot be supported without opening the door to all of the evils which the statute was in- tended to prevent, and substantially ab- rogating its wholesome provisions. The same argument would validate the addi- tion of a fourteenth paragraph to the un- authenticated lines appearing on the fourth page, and lead, by logical deduction, to indefinite extension. It is said, also, that the cases holding that a paper or document referred to in the body of a will may be considered ae 40 LAW OF WILLS. a part thereof, afford support to the con- Btruction claimed by appellant's counsel. It is not believed that any paper or docu- ment containing testamentary provisions not authenticated nccordins to the pro- visions of our statute of wills has yet been held to be a part of a valid testamentary disposition of property, simply because It was referred to in the body of the will. It was held in Tonnele v. Hall, 4 N. Y. 140, that a map appearing after the signature upon a will, and said to be a reduced copy of a map made by the testator of his real estate and filed in the county clerk's office of New York, and which was referred to in the body of the will, did not require the signature of the testator and witnesses to follow it in order to make it a part of the will. It is to be observed that the paper there in question was referred to merely to identity the subject devised, and con- tained no testamentary provisions. It is further to be observed that the will in the case cited was complete without such additions, and that the maps could proba- bly have been used as evidence to identify the property devised, even if no reference had been made thereto in the will. Inde- pendent of authority, the argument, upon principle, leads inevitably to the conclU' sion that the will was Improperly execut- ed. The signatures to it are confessedly between the various operative and dispos- ing parts of the instrument, and in no sense at the literal or physical end of the will. That the signatures are where the testator intended the will should end, we have already seen, is not a material cir- cumstance. A blank space covering two- thirds of a page of foolscap paper is left immediately after the language we are in- vited to insert In the will, and no possible guard is provided against the addition thereto of any such provision as the per- son in possession of this paper may be tempted to make. There can be no an- swer to the proposition that to uphold this will is to defeat the object of the stat- ute in requiring a will to be subscribed at the end. The opportunity ol adding in- definitely to a testamentary provision will be legalized by so holding, and the statute, instead of establishing an inflexi- ble rule by which to determine the proper execution of a will, will be open to as many different constructions as varying circumstances may invite. We thus arrive at the conclusion that the will in question was not properly exe- cuted, and it cannot, therefore, be admit- ted to probate. The claim that such parts of the will as precede the signatures may be received, and the remainder re- jected, cannot be supported. The statute denies probate to a will not executed in accordance with its provisions. It la either valid or invalid, as an entirety, as far as its execution is concerned. It is un- deniable that the portion f()llowing the testator's signature contains material pro- visions, and formed part of his scheme in making.a will. At all events, we have no way of determining the extent to which he deemed them material, and cannot give effect to one part, and deny force to an- other. This point was decided adversely to the appellant in Sisters of Charity v. Kelly and other cases above cited. The judgment should be affirmed. All concur, except Bafallo, J., not vot- ing. Judgment affirmed. (See, also, Younger v. Duffle, 94 N. Y. 535; In re Will of Hewitt, 91 N. Y. 261; In re Goods of Hughes, 13 Prob. Dlv. 107; Hallowell v. Hallowell, 88 Ind. 251; Long v. Zook, 13 Pa. St. 400; lure Conway's WiU, [N. Y. App. March 1891,] 26 N. E. Rep. 1028. ) (110 N. Y. 611, 18 N. E. Rep. 433.) In re Mackay's Will. (Court of Appeals of New York. Oct. 26, 1888.) 1. Execution of Wills — Attestation— Pailuke TO Bee Signature. The attesting witnesses must see the testator's signature at the time of the attestation, and it is not sufacient that at his request they sign an attestation clause to a will so folded that they can neither see whether it is signed or sealed, although he tells them that it is his will, and that it is ready for their signatures. Dictum in Willis v. Mott, 36 N. Y. 486, 491, overruled. 3. Same. The witnesses should either see the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to be his signature. 44 Hun, 571, affirmed. Appeal from supreme court, general term, third department. Application to surrogate's court of St Lawrence county to probate the will of James Mackay, deceased. From a decree refusing probate the executors and leg- atees appealed to the general term, where the surrogate's decree was affirmed, and they appeal to the court of appeals. For opinion of the general term, see 44 Hun, ^71. Louis Hasbrouck, for appellants. Wm. B. Sawyer, for respondent. Eakl, J. The subscribing witnesses came to the dwelling-house of the de- ceased by previous appointment, and, while seated at his writing-desk, he said to them : " Gentlemen, what I sentfor you for was to sign my last will and testament." Thereupon he took from his writing-desk the instrument offered for probate, and, laying it before the witnesses, said : " It is now all ready, awaiting your signa- tures." He then presented theinstrument to the witness McCarrier for his signa- ture, and he signed it, saying, as he did so, "I am glad. Father Mackay, you are making your will at this time; I don't suppose it will shorten your life any," to which he replied, "Yes, he wanted it done, and off his mind;" and then the witness Mulligan, who had joined in this conver- sation, signed the instrument, as a wit- ness. At the time of exhibiting the instru- ment to the subscribing witnesses he told them it was his will; but he handed it to them so folded that they could seenopart of the writing, except the attestation clause, and they did not see either bis signature or seal. EEVOCATION, REPUBLICATION, AND REVIVAL OF WILLS. 41 There would undoubtedly have been a form&l execution of the -will, in compli- ance with the statutes, if the witnesses had at tlie time seen the signature of thetes- tato: to the will. Subscribing witnesses to a will are required by la 'v, for the purpose of attesting and identifying the signature of the testa tor, and that they cannot do un- less at the time of the attestation they see it. And so It has been held in this court. In Lewis V. Lewis, 11 N. Y. 221, where the al- leged will was not subscribed by the tes- tator in the presence of the witnesses, and when they signed their names to it it was so folded that they could not see whether it was signed by him or not, and the only acknowledgment or declaration made by him to them, or in their pres- ence, as to the instrument, was, "I de- clare the within to be my will and deed, " it was held that this was not a sufiicient acknowledgment of his subscription to the witnesses within the statute. In that case Ai-i.EN, J., writing the opinion, said: " A signature neither seen, identified, nor in any manner referred to as a separate and dietinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name to which the signature may or not bo at the time subscribed." In Mitchell v. Mitchell, 16 Hun, 97, affirmed in this court in 77 N. Y. 596, the deceased came Into a store where two persons were, and produced a paper, and said : "I have a paper which I want you to sign." One of the persons took the paper, and saw what it was and the signature of the deceased. The testator then said: "This is my will; I want you to witness It. " Both of the persons there- upon signed the paper as witnesses, under the attestation clau.=e. Thedeceased then took the paper, and said, " 1 declare this to be my last will and testament," and delivered it to one of the witnesses for safe-keeping. At the time when this took place the paper had the name of the de- ceased at the end thereof. It was lield that the will was not properly executed, for the reason that one of the witnesses did not see the testator's signature, and as to that witness there was not a sufficient acknowledgment of the signature or a ♦ proper attestation. It is true that in Willis V. Mott, 36 N. Y. 486, 491. Davies, C. J., writing the opinion of the court, said that "the statute does not require that the testator shall exhibit his subscription to the will at the time he makes the ac- knowledgment. It would therefore follow that when the subscription is acknowl- edged to an attesting witness it is not es- sential that the signature be exhibited to the witness." This is a mere dictum, un- necessary to the decision in that case, and therefore cannot have weight as author- ity. The formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and imposition. To this end the witnesses should eithersee the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to be his signature. Otherwise imposition might be possible, and sometimes the purpose of the statute might befrustrated. We think, therefore, that probate of the will was properly refused, and that the judgment below should be affirmed, without costs. All concur. (See, also, Daintree v. Butcher, 13 Prob. Div. 103; Jackson v. Jackson, 39 N. Y. 153; Lewis v. Lewis, 11 N. Y. 220; Peek v. Gary, 27 N. Y. 9.) VII. REVOCATION, REPUBLICATION, AND RE- VIVAL OF "WILLS. (lis N. Y. 191, 31 N. E. Rep. 77.) Newcomb t. Webster et ah {Court of Appeals of New York. April 16, 1889. ) I. Revocation of Wills — Making Codicil. A will and a codicil are to be construed to- gether as parts of one and the same instrument; so far as their provisions are inconsistent or re- pugnant, those in the will are revoked by those in the codicil. A codicil, after expressly revok- ing so much of the will as was inconsistent there- with, made a new and complete disposition of all the testator's property, wholly inconsistent with the disposition made by the will, but did not ap- point any executors. Held, that the will was entirely revoked, except as to the appointment of executors. 8. Probate — Two Instruments. In such a case, both instruments should be ad- mitted to probate, as the appointment of execu- tors by the will holds good, although the estate is to be administered according to the provisions of the codicil. , Appeal from a judgment of the general ««r.a. fifth department, of the supreme court, affirming a judgment of Monroe county special term, upon trial by the court without a jury. There was no dis- pute about the facts. It appeared that Angeline B. Walker died on the 7th of June, 1884, leaving real and personal prop- erty in Monroe county; that by her will, dated April 23, 1881, she, by its first clause, gave to her sister Olive, for life, house No. 89 Frank street; remainder to Mrs. A. B. Johufeon, Mary A. Hatch, and Milicent J. Johnson. By the second clause, to Anna Newcomb, for life, house and lot No. 14 Spencer street; remainder to the surviv- ing children of Anna. Third. She directed house No 89J^ Frank street to be sold, and its proceeds applied in part to the erec- tion of a monument on " my lot in Mt, Hope;" .^100 to the Mt. Hope commission- ers to keep the same and lot in order; and the residue to Kmeline Soper, William Springstead, Huber Herrick, Ndly Soper, Frances Spencely, and Elliot Hodges, of 42 LAW OF WILLS. Rochester, N. T., share and share alike, after first paying $100 each to Mrs. Kose Chrichton, of Rochester, N. Y., and to Charles P. Hodges, of Cleveland, Ohio, which "1 bequeath to them." The legacy of William iSpringstead to be deposited in tlie Monroe County Savings Bank, and paid over, with its accumulations, vrhen he arrives at 21 years of age. Fourth. Di- rects No. 102 Jones street to be sold, and proceeds to be divided between the six children of George Walker. Fifth. She gives her piano to Robert P. Newcomb, son of Anna L. Newcomb; and all her household furniture and household goods and effects to her nieces, Mrs. Adelia John- son, Mary Hatch, Anna Newcomb, Ida Springstead, of Rochester, and Minerva Herriek, of Watertown, N. Y., and also all residuary interests and estate; and finally appoints Aaron N. Newcomb and Edward Webster executors of the will, with power to sell and convey real es- tate. It further appeared that in the year 1S82 she sold lot 14, referred to in the second clause of the will, and also sold 102 Jones street, referred to in the fourth clause. Afterwards, in 1884, she executed an instrument in these words: "I, Ange- lina B. Walker, of the city of Rochester, county of Monroe, and state of New York, do make, publish, and declare this first codicil to my last will and testament, hereby revoking so much of my said last will and testament as is inconsistent with the provisions of this codicil : Item £irst. I direct one hundred dollars to be set aside and paid over to the commissioners of Mount Hope as a perpetual fund, the interest of which shall be annually ex- pended to keep the lot in said Mount Hope belonging to my late husband, Rob- ert Walker, and my brother. Perry Hodg- es. Second. I give and bequeath to the Rochester Home for the Friendless one hundred and fifty dollars. Third. I give and bequeath to the Frank Street (other- wise Sixth) Methodist Episcopal Church of Rochester, to be expended by the trus- tees thereof towards erecting a parsonage for the use of their pastor, the sum of five hundred (500) dollars. Fourth. 1 give and bequeath to the Rochester Orphan Asylum three hundred dollars, to be ex pended for the rearing and education of an orphan, Belle Peer by name. Fifth. I give and bequeath to Hubert Herriek, of Roch- ester, five hundred dollars, to be placed on interest in the Monroe County Savings Bank, paid over to him on arriving at twenty-one years of age. If he shall die before that date, then said legacy shall go to his mother, Minerva Herriek. Sixth. I give and bequeath to my sisters, Emeline Soper and Olive J. Hatch, each the sum of five hundred (500) dollars. Seventh. I give and bequeath to the six (6) children of my brother-in-law, George Walker, each the sum of two hundred (200) dollars. Eif^-hth. I give and bequeath to my four nieces, Mrs. Anna Newcomb, Frances Speiicely, (of Canada,) Adelia B. Johns(m, aiid Mary N. Hatch, all the rest, residue, and remainder of my estate, both real and personal, to be divided equally between them, and share and share alike." The trial judge found "that no part of said will is revoked by said codicil, except the second and fourth clauses thereof, and the residuary devise in the fifth clause of said will, but that all other legacies and de- vises in said will and codicil ought to be carried into effect. " D. C. Bstrnum, for appellants. Roy C. Webster, for respondents. Danforth, J., (after stating the facts as above.) Both will and codicil were ad- mitted to probate by the surrogate of Monroe county, and administration granted to the persons named in the will as executors, and, some difference having arisen as to the effect of the codicil, this action was brought by Executor New- comb and others against Executor Web- ster and others, for the purpose of ob- taining a judicial construction of its pro- visions. The plaintiffs contend that the codicil revokes all the provisions of the will, except those relating to the ap- pointment of executors, while the defend- ants suppose that both Instruments can stand, and the legacies and devises in each take effect. The court at special and gener- al terms have substantially sustained the view of the defendants, and from that decis- ion the plain tiffs appeal. Itmay betaken as a well-settled general rule that a will and codicil are to be construed together, as parts of one and the same instrument, and that acodicil isnorevocationota will, further than it is so expressed. Westcott V. Cady, 5 Johns. Ch. 343. But if, regard- ed as one instrument, it is found to con- tain repugnant bequests in separate clauses, one or the other, or both, must fail ; and therefore the rule is that of the two the bequest contained in the later clause shall stand. The same principle applies with greater force where there are two distinct instruments relating to the same subject-matter. In such a case an inconsistent devise or bequest in the second or last instrutaent is a complete revocation of the former. But if part is inconsistent, and part is consistent, the first will is deemed to be revoked only to the extent of the discordant dispositions, and so far as may be necessary to give effect to the one last made. Nelson v. Mc- Giffert, 3 Barb. Ch. 158. In the case under consideration it appears that the testa- trix, in her life-time, and after the making of the will, so dealt with the principal real estate described in it as by sale to re- voke the gifts mentioned in thesecond and fourth clauses. She also acquired other real estate, and entertained a desire that beneficiaries (ither than those first se- lected should share in her bounty. These circumstances would naturally require a redistribution of her estate, and in view of them we think it clear that the testa- trix intended to make new disposition of her entire property; Such is, at any rate, the effect of the language employed by her. There is, moreover, an express rev- ocation of so much of the will as is in- consistent with the provisions of the codicil. If we apply this language literally, it is obvious that the entire will is to be discarded, except so much as appoints executors and defines their powers. The codicil does not deal with that subject, REVOCATIOTSr, REPUBLICATION, AND REVIVAL OF WILLS. 43 and to that extent the testatrix was jus tifled in regarding the will as a subsisting instrument. The codicil does, however, make a complete disposition of all the prop- erty of the decedent, either by special leg- acy or residuary clause. It is capable of operation without aid from the will, and in fact is entirely independent of it. The property, divided according to its terms, would leave nothing to apply upon the legacies or bequests of the will. The codl- «-il, moreover, introduces new beneficiaries, and, while it provides also for persons al- ready named in the will, does so, not by referring to the will or by way of increase or addition to shares given by it, but evidently by substitution; and then by formal and explicit language the testatrix gives to her four nieces ail the rest and remainder of her estate, both real and per- sonal, to be divided equally among them. The remainder here spolsen of is that which is left after satisfying the legacies provided for in the same instrument, and it is impossible for the disposition made by the will to stand with that made by the codicil Both instruments were, how- ever, properly admitted to probate, for the appointment of executors by the will holds good, although the estate is to be administered according to the provisions of the codicil. The plaintiffs are, we thinu, entitled to a decree to that effect, and, so far as the judgment appealed from is to the contrary, it .should be reversed, with costs to the appellant. But as the de- fendants have heretofore succeeded, they also should have one bill of costs, both to be paid out of the estate. All concur. (73 Me. 595.) Rich et al. v. Gilkey.* iSuTpreme Judicial Court of Maine. Nov. 28, 1881. ■) fc Revocation of Wills — Want op Testambnt- AKT Capacity. The destruction of a will or codicil by the tes- tator does not operate as a revocation thereof, where, at the time, he did not possess sufficient mental capacity to make a will ; the contents of the instrument destroyed may he proved by ap- propriate evidence, and the will or codicil thus be established. 2. Same — Burdkn of Pkoof. But the presumption in case a will or codicil is destroyed during the testator's life-time is that it was destroyed animo revooandi, and the burden is on the proponent to show that it was not revoked by the destruction, or by a ratifica- tion of the destruction, while the testator lived. 3. Same— Undue iNFLnENCE. Where the act of destruction by the testator is produced by undue influence, the effect is the same as where a testator, not having testament- ary capacity, destroys his will or codicil; the instrument destroyed stands unrevoked. » Foot-note in 73 Me. 595 : "This case was heard at nisi vrius, and the report of it is here inserted because of the great learning employed in the preparation of the opinion, its literary merit, and the importance of the question discussed, to- gether with the fact that other members of the court were consulted upon these questions, and, having carefully considered them, they con- curred in the views expressed by Judge Peters in all particulars. " 4. Same — Statutory Pbovisioxs for Proof of Lost Wills. The provision of the Maine statute of wills, (Rev. St. Me. c. 74, § 3,) that a will executed according to its requirements "is valid until de- stroyed, altered, or revoked by being iutentlon- ally burnt, canceled, torn, or obliterated by the maker, or by some person by his direction and in his presence, or by a subsequent will, codicil, or writing, executed as a will is required to be," etc., is not changed by a subsequent statute, (Rev. St. Me. c. 64, § 7,) providing that where a will "is lost, destroyed, suppressed," etc., "and upon proof of the continued existence of such will, up to the time of the decease of said tes- tator unrevoked, letters testamentary shall be granted as on the last will of the deceased, the same as if the original will had been produced and proved;" such latter statute is declarative and cumulative only, and does not abrogate, or undertake to abrogate, the former act. 5. Same. By a codicil to his will, testator gave to his niece the income of certain property during her life; but about a year afterwards, and about a month before his death, he destroyed the codicil, and made another, disposing in a different way of the property given by the former in trust for her. In proceedings for probate of the destroj'ed codi- cil, it appeared that testator had had the warm- est affection for his niece against all family op- position; that he had educated and supported her, and seemed desirous to make her dependent upon him for all her wants, and held out to her prom- ises against want in the future; that he made the provision in her favor when he was in full health and strength, unasked by her, apparently unin- fluenced by any one, with much deliberation, against family wishes ; that he adhered to this codicil until his last sickness ; and that he de- stroyed it only after he had lain a month on his death-bed, a very aged man, weakened by dis- ease, surrounded by persons naturally disturbed by the existence of the codicil, and with no no- tice of its destruction to the beneficiary, or sub- sequent mention of it to her, although the affec- tion between them continued unchanged. Held, upon a reference of the cause at the trial to the judge to "decide all questions upon the merits as affected by considerations of expediency and compromise, " that the inference was irresistible that the act of destruction was caused by another or others, whether the influence exerted was un- due influence or not: and that it was expedient to uphold the first codicil, allowing as concessions to the opponents that the latter codicil should also be probated, there being no contradiction between the two, except a recital in the latter which ignored the former; and that the costs and counsel fees of the beneficiary should not be paid out of the estate. Appeal from judge of probate. Sylvauus Rich, having made his will dated April 9, 1872, made a codicil thereto in March, 1W9, giving to his niece, Mary A. Gilkey, during her life, the income of certain property of the value of .f 10,000. On March 16, 1880, he destroyed this codi- cil, and made another, by which he made a different disposition of the property, which by the former codicil was given in trust to'pay the income to his niece. He died April 18, 1880. In proceedings for probate of his will, the judge of probate upheld the destroyed codicil, and admit- ted it to probate. At the trial of the cause on appeal from bis decision, the following entry was made by mutual agreement of the parties: "Referred to the presiding judge, who may decide all questions upon the merits as affected by considerations of expediency and compromise, including costs, and enter all and any decrees neces- sary to carry his decision into effect. " 44 I'iAW OF WILIS. A. W. Paine and John Varneyjor plain- tiffs. Barker, Vose & Barker, for defendan t. Peters, J. When this cause was re- ferred to me for decision, in view of the fact that the jury trial might be broiten off by tlie sickness of a juror, I hardly com- prehended the extent of the duties which have been cast upon me. I had supposed my office would be performed by the rec- ommendation of some sum which the estate had better pay, and the other party had better receive, in a spirit of compro- mise, than to pursue the case to an end upon the strict application of legal prin- ciples and a close sifting of all the facts that might be produced in evidence. Had I anticipated that the respective parties would adhere so closely as they have 1o supposed legal rights, I should not have so readily taken upon myself a self-imposed responsil)ility. Having, however, exam- ined and considered all the issues of law and fact sufficiently to form as satisfac- tory conclusions as it is jjrobable I ever could arrive at, I file in the case the fol- lowing opinion: There is no doubt that Capt. Rich, the testator, destroyed the codicil in ffivor of Mary Gilkey in his life-time. The ques- tions of fact are these: First. Was the testator at the date of the destruction of the codicil possessed of testamentary ca- pacity? Second. If he had testamentary capacity, was he induced to do the act by undue influence? It would not be incon- sistent to find that a testator was not possessed of sufficient mental capacity to make a will, and also that he was oper- ated upon by undue influence. The ques- tions of law are: First, whether, if the codicil was destroyed by the testator, while lacking the possession of testament- ary capacit}', it can be legally upheld and probated by means of oral evidence; and, secondly, whether the same result follows, if the destruction was induced by undue influence alone. An examination of the questions of law comes first in the natural order. I feel clear in the belief that a person who has not testamentary capacity cannot revoke a will in any manner whatever. He can neither make nor unmake a will. A codi- cil stands upon the same footing as a will. A will, legally made, stands until legall.v revoked. It cannot be revoked by any act of destruction, unless the act is done with an intention to revoke; and a per- son not having testamentary capacity cannot have an intention to revoke a will; he is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evi- dence. The written instrument may be burnt, the surest and best evidence of the will may be thus destroyed, but the will Itself, if a draft of it can be proved, out- lives the act of destruction, and the testa- mentary dispositions stand; This is a common principle in thelaw,api)licable to the loss or destruction of papers and rec- ords generally. For instance, A. gives B. a deed of land. The deed is lost or acci- dentally destroyed; but the conveyance stands, if the contents of the deed can be proved by satisfactory evidence. It is said that this opens a wide field for error and fraud, to establish wills upon oral evi- dence. To my mind, many more fraud? would be committed if the contrary ruU were admitted. It is upon proof complete and undoubted, and not upon less than proof, that wills may be orally estab- lished, it is to be noticed. The counsel for the executors contend that, if a will destroyed after a testator's death can be upheld and established by oral evidence, one destroyed before his death cannot be. I do not concur in this view of the learned counsel. I do not find the distinction admitted by the authori- ties, excepting, possibly, where the law is so enacted in oneor two of thestatcs. Nor do I see the force of any such attempted distinction, 1 cannot well perceive that the act of wrongfully destroying a will five minutes before death would be valid, and the same act be not valid, if done by the same hand and in the same way five minutes afterwards. It is said that a wrongful or accidental destruction of a will might take place many years before a testator's death, and in the mean time the testatOB might be- comesatisSed with the fact of destruction, and in his mind ratify theact,and still tbe instrument be established as his will after his death, if this doctrine be tenable. But the answer to this apprehension of danger consists in the requirement of the law that any person propounding for probate a will destroyed in the testator's life-time has upon himself theburdento prove that, notwithstanding destruction, the will con- tinued to be the will of tbe testator, unre- voked, up to the testator's death. The presumption ■would be that the will was destroyed aniwo revocandi, and the burden would be upon the proponent to show, by circumstances or otherwise, that the will was not revoked by the destruction, or by a ratification of the destruction, while the testator lived. I think these views are sustained by the great current of authority The English cases, earlier and later, are that way. The old work on Wills by Swinburne, who compiled his book as long ago as during the reign of Queen Eliz.iljeth, gives this exception to the cases where a will be comes void by canceling or defacing: " Where the testament wascanceled bythe testator himself unadvisedly, or by some other person without the testator's con- sent, or by some othercasualty. " Jarman, the best authority on Wills, English or American, (volume 1, p. 130,) says: "The mere physical act of destruction is Itself equivocal, and may be deprived of all re- voking efficacy by explanatory evidence, indicating the animus revocandi to be wanting." He further says: "Thus if a testator inadvertently throws ink upon his will, instead of sand, or obliterates or attempts to destroy it in a fit of insanity, or tears it up under the mistaken impres- sion that it is invalid, it will remain in full force, notwithstanding such accidental or involuntary or mistaken act." Mr. Bige- low, the American editor of Jarman's work, in his notes fully approves the doc- trine quoted, citing many American cas'!» EEVOCATIOX, REPUBLICATION, AND REVIVAL OF WILLS. 45 ill its support. The Banie doctrine is maintained by Prof. Greenleaf in his worli on Evidence, (section 681, vol. 2,) and notes. Redfield, in his treatise on Wills, in many places restates the same rule; and upon page 323, vol. 1, (1st Ed.,) says: "The soundness of the mind and memory is requisite to the valid revocation of a will as to its execution. It follows, of course, that the performance of the mere act of tearing, canceling, obliterating, burning, etc., without the aniino revo- nandi, and which could not exist unless the testator were in his sane mind, could have no legal operation upon the instru- ment." In Bacon's Abridgment (vol. 10, p. 546) it is laid down "that the destruc- tion of a will, even by the testator him- self, does not amount to a revocation, if the testator had not capacity. Though the instrument is not in being, if its con- tents are known it can be proved." Mr. Wharton expresses it this way: "Revoca- tion will not be complete unless the act of spoliation be deliberately effected on the document aniino rerorandi. This is ex- pressly rendered necessary by the will act, and is impliedly required by the statute of frauds." In Smith's Probate Law, a Massachusetts work of merit, at page .51, the author says: " It maybe that the will was destroyed by the testator in a fit of insanity, or that it waslost, or accidentally or fraudulently destroyed. Such acci- dental or fraudulent destruction will not deprive parties of their rights under its provisions, if they can produce the evi- dence necessary to establish the will." In Clark v. Wright, 3 Pick. 67, a codicil fraudulently destroyed in the testator's life-time was established upon parol proof of its contents by the Massachusetts su- preme court of probate. The same doc- trine was affirmed by the samecourt in the case of Davis v.Sigourney,8 Mete. (Mass.) 487, and reaffirmed in Wallis v. Wallis, 114 Mass. 510. In Newell v. Homer, 120 Mass. 277, the petitioner was held to prove a de- struction of the will after the death of the testator, merely because he in his petition had go alleged the fact. The New York cases are in accord with the foregoing cases. In Smith v. Wait, 4 Barb. 28, it was ruled that, if a testator was incompetent to make a will, he was incompetent to revoke a will made before, and that an insane man can have no in- tent such as is necessary to revoke a will. In Idley v. Bowen, 11 Wend. 227, it was held that a revocation by burning the will by the testator could be impeached by showing the incompetency of the testator at the time of the act. Schultz v. Schultz, 35 N Y. 653, is an instructive case to the same effect. In Nelson v. McGiffert, 3 Barb. Ch 1.58, Chancellor Walworth held it was competent to show that a will had been des troy ed by a tee tator when his m in d had become so far impaired that he was incompetent to perform a testamentary act. The case of Johnson's Will, 40 Conn. 587, strongly supports the same view. So does the case of Collagan v. Burns, 57 Me. 449, as far as it goes. Many other cases in the state courts do. Late cases in the English court of pro- bate are emphatieal in the same direction. In one case it is said: "The act done [burning a will] by the testator can in no sense be his act, for he was out of his mind. " In anothercasethecourtsaid:" All the destroying in the world, without in- tention, will not revoke a will; nor all the intention in the world, without destroy- ing; there must be the two." In another case,— the famous case involving the will of Lord St. Leonards, — decided as late as 1876, the late Chief Justice Cockburn said : "The consequences of a contrary ruling would be in the highest degree mischiev- ous. To disallow oral proof might lead to the defeating of justice in many, if not in as many, instances as might arise from the court acting upon such testimony." Much more could be profitably quoted from late English cases, in elucidation of this legal question, did these limits allow. The English cases have gone so far as to decide that a revocation of a will by spoliation may be of a conditional char- acter. A testator destroyed a codicil not knowing that it disturbed a previous will. The court said : " Where there has been a physical destruction of a testa- mentary paper, tlie court has often been called upon to form an opinion as to the intention of the deceased at the time he did the act. In this case we have come to the conclusion that the testator destroyed the codicil with no intention of revoking the will, and that the court should give no more effect to the act than it would do if the testator had destroyed the paper under a mistake as to the instrument he was destroying. It was not done animo revocandi." The following cases will veri- fy the foregoing propositions: Brunt v. Brunt, L. R. 3 Prob. & Div. 37; Cheese v. Lovejoy, 2 Prob. Div. 251 ; Sugden v. Lord St. Leonards, 1 Prob. Div. J54; James v. Shrimpton, 1 Prob. Div. 431; Brown v. Brown, 8 El. & Bl. 876; Powell v. Powell, L. R. 1 Prob. & Div. 209. I therefore have no doubt that a will destroyed by a person not possessing testamentary capacity is not a revocation of such will. There must be animus revocandi; and such a person does not and cannot possess an intention of revocation any more than an insane man can. As to the question of law secondly stat- ed, namely, the effect of the exercise upon the mind of the testator of undue influ- ence, although at first having doubts about the point, I am of the opinion that the same result follows where the act of destruction is produced by undue influ- ence as where incapacity exists. There can hardly be a logical difference whether the act of destruction be accomijlished by a testator who has no mind to exercise, or, having a mind of his own, is prevent- ed from exercising it. Insanity takes away testamentary power, while undue influence does not allow it to act. There must he animus revocandi. In theonecase. Providence prevents it; in the other case, itis prevented by the wrongful actof man. In each case the hand of the testator acts, but the mind does not go with the act. The hands survive the head. If the rule were otherwise, the law would allow one man to cancel another man's vsrill without bis consent. It must be borne in mind 46 LAW OF WILLS. that, where undue influence is practiced, the testator's will is overpowered and subverted, and the will ol another i$ sub- stituted in its stead. He is not his own master. He does not act voluntarily, for his own volition does not play a part. Proper influences merely persuade the will, while undue influences take it away. The first are an appeal; the last are a usurping and conquering force. The old tree, forsooth, sends out its life, but the graft incorporated upon it turns it into unnatural fruit. This is the more apparent from another view of the same facts. A man malies a legal will. In a codicil he undertakes to cancel the will. But if he has not mental capacity, or if he is induced bj undue in- fluences to attempt a revocation, the codicil is of no avail, and the will stands unrevoked. Suppose, however, instead of revoking the will by a codicil, the at- tempt is made to do it by destroying the will. Must not the act in this way be as free and unconstrained as if done in the other way? Does not the same principle apply ? If the mind or will of the testator be held in imprisonment by undue influ- ence, can it revoke a will in one way when it cannot in another? Can a testator accomplish by burning what, under the same conditions, he cannot do with pen and ink? I think not. The question in this phase has not so often arisen as in the form first discussed, namely, a want of capacity; but no particular distinction between the two is found in the cases, nor does, in my judgment, a valid distinc- tion exist. Then comes a question whether the gen- eral or common law is changed by any of our statutes. I think not. Section 3, c. 74, Kev. St., our statute of wills, is this: "A will so executed is valid until de- stroyed, altered, or revoked by being intentionally burnt, canceled, torn, or ob- literated by the maker, or by some person by his direction and in his presence, or by a subsequent will, codicil, or writing, exe- cuted as a will is required to be," etc. This is substantially like the English stat- ute of wills, and similar to statutes in most, if not all, the American states, and is in precise accordance and consistency with the views already expressed and the cases cited. Nothing can be much plainer. To revoke, there must be an intention to re- voke. If a testator has not a sound or sane intention, he has no intention. If his intention is supplanted by another man's intention, then legally he has no in- tention. But another statute is relied upon as up- setting or qualifying this statute. Sec- tion 7, c. 64, Rev. St., reads thus: " When the last will of any deceased person, who had his domicile in this state at the time of his death, is lost, destroyed, sup- pressed, or carried out of the state, and cannot be obtained after reasonable dili- gence, the execution and contents thereof may be proved by a copy, and the legal testimony ol the subscribing witnesses to the will, or by any other evidence compe- tent to prove the execution and contents of a will; and, upon proof of the contin- ued existence of such will up to the time of the decease of said testator unrefoked letters testamentary shall be granted as on the last will of the deceased, the same as if the original had been produced and proved." The latter statute was first en- acted in 1861. The former has existed ever since we were a state. Even if the phrase, "continued existence of such last will,'' means physical existence, which I do not agree to, even then the two acts are not inconsistent, and do not clash with each other. One would not repeal or limit the other, any more than the other would the one. One would go further in some re- spects than the other, and the other fur- ther in other respects. Each occupies its own ground. The 1861 act allows oral or parol proof of a will not destroyed, but which is merely suppressed or carried out of the state, while the other is silent about such a case. The act of .1861 is de- clarative and cumulative only, and does not abrogate, or undertake to abrogate, any other act. If the act of 1861 had been passed to alter the great body of the law of tne world upon this subject-matter, its terms would have been more positive and significant. It directly admits "other evi- dence competent to prove the execution and contents of a will" than the will itself. But my judgment inclines strongly to the belief that the phrase, "continued ex- istence of such last will up to the time of the decease of such testator unrevoked," does not mean the continued physical ex- istence of the will. The word "existence" sometimes means a physical and some- times a legal existence. A will may have a physical and not a legal existence, and vice versa, or it may have both. A deed may be destro3'ed so as to have no phys- ical existence, and still have a legal exist- ence, if its contents can be proved. So a will may exist although the written instru- ment be destroyed, and oftentimes a will does not exist as a will although not de- stroyed. By the statute first quoted, "a will so executed is valid until destroyed by being intentionally burnt." If unin- tentionally burnt, it is still valid, is still a will, and still has a legal, but not a phys- ical, existence. I think the phrase, "continued existence • * * unrevoked," means no more than that the will shall continue or remain un- revoked. The statute in thisrespect mere- ly repeats the requirement of the com- mon law, that a person setting up a de- stroyed will shall show that such will had a continued legal existence down to the testator's death ; that is, that the testa- tor continued in the same mind down to the day of his death. The phrase "con- tinued existence" is explained In Betts v. Jackson, 6 Wend. 173, to mean that the testator permitted it to stand as his will till his death; and it is there said: "The execution of the will not only must be proved, but there must be also satisfac- tory evidence of its existence at the death of the testator, or of his intention that it should exist and stand until his death; that the mere fact of due execution is not evidence of such existence or intention." The deduction is that if a will is made and adhered to by a testator till his death, and be desires it to exist, or sup- KEVOCATION, REPUBLICATION, AND REVIVAL OF WILLS. 47 poses It to, then it does legally exist till his death, unrevoked, though prior there- to it has been lost or mislaid, or ancident- ally or fraudulently despoiled. The writ- ing or script may be gone, but the will re- mains. But, in either interpretation of the statute of 1861, the conclusions reached will stand. I am happy to add that I have consulted some of my judicial asso- ciates upon these questions, who have carefully considered them, and concur in the views expressed by me in all particu- lars. So much for the law of the case ; then as to the facts. Here I possess the functions of a jury. In deciding facts which are suit- able for the jury tribunal, I feel a disposi- tion to be somewhat influenced by what I think an intelligent and fair-minded jury, properly instructed, would be likely to do upon the same testimony. Certain impor- tant facts appear to me to be unquestion- able, namely: That for Miss Gilkey, the beneficiary under the destroyed codicil, the testator had the fondest and warmest affection. Its depth and strength are dis- closed by a continuous stream of evidence in his letters produced, which I think could never have been fully appreciated, had it come merely from the mouth of witnesses. He spoke ib; wrote it; acted it. She seemed, partially at least, to fill a void in his heart created by the loss of a dearly loved wife, to whom she alone, of all the family about him, was related. This affec- tion continued from her childhood to womanhood. It never abated. It baffled all family opposition. He educated and supported her, and seemed desirous to make her dependent upon him for all her wants. His letters held up before her vis- ion the rainbow of promise against want in the future. In consonance with all this, when he found the sun of his life descend- ing, although in full health and strength, unasked by her, uninfluenced by anybody that I can see, with much deliberation, against family wishes, he made this cod- icil. He took his executors as trustees of the fund, but fortified himself against doubt by adding another trustee. He resolutely adhered to the codicil till his last sickness, at least. Now, after he had lain a month on his death-bed,a very aged man, weighed down and weakened by dis- ease, so far into the sunset of his life that the shadows of its twilight were fast set- tling over his understanding, surrounded by persons naturally disturbed by the ex- istence of the codicil, with no notice to the beneficiary, with no after mention oE It to her, the affection between her and him lasting till his last sands of life ran out,— he destroyed the codicil. What cause was there for this change which so suddenly came over his mind? 1 think the inference is irresistible that the act was caused by another or others, whether the influence exerted over his mind was an un- due iufluence or not. What his strength did, his weakness would not have repudi- ated. How much truth in the situation scripturally described: "Verily, verily, I say unto thee, when thou wast young, thou girdest thyself, and walkest whither thou wouldst; but when thou shalt be old, thou shalt stretch forth thy hands, and another shall gird thee, and carry thee where thou wouldst not. " Nor was it un- natural that the heirs should hav6 unwill- ingly seen this bestowment upon one not an heir, or that they should have resisted it. Perhaps it would have been unnat- ural in them if they had not resisted it. Undoubtedly they did no more than seemed proper to do, looking at the mat- ter from their stand-point. Nor do I, pos- sessing plenary powers, under the terms of the reference, feel bound to declare whether there was an undue influence ex- ercised or not, or declare an absolute con- clusion one way or another upon the is- sues, whether the testator was incapaci- tated from having a reasonable or intelli- gent intention of revocation, or whether the will was destroyed by him through some misunderstanding or mistake. Suffice it to say that, under all the cir- cumstances and conditions of the case, I deem it expedient to uphold the codicil in favor of Miss Gilkey as unrevoked, and allow it to be probated,,allowing to the other side someconcessions and considera- tions therefor. First of - which (conces- sions and considerations) is that the last codicil shall also be probated. Logically, perhaps, if the first codicil stands, the sec- ond should fall. But as there is no con- tradiction between the two, except a re- cital in the last which ignores the first, both may stand. Precisely the same point occurred in an English case. Rob- inson V. Clarke, 2 Prob. Di v. 269. The court there said: "In a testamentary suit where the parties have come to an arrangement, under the terms of which the court is ap- plied to, to grant probate of two testa- mentary instruments, it will do so, pro- vided such documents are not entirely in- consistent with one another. " In Goods of Honywond, L.K. 2 Pi-ob. & Div.251,the court thought improper words in the re- cital of a will could be corrected by an ex- planation upon the record. Another concession is that the taxable costs of the appellee, claimed to be several hundred dollars, shall not be recovered from the estate. Another concession is that the estate shall noT pay the expense of counsel fees to the appellee, though claimed, upon the ground that the estate should be taxed to pay for the expense of sustaining a codicil which by law should be sustained. But the bill therefor, $500, which seems not an unreasonable amount for entire services, shall be paid by the executors, aud charged to the earnings of the trust-estate now on hand. Or, if both parties should prefer it, I should award as above, and, instead of the life annuity, order an absolute convey- ance to Miss Gilkey of the .lf.^,000 of Boston & Albany stock, together with the earn- ings of the 19,000 of stocks named in the codicil, which have been due and payable since the death of the testator to this time. Or I would make any other commutation of the life-estate into ready money or ab- solute property which the parties may agree to. And whatever conclusion may be accepted, suitable decrees will be en- tered accordingly. 48 LAW OF WILLS. (61 Md. 478.) EecHBACH V. Collins et ah {Court of Appeals of Maryland- March 26, 1884.) 1. Alteration op WiI/LS — Defacing Writing. The will of a testator, who had seven sons and three daughters, gave the residue of his estate to them in equal snares, "the share of my sons L. and J. to be held by each of them who may sur- vive me, absolutely," and "the shares of my other children to be held for their respective lives. " Held, that an obliteration of the names of L. and J. by the testator did not operate to en- large the life-estate given to the other sons into a fee, and make the word "children" applicable only to the daughters, thus making a different disposition of the estate without the formalities required by statute ; nor could the supposed in- tention of the testator, to diminish the fee-simple estates of L. and J. to life-estates, be regarded, since he had not adopted the means sanctioned by the law to carry it into efEect; and the will must be read as it was originally written. 2. Revocation op WiIiL>) — Obliteration op Names. Such obliteration of the names of particular devisees does not make a case of revocation, with- in the provision of Code Md. art. 93, § 303, that "no devise in writing, * * * or any clause thereof, shall be revocable, " except in the man- ner prescribed ; the mere names do not constitute a clause, and their obliteration, by which a dif- ferent meaning is imparted, is an alteration, not a revocation. Robinson, J., dissenting. Appeals from circuit court of Baltimore city. Action by Elizabeth H. Collins and Richard Bernard, administrators with the will annexed, and trustees under the will of John Eschbach, late of Baltimore city, deceased, for the purpose of obtain- ing a judicial construction of said will. The will contained the following provis- ions: "First. [I hereby appoint my sons Leo Eschbach and John E. Eschbach ex- ecutors of this, my last will and testa- ment,] and direct them to pay my just debts and funeral expenses ; giving them power, as executors, to sell, to such ex- tent as may be necessary to make such payment, such parts of my estate, real or personal, as may be necessary, and the like power to any administrator of my es- tate. Second. I give, devise, and bequeath all the rest and residue of my e.state, of every kind and description, which I may leave at the time of my death, to my said sons, [Leo Eschbach and John E. Esch- bach,] and their successors in the trust thereby reposed in them ; it being my will that there shall at all times be at least two trustees, and that one alone shall not be competent to act, and that, in case of death, refusal to act, inability from any cause, or resignation, that a succes- sor or successors shall be appointed by some court having jurisdiction over trust- estates, in trust to and for the following uses and purposes: That the amounts which I have advanced or may advance up to the time of my death, to any of my sous or daughters, or to any son in-law, evidenced bj- notes or otherwise, shall be ascertained by the said trustees, or their successors, as speedily after settling in the orphans' court as possible; and that the entire amount thereof shall be added to the rest and residue of my estate be- queathed as aforesaid: and the aggregate amount thereof shall be divided into ten equal parts, the number of my present living children, by three disinterested per- sons, to be appointed by some court hav- ing jurisdiction over trust-estates, the de- cision of a majority of whom to be final, and such appointments to be continued until a division shall have been had; each of my sons to have one share, and to bo charged with advances made or to be made to him ; and each daughter to have one share, and to be charged with ad- vances made or to be made to her or her husband ; and the portion of each son and daughter in the said rest and residue to be reduced to the extent of such ad- vance made, or to be made, as aforesaid; the division to be so made as aforesaid to be reduced to writing, and to show the share or portion of each, and each piece of property to be separately val- ued; the said division to be acknowl- edged before a justice of the peace by the parties making the same as their act and deed, and to be recorded in the court having jurisdiction of trusts making the said appointments, and also recorded among the land records of Baltimore city ; the share of my sons [Leo] and [John E. Eschbach] to be held by each of them who may survive me, absolutely, and the trust hereby created to cease as respects them, or the one who may survive me. The shares of my other children to be held for their respective lives, my daughters' shares to be for their and each of their sole and separate use, freed from the con- trol of any husband, and in no way lia- ble for his debts. In case any of my said children, exclusive of [Leo] and [John E. Eschbach,] should die, leaving a child or descendant, then such share shall pass to such child, children, descendant, or de- scendants per stirpes, and not per capita; but, in case of the death of any such child, leaving no child or descendant at the time of such death, then the part or share of the one so dying shall pass to my surviving children and descendants of any deceased child per stirpes, absolutely and forever. * * * In case any of my ten children now living should die before me, leaving no child or descendant living at the time oE my death, then my said es- tate shall be so divided as to reduce the number of shares, and to make the num- ber equal to the number of my children who may survive me; and of such of my children as may have died before me, leav- ing a child or descendant surviving me, it being ray will that in the case now sup- posed the descendant of a deceased child shall take the share of the parent; it being also my intention to pass life-estates to all my children and descendants of a de- ceased child, who may take at the time of my death, with the exception that my sons [Leo] and [John E. Eschbach] shall each, if he survives me, take absolute fee- simple estates in their respective shares." When the will was found, atterthe death of the testator, the words in brackets in the foregoing extracts had been marked over with pen strokes, as if for the pur- pose of erasure, but were still legible. The testator left no widow, but he left ten children, — seven sons and three daujihters REVOCATION, REPUBLICATIOK, AND REVIVAL OF WILLS. 49 The court (Dobbin, J.) adjudged and de- creed that the true construction of the will as it stood affected by the erasuree, which it was shown by the evidence that testator made therein, 'was that Leo Eschbach and John E. Eschbach were to be omitted as executors and trustees; and that the complainants were, under the order of 27th September, 1881, appoint- ing them trustees under said will, in place of said Leo Eschbach and John E. Esch- bach, to hold the estate of said testator for the trust purposes mentioned in said will, as affected by said erasures; that is to say, for the use of all the children of said' John Eschbach for and during the term of their respective lives, the shares of the daughters to be for their sole ami separate use, treed from the control of any husband, and in no way liable for his debts; and in case any of the said chil- dren of said testator die, leaving a child or descendant, then snch share should pass to such child, children, or descend- ant or descendants, per stirpes, and not per capita; but, in case of the death of any child leaving no child or descendant at the time of such death, then the part or share of the one so dying sliould pass to the testator's surviving children, and de- scendants of any deceased child, perstirpes, absolutely and forever, freed from anyfur- ther trust. From this decree three appeals were taken, — one by the widow of Joseph A. Eschbach, a son; one by the executor of the said Joseph; and a third by judg- ment creditors of John E. Eschbach, an- other son. A. LeoKnott, for Annie Maria Eschbach and executor of Joseph A. Eschbach. Bernard Carter and Arthur W.MacbeiiJor Burke and Reddington.judgmentcreditors of John E. Eschbach. Richard Bernard, for appellees. Yellott, J. The bill of complaint in this cause Invokes a judicial construction of the will of John Eschbach, the meaning of which having been rendei-ed ambiguous, obscure, and in some places apparently in- comprehensible, by obliterations made by the testator a number of years subsequent to the date of its execution. The will was originally executed in conformity with the requirements of the statute prescribing the formalities to be observed in making a testamentary disposition of real estate. In the flrst clause two of the testator's sons, Leo Eschbach and John E. Eschbach, are appointed executors, with the usual .directions in regard to funeral expenses and the payment of debts. In the second clause, the whole estate, real and personal. Is devised and bequeathed to the said Leo and John E. Eschbach in trust. The tes- tator then proceeds to declare the nature and purposes of the trust thus created, and the mode and manner in which it shall be executed, with a multitude of pro- visions not necessary to be here recited, as they involve no questions now pre- sented for adjudication. Theoo/pHSof the estate is to be divided into 10 equal parts, corresponding to the number of the testa- tor's children. Leo Eschbach and John E. Eschbach are each to take one-tenth, en- WILLS — 4 tirely exempted from the operation of the trust, and to be held by them absolutely or in fee-simple. To the other eons and tne daughters life-estates are given with remainders as prescribed by the terms of the will. It becomes important, in the construction of this will, to observe that none of the children of the testator are mentioned by name except Leo and John E. Eschbach. The others are simply des- ignated as sons or daughters. After the death of the testator the will was discovered with certain words writ- ten below the signatures of the attesting witnesses. This writing is somewhat de- ficient in perspicuity, which is, perhaps, attributable less to the imperfection of human language than to the peculiarity of the diction employed. It was nut there when the will was executed. It has no attestation, but is supposed to be in the handwriting of the testator, and was signed by him. Itis in'these words: "Feb- ruary 3, '80. For Good & soun Reason, I arrest John E. Eschbach Name, and Leo Eschbach his Name, the above date, in Good Health and Reason, Signed the above date. John Eschbach." In each clause of the will, wherever the names of Leo Eschbach and John E. Eschbach occur, a pen has been drawn across, leaving the names legible, but the writing partially defaced by the attempted obliterations. Two important changes in the will result from these erasures. The flrst is the re- moval of Leo and John E. Eschbach as executors and trustees. No question here arises for the determination of this ccjurt; the said Leo and John E. having declined to act as executors, and their formal re- nunciation being embodied in the record. The circuit court has also, in the exercise of its jurisdiction, and in conformity with the provisions of the will, appointed trus- tees, and Leo and John E. Eschbach have admitted and averred in their answer that said trustees have been duly appointed. But another and more material change has been effected by these erasures. The will, as originally executed, gave life-es- tates to all the sons except Leo and John E. Eschbach. The erasure of the two names operates to confer estates in fee- simple on all the sons. The testator says in the second clause: "The shares of my sons Leo and John E. Eschbach to be held by each of them who may survive me, ab- solutely, and the trust hereby created to cease as respects them, or the one who may survive me. The shares of my other children to be held for tiieir respective lives," etc. The testator had other sons besides the two specially mentioned by name. Omit the words erased, and it will be seen at a glance that all the sons take absolutely, and the words "my other chil- dren "apply only to the daughters. Again, in the concluding portion of this clause, the testator says: "It being also my in- tention to pass life-estates to all my chil- dren and descendants of a deceased child who may take at the time of my death, with the exception that my sons Leo and John E. Eschbach shall each, if he survives me, take absolute fee-simple estates in their respective shares." He has erased the names of Leo Eschbach and John E. 50 LAW or WILLS. Esclibacli, and this obliteration inanifpst- \y creates a fee-simple estate in eacli son, and renderstbe word "children "applicable only to the daughters. The first question presented for adjudi- cation is whether a testator can, by tl)e obliteration of certain words in his will, cause the transmutation of a life-estate in- to a tee-simple. This is the converseof the proposition presented by the case of Swin- ton V. Bailey, 1 Rxch. Div 112. There the effect of the' obliteration wfis to diminish an estate in fee-simple, and convert it into an estate lor life. Chief Baron Kelly in the exchequer held that this could not be done. The judgment of the exchequer was reversed in the court of appeals, Cockborn, C. J., saying: "Although it is a devise in fee-simple, 1 think that is (so far as it is a matter of revocation) divisible into two parts, and that the man who has given the larger estate may revolve the gift to that extent, and cut it down to the small- er gift or devise of an estate for life. It may be that you cannot add to the will. " The decision of the court of appeals was affirmed in the house of lords, (48 Law J. 57.) The only principle determined in this case was that an estate might be dimin- ished by the erasure of certain words, and any general o^servations made by judaes, which extended beyond the scope of the question in controversy, could hard- ly be recognized as establishing a safe precedent, even within the jurisdiction where the decisions of that court must be received as authoritative. In Larljins v. Larkins, 3 Bos. & P. 20, Lord Alvani.ey, 0. J., said : "If the remaining devises were to acquire any estate which they had not before, something beyond a mere revoca- tion would be necessary." A careful analysis of either the English or the Maryland statute would seem to lead irresistibly to the conclusion that every testamentary act by which property is transmitted should be authenticated in the manner prescribed by the legislature. A man may devise the whole of his estate lu fee-simple. This is one testamentary act. He may subsequently change his in- .antion, and, as the fee is susceptible of eubdivision, he may determine to give a less estate. This would certainly be an- other and adistincttestamentary disposi- tion, and, when it is alleged that he has so determined, the adduction of the proper proof is requisite. It is apparent that this proof must be supiJlied by the production of another will or a codicil properly at- tested and executed. Hence it would seem to have formerly been the settled doctrine in England that "any alteration that amounts to a new devise of the land requires that the will should be re-execnt- ed according to the statute. " Love. Wills, 349. The American cases fully recognize this doctrine, and, when an attempt has been made bj' interlineation or obliteration to make a different disposition of the estate, the attempt has been held to be abortive, and the will operated as originally exe- cuted. In Jackson v. Holloway, 7 Johns. 395, a testator, having made his will de- vising his lands then in possession to his tour sons, subsequently acquired other lands, which, by the statutes of the state, did not pass by a will executed anteced- ently to the seisin. He attempted an al- teration by erasures and interlineations, so as to make the devise extend to all the lands of which he should die sei.sed, and indorsed a memorandum to that effect ou the will, stating the alterations which he had made. This memorandum was at- tested by two witnesses only. It vsas held that the erasures and interlinea- tions did not destroy the original devise, but that the alterations, not having been attested by three witnesses, could not operate. The court said: "The oblitpra- tions in the will were made, not with tn intent to destroy the devisealready made, but to enlarge it, by extending it to Uinrta subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having tne amendnientsattestcd according to law. The obliterations can- not, therefore, destroy the previous de- vise, tor that was not thetestator's inten- tion." In McPherson v. Clark, 3 I'.radf. Sur. 99, the testator attempted to revoke the devise to his daughter by striking out the words "ray children," and inserting "my two sons." The court said. "This insertion is inoperative for want of re-ex- ecution and attestation; and, the intent failing as to the substitution intended, it must fail likewise as to the revocation in- tended. Enough remains on the face of the will to show that the word erased was 'children,' and the will must be so re- corded." In the case of Wolf v. Bollinger, (i2 111. 372. the testator, after having de- vised his estate to one person, afterwards attempted to transfer it to another. The alteration was made by an interlineation which was not attested in tlie prespnce ot the testator. The court said that, for want of a compliance with this statutory requirement, the instrument did not operate as a disposing will. The cancel- lation was not made with intent to re- voke the devise to the complainant sim- ply, but with intent to substitute in her stead the defendant; and, the ultimate object of substitution having failed of ac- complishment, the canceling, which was done only in the view of and in order to effect that object, sliould be esteemed for nothing, and be considered as not hav- ing been made absolutely, but only con- ditionally, upon the attempted substitu- tion being made effectual. To give it effect, under the circumstances, would seem to be to thwart the intention of the testator, and make him intestate when he manifested a contrary intent by his will. In the case of Bigelow v. Gillott. 123 Mass. 102, there was an entire obliteration «)f the sixth and thirteenth clauses of the will by ink lines drawn through and across every word constituting those clauses. This was held to be arevoriilion of these two clauses, leaving intact the other clauses in the will. The court wairl • "He revoked the sixth and thirteenth clauses, and purposely and intelligently left the other provisions to stand as his will." "The argument that this view is in conflict with the provisions of law which require that a will disposing ro REVOCATION, REPUBLICATION, AND REVIVAL OF WILLS. .51 property should be executed in the pres- ence of three witnesses Is not sound. It is true that the act of revocation need not be done in the presence of witnesses; but such act does not dispose of the property." It this was simply a case of revocation, its determination would involve a con- struction of section 302 of article 93 of the Maryland Code of General Laws, which prescribes the mode by wliich a revocation may be effected. The language of the statute is: "No devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall be revocable" except in the manner designated. An entire will can thus be revoked, or any clause thereof. What, then, is a clause? Does it consist of two or three words which, disjoined from the context and transferred to a separate sheet of paper, would be devoid of sense or meaning? Do the mere names of two persons constitute a clause? Is not a clause always understood to mean one of the subdivisions of a written or printed document? Is the word ever used in any other sense? Wills are frequently subdi- vided into a number of clauses, in one, the testator may provide for the payment of his debts ; in another, dispose of his personal property ; in a third, devise his real estate; in a fourth, leave legacies; and then there may be a residuary clause. Is it not apparent thai the statute has reference to one of these subdivisions of a will when the word "clause" is used in connection with "revocation?" It is true that a wliole will might be revoked, or any clause thereof, by obliterating all the words necessary to give them meaning. To deprive a will of all meaning would be as effectual a revocation as if it had been consumed to ashes. It is manifest that in the construction of this will a question is encountered that involves something more than mere revo- cation. The will has not been revoked; it has been altered. It cannot be sup- posed that when the legislature uses the word "revocation" it is to be construed to mean "mutation." "Revocation" is certainly not a synonym of "alteration." To revoke a testamentary disposition plainly means to annul it, and the revoca- tion of a clause implies the destruction of that clause. In legal contemplation, it ceases to exist, and is as inoperative as if it had never been written. It is not nec- essary that the words erased should be wholly illegible, but the act of the testa- tor must be such as to clearly indicate an intention to expunge the whole clause, so thatit shall no longer constitute a sub- division of the will. But when, by the ob- literation of certain words, a different meaning is imparted, there is not a mere revocation. There is something more than the destruction of that which has been antecedently done. There is a trans- mutation by which a new clause is created. There is another and a distinct testament- ary disposition, which must be authenti- cated by the observance of the statutory requirements. The statute, after designat- ing the modes of revocation, whereby that which has already been done is rendered inoperative by being destroyed, says, in language wholly free from ambiguity, and therefore needing no construction: "Or unless the same be altered by some other will or codicil in writing, signed in the presence of three or four witnesses, declar- ing the same." There can therefore be no alteration in a testamentary disposition of real estate except by an observance of the formalities prescribed by the statute. In the will now to be construed, the oblitera- tions, so far from operating as a mere rev- ocation, by destroying the sense of the context, impart to the clause a different and more important signiflcane«. Not only does this become apparent, but it is also evident that the construction wliich has been contended would be productive of the very evils which the legislature in- tended to provide against. The oblitera- tion of two or three words might wholly change the character of a devise. As apt- ly illustrated by learned counsel in argu- ment, if the words wt-re, "To my son Will- iam 1 give nothing, and give all mj' estate to my sou John," the will could be made to read, without the insertion of any addi- tional words, "To my son William I give all my estate." But, as already intimated, the record does not present a question of revocation. It is clear that the testator did not contemplate an intestacy. He evidentlj'intended to mal^e a testament- ary disposition of the whole of his proper- ty. It was supposed by the learned judge of the circuit court that he intended by the obliterations to diminish the fee-simple estates of Leo and John E. Eschbach to life-estates. If such was his purpose, he has attempted to make another and a different devise of one-fifth of his whole property. He transfers the legal title, vested in Leo and John E. Eschbach, to trustees, and carves out the fee-simple equitable life-estates, with remainders to the children of the life-tenants. This is a new will, as respects one-fifth of his prop- erty. Let it be supposed, by way of illus- tration, that the entire estate had been devi.sed to Leo in fee-simple. How could the testa tor susbsequently vest the legal title in trustees, and create an equitable life-estate, with remainders? Not certain- ly by obliterations and interlineations, without attestation or the observance of any of the formalities prescribed by the statute. And is a testamentary disposi- tion of the one-fifth of an estate governed by a different principle? The intention of a testator is only to be regarded \vhen the law sanctions the means he has adopted to carry it into effect. If what he has done is invalid, ^the intent cannot be re- spected. In the formation of a judicial opinion,^ the calm investigating faculty of reason should exercise a paramount control; but in an effort to ascertain, by an in- spection of this mutilated will, the real in- tention of the testator, the aid of imagi- nation seems to become necessary. The aged testator declined to seek the advice and assistance of those whose profession- al learning and experience would have afforded safe guidance, and, relying solely upon his own judgment, failed in the ac- complishment of an intent which he has left involved in obscurity. The true con- struction of this will is that the attempt- 52 LAW or WILLS. ed obliterations are inoperative, and that the will must be read just as it was orig- inally written and executed. The renun- ciation of Leo and John E. Esehbach as executors, and the appointment of tha complainants as trustees, by the order of September 27, 18S1, from which no appeal has been taken, render a construction of the first clause of the will unnecessary. The trustees appointed in conformity with a provision in the second clause, and by a competent court, having jurisdiction of trusts, have the control over the estate given to the trustees by the will as it was executed. The shares of Leo and John E. Eschbach are exempted from the opera- tions of the trust thus created, and are to (See, also, Lovell v. Quitman, 88 N. T. 377; Quinn v. Quinn, 1 Thomp. & C. 437; Bigelow v. Gil- lott, 123 Mass. 103; Gardiner v. Gardiner, [N. H.] 19 Atl. Rep. 651; Forbing v. Weber, 99 Ind. 588; Mills v. MiUward, 15 Prob. Div. 20; Austin v. Oakes, 117 N. Y. 577, 23 N. E. Rep. 193; Evans' Appeal, 58 Pa. St. 238; Duguid v. Fraser, 31 Ch. Div. 449.) be held by them absolutely and in fee-sim- ple. The learned judge of the circuit court having sought to give effect to the sup- posed intention of the testator to diminish the estates of Leo and John E. Eschbach, his decree is, in thirf respect, erroneous. But no other error is perceptible in. said decree, which must therefore be affirmed in part and reversed in part. Decree affirmed in part and reversed in part, and cause remanded. Stone and Bryan, JJ., concurred. Al- VEY, C. J., and Mii^lbr and Irving, JJ., concurred in the conclusion, but not the reasoning of Iellott, J. Robinson, J., dissented. (68 N. H. 475, 3 Atl. Rep. 604.) HOITT V. HOITT. (Svm-eme Cov/rt of New Hampshire. March 13, 1886.) 1. Revocation of "Wills — SiATnTOBT Require- ments. Where the legislature has prescribed certain modes by which a will may be revoked, the courts have no power to dispense with such require- ments, and accept even a definite intention to per- form the prescribed act for the act itself. 2 Same— Intention to Revoke. That a will is found, after testator's decease, in a bundle of papers of no pecuniary value, in- cluding drafts or memoranda of wills never exe- cuted, some of them apparently made since the date of the will, does not show a revocation of the will, in the absence of any act of revocation within the requirements of the statute. 3. Same— Implication fkom Change in Circum- stances. Although such statute declares that a revoca- tion may be "implied by law from changes in the circumstances of the testator or his family, devisees, legatees, or estate, occurring between the time of making the will and his death, " a will is not revoked by the death of testator's wife and son, named in it as legatees, his sub- sequent remarriage without birth of issue there- from, the alienation of the larger portion of his estate which had been specifically disposed of by the will, and the acquisition of property much greater in value than he possessed at the time of making the will ; nor can a revocation be proved by such changes, as circumstantial evidence showing testator's intention. 4. Same — Evidence — Declarations of Testator. Oral declarations of a testator that he under- stood his will was revoked, not accompanying any act of revocation, are not competent evidence to prove a revocation ; nor are such declarations competent upon the testator's intention not to pass by his will after-acquired real estate. Appeal from probate court. Alfred Hoitt duly executed a will, bear- ing date February 12, 1864. At that datB his family consisted of his wife and their six sons and seven daughters, of whom ten were of age. His wife died April 25, 1877, and one of his sons, who was one>of four sons named in the will as residuary legatees, died unmarried in 1877. He mar- ried a second wife January 6, 1879, who survived him. There was no issue of the second marriage. The testator died No- vember 9, 1883. At the time of making the will his estate amounted to some f 26,000, about two-thirds of which was realty, and consisted of eight different parcels. Included in the personalty were 60 shares of the Boston & Maine Bailroad, and 20 shares in the Langdon Bank. These stocks were specifically bequeathed, but, with the exception of four shares of the railroad stock, were subsequently sold by the testator, and not replaced. AH of the realty was specifically devised, but the testator afterwards disposed of the great- er portion of it. He subsequently ac- quired by purchase and was possessed at his decease of otherreal estate of thevalue of about $.52,000. His entire estate, at the time of his death, was appraised at $70,- 9,51.82. Four sons were named by the tes- tator as residuary legatees, one of whom died unmarried in 1877. All the other chil- dren survived the testator. When the will was executed, the residue of the estate was inconsiderable. After the testator's decease the will was found in his safe, in a bundle of papers of no pecuniary value. Included in this bundle were several ap- parently incomplete drafts or memoranda of wills, never executed, without date, some of which were apparently made since the date of said will. In the trial court the appellee offered evidence of the oral declarations of the testator to show that it was his under- standing that the will was revoked, and also to show that it was not his intention to pass by his will after-acquired real es- tate To this the appellant objected. The court sustained the objection, and the ap- pellee excepted. The decree of the probate court disallowed the will. Aiig-asfun Rvss, Jeremiah Smith, and Dodge & Caverly, for appellant. Marston & Eastman and Frinli & Batchelder, for appellee. Bi.oDGETT, J. No express revocation appears in this case. The will of the tes- tator, executed in accordance with the statute formalities, has not been revoked ■ by any subsequent " will or codicil, or by some writing executed in the same man- REVOCATION, REPUBLICATION, AND REVIVAL OF WILLS. 53 ner, or by canceling, tearing, obliterat- ing, or otherwise destroying the same by the testator, or by some person by his consent and in this presence," as required by Gen. Laws, c. W.S, § 14. On the con- tiary, it was found in his safe after his decease, and in its original condition. It is true that it was In a bundle of papers of no pecuniary value, and that "included in this bundle were several apparently in- complete drafts or memoranda of wills never executed, without date, some of which were apparently made since the date of said will." But Fellows v. Allen, 60 N. H. 439, 441, is a recent and direct au- thority that the fact of a will being found among worthless papers works no revo- cation of it; and the authorities, as well as reason, demonstrate that the memo- anda, which, at most, are merely eviden- tiary facts of an inchoate intention to make another will, have no legal signifi- cance as acts of revocation ; for, although the purpose of the mind always gives character to the act done, still, the legis- lature having established certain modes by which a will may be revoked, it Is not within the legitimate power of courts to dispense with such requirements, and ac- cept even a definite intention to perform the prrs-cribed act for the act itself. Neither has the will become inoperative, as a wliole, from necessity, either by an entire loss of the testator's estate, or its total alienation, or by the decease of all the devisees without descendants, and so leav- ing nothing upon which it can operate. If, therefore, there has been a valid revo- cation, it must be one arising from legal presumption or implication; and this in fact is the principal contention. The existing statute as to the revoca- tion of wills, whiu'h was originally adopted in 1822, after pointing out the modes by which a will may be revoked, expressly excepts any revocation implied by law from changes in the circumstances of the testator, his family, devisees, or estate, occurring between tiie time of making the will and his death. Gen. Laws, c. 193, §§ 14, 15. But what those changes are, sec- tion 15 does not in any manner attempt to define: and the effect consequently is to leave the matter of revocation by legal implication just as it stood before the en- actment of that section. That is to say, section 15 (which in the act of 1S22 was a proviso to what is now section 14) is to be taken, not as a recognition and adop- tion of the common-law doctrine of im- plied revocation, but as a recognition and adoption of the English decisions under sections 5, 6, and 22 of the English statute of frauds relative to the revocation of wills, passed in 1676; for the common law as to such revocations was abrogated by that statute. The English statute was doubtless the basis and model of our stat- ute, directly or indirectly, and the proviso in the latter, we think, is to be regarded as merely explanatory of the preceding part of the section prescribing the manner of express revocation. Practically and in effect it was an adoption, under then ex- isting conditions, of such implied revoca- tions as had been introduced and estab- lished by the English courts, contrary to the plain meaning of the English statute, and solely through the usurpation of leg- islative power. But the English courts did not go the length of establishing a rjile that revocation might be shown by any change of circumstances affording satisfactory evidence of the testator's re- voking intention, but stopped far short of it, and restricted its application to a few exceptional cases, as to which it was held the statute did not apply. Hence there is no tenable ground for holding that any causes of revocation were intend ed by our legislature to be embraced in the proviso to the act of 1822, aside from the existing exceptions established by the English courts upon supposed equitable considerations; and much less can it be held that any alteration was effected or intended by the Eevision of 1842, making the proviso a separate section, and slight- ly changing its phraseology. And, as strongly tending to show that the pur- pose of the legislature was such as has been indicated, and that such has been the universal understanding of the bar of this state, it is a significant fact that no liti- gation has arisen as to the legislative in- tent, or the meaning of the language used in its expression, during the more than 60 years which have elapsed since the statute was first enacted. No new cause of revocation being intro- duced by the statute, the true inquiry is whether the facts of this case bring It within any of the exceptions upon the sub- ject of implied revocation recognized by the English courts after the adoption of the statute of 1676, which were quite limit- ed in number, and reasonably well defined and understood at the time our statute was enacted. The causes assigned upon this point as ground of revocation are subsequent changes in the circumstances of the deceased, his family and estate. They are, substantially, the death of his wife and his son Franklin, both of whom were legatees; his second marriage, but without issue ; the alienation of the larger portion of his estate; and its nearly three- fold increase in value through natural causes and judicious investments. But total revoc.ition cannot be implied from the death of the wife and the son. "The death of a devisee is a contingency always in view." Shaw, C. J., in Warner V Beach, 4 Gray, 162, 164. "I know of no case," said Uenman, C. J., in Doe v. Edlin, 4 .A.dol. & E. 586, " where it has been held that the removal of an object of affection and bounty, by death, has been taken to be an implied revocation of a will, and, in my opinion, it does not operate so." And see Fellows v. Allen, supra. Nor can it be implied from the testator's remarriage, because the indispensable com- mon-law requisite of the subsequent birth of a child is lacking. 1 Jarm. Wills, (5th Amer. Ed.) 272; 1 Eedt. Wills, 293; Pars. Wills, *59; Worth. Wills, *528. "This prin- ciple of law is . incontrovertibly estab- lished. " 4 Kent, Comm. 522. And in this connection it should also be borne in mind that the rule never applied except in cases where the wife and after-born children, the new objects of duty, were wholly unpro- vided for in the will, and where there was M LAW OF WILLS. an entire disposition of the whole estate to their exclusion and prejudice; therefore, inasmuch as the widow and children of a testator not provided for in a will are, un- der our statute, entitled to the same share of the estate as if he had died intestate, the sole reason upon which the rule was grounded no longer exists, and so the rule itself has beconie inoperative and obso- lete in this jurisdiction. The inquiry thus becomes restricted to the effect of the changes in the testator's property; the phrase "circumstances of the testator," etc., relating to new family ties, and not to changes in property. 4 Kent, Coram. 521, and authorities general- ly. But it it were apparent, as it certainly is not, that in the case of a te.«tator an entire revocation by legal implication re- sulted, either before or after the statute of 1676, from any change whatever of condi- tion orcircumstances except that of a sub- sequent marriage and child, it is the un- doubted general rule that a partial revo- cation only produces what is inaptly and inaccurately termed a revocation pro tanto, instead of an ademption, of the subject of the devise, and thus necessarily limits the operation of the will to the ex- tent of the' alienation; not, howevei-, by reason of any defect in the will itself, but because it pleased the testator to make a disposition of such part of his estate dif- ferent from what he originally intended, which it is always competent for him to do either by a conveyance, or a new will or codicil. See Fellows v. Allen, supra; Carter v. Thomas, 4 Greenl. 341, 343, 3-14, Graves v. Sheldon, 2 D. Chip. 71, 75 ; Bland- in V. Blandin, 9 Vt. 210, 211; Hawes v. Humphrey, 9 Pick.. 3.50; Terry v. Edminster. Id. 355, note; Webster v. Webster, 105 Mass. 538, 542; Balllefs Appeal, 14 Pa. St. 451; Brush v. Brush, 11 Ohio, 287; Floyd V. Floyd, 7 B. Mon. 290; In re Nan Mickel, 14 Johns. 324; McNaughton v. McNaugh- ton, 34 N. y. 201 ; Warren v. Taylor, 56 Iowa, 182, 9 N. W. Bep. 128; Wells v. Wells, 35 Miss. 638; Brydges v. Duchess of Cban- dos, 2Ves. Jr. 417; 4 Dane, Abr. 576, 577; Love. Wills, 358; 1 Redf. Wills, 335; Pars. Wills, 63. "Conveying a part of the es- tate, upon which the will would otherwise operate, indicates a change of purpose in the testator as to that part; but suffering the will to remain uncanceled evinces that his intention is unchanged with respect to other property bequeathed or devised therein. " Weston, J., in Carter v. Thomas, supra, 344. The remaining circumstance, that of the increase of the estate, upon obvious considerations of public policy, has no weight; and to this effect is the great pre- ponderance of authority. Warner v. Beach, Webster v. Webster, Greves v. Sheldon, Blandin v. Blandin, and Balliet's Appeal, supra; Brupli v. Wilkins, 4 Johns. Ch. 507, 518, 519; Wogan v. Small, 11 Serg. & R. 141, 145; Vandemark v. Vandemark, 26 Barb. 416; Verdier v. Verdier, 8 Rich. Law, 135. " A merely general change in the testator's circumstances, as it regards the amount and relative value of his prop- erty, will not in general, if ever, have the effect to revoke a will, since the testator, by suffering it to remain uncanceled, does in effect reaffirm It, from day to day, until the termination of his conscious existence. " 1 Redf. Wills, 298. The conclusion, then, is that the subse- quent changes in the circumstances of the testator, his family and estate, do not imply a revocation of his will. To effect a revocation both the English and New Hampshii-e statutes require certain speci- fied things, which are lacking in this case, to be done, and not merely contemplated or even actually intended to be done. It is true that at an early day the English com- mon-law courts fell into the error of exer- cising legislative power, and materially amending the statute of 1676 by enlarging its specific methods of revocation so as to include revocations founded upon new family ties and obligations on the part of the testator, arising from subsequent marriage, issue, and leaving wife and child without provision; and that, inasmuch as our statute must be regarded as a sub- stantial re-enactment of that statute in the sense in which it had been interpreted by the English courts anterior to 1822, full effect must be given to their decisions, al- though plain encroachments upon legisla- tive power; yet no rule was expressly es- tablished, and none can be inferred from the decisions, that makes it our duty to trespass still further upon the legislative domain, and so far judicially repeal the statute as to hold that the present case does not come within the purview of its fourteenth section. Even the English courts had come to a halt prior to 1822, and refused to extend the rule as toimphed revocations be,yond the precedents, and so have the American courts quite uniformly. See Doe v. Barford, 4 Maule & S. 10; TiLGHMAN, C. J., in Wogan v. Small, supra, and authorities generally. The rule for which the appellee contends is that a revocation may be proved ordls- proved by any circnmstantial evidence showing the testator's intention; but the precedents do not support the contention. On the contrary, after a most thorough examination of the cases reported before the enactment of the New Hampshire stat- ute, it was unanimously held in Marston v. Roe, 8 Adol. & E. 14, by the 14 judges sitting in the cause, that implied revoca- tion takes place in consequence of a rule or principle of law, independently alto- gether of any question of intention; and there is no reason to suppose that the legislature of 1822 took a different view o! the reported cases. If their purpose was to makeintentionof itself a ground of revo- cation, and thus inevitably incite litiga- tion and "produce infinite uncertainty and delay in the settlement of estates," the presumption is that the statute would have been drawn accordingly. Even Johnston v. Johnston, 1 Phillim. Ecc. 447, upon which great stress has been laid by the appellee, while holding the subsequent birth of a portionless child to be an indis- pensable requisite which would effect a revocation when aided by other circum- stances, and a subsequent marriage not to be an essential requisite, does not hold that the revoking intent may be inferred from a general change of circumstances simply, but makes the controlling princi- EE VOCATION, KEPUBLICATION, AND REVIVAL OF WILLS. 55 plp rest upon new moral obligations and family ties arising after t!ie malting of the will, and tlius limits its application to cases of subsequent marriage or birth in which the wife or child would otherwise be left without provision for support. This case, however, is not relevant, the will being one of personalty only, and the decision being made by an ecclesiastical court, unincumbered by statute provis- ions; and if it were relevant, its govern- ing principle, when applied to this case, would be fatal to the appellees, for the reason that no child was born to the tes- tator subsequently to the execution of his will. This being so, it is of no practical consequence here whether the doctrine of implied revocation rests upon the fact of a changed intention, as held in Johnston v Johnston, or takes place in consequence of a rule or principle of law founde after providins that no will shall be revoked, unless by burning, tear- ing, etc., or some other writing executed in the manner required in the case of a will, goes on as follows: "But nothing contained in this section shall prevent the revocation implied by law from sub- sequent changes in the condition or cir- cumstances of the testator." It isnotap- parent that an entire revocation, by im- plication of law, results from any change of condition or circumstances except that of a subsequent marriage. See the discus- sion in Warner v. Beach, ubi =iupra. This clause as to implied revocations was first introduced into Eev. St. c. 62, § 9. The other provisions as to revocation were substantially taken from St. 1783, c. 24, § 2. The commissioners in their note to this section say: "The clause as to im- plied revocations recognizes and adopts the existing law, as established and un- derstood among us." And their further discussion of this subject shows clearly that they had in mind the rule of the comuion law, that, in case of a man, mar- riage and the birth of a child, and, in case of a woman, marriage alone, revoked a will previously made. We are of opinion that this provision as to implied revoca- tions, from its language, and the reasons given for its introduction, has substan- tially the force of an express enactment of the rules of the common law, which we are not at liberty to change, even if the reason for the rule, in case of a wo- man, no longer exists. This was the view talien in Brown v. Clark, 77 N. Y.369, upon a similar question, under a statute of New York. We are therefore of opin- ion that the will of Susan E. Hammond was not properly admitted to probate. Decree of probate court reversed. (65 Md. 373, 5 Atl. Rep. 295.) Baldwin et a/, v, Speiggs. (Court of Appeals of Maryland. June 22, 1886. ) 1. Revocation of Wills — Implication — Mak- kiage and bikth of issue— exception. A man's will is impliedly revoked by his sub- sequent marriage and the birth of a child. This doctrine rests upon the ground ot a tacit condi- tion annexed to the will, when made, that it should not take effect if there should be a total change in the situation of the testator's family; but the rule is subject to an exception, and is therefore not applied in cases where the testator has made provision for his children born after the execution of the will. 2. Same. Testator, married and having children, made a will wrhich disposed of all the property owned by him at that time. Subsequently his wife died, and he married again, and had children by his second wife. He lived 20 years after the date of the will, and during that time acquired other real estate. Held, that this after-acquired prop- erty would not be considered as a provision for the children of the second marriage, so as to bring the case within the exception, but that the will was revoked. Appeal from orphans' court, Anne Arun- del county. Proceedings to probate a will claimed to have been revoked by the testator's subsequent marriage and the birth of sur- viving issue. Decree for contestant, and proponent appeals. Edw&rd C. Crantt, for appellants. James REVOCATION, REPUBLICATION, AND REVIVAL OF WILLS. 57 RevelJ and Daniel R. Magruder, for appel- lees. Stone, J. There is no dispute aliout the material {acts in this case. James Spriggs, of Anne Arundel county, on the 25th oJ July, 1865, duly executed his will. By that will he disposed of all the proppr- ty, real and personal, which he then owned. James Spriggs, at the time of the execution of the said will, had a. wife, Ruth Spriggs, then living, and several children by her, also living. By his said will he devised all his property to said •wife and children. His wife, Ruth, died in 1871, and said James, soon after the death of said Ruth, about 1874, intermar- ried with Maggie E. Vane, and also had by her several children. Said James Spriggs died in January, 1886, leaving a widow, the said Maggie E. Spriggs, and a child by the said Ruth and children by the said Maggie E. surviving him. After the execution of the will the said James Spriggs purchased certain other real es- tate which was unaffected by said will. His will, as to his real estate, contained no residuary clause, but disposed of all the real estate he owned at its date, by spe- cific description. After the death of James Spriggs his will was offered for prol)ate in the orphans' court of Anne Arundel coun- ty, and a caveat, was filed thereto by his eecdnd wife, Maggie E. Spriggs, in behalf of herself and her children, and upon such caveat plenary proceedings were had, and the orphans' court ordered and decreed that said will was revoked by his subse- quent marriage and the birth of issue, and refused to admit the paper to probate. From this decree the daughter of the tes- tator by his first wife and two of his grandchildren liaye appealed to this court. These are all the facts necessary to elu- cidate the legal proposition which we are called upon to decide, and which is simply whether, upon this state of the facts, the will of James Spriggs has been revolted by operation of law. It would be a profitless task to review all the English cases on the subject. They may be found by the curious fully discussed by Chancel- lor Kent with his usual ability in the case of Brush V. WilkiDS, 4 Johns. Ch. 506. It is enough for us to say that, after a good deal of doubt and hesitation, it was finally settled in England, before our Revo- lution, that marriage and issue taken to- gether did amount to an implied revoca- tion of a will previously made, and that such implied revocations were not within the statute of frauds, but that such im- plied revocations might be rel)utted and controlled by circumstances. The final determination of the matterseems to have been reached by the cases of Christopher V. Christopher, 2 Dick. 445, (decided by the court of exchequer, Pahkkr, C. B., pre- siding, in 1771.) and in the case of Spraage V. Stone, 1 Amb. 721, (decided in 1773. ) These cases appear to have definitely settled the law that a subsequent marriage and birth of a child, standing alone, and unaccom- panied by other circumstances, amount to an implied revocation of a will. The whole subject, says Chancellor Kent, has continued to receive great dis- cussion in the Engli-sh courts since the era of our Revolution, growing out of new cases constantly arising amidst the end- less variety of human affairs, The most important of the English cases since the Revolution is the case of Mars ton v. Fox, 8 Adol. & E. 14, (decided in 1838 by 14 out of the 15 English judges,) where the gen- eral doctrine we have stated was reaf- firmed. We will recur to this case again for another purpose. But we are not without decisive authority in our own state. The unreported case of Sedwick v. Sedwick, decided at June terra, 1844, was a case similar to the one at bar. And the court of appeals decided that the subse- quent marriage, and birth of a child, did revoke the will, and they afilrmed the de- cree of the orphans' court refusing it pro- bate. No opinion was filed in the case, although a large amount of property was involved, and the case was argued by some of the most eminent counsel in Ma- ryland. But they did flatly decide the question by a decree declaring the will re- voked by the subsequent marriage, and birth of a child. But while such is the general rule, like other general rules, it has been held in England subject to some exceptions. Among the exceptions is the one where the testator has made provision for his children born after the execution of the will. As the origin of the rule was the duty of the parent to provide for his off- spring, this exception seems right and proper. Another matter upon which the English courts have exercised themselves is the determination of the ground upon which the doctrine of implied revocation ought to be rested. This is of practical importance in this case, and will require some examination. Lord Mansfield, in the case of Brady v. Cuhitt, 1 Doug. 31, thought the rule should rest on the pre- sumption that the testator intended to revoke his will, and that it therefore fol- lowed that such presumption might be re- butted by even parol evidence, — to use his own words, that such presumption might be rebutted by "every sort of evidence." But Lord Mansfikld's view seems to us irreconcilable with the statute of frauds. It would in effect allow the will to be re- voked by the subsequent intention of the testator, Avithout such intentif)u being evidenced by the positive acts so express- ly required by that statute. That view leads to another difficulty: that the tes- tator may change his first intention, and adopt a contrary one; and, if so, which of the two intentions is to prevail? The conclusion, however, that Lord Mans- field reached, that every sort of evidence was admissible, was but the logical con- sequence of the ground upon which he rested the rule, namely, that of presumed alteration of intention. This case was decided in 1778. But the courts there seem to have felt the difficulties that would result from such a view, and Lord Kenyon, in Doe v. Lancashire, 5 Term, R. 49, (decided in 1792,) placed the rule upon another ground, namely, a tacit condition annexed to the will, when made, that it should not take effect il there should be a total change in the situ 58 LAW OF "WILLS. ation of the testator's family. This view of Lord KE^YON was afterwards adopted by Lord Ellenborough in the case of Kenebel v. Scrafton, 2 East, 534, (decid- ed in 1S02.) Finally, the court, in Marston V. Fox, heretofore cited, unanimously adopted the views of Lord Kenyon, and it may now be considered as settled in England that the doctrine of implied revocation rests upon the ground ol a tacit condition annexed to the will, wh<'n made, that it should not take effect if there should be a total change in the situation of the testator's family. In this we concur. If we adopt the English rule that the will is not revoked if the testator makes provision for the children of the subse- quent marriage, the question arises in the case at bar whether he can be considered to have made such provision by the purchase of the property acquired by him between the date of his will and his death. This question must be answered, both upon reason and authority, in the nega- tive. The testator disposed of all the property he then owned, by his will; but he lived 20 years after its date, and in the mean time purchased other real estate, which the children of the second wife would share with those of the first. But the mere Accumulation of additional property cannot, upon any ground of rea- son, be considered a provision made by the testator for the second set of children, any more than for the first set, as the lat- ter are equally benefited by it. The in- justice of considering after-acquired prop- erty a provision forthesecond children will be the more readily seen if we consider a case — and such have frequently oc- curred — where the beneficiaries uuder the will were comparative strangers, or re- mote collaterals. Again, if after-acquired property should be held a provision for the after-born children, how rhuch prop- erty must be so acquired? It could hardly be said that the purchase of an acre of poor land, or a cow or horse, could be so considered; and, if not, by what rule should the value of such property be esti- mated? But we are not without author- ity on this subject. In Marston v. Fox, above cited, the point was made that an after-purchased estate did not pass by the will, but des'^ended to the son in fee, and thereby became a provision for him, and prevented the revocation; but in answer to this objection, the court said: "In the first place, we answer that no case can be found in which after-acquired property descending upon a child has been allowed to have that effect; and, indeed, such a proposition seems incompatible with the nature of a condition annexed to the will. " To determine that after-acquired prop- erty was a provision for the after-born child would be totally inconsistent with the theory that the rule of implierl revo- cation rests upon the tacit condition an- nexed to the will, when made, that it should not take effect if there should be a total change in the situation of the testator's family. Instead of the change in the family, it would make a change in the property, — one of the essential ple- ments to determine the implied revoca- tion. The will of the successful testator would stand; that of the unfortunate would be revoked. Dpon the whole case presented by the record before us, we are of opinion that, the testator having disposed of the whole of the estate owned by him at the date of his will, and having again married, and had children by his second wife, and having made no provision for such chil- dren, his will was revoked by opera- tion of law, and that the order of the or- phans' court must be affirmed; the costs to be paid out of the estate. (See, also, Warner v. Beach, 4 Gray, 162; Smith v. Robertson, 89 N. Y. 555; Goodsell's Appeal, 55 Conn. 171, 10 Atl. Rep. 557; MoAnnulty v. MoAnnulty, 120 111. 26, 11 N. E. Rep. 397; Emery's Case, 81 Me. 275, 17 Ati. Rep. 68; Hart v. Hart, 70 Ga. 764; Havens v. Van Den Burgh, 1 Denio, 27; Riggs v. Palmer, 115 N. Y. 506, 22 N. B. Rep. 188.) (77 N. Y. 369.) Brown et a/, v. Clark et al. (Court of Appeals of New York. May 20, 1879.) 1. Revocation of Wills — Marriage op Feme Sole. The New York statute, (2 Rev. St. N. Y. p. 64, § 44,) which provides that the will of an unmar- ried woman shall be deemed revoked by her sub- sequent marriage, declares an absolute rule. It does not make the marriage merely a presump- tive revocation, which may be rebutted by proof of a contrary intention, but causes it to operate eo instanti as a revocation. The statutes con- ferring testamentary capacity upon married wo- men have not abrogated this rule, that marriage effects a revocation. 2. Republication of Will — Revival of Re VOKED Will. It is a general rule of law that a codicil exe cnted with the formalities prescribed by statute for the execution of wills operates as a republi- cation of the will to which it relates, so far as the will is not changed by the codicil, and this rule has not been altered by the New York stat- utes pertaining to wills. Hence the will of a feme sole, which has been revoked by her mar- riage, will be revived b.y the valid execution by her. after marriagu, ot a codicil, which clearly re- fers to and identifies the will; the publication of the codicil is to be deemtvl a republication of the will, and both together constitute ihe last will and testament of the testatrix. 3. Execution — Presumptiox from Recital of Essential Acts in Attestation Clause. Where the attestation clause in a will recites all the essential acts to constitute a due exe- cution and publication of the instrument asawill, and the surrounding circumstances tend to cor- roborate the truth of the recitals, the fact that the witnesses, after the lapse of several years, fail to recollect affirmatively the facts recited, will not rebut the presumption of due publication arising from the attestation clause and the other circumstances. Appeal from supreme court, general term, fourth depaitment. Pi occcdings before the surrogate of Moni-oe county by Fortune C. Brown and others, executors named in a codicil exe- EEVOCATION, REPUBLICATION. AND REVIVAL OF "WILLS. 59 suted by Mary J. Clark Proctor, deceased, tor probate oF a will and codicil exe- cuted by said Mary J. Clark Proctor. The will was executed by the deceased, then Mary J. Clark, on August 25, 1873. Slie subsequently married Truman A. Proctor, and after such marriage, and on December 7, 1876, she executed a codicil. She died October 1, 1877. The surrogate denied probate of the will on objection by War- ren C. Clark and others, and the executors appealed to the general term, where the decree of the surrogate was reversed, and the objectors appealed to this court. J. C. Cochrane, for appellants. H. R. Selden, for respondents. Andrews, J. The evidence justifies the conclusion of the surrogate that there was a due execution of the will of August 25, 1873. The will was drawn by Mr. Clark, who was a lawyer by profession, and was exe- cuted by the testatrix under his supervis- ion. She was his adopted daughter, and sole legatee under his will. When her will was executed she had little, if any, proper- ty of her own, and her will was made to provide for the disposition of the estate which she would receive under the will of Mr. Clark in theevent of her surviving him. In substance, the two vtills constituted a scheme for the disposal of the property of Mr. Clark after his death and the death of the testatrix. The attestation clause is full, and recites all thefHcts constituting a due execution, and is signed by two wit- nesses. The witnesses were not lawyers, and were not, so far as appears, convers- ant with the statute requirements for the execution of wills, and when examined were unable to state that they signed the will as witnesses at the request of the tes- tatrix, or that she at the time declared it to be her will. But it is undisputed that the testatrix executed the will in their presence, and that they were requested bj' some one to become witnesses to a will, and that they attended on the occasion of the execution of the will in pursuance of such request. There iw no evidence con- tradicting the recitals in the attestation clause. Neither of the witnesses deny that it contained a true account of what oc- curred when the will was executed. The proof was taken five years after its execu- tion. Mr. Clark was then dead, and no persons were living who were present at the execution except the two witnesses. The case is therefore one where the attesta- tion clause recites all the essential acts to constitutea due execution and publication of the instrnmnnt as a will, and the oth- er circumstancps tend to corroborate the truth of the recitals. The witnesses, after a lapse of several years, fail to recullect affirmatively the facts attested by them over their own signatures. The mere non-recollection of witnesses, under these circumstances, would not justify a finding that the statute requirements were not observed. Their lack of memory does not rebut the presumption of due publication arising from the attestation clause and the other circumstances. Brinckerhoof v. Remsen, 8 Paige, 499, 26 Wend. 332; In re Kellum, 52 N. Y. 517. We concur In the conclusion reached by the surrogate that the will was revoked by the subsequent marriuge of the testa- trix. It was The rule of the common law that the marriage of a woman operated as an absolute revocation of her prior will. Forseand Heiubling'sCase,4Coke, 61. The reason of the rule is stated by Lord Chan- cellor Thuri.ow in Hodsden v. Lloyd, 2 Brown, Ch. 534. He says: " It is contrary to the nature of the instrument, which must be ambulatory during the life of the testatrix; and, as by the marriage she disables herself from making any other will, this instrument ceases to be of that sort and must be void." The rule that the marriage of a feme sole revoked her will was made a part of the statute law of this state by the Revised Statutes, (2 Rev. St. p. 64, § 44.) The language of the statute, that the will of an unmarried wo- man shall be deemed revoked by her sub- sequent marriage, is the declaration of an absolute rule. The statute does not make the marriage a presumptive revocation, which may be rebutted by proof of a con- trary intention, but makes it operate eo iostanti SiS a. revocation. 4Kent, Comm. 528. It is claimed by the contestants that the tebtamentary capacity conferred upon married women by the recent statutes in this state takes away the reason of the rule of the common law, and that upon the maxim, cessaute ratione legis cessat lex ipse, the rule should be deemed to be abrogated. Upon the same ground it might have been urged at common law that the marriage of a feme sole should only be deemed a revocation or suspension of her prior ^\^]\ during the marriage, and that when the woman's testa nientari' capacity was restored by the death of her husband, leaving her surviving, the will should be revived ; but the contrary was settled. Forse and Hembling's Case; 1 Jarm. Wills, 106; 4 Kent, Comm. 598. But the courts cannot dispense with a statu- tory rule because it may appear that the policy upon which it was established has .ceased. The married women acts confer testamentary capacity upon married wo- men, but they do not undertake to inter- fere with or abrogate the statute prescrib- ing the effect of marriage as a revocation. It was quite consistent that thelegislature should have intended to leave the statute of 1830 in force, although the new statutes took away the reason upon which it was based. The legislature may have deemed it proper to continue it, for the reason that the new relation created by the marriage would be likely to induce a change of testamentary intention, and that a disposition by a married woman of her property by will should depend upon a new testamentary act after the mar- riage. The remaining question is as to the legal effect of the codicil of December 7, 1876. This was executed after the marriage of the testatrix, and refers to the will by its date, and the names of the attesting wit- nesses; and in the body of the codicil the testatrix declares her intention thereby to republish, reaffirm, and adopt the will as modified by the codicil as her present will, in the same manner as if then executed by 60 LAW OF WILLS. her, and following this declaration is this clause: "Which, [codicil,] in connection with and amendment of my will, I now publish and declare together, as constitut- ing my last will and testament." The codicil was executed with the formalities required by the statute. It was signed by the testatrix in the presence of two wit- nesses, and was attested by them in her presence, by her request ; and she, at that same lime, declared the instrument to be "a codicil to her last will and testament, and a reaffirmation of the latter." The original will was present when the codicil was executed, and the attention of the witnesses was called to it, and one of them examined and Identified it. The evidence leaves no room for doubt that the main purpose of the testatrix in making the codicil was to re-establish the will, which had been revoked by her mar- riage. The inference from the proof is that she understood the will had been re- voked by her marriage. The codicil made some provision for a brother of the testa- trix not contained in the will, but the paramount intention of the testatrix in executing the codicil was, as appears by the codicil and the extrinsic circumstances, to reaffirm the disposition of her property made by the will, so that the bulk of her estate should go according to its provis- ions. The contestants claim that the in- tention of the testatrix to reaffirm the will cannot take effect, for the reason that there was no republication of that in- strument after her marriage, and that what occurred at the time of the execu- tion of the codicil was a publication of that instrument only, and did not operate to revive the will, or incorporate its pro- visions with those of the codicil. The gen- eral doctrine is well settled that a codicil executed with the formalities required by the statute for the execution of wills op- erates as a republication of a will so far as it is not changed by the codicil. Ach- erly v. Vernon, 1 Comyn. 381 ; Barnes v. Crowe, 1 Ves. Jr. 486; Mooers v. White, 6 Johns. Ch. 375; Van Ccrtlandt v. Kip, 1 Hill, 590, 7 Hill, 346. In Van Cortland t v. Kip, 1 Hill, 593,CowEN, J.,said : "It seems to me that at this day it would be a viola- tion of all reliable authority to deny that a codicil, duly attested to pass real estate, would per se, whether it relates to real or personal pi-operty, operate as a repub- lication of a devise, unless the testator de- clares that he does not intend that it shall have that effect." This doctrine was at- tended with important consequences. By the English law prior to the wills act, (1 Vict. c. 26,) a testator must have been seised of the lands devised at the time of making his will, and after-acquired lands would not pass under a residuary devise; and this was also the rule in this state prior to the Ilevised Statutes. 4 Kent, Coram. 601. But the execution of a codicil was held to make the will speak as of the time the codicil was executed, and to ex- tend a general devise to lands acquired intermediate the making of the will and the codicil. The cases in 1 Ves. Jr. 486, and 1 Hill, 590, supra, proceeded upon this doc- trine. In each of these cases lands ac- quired by the testator, after making the will, and before the execution cf the cod- icil, were held to pass under the will. It was not essential to the application of this rule that the codicil should be an- nexed to the will, or express an intention to republish the will or refer to the devise. It was sufficient if the codicil was executed with the formalities required for the exe- cution of a will of lands. Goodtitle v. Meredith, 2 Manle & S. 5; Jackson v. HoUoway, 7 Johns. 394; Jackson v. Pot- ter, 9 Johns. *;il2. The statute of frauds (29 Car. II.) enacted that all devises of lands shaU be in writing, and signed by the devisor, or by some person in his pres- ence, and by his express directions, and shall be attested and subscribed in his presence by three or four credible wit- nesses, or else they shall be void. Prior to 1830 this statute had been substantially re- enacted In this state, and governed the execution of wills here. 2 Kev. Laws, c. 23, § 2. It will be observed from the cases cited that the attestation of a codicil by the requisite number of witnesses was deemed a compliance with the statute, so as to make the will operate upon after- acquired lands, although they were not mentioned in the codicil, and there was no express republication of the will. The at- testation of the codicil is, according to the decisions, an attestation of the will, within the meaning of St. Car. II. So, also, it was held that a will, revoked by marriage or otherwise, was revived by the execution of a codicil. Lord Walpole v. Lord Orford, 3 Ves. 402; Neate v. Pickard, 2 Notes of Caa. Adm. & Ecc. 406; 1 Jarm. Wills, 187; 1 Redf. Wills, 367. This subject is now regulated in England by the twen- ty second section of the wills act, (1 Vict, c. 26,) which provides, in substance, that no will or codicil which shall in any man- ner be revoked shall be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner .prescribed by the act, and showing an intention to revive the same. Upon the authorities cited,' it is cleai that, under the law in this state as it stood prior to 1830, there was a valid re- publication of the will in question by the execution of the codicil of December 7, 1876. The Kevised Statutes changed, in several respects, the ceremonies to be observed in the execution of wills; and, among other things, it is expressly required that the testator shall, at the time of making or acknowledging his subscription to the will, declare the instrument to be his last will and testament. 2 Rev. St. p. 63, § 40, subd. 3. There is nothing in the statute indicating that it was intended to change the rule that a codicil, duly executed, was a republication of the will. The codicil in thecase of Van Cortlandt v. Kip, 1 Hill, .590, was executed after the present statute was enacted. It referred to the will exe- cuted in 1824, but did not in terms repub- lish it, and made no reference to the lands acquired by the testator after the will was made; but the court held, in ac- cordance with the law which existed Ibe- fore the Revised Statutes were passed, that the codicil was a republication of the devise In the will, and that the after-ac- quired lands passed to the surviving dev- MUTUAL WILLS— JOINT WILLS, ETC. 61 Isee. The Revised Statutes did not affect the construction of wills made before the chapter relating: to wills took effect. 2 Rev. St. p. 68, § 70. This case seems to he a direct authority that the due execution and publication of a codicil is, under the Revised Statutes, as it was prior thereto, a republication of the will to which it re- fers. The codicil in this case refers to the will, and expressly adopts and reaffirms it. The testatrix, by publishing the cod- icil, published the will, which was clearly identified by the reference in the codicil and the extrinsic proof. It is established by a long line of authorities that any written testamentary document in ex- istence at the execution of a will may, by reference, be incorporated into and be- come a part of the will, provided the refer- ence in the will is distinct, and clearly identifies, or renders capable of identifica- tion by the aid of extrinsic proof, the doc- ument to which reference is made. I will cite a few of them : Habergham v. Vin- cent, 2 Ves. Jr. 228; Smart v. Prujean, 6 Ves. 565; Williams v. Evans, 1 Crorap. & M. 42; Allen V. Maddock, 11 Moore. P. C. 427; Burton v. Newbery, 1 Ch. Div. 234; Tonnell v. Hall, 4 N. Y. 145. In Williams on Executors (page 97) it is said : "If a testator in a will or codicil or other tes- tamentary paper, duly executed, refers to an existing unattested will or other paper, the instrument so referred to becomes part of the will;" and Jarman says, (1 Jarm. Wills, 7S:) "A codicil, dulj' attested, com- municates the efficiency of Its attestation t(t an unattested will or previous codicil, so as to render effectual any devise of a free- hold estate which may be contained in such prior unattested instrument;" and further on, speaking of the incorporation of documents by reference in the will, he says this is permitted " witliout violating the principle of the enactment which re- quires an attestation by witnesses, the testator's intention to adopt the contents of such instrument being manifested by a will duly attested." Page 83. In this case, if the will of Mrs. Proctor had been an unattested instrument, it would, upon the authorities, have been incorporated with and made a part of the testament- ary instrument originally executed, by reason of the reference to it in the codicil. I am of the opinion that the publication of the codicil was a publication of the will, and that both papers together are to be considered as the will of the testatrix. There was no proof to sustain the allega- tions of undue influence or want of testa- mentary capacity in the testatrix when it was executed. The only question before us is one of law, upon substantially un- controverted facts ; and the order of the general term reversing the decree of the surrogate, and remitting the proceedings to him with directions to admit the will to probate, should be affirmed. Hoysradt v. Kingman, 22 N. Y. 372; Gilbert v. Knox, 52 N. Y. 125. All concur. Order affirmed. (See. also, Haven v. Foster, 14 Pick. 534; Scott V. Pink, 45 Mich. 241, 7 N. W. Eep. 799.) MoCurdy v. Neall, 42 N. J. Eq. 833, 7 AtL Rep. 566; VIII. MUTUAL WILLS— JOINT WILLS — VALUABLE CONSIDERATION FOR A WILL. (Read In re Cawley's Estate, p. 19, supra.) (50 N. Y. 88.) In re Diez's Will. {Cmirt of Appeals of New Ym-k. Nov. 13, 1872.) 1. What Constitutes a Will. Whether a written instrument is a contract or a will is to be determined by the dispositions wliich it makes, rather than by designations con- tained therein referring to it as a "matrimonial and testamentary agreement" or as a "contract. " 2. Same. The distinguishing feature of a will is that it is not to take effect except upon the death of the testator. An instrument which is to operate in the life-time of the donor, and to pass an interest in property before his death, even though its ab- solute enjoyment by the donee is postponed until after the donor's death, or even though it be con- tingent upon the survivorship of the donee, is a deed or contract, and not a will. But if it is not to have any operation until after the maker's death, then "it is a will, notwithstanding it may have been executed in pursuance of a previous promise or obligation appearing upon its face. 3. MUTUAI. WlIX. An instrument in writing signed by a man and his wife, and executed with the formalities of a will, provided as follows: "Inasmuch as we have by joint exertions acquired the property now in our possession, and inasmuch as our only child has already departed this life in the tenderest age, we hereby determine that, upon the decease of one or the other of us, the surviving husband or wife shall receive the entire property of the one having died first, — that is to say, the existing jointly acquired property, " — to him or her un- conditionally. Held, that the instrument was the will of the one who should first die, and not a contract, notwithstanding the reasons given for the dispositions. 4. Execution — Seal. In New York a seal is not required to a will of real or personal estate; the testator must sub- scribe his name at the end, but need not attach a seal. 2 Rev. St. N. Y. p. 63, § 40. Appeal from supreme court, general term, second department. 62 LAW or WILLS. Proceedings by Ursula Diez before the surrogate of New York county for the probate of an alleged will of Frederick Uiez. The testator was a naturulized citizen of New York state, domiciled in New York city. He went to Germany in May, 1868, and died at Sonthofen, Bava- ria, November 1, 1868. Previous to his death the following instrument was exe- cuted : "Matrimonial and also testamentary agreement: G. K. N., 898. This day, Sun- day, November 1st, 1868, (one thousand eight hundred and sixty-eight, 1 at eleven A. M., appeared before me, Francis Xaver Malor, royal notary at Southofen, in the house No. 80 at Southofen, whither I went at once, according to the request of the parties. (1) The hotel proprietor, Mr. Frederick Diez, from New York, in the United States of America, at present being in Southofen, who, although lying in bed in an upper room in the above-named house, suffering from a complaint in the stomach and very weak, is in full pos- session of his mental faculties, and ttiere- fore must be deemed full.v competent to make dispositions, whereof I have con- vinced myself by conversation with him. (2) His wife, Mrs. Ursula Diez, born Trunk, of the same place. Lastly, (3) the two impartial witnesses, whose jjresence had been especially requested, and who, after examination, have been found free of all exceptions — (a) The practicing physician. Dr. Leonard Stich, of Sou thofen ; and (fe) the merchant. Mr. Max Mathes, of Southofen ; both of the latter I am per- sonally acquainted with as to name, oc- cupation, and residence, while the name, occupation, and residence of the former two persons were only madeknown to ir.e by the tw^o witnesses present And Mr. Frederick Diez and his wife, Mrs. Ursula Diez, requested me to reduce to writing and certify in my official capacity the fol- lowing : ' Matrimonial and al.-o testament- ary agreement: (I.) We have made, as yet, no conjoint disposition of any kind concerning the hereditarj' succession in case of death. (II.) Inasmuch as we have, by joint exertions, acquired the property now in our possession; and inasmuch as the offspring of our marriage, our only child, Mary Diez, has already, in the ten- derest age, departed this life, — we hereby determine that, upon the decease of one or the other of us, the surviving husband or wife shall receive the entire property of the one having died first, — that is to say, the existing jointly acquired property, — to his or her unconditionally, free, sole pos- session and sole ownership, and shall not be bound to pay over anything to anj' per- son in case of a death. (111.) Also all for- mer disiiositions concerning the hereditary succession which may have been made by us singly, or with the consent of botli, however and wherever made, t)etween the living, or for the case of death, are hereby set aside and declared null and void. (IV. 1 We desire that a first exemplified copy of the foregoing matrimonial and also testamentary agreement be delivered to us, and we will bear (V.) the expenses incurred jointly.' Hereupon the present Instrument ^as drawn up by special re- quest of the parties, and after It had been read to them in the presence of the two above-named witnesses, and after their attention bad been called to all such legal relations as might possibly stand in the way of such a contract, and after being aijproved by them. It was ratified to the full contents of it, and signed by th^m, by the two witnesses, and by myself, the un- dersigned royal notar.y. " Mark of Mr. Frederick Diez, who"! is unable to write on account of I -y great weakness; wherefore the two ( witnesses have subscribed for him. J " Ursula Diez. "L. Stick, Physician. "Max Math KS. "Fkanz Xaver Malor, [l. s.] "Koyal Notary." This instrument was offered for probate by Ursula Diez, the widow of deceased. Probate was contested by Christian Supp, a residuary legatee under a former will. Contestant appealed from a decree admit- ting the will to probate. The general term of the first department sent the case to the second department, where the de- cree of the surrogate was affirmed, and contestant appealed to this court. B. P. Towrisend, for contestant and ap- pellant. -F. S. Stallknecht and Elial I. Hall, for proponent and respondent. Rapallo, J. * * * The two objec- tions relied upon in the appellant's points are — First, that, not being under seal, the instrument cannot be regarded as a will of real estate; and, second, that it is in form a contract, and not a will. The first objection is wholly unfounded; a seal is not required to a will of real or personal estate. The statute requires only that it be subscribed by the testa- tor at the end. 2 Rev. St. p. 63, § 40; 1 Jarm. Wills, 70, note. The second objection presents a more debatable question. The instrument is entitled, and refers to itself in one place as, a matrimonial and testamentary agree- ment, and in another as a contract, and contains no expression declaratory of its testamentary character, except the words "testamentary agreement," or, as translated in the first deposition, "con- tractor marriage and inheritance, "and, in the third, "marriage and inheritance con- tract. " These designations are not, how- ever, conclusive as to the character of the instrument. That must be determined by the dispositions which it makes. 1 Jarm. Wills, p. 13; Ex parte Day, 1 Bradf. Sur. 482, and authorities there cited. These dispositions are, in substance, that Diez and his wife each declare that they thereby determine that, upon the decease of one or the other of them, the surviving husband or wife shall receive, uncondi- Tionall.y, the entire property of the one having died first; and that all former dis- positions concerning the hereditary succes- sion, which may have been made by eithec of the parties singly, or with the consent of both, are annulled. These provisions are preceded by a declaration of the mo- tives leading to such a disposition of the property, which were that it had been acquired by the joint exertions of the par- MUTUAL WILLS— JOINT WILLS, ETC. 63 ties, and that their only offsprinj; had in the tenderest age departed this life. It is claimed that the fact that the property, upon which the instrument was to oper- ate, was the product oE the joint labor of the parties, furnished a consideration for an agreement between them that, on the death of either, it should belong to the survivor, and that the instrument in question was such an agreement, and not a will. The distinguishing feature of a will is that it is not to tal^e effect except upon the death of the testator. An in- strument which is to operate in the life- time of the donor, and to pass an inter- est in the property before his death, even though its absolute enjoyment by the donee be postponed till after the death of the donor, oreven though it be contingent upon the survivorship of the donee, is a deed or contract, and not a will. But if the instrument is not to have any opera- tion until after death, then it is a will, not- withstanding that it may have been exe- cuted in pursuance of a previous promise or obligation appearing upon its face. Testing the document now before us by this rule, we thinlt that it was the will of that one of the signers who should first die; that it did not purport to convey any present estate or interest in the prop- erty, or to deprive either of the parties of the absolute power of disposition of his or her own property, during his or her life, but was an arrangement testament- ary in its character, and not intended to operate except upon the death of one of the parties, and then only as expressive of the intention of the one dying as to the posthumous destination of his or her property. It does not use words of grant or mutual contract, but states that the parties have determined that, upon the death of either, the survivor shall receive the entire property. The reasons given for this determination do not necessarily make it a contract. The fact that by the same instrument the husband and wife devised reciprocal!}' to each other, or, in other words, that it was a mutual will, does not deprive it of validity. There is no just objection to such a form of testat- ing. The instrument operates as the sepa- rate will of whoever dies first. Here, the husband having died first, it can be proved as his will, and the efflcauy of his dispositions is in no way impaired by those portions of the instrument which, if the wife had died first, would have con- stituted her will, but which have now be- come inoperative. The result is precisely the same as if like reciprocal disposi- tions had been made by the husband and wife by means of two separate instru- ments. The combining of such reciprocal dispositions in one instrument is sanc- tioned by several authorities. Ex parte Day, 1 Bradf. Sur. 476; Lewis v. Scofield, 26 Conn. 452; Evans v. Smith, 28 Ga. 98; 1 Redf. Wills, 182; Rogers, Appellants, 11 Me. 303; In re Stracey, Deane & S.6; In re Lovegrove, 2 Swab. & T. 453; Dufour v. Pereira, 1 Dick. 419; 2 Harg. State Tr. 310, 311 The order should be affirmed, with costs. All concur. Order affirmed. (39 Ohio St. 639.) Betts v. Harper. (Supreme Court of OMo. Jan. Term, 1884. ) Joint Wills. Two sisters, each of whom owned personal property in severalty, and who were also seised of real estate as tenants in common, executed one and the same instrument, which, after pro- viding for the payment of their debts, continued : ^^Seoo^id, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever;" and it then appointed an executor, and revoked "all former wills by us made," and ratified "this and no other to be our last will and testament. " This instrument was presented for probate after the death of both sis- ters. Meld, that it should be admitted to pro- bate as the will of both ; that it was, in effect, the separate will of each testatrix, and might have been revoked by either, in so far as it was her will; and that upon the death of either it might have been probated, as her separate will. Walker v. Walker, 14 Ohio St. 157, limited. Error to district court, Hocking county. Agnes Harper and Penrose Harper, sis- ters domiciled in Hocking county, each owning personal property, and being owners as tenants in common of real es- tate in that county, signed the following instrument, dated April 17, 1862: "We, Agnes Harper and Penrose Harper, of the county of Hocking, in the state of Ohio, do make and publish this, our last will and testament, in manner and form fol- lowing; that is to say: First, it is our will that our funeral expenses and all our just debts be first fully paid; second, that all of our property, both real and per- sonal, go to James Betts and John Drue Betts and their heirs forever; iastlj^ we hereby constitute James Betts to be exec- utor of this, our last will and testament, revoking and annulling all former wills b.y us made, and ratifying and confirming this, and no other, to be our last will and testament." This instrument was sub- scribed at the time of its execution by two witnesses in due form; and Agnes having died in 1S72, and Penrose in 1874, the instrument was admitted to probate In the probate court of Hocking county, as their will, in April, 1875. In Septem- ber, 1875, the hpirs at law of Agnes Harper and Penrose Harper filed a petition in the court of common pleas of Hocking coun- ty, against James Betts and John D. Betts, to set the will aside. On the trial of the issue in the district court, to which the cause was appealed, the court charged the jury, in effect, that the will, being joint, was void ; to which charge the de- fendants below excepted. A verdict hav- ing been returned in accordance with the charge, judgment was rendered setting the will aside. James Betts and John D. Betts filed this petition in error. iW. A. Daugherty and J. it. Grogan, for plaintiffs in error. ./. H. Collins, for de- fendant in error. Okey, .T. The construction placed by the majority of the court in Walker v. Walker, 14 Ohio St. 157, on the instrument there in question, viewed in the light of the facts existing at the time of its execu- tion, was that the alleged will should be regarded as simply a compact, joint in form and substance, between Walker and 64 LAW OF WILLS. iiis wife, to treat their several estates as one estate, and jointly dispose of it as such among the objects of their bounty; that it was a matter of negotiation be- tween them, and the disposition which eaci) made of his or her property was in- fluenced and modified by the disposition made of the property of the other; that each devise and bequest was, in fact, made in consideration of each and all the rest ; and that it was part of the compact that neither of the parties should revoke or cancel the instrument, or any part of it, without the consent of the other. Moreover, subsequently to the death of Mrs. Walker, Walker, in violation of the agreement, conveyed toothers portions of his lands so devised. The majority held that theinstrnment was not valid as a will, and that the remedy of the devisees and legatees, if they had any, was in equity to enforce the agreement. Assuming, as we should, — more than 20 years having elapsed since the case was decided, — that the instrument received the proper construction, we are not disposed to question the decision. But it is said, in the opinion, that the ijolicy of the state, as indicated in our legislation, is opposed to joint wills; and attention is directed to the language of the wills act, which it is said plainly refers to an instrument to be executed by one person only. It will be seen, however, that our statute is not peculiar in this respect. The provisions of the English statutes and the statutes of the various states up^Sharp V. HaU, 22. But thjs rule does not, In cases of inapt phrase- ology, preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was «xpected to prepare. — Sharp r. Hall, 22. To render parol evidence with regard to an unexecuted testamentary document, referred to in the win, admissible for the purpose of incor- porating it in the probate, the passage in the will by which reference is made to it must describe it as a written document then existing. — In re Kehoe, 23. In case of destruction of a will or codicil dur- ing the testator's life-time, the presumption is that it was destroyed itnimo revocandi, and the burden is on the proponent to show that it was not revoked by the destruction, or by a rati- fication of the destruction, while the testator lived. — ^Kich v. Gilkey, 43. That a will is found, after testator's decease, in a bundle of papers of no pecuniary value, in- cluding drafts or memoranda of wills never exe- cuted, some of them apparentiy made since the date of the will, does not show a revocation of the vrill, in the absence of any act of revocation within tiie requirements of the statute.— Hoitt y. Hoitt, 52. Oral declarations of a testator that he under- stood his will was revoked, not accompanying any act of revocation, are not competent evidence to prove a revocation; nor are such declarations competent upon the testator's intention not to pass by his wUl after-acquired real estate. — Hoitt V. Hoitt, 52. The burden of proving that a general legacy is entitled to priority in payment is upon him who asserts it. The mere production of the will, by which a legacy was ^ven in the following words, "I give and bequeath to Heniy Benson Duncan, for his services, (in assisting me at different times,) the sum of two thousand dollars," and which was executed more than six years before the testatrix's death, does not, without other proof, sustain this burden. — Duncan T. Inhabit- ants of Township of Franklin, 74. Execution. See Attestation; BepublicatUm and Beoival; Seal; Signature. EXECUTORS. That the will is drawn by the executor does not invalidate it— Waddington v. Buzby, 1. Not essential to nuncupative will that an ex- ecutor be named. — ^Hubbard v. Hubbard, 26. Although a codicil, making a new and com- plete disposition of all the testator's property, wholly inconsistent with the disposition made by the will, operates as a revocation of the wUl to that extent, if such codicil does not appoint ex- ecutors, the appointment by tiie will holds good. — ^Newcomb v. Webster, 41. FRAUD. To invalidate a will for fraud it must appear that the fraud had some effect upon the testator in producing the very act of making his will. — Monroe v. Barclay, 13. Circumstances raising a strong suspicion, but not producing conviction, that testator was duped in his belief as to spiritual manifestations from his deceased wife, which led him to bestow his bounty upon his mother-in-law and brother-in- law in disregard of a natural affection for his daughter, an only child, will not justify the court in denying probate of the wiU. — Middleditch t. Williams, 3. FRAUDS, STATUTE OP. A contract to leave a certain amount of money by will to a particular person, though oraL i» INDEX. 83 not open to objection nnder the statute of frauds. —Wellington t. Apthorp, 64. General Legacies. Bee LegacUt. HEIRS AT LAW. That a will was made by the testator nnder a mistake in supposing an onlj son to be dead can- not be shown dehors the will as a ground for refusing probate; the mistake must appear on the face of the will, and it must also appear what would hare been the will but for the mis- take.— Gilford T. Dyer, 19. IMMORAL CONSIDERATIONS. Immoral considerations influencing a testator in making his will do not constitute such undue influence as will invalidate it, if it is the result of his wish and will at the time. — ^Wingrove v. 'Wingrore, 17. And see Monroe t. Barclay, 16. Incorporation of Documents. Bee Testamentary Instruments. INSANITY. If a testator possesses sufficient mental power to take into account all the considerations nec- essary to the making of a proper will, though he Is subject to an insane delusion, yet if it appears that such delusion neither influenced him, nor was oaleulatfMi to influence him. In malcing his will, the will must be upheld. — Middleditch v. Williams, 3. An insane delusion is a belief In the existence of something which no rational person would, in the absence of eridence, belieTe to exist, and which springs up spontaneously in the mind, and is not the result of extrinsic evidence of any kind. — Middleditch t. Williams, 3. Where a testator is induced by evidence of gome kind, though it may be false, weak, or insufficient, to believe in tie existence of some- thing which in reality has no existence, his belief may show want of discernment, that he is over- credulous and easUy duped, or that he lacks power to weigh evidence, or to discriminate be- tween what is true and what is false, but it does not show that his mind is unsound. — Middleditch T. WilUams, 3. A belief in spiritualism, being a conviction founded upon extrinsic evidence, is not an insane delusion.— Middleditch v. WUliams, 3. A will made by an insane person during a lucid interval may be valid, but the facts establishing Intelligent action must be shown. — ^In re Mac- Fherson's WUl, 7. Before executing her will, testatrix showed symptoms of insanity, which were displayed es- pecially by causeless outbursts of passion, but these occasions were alternated by continued periods of sanity. Her oral and subsequent writ- ten directions for the drafting of the wiU were rationally given, and the will was reasonable, an* accorded with her previously expressed in- tentions. The subscribing vritnesses, one of them a law clerk, testified to her mental capacity when the will was executed. Hdd, that the wUl should be admitted to probate, the sanity of testatrix at its execution being sufficiently established.— In re MacPherson's Will, 7. See Testamentary Cayacitiij. INTENTION OF TESTATOR. The Intention of the maker of an instrument, gathered primarily from the language of the In- strument itself, is controlling on the question of its testamentary character.— Sharp v. Hall, 21. On a question of the testamentary character of an instrument, the intention of the maker can- not be proved by a witness speaking directly thereto.— Sharp v. Hall, 22. But this rule does not, in cases of inapt phrase- ology, preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare. — Sharp v. Hall, 22. While the primary rule governing the inter- pretation and construction of wills admitted to probate recognizes and endeavors to carry out the intention of the testator as expressed in the will, yet, in the construction of tiie statute regu- lating their execution, the court considers flie intention of the legislature, rather than that of the testator.— In re O'Neii's Will, 37. The intention of a testator is only to be re- garded when the law sanctions the means he has adopted to carry it into effect. If what he has done is invalid, the intent cannot be respect- ed. — Eschbach v. Collins, 51. Where the legislature has prescribed certain modes by which a will may be revoked, the courts have no power to dispense with such re- quirements, and accept even a definite intention to perform the prescribed act for the act it- self.— Hoitt V. Hoitt, 52. INTERLINEATION. A will was drawn upon a printed blank con- sisting of four pages, the formal commencement being printed upon the first page, and the formal termination printed at the end of the tbird page. The intervening blank space was filled in in writ- ing, and, as it did not afford sufficient room, a part of one of the material provisions was car- ried over to the top of the fourth page, and occu- pied one-third thereof, at the top, the page being left blank below it. The names of the testator 6nd of ti\e subscribing witnesses were written at the bottom of the third page, below the formal termination of the will; but the matter written on the fourth page was not authenticated in any way, nor connected with the unfinished article on the third page by any word or symbol. Bdd, that there was no valid will, as there was not a subscription at the "end of the wiU," required by 2 Kev. St. N. Y. p. 63, § 40; and that the por- tion following the signatures could not be re- garded as an interlineation, and thus held to be constructively a part of the body of the will.— In re O'NeU'e Will, 37. INTOXICATION. The ordinary test of testamentary capacity Is applicable in measuring the extent of impairment of the mental faculties by habitual excessive use of intoxicating liquors, or by the immediate in- fluence of intoxication; either of which may exist without destroying testamentary capacity. — Bannister v. Jackson, 8. Invalid Bequests. Bee Lapse of Legacies. JOINT WILLS. Two or more persons ovraing property In com- mon may join in a testamentary disposition of 84 INDEX. it, and snch a wlU Is properly called a Joint will. —In re Oawley's Estate, 20. Two sisters, each of whom owned personal property in severalty, and who were also seised of real estate as tenants in common, executed one and the same instrument, which, after pro- viding for the payment of tiieir debts, continued: "Second, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever;" and it then appointed an executor, and revoked "all former wills by us made," and ratified "this and no other to be our last will and testament." This instrument was presented for probate after the death of both sis- ters. Hdd, that it should be admitted to pro- bate as the will of both; that it was, in effect, the separate will of each testatrix, and might have been revoked by either, in so far as it was her will; and that upon the death of either It might have been probated, as her separate will. —Betts V. Harper, 63. See Mutual Wills. liAFSE OF LEQACIES. The residuary legatee in a will is entitled as well to a residue caused by a lapsed legacy, or by an invalid or illegal bequest, as to what re- mains after payment of debts and legacies. The only exception is that, where the words used show an intention on the part of the testator to exclude from the operation of the resiiluai-y clause certain portions of the estate, such in- tention must prevail. The use of words in a will giving the residue which remains, "after pay- ment of debts and legacies," does not bring a case within the exception, but the general rule still appUes, and, if a legacy lapses, it passes to the residuary legatee.— Tindall v. Tiodall, 75. LEGACIES. The fact that a will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not, of itself, invalidate the will. — ^Waddington v. Buzby, 2. The fact that the influences producing a wiU sprang from an unlawful marital relation be- tween testatrix and a legatee will not render the wUl void, unless such influences were exerted in restraint of the free exercise of her will by the testatrix. — ^Monroe v. Barclay, 13. Pecuniary legacies, in the absence of any suffi- cient indication of a contrary intention, are pay- able out of the personal estate not specifically bequeathed, the presumption being that the tes- tator intends them to be so paid, and that he in- tends specific legacies to pass unconditionally and in specie to the persons to whom they are given. Pecuniary legacies are, moreover, not payable out of the real estate, imless charged upon it by the will. — ^Robertson v. Broadbent, 71. Where general legatees are volunteers, taking of the'testator's bounty, and there is notiiing in the will to iodicate that one shall be paid before another, their legacies must abate proportion- ately, in case of a deficiency of assets ; but where a general legacy is sustained by a valuable con- sideration, such as the relinquishment of a debt or of a claim of dower, and the right to the claim, constituting the consideration, subsists at the testator's deaOi, the legatee is entitled to full payment of his legacy in preference to other gen- eral legatees who take merely of the testator's bounty. — ^Duncan v. Inhabitants of Township of Franklin, 74. The burden of proving that a general legacy is entitled to priority is upon him who asserts it, and the proof must be clear, conclusive, and un- equivocal. — Duncan v. Inhabitants of Township of Franklin, 75. That a legacy was ^ven because of a sense of moral obligation, or as compensation tm services, or other favors rendered as a mere vol- untary courtesy, will not, if no legal obligation to pay exist at the death of the testator, constitute such a valuable consideration as to entitle the legacy to priority in payment. — ^Duncan y. Inhab- itants of Township of Franklin, 74. The residuary legatee in a will is entitled as well to a residue caused by a lapsed legacy, or by an invalid or illegal bequest, as to what re- mains after payment of debts and legacies. The only exception is that, where the words used show an intention on the part of the testator to exclude from the operation of the residuary clause certain portions of the estate, such inten- tion must prevail. The use of words in a will giving the residue which remains, "after pay- ment of debts and le^des," does not bring a case within the exception, but the general rule still applies, and, if a legacy lapses, it passes to the residuary legatee. — ^Tindall v. Itndall, 75. See Abatement of Legacies; Ademption of Legacies; Debts; Sveciflo and DeToonstrattve Legacies. LIFE-ESTATES. Not enlarged to a fee by obliteration of part of the clause creating it.— Eschbach t. Collins, 48. LUCID INTERVALS. A will made by an insane person during a lucid iuterval may be valid, but the facts estab- lishiag intelligent action must be shown.- ^ re MacPherson's WiU, 7. See Testamentary Capacity. MARRIAGE. Revocation of the will of a man is not implied, at common law, from his subsequent marriage, without birth of issue thereof. — Hoitt v. Hoitt, 53. The rule of implied revocation of a will by subsequent marriage of the testator and birth of issue is inoperative where, by statute, the widow and children of a testator, if not provided for in the will, are entitied to the same share of the es- tate as if he had died intestate. — ^Hoitt v. Hoitt, 53. The rule that a man's will is impliedly revoked by his subsequent marriage and the birth of a chUd is subject to an exception, and is therefore not applied, in cases where the testator has made provision for bis childi'en bom after the execution of the will. — ^Baldwin v. Spiiggs, 56. Testator, married and having children, made a wiU which disposed of all the property ovmed by him at that time. Subsequentiy his wife died, and he married again, and had children by his second vrif e. He lived 20 years after the date of the will, and during that time acquired other real estate. Hdd, that this after-acquired property would .lot be considered as a provision for the children of the second marriage, so as to bring the case within the exception, but that the will was revoked.— Baldwin v. Spriggs, 56. At common law, marriage of a /erne sole re- vokes her win previously made.— Swan v. Ham- mond, 56; Brown v. Clark, 58. The rule of the common law that the will of a feme sole is revoked by her marriage, while the will of a man is revoked, not by his marriage alone, but by marriage and the birth of a child, is recognized and made binding on the courts by Pub. St. Mass. c. 127, § 8, which, after declar- injj that no will shall be revoked unless by burn- INDEX. 85 ing, tearing, etc., or some other ■writing execiited in the maimer required in the case of a will, provides: "But nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circum- stances of the testator;" and the courts are not at liberty to change the rule as to the -will of a jcrne sole, even it the reason of the rule is de- stroyed by the statutes giving married womon testamentary capacity. — Swan v. Hammond, 55. The rule that the will of a feme sole is revoked by her marriage is not affected by the statutes conferring testamentary capacity upon married women, unless the statutes expressly change such rule. — Swan v. Hammond, 55: Brown v. Clark, 58. The New York statute, (2 Rev. St. N. Y. p. 64, § 44,) wliich provides that the vrill of an unmar- ried woman shall be deemed revoked by her sub- sequent marriage, declares an absolute rule. It does not make the marriage merely a presump- tive revocation, which may be rebutted by proof of a contrary intention, but causes it to operate eu instanti as a revocation. — Brown v. Clark, 58. Statutes of many states provide that vrills of both men and women shall be revoked by mar- riage. — Swan y. Hammond, 56. The will of a feme sole, which has been re- voked by her marriage, v?ill be revived by the valid execution by her after marriage of a codi- cil, which c!e,arly refers to and identifies the will; the publication of the codicil is to be deemed a republication of the will, and both together cou- srituto the last will and testament of the testa- trix. — ^Brown v. Clark, 58. The ademption of a general legacy by the pay- ment by the testator, during his lifetime, to the legatee, of the amount of the legacy, from the source contemplated by the will, is not af- fected by the fact that the legatee is a married woman, as the ademption results, under such circumstances, by operation of law, and not by force of any contract. — ^Roquet v. Eldridge, 67. MAXIMS. ^Cessante ratinne legis, cessat lex ipse."- Brown v. Clark, 59. "^Sta/re decisis. "—Adams v. Meld, 86. " Ut res magis valeat. "—Sharp v. Hall, 23. MISTAKE. Two sisters agreed to make their reapective wills so that, upon the death of either, the other should have the joint property for life. One of them prepared both wills in her own handwrit- ing, but upon her death it w^as found that each sister had executed the will prepared for the other. The will executed by the deceased would, if carried Into effect, accomplish her wishes in most respects, but not as to one legacy. Held that, as deceased did not know and approve of the contents of the document she executed, pro- bate should be refused. — ^In re Goods of Hunt, 18. Mistake of a testator in supposing an only son to be dead cannot be shown by evidence dehors the will as a ground for refusing probate; the mistake must appear on the face of the will, and it must also appear what would have been the win but for the mistake.— Gifford v. Dyer, 19. MUTUAL WILLS. ■Wills by which two or more persons make re- ciprocal testamentary provisions in favor of each other, whether they unite in one will, or each executes a separate one, are mutual or re- ciprocal wills.— In re Cawley's Estate, 19. A brother and sister, owning separate proper- ties, made a will together, which read as fol- lows: "I, Benjamin Cawley, should I be the first to die, give, devise, and bequeath, and I, Mary Cawley, should I be the first to die, give, devise, and bequeath and to the survivor of us aU the rest and residue of the decedent's estate, both real and personal, to have and hold and enjoy the same during the hfe of the survivor," etc.; and directed that, at the expiration of the life- estate, the residue should be divided into nine parts, "three of which parts I give and be- queath," etc., the singular number being used through the whole instrument. Bdd, that the instrument was the separate wUl of each, and the survivor, as to her property, had a right to make a new will containing a different disposi- tion thereof.— In re Cawley's Estate, 19. Reciprocal testamentary dispositions by two persons may be combined in one instrument. — In re Diez's Will, 61; Betts v. Harper, 63. Such instrument operates, on the death of either of the persons making it, as the separate will of that person.— In re Diez's Will, 61; Betts V. Harper, 63. Where by mistake in the execution of mutual wills each party executes the instrument pre- pared for the other, effect cannot be given to a vd]! so executed by treating the bequest therein to the person signing it as a misdescription of the other party, even though to do so would, to a great extent, carry out the wishes of the tes- tator. — In re Goods of Hunt, 18. See Joint Wills. Next of Kin. See Seirs at Law. NUNCUPATIVE WILLS. Under 2 Rev. St. N. Y. p. 60, § 22, providing that no mmcupative or unwritten wUl, bequeath- ing personal estate, shall be valid, unless made by a soldier while in actual service, or by a mari- ner while at sea, the wills of soldiers in actual service and of mariners at sea are governed by the principles of the common law. — ^Hubbard T. Hubbard, 25. A nuncupativB or oral will may be made by the master and owner of a coasting vessel while she is on a voyage, and lying at anchor in an arm of the sea, where the tide ebbs and flows. — Hubbard v. Hubbard, 25. It is sufficient that testator, in prospect of death, in answer to what disposition he wishes to make of liis property states his wishes. No particular form of bequest is necessary, nor is W necessary for him to request any persons present to witness that it is his will. — ^Hubbard v. Hub- bard, 25. Testamentary capacity of deceased and ani- mus testandl at the time of the alleged nuncupa- tion should be clearly and satisfactorily proved. —Hubbard v. Hubbard, 26. It is not essential to a nuncupative will that an executor be named.— Hubbard v. Hubbard, 26. At common law, and under a statute (Laws N. Y. Sess. 36, c. 23, § 14) declaring that a nuncu- pative will shall not be vaUd unless "made in the time of the last sickness of the deceased," a nun- cupative wUl is not good unless it be made when testator is in extremis, or overtaken by sudden and violent sickness, and has not time to make a written will. — ^Prmce v. Hazleton, 27. See Hubbard v. Hubbard, 25. An alleged nuncupative will offered for pro- bate had aU the legal requisites and formalities. The evidence to support it showed that it was 86 INDEX. made six days before testator'i death, while he was declining from a disease of the liver, but under no immediate apprehension of death. Tee- tator was of middle age, had a fair education and habits of business, and had accumulated a fortune, and at the time of his death was board- ing in New York city. He had been sick about five weeks, and was attended by a physician and a hired nurse. Another woman, living apart from her husband in such boarding-house, also acted as liis nurse. No acquaintance with this woman prior to his sickness was shown, but to her he left his entire property. Hdd, that the alleged will was not made under such circum- stances as to entitle it to probate as a nuncupa- tive will. — Prince v. Hazleton, 27. Obliteration. Bee Revocation. OPINION. Opinions of witnesses as to mental capacity of a. testator, of no weight unless sustained bj- facts on which such opinions are founded. — Wadding- ton v. Buzby, 1. Oral wms. Bee Nuncupative Wills. PAEENT AND CHILD. Mistake of a testator In supposing an only gon to be dead cannot be shown by evidence dehors the will as a ground for refusing probate; the mistake must appear on the face of the will, and it must also appear what would have been the will but for the mistake. — Giffqrd v. Dyer, 19. An ademption of a general legacy results where a parent, or other person standing in loco parentis, after having made the bequest, gives a portion to the child to whom the bequest is made, equal to or in excess of the amount be- queathed, the portion given and the legacy being ejusdem generis. — Koijuet v. Eldridge, e7. Parol Evidence. Bee Evidence. PAYMENT OF LEGACIES. Pecuniary legacies. In the absence of any suffi- cient Indication of a contrary intention, are pay- able out of the personal estate not specifically bequeathed, the presumption being that the tes- tator intends them to be so paid, and that he in- tends specific legacies to pass unconditionally and in si ecCe to the persons to whom they are given. Pecuniary legacies are, moreover, not payable out of the real estate, unless charged upon it by the will. — Robertson v. Broadbent, 71. Where a general legacy is sustained by a valu- able consideration, such as the relinquishment of a debt or of a claim of dower, and the right to the claim, constituting the consideration, sub- sists at the testator's death, the legatee is en- titled to full payment of his legacy in preference to other general legatees who take merely of the testator's bounty. — Duncan v. Inhabitants of Township of Franklin, 74. The burden of proving that a general legacy is entitled to priority in payment is upon him who asserts it. — ^Duncan v. lihabitanta of Township of Franklin, 74. That a legacy was given because of a sense of moral obligation, or as compensation for services, or other favors rendered as a mere voluntary courtesy, will not, if no legal obligation to pay exist at the death of the testator, constitute such a valuable consideration as to entitle the legacy to priority in payment. — Duncan v. Inhabitants of "Township of Franklin, 74. See Abatement of Legacies; Ademption of Legacies; Debts. PRESUMPTIONS. Undue influence, in a case where no relation of trust exists, cannot be presumed. — ^Middleditch V. Wilhams, 7. Where the attestation clause In a wiU recites all the essential facts to constitute a due execu- tion and publication of the instrument as a will, and the surrounding circumstances tend to cor- roborate the truth of the recitals, the fact that the witnesses, after the lapse of several years, fail to recoUect affirmatively the facts recited, will not rebut the presumption of due publication arising from the attestation clause and the other circumstances. — ^Brown v. Clark, 58. The presumption in case a will or codidl is destroyed during the testator's hfe-time is that it was destroyed ammo revocandi, and the bur- den is on the proponent to show that it was not revoked by the destruction, or by a ratification of the destruction, while the testator lived. — Kich V. Gilkey, 43. Under the New York statute, (2 Rev. St. N. Y. p. 64, § 44,) which provides that the will of an unmarried woman shall be deemed revoked by her subsequent marriage, the marriage is not merely a presumptive revocation, which may be rebutted by proof of a contrary intention, but operates eo imstanti as a revocation. — Brown v. Clark, 58. PROBATE. Party offering instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, ard upon this question he has the burden of proof. — RoUwagen v. Roll- wagen, 11. Where a testator was deaf and dumb, or un- able to read or write and speak, there must not only be proof of the ,in-ctum of the will, but also that the mind of the testator accompanied the act, and that the instrument speaks his lan- guage and really expresses his will. — ^RoUwagen V. RoUwagen, 12. Where a will Is wholly revoked by a codicil, except as to the appointment of executors, none being appointed by the codicil, both instruments should be admitted to probate. — Newcomb T. Webster, 41. Publication. Bes Attestation; BepublicaUon and Revival. REPUBLICATION AND RE- VIVAL. It is a general rule of law that a codicil exe- cuted with the formalities prescribed by statute for the execution of wills operates as a republi- cation of the will to which it relates, so far as the will is not changed by the codicil, and this rule has not been altered by the New York stat- utes pertaining to wills. — Brown v. Clark, 58. The will of a feme sole, which has been re- voked by her marriage, will be revived by the valid execution by her after marriage of a codi- INDEX. 87 dl, which clearly refers to and Identifies the will; the publication of the codicil is to be deemed a republication of the will, and both together con- stitute the last will and testament of lie testa- trix.— Brown T. Claris, 58. RESIDUABY LEGACIES. The residuary legatee in a will is entitled as well to a residtie caused by a lapsed legacy, or by an invalid or illegal bequest, as to what re- mains after payment of debts and legacies. The only exception is that, where the words used show au intention on the part of the testator to exclude from the operation of the residuary clause certain portions of the estate, such inten- tion must prevail. The use of words in a will giving the residue which remains, "after pay- ment of debts and legacies," does not, bring a case within the exception, hut the general rule still applies, and, if a legacy lapses, it passes to the residuary legatee. — Tindall v. Tindall, 75. REVOCATION. Although a contract and a will are essentially nnlike, they may be combined so as to give a tes- tamentary character to what purports to be a contract, or to convert a will into an irrevocable agreement. — In re Cawley's Estate, 19. A will and a codicil are to be construed to- gether as parts of one and the same instrument; so far as their provisions are inconsistent or re- pugnant, those in the vsill are revoked by those In the codicil. — Newcomb v. A"\'ebster, 41. A codicil, after expressly revoking so much of the will as was inconsistent therewith, made a new and complete disposition of all the testator's property, wholly inconsistent with the disposi- tion made by the 'U'ill, but did not appoint any executors. Held, that the will was entirely re- voked, except as to the appointment of execu- tors. — Newcomb v. Webster, 41. In such a case, both instruments should be ad- mitted to probate, as the appointment of execu- tors by the will holds good, although the estate is to be administered areordiuK to the provisions of the codicil. — IS'ewcomb v. Webster, 41. The destruction of a will or codicil by the tes- tator does not operate as a revocation thereof, where, at the time, he did not possess sufficient meutal capacity to make a -mil; the contents of the instrument destroyed may he proved by ap- propriate evidence, and the will or codicil thus be estabhshed. — Rich v. GUkey, 43. But the presumption, in case a will or codicil Is destroyed during the testator's Ufe-time, is that it v.as destroyed iiiiiinu leoocnyidi, and the burden is on the proponent to show that it was not revoked by the destruction, or by a ratifi- cation of the destruction, while the testator lived.— Rich v. Gilkey, 43. ■^Tiere the act of destruction by the testator is produced by undue influence, the efllect is the same as where a testator, not having testament- ary capacity, destroys his will or codicil; the instrument destroyed stands imtrevoked. — ^Rich v. Gilkey, 43. The provision of the Maine statute of wills, (Rev. St. Me. c. 74, § 3,) that a will exectited according to its requirements "is valid until de- stroyed, altered, or revoked by being intention- ally Ijurnt, canceled, torn, or obliterated by the maker, or by some person by his direction and in his presence, or by a subsequent wUl, codicil, or writing, executed as a will is required to be," etc., is not changed by a subsequent statute, (Rev. St. Me. c. 64, § 7,) providing that where a will "is lost, destroyed, suppressed," etc., "and upon proof of the continued existence of such will, np to the time of the decease of said tes- tator, unrevoked, letters testamentary shall be granted as on the last will of the deceased, the same as if the original will had been produced and proved;" such latter stat-ute is declarative and cumulative only, and does not abrogate, or undertake to abrogate, the former act. — Rich v. GUkey, 43. By a codicil to his will, testator gave to his niece the income of certain property during her life; but about a year afterwards, and about a month before his death, he destroyed the codicil, and made another, disposing in a different way of the property given by the former in trust for her. In proceidiugs for probate of the destroyed codicil, it appeared that testator had had the warmest affection for his niece against all family opposition; that he had educated and supported her, and seemed desirous to make her dependent upon him for all her wants, and held out to her promises against want in the future; that he made the provision in her favor when he was in fuU health and strength, unasked by her, ap- parently uninfluenced by any one, with much deliberation, against family wishes; that he ad- hered to this codicil until his last sickness; and that he destroyed it only after he had lain a month on his death-bed, a very aged man, weak- ened by disease, surrounded by persons naturally disturbed by the existence of the codicil, and with no notice of its destruction to the benefi- ciary, or subsequent mention of it to her, al- though the affection between them continued un- changed. Hehl, upon a reference of the cause at the trial to the judge to "decide all questions upon the merits as affected by considerations of expediency and compromise," that the in- ference was irresistible that the act of destruction was caused by another or others, whether the influence exerted was undue influence or not; and that it was expedient to uphold the first cod- icil, allovring as concessions to the opponents that the latter codicil should also be probated, there being no contradiction between the two, except a recital in the latter which ignored the former; and that the costs and counsel fees of the beneficiary sliould not be paid out of the es- tate.— Rich V. Gilkey, 43. The vrill of a testator, who had seven sons and three daughters, gave the residue of his estate to them in equal shares, "the share of my sons L. and J. to be held by each of them who may sur- vive me, absolutely," and "the shares of my other children to be held for their respective lives." Held, that an obliteration of the names of L. and J. by the testator did not operate to enlarge the life-estate given to ' the other sons into a fee, and make the word "children" ap- plicable only to the daughters, thus making a different disposition of the estate without the formalities required by statute; nor could the supposed intention of the testator, to diminish the fee simple estates of L. and J. to life-estates, be regarded, since he had not adopted the means sanctioned by the law to carry it Into effect; and the -will must be read as it was originally writ- ten. — Eschbach v. OoUins, 48. Such obliteration of the names of particular devisees does not make a case of revocation, within the provision of Code Md. art. 93, § 302, that "no devise in writing, * * * or any clause thereof, shall be revocable," except in the manner prescribed; the mere names do not constitute a clause, and their obliteration, by which a different meaning is imparted, is an al- teration, not a revocation.— Eschbach v. Collins, 48. Where the legislature has prescribed certain modes by which a wiU may be revoked, the courts have no power to dispense vfith such re- quirements, and accept even a definite intention to perform the prescribed act for the act itself. — Hoitt v. Hoitt, 52. That a will is found, after testator's decease, in a bimdle of papers of no pecuniary value, in- 88 INDEX. eluding drafts or memoranda of wills never exe- cuted, some of them apparently made since the date of the will, does not show a revocation of the will, in the absence of any act of revocation within the requirements of the statute.— Hoitt V. Hoitt, 52. _ Although such statute declares that a revoca- tion may be "implied by law from changes in the circumstances of the testator or his family, devisees, legatees, or estate, oecuriing between the time of makins the wiU and his death," a will is not revoked by the death of testator's wife and son, named in it as legatees, his sub- sequent remarriage without birth of issue there- from, the alienation of the larger portion of his estate which had been specifically disposed of by the will, and the acquisition of property much greater in value than he possessed at the time of making the will; nor can a revocation be proved by such changes, as circumstantial evidence showing testator's intention. — ^Hoitt v. Hoitt, 52. Oral declarations of a testator that he under- stood his will wks revoked, not accompanying any act of revocation, are not competent evi- dence to prove a revocation; nor are such dec- larations competent upon the testator's intention not to pass by his will after-acquired real es- tate.— Hoitt V. Hoitt, 52. Increase of a testator's estate, after the exe- cution of his will, has no weight upon a question of implied revocation. — ^Hoitt v. Hoitt, 54; Bald- win V. Spriggs, 57. The rule that a man's will is impliedly revoked by his subsequent marriage and the birth of a child is subject to an exception, and is therefore not applied, in cases where the testator has made provision for his children born after the execution of the will. — Baldwin v. Spriggs, 56. Testator, married and having children, made a will which disposed of all the property owned ty him at that time. Subsequently his wife died, and he married again, and had children by his second wife. He lived 20 years after the date of the will, and during that time acquired other real estate. Bdd, that this after-acquired property would not be considered as a provision for the children of the second marriage, so as to bring the case within the exception, but that the will was revoked. — ^Baldwin v. Spriggs, 56. The doctrine of implied revocation of wills by ■ubsequent marriage of the testator and birth of issue rests, not upon a presumption of changed intention, but upon a tacit condition annexed to the will when made, that it should not take effect if there should be a total change in the sit- uation of the testator's family. — Baldwin v. Spriggs, 57. See Hoitt v. Hoitt, 55. The rule of the common law that the wUl of a feme sole is revoked by her marriage, while the will of a man is revoked, not by his marriage alone, but by marriage and the birth of a child, is recognized and made binding on the courts by Pub. St. Mass. c. 127, § 8, which, after declaring that no vriU shall be revoked unless by burning, tearing, etc., or some other writing executed in the manner required in the case of a vrill, pro- vides: "But nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circum- stances of the testator;" and the courts are not at liberty to change the rule as to the will of a feme sole, even if the reason of the rule is de- stroyed by the statutes giving married women testamentary capacity. — Swan v. Hammond, 55. The New York statute, (2 Rev. St. N. Y. p. 64, § 44,) which provides that the will of an un- married woman shall be deemed revoked by her subsequent marriage, declares an absolute rule. It does not make the marriage merely a pre- sumptive revocation, which may be rebutted by proof of a contrary intention, but causes it to operate eo insumti. as a revocation. The stat- utes conferring testamentary capacity upon mar- ried women have not abrogated this mle, tiiat marriage effects a revocation. — Brown ▼. dark, 58. SEAL. In New York a seal is not required to a will of real or personal estate. (2 Rev. St. N. Y. p. 63, § 40.)— In re Diez's Will, 61. SIGNATURE. Where a statute does not require, for the proper execution of a will, that it be "signed at the end" or "subscribed" by the testator, but merely that it be "signed" by him, he may write his signature at the beginning of the will, or in any other part; and if this be done for the pur- pose of giving finality to the wUl, and no further signing is contemplated, it is sufficient; and, even if a further signing is contemplated, still the testator may subsequently adopt the signature already written as his final signature, and then no further signing will be necessary. — Adams v. Field, 34. A will which was wholly in the testator's handwriting, but was written in its different parts at different times, began with the words, "I, Samuel Adams, * * * do hereby make this, my last wiU and testament." Then follow- ed the clauses disposing of his estate, and at the end was the usual testimonium clause, viz., "In testimony whereof I have hereunto set my hand and seal," etc.; but there was no signature after this clause. It appeared, however, tiiat the testator produced the instrument to three sub- scribing witnesses, and declared it in their pres- ence to be his will, and requested them to wit- ness it as his will, and that they did attest it in his presence, and in the presence of each other. Held, that the testator thereby adopted the signature written by him at the beginning of the will as his final signature, to authenticate and complete the wiU, and that this was a sufii- cient signing of the will, under the Vermont statute; the whole subject-matter of the wUl be- ing at this time in his mind, and the will being completed by one simultaneous act. — ^Adams v. Field, 34. It is not necessary that the testator sign the will in the presence of the attesting witnesses; if the will be so signed as to satisfy the statute, and the testator declared it to be Ms will before the witnesses, this is equivalent to signing it before them and is sufficient. — ^Adams v. Field, 34. A. vrill was drawn upon a printed blank con- sisting of four pages, the formal commencement being printed upon the first page, and the formal termination printed at the end of the third page. The intervening blank space was filled in in vprit- ing, and, as it did not afford sufficient room, a part of one of the material provisions was car- ried over to the top of the fourth page, and occu- pied one-third thereof, at the top, the page being left blank below it. The names of the testator and of the subscribing witnesses were written at the bottom of the third page, below the formal termination of the will; but the matter written on the fourth page was not authenticated in any way, nor connected with the unfinished article on the third page by any word or symbol. Held not a subscription at the "end of the will," as re- quired by 2 Rev. St. N. Y. p. 63, § 40; and that the portion preceding the signatures could not be admitted to probate, but that the will, so far as execution was concerned, must be deemed valid or invalid as a whole. — In re O'NeU's Will, 37. In New York a seal is not required to a wUl of real or personal estate; the testator must sub- scribe his name at the end, but need not attach a seal. (2 Rev. St. N. Y. p. 63, § 40.)— In re Diez's Wm, 61. > • ^ Dn>KX. 89 SPECrPIC AND DEMONSTRA- TIVE LEGACIES. A legacy is gpecific when it can be satisfied only by the transfer or deliyery of some particu- lar portion of, or article belonging to, the estate, which the testator Intended should be trans- ferred to the legatee in specie.— Roauet v. El- dridge, 67. A demonstratiye legacy is a bequest of a sum of money payable out of a particular fund or thing. _ It is a pecuniary legacy, given generally, but with a demonstration of a particular fund as the source of its pajrment, and is equivalent to a devise or bequest of so much or such a part of the fund or thing specified.— Roquet t. Eldridge, 67. Testator devised his homestead farm, consti- tuting nearly the whole of his estate, to two sons jointly. To four other children he gave each the sum of $500 in cash, which sums were to be taken as in full of their respective interests In the farm. The wiU recited that the said devises and bequests were to be considered as the dis- position of the homestead farm among testator's children, and should not affect any other Loter- est or estate. Held, that the legacies were gen- eral, rather than specific or demonstrative. — Ro- quet v. Eldridge, 67. In order to make a legacy specific, some form of expression must be used in the will which clearly indicates a purpose on the part of the tes- tator to give a specific thing, and nothing else. There may be a specific legacy of a debt which is owing to the testator, as where the identical debt is clearly designated in the will as the ex- clusive subject intended to be given by the tes- tator. — ^Wyckoff V. Perrine, 69. In deciding whether a legacy is specific or gen- eral, the intention of the testator must control. — WyckofC T. Perrine, 70. Points of difference between specific and de- monstrative legacies are these: A specific legacy is not liable to abatement for the payment of debts, but a demonstrative legacy is liable to abate when it becomes a general legacy by reason of the failure of the fund out of which it is pay- able. A specific legacy is liable to ademption, but a demonstrative legacy is not. A specific legacy, if of stock, carries witii it the dividends which ac- crue from the death of the testator, while a de- monstrative legacy does not carry interest from the testator'! death.— Wyckoff t. Perrine, 70, note. Anything which a testator, identtf3dng by a sufficient description, and manifesting an inten- tion that it should be enjoyed or taken in the stats and condition indicated ,by that descrip- tion, separates in favor of a particular legatee from the general mass of his personal estate, is a specific legacy. — Robertson v. Broadbent, 71. A bequest, in general terms, of the whole per- sonal estate to which a testator may be entitled at the time of his death, is not a specific legacy. — Robertson v. Broadbent, 71. The exception of something specifically d»- scribed from a gift (otherwise general) of the personal estate of the testator cannot maJce that gift more specific than it would be if there were no such exception. The excess over and above what is excepted is still a general gift, and may be applied to the payment of pecuniary legacies. —Robertson t. Broadbent, 71. A testator by his will, after directing his ex- ecutors to pay all his just debts and funeral and testamentary expenses, and giving various pe- cuniary legacies to individuals and to charities, gave jdl hS personal estate and effects of which he should die possessed, and which should not consist of money or securities for money, to _R. absolutely. All the rest, residue, and remain- der of his estate, both real and personal, he de- vised to his executors upon certain trusts, and it was provided that the legacies for charitable pur- poses should be paid exclusively out of such part of his personal estate as might lawfully ha appropriated to such purposes, and preferably to any other payment thereout. Hdd, that the leg^ acy to R. was not specific, and was not exempt from the payment of the pecuniary legacies. — Robertson v. Broadbent, 71. See Abatement of Legacies; Ademption of Legacies; Debts. SPIRITUALISM. A belief in spiritualism, being a conviction founded on extrinsic evidence, is not an insane delusion.— Middleditch v. Williams, 3. A belief in spiritualism may justify setting aside a wiU when it is shown that the testator, through fear, dread, or reverence of the spirit with which he believed himself to be in com- munication, allowed his will and judgment to be overpowered, and in disposing of his property followed implicitly the directions which he be- lieved the spirit gave him; but in such case the will is set aside, not on the ground of insanity, but of undue influence. — ^Middleditch v. Will- iams, 3. Circumstances raising a strong suspicion, but not producing conviction, that testator was duped in his belief as to spiritual manifestations from his deceased wife, which led him to bestow his boimty upon his mother-in-law and brother- in-law in disregard of a natural affection for his daughter, an only child, will not justify the court in denying probate of the will.— Middle- ditch T. Williams, 3. Subscribing Witnesses. See Attestation; Signature. TESTAMENTARY CAPACITY. A person who is aged. Infirm, and almost blind may make a valid will, if capable of recollecting the property she is about to dispose of, under- standing the manner of distributing it as therein set forth, knowing the objects of her bounty, and the nature of the business in which she is engaged. — ^Waddington T. Buzby, 1; Bannister T. Jackson, 10. Testatrix was 88 years of age, feeble and some- what bUnd, forgetful to the extent that such aged persons usually are, but she went about the house, knew the members of the family, talked about her business affairs, remembered the amount of her property and where it was in- vested, objected to the reduction of the interest on her investments, took part in the routine of the houfle and the payment of bUls, and con- versed with visitors whom she knew. Edd, that she had testamentary capacity. — Waddington v. Buzby, 1. If a testator possesses sufficient mental power to take into account all the considerations nec- essary to the making of a proper will, though he is subject to an insane delusion, yet if it appears that such delusion neither influenced him, nor was calculated to influence him, in making his will, the wiU must be upheld. — Middleditdi v. Williams, 3. An insane delusion ts a belief In the existence of something which no rational person would, in the absence of evidence, believe to exist, and which springs up spontaneously in the mind, and is not the result of extrinsic evidence of any kind. — ^Middleditch v. Williams, 3. Where a testator is induced by evidence of some kind, though it may be false, weak, or in- sufficient, to believe in the existence of some- 90 INDEX. filing wUch In reality has no exIstenM. Ui belief may show want of discernment, tliat ne ia over- credulous and easily duped, or that he lack* power to weigh evidence, or to discriminate be- tween what is true and what is false, but It does not show that his mind is unsound. — ^Middledltch V. Williams, 3. A belief in spiritualism, being a conviction founded upon extrinsic evidence, is not an insane delusion. — Middleditdi v. Williams, 3. Even if it appears that a testator was •ubject to an insane delusion when he made his will, but It is also made to appear that his delusion was not of a character likely to Influence him, and did not influence him, in the disposition which he mnde of his property, his will should be declared valid. — Middleditch v. Williams, 5. The test of testamentary capacity Is that the testator can comprehend tie property that he is about to dispose of, the objects of his bounty, the meaning of the business in which he is en- gaspd, the relation of each of these factors to the others, and the distribution that is made by the wUl. The effect of present intoxication and mental disease, induced by habitual indulgence in intoxicants, must be measured by such test, for both may exist in some degree without destroy- ing testamentary capacity. — Bannister v. Jack- son, 8. Testator bequeathed $500 to his wife, and the same sum to his daughter, and the balance of the estate, valued at $15,0110, was divided among his brothers. He was addicted to the excessive use of intoxicating hquors, which had impaired, to some extent, both his mental and physical pow- ers. But while at times he seemed to be afflicted with dullness and loss of memory, at other times he exhibited a keen, shrewd capacity for busi- ness, and a strong wUl. About the time of mak- ing the will he sold out his business to good ad- vantage, and afterwards was identified with bus- iness enterprises, being elected director of a building association. The will provided that the money left to the daughter should be free from the control of her husband, although the latter was dead at the time of making the will; but this was in part explained by his separation from his wife and daiighter, and by the fact that the daughter had separated from her husband. When the will was executed the testimony show- ed that he had been drinking a little, but not to such an extent as to disorder his faculties or per- vert his judgment. Held, that lack of testa- mentary capacity was not shown. — ^Bannister v. Jackson, 8. A will made by an Insane person during a lucid interval may be valid, but the facts estab- lishing intelligent action must be shown. — In re MacPherson's WiU, 7. Before executing her will, testatrix showed symptoms of insanity, which were displayed es- pecially by causeless outbursts of passion; but these occasions alternated with continued periods of sanity. Her oral and subsequent written di- rections for the drafting of the will were ration- ally given, and the wUl was reasonable, and ae- coided with her previovsly expressed intentions. The subscribing witnesses, one of them a law clerk, testified to her mental capacity when the will was executed. Held, tiat the will should be admitted to probate, the sanity of testatrix at its execution being sulRciently established. — In re MacPherson's Will, 7. Opinions of witnesses as to mental capacity of a testator of no weight unless sustained by facts on which such opioions are founded. — Wadding- ton v. Buzby, 1. TESTAMENTARY INSTRU- MENTS. Whether any given writing Is a will or a con- tract must be determined by the character of its contests, rather than from Its tide, or any for- mal words with which It may begin or conclude. — In re Oawley's Estate, 19. Although a contract and a vrill are essenttally unlike, they may be combined so as to give a testamentary character to what purports to he a contract, or to convert a will into an irrevocable agreement. — ^In re Oawley's Estate, 19. Whether a written instrument is a contract or a will is to be determined by the dispositions which it makes, rather than by designations con- tained therein referring to it aa a matrimonial and testamentary agreement" or as a "contract." —In re Diez's Will, 61. The distinguishing feature of a will is that it is not to take effect except upon the death of the testator. An instrument which is to operate in the life-time of the donor, and to pass an interest in property before his death, even though its ab- solute enjoyment by the donee is postponed until after the donor's death, or even though it be con- tingent upon the survivorship of the donee, is a deed or contract, and not a wiH. But if it is not to have any operation until after the maker's death, then it is a wUl, notwithstanding it may have been executed in pursuance of a previous promise or obligation appearing upon Its face. — In re Diez's WUl, 61. An Instrument in vn-iting signed by a man and his wife, and executed with the formalities of a will, provided as follows: "Inasmuch as we have by joint exertions acquired the property now in our possession, and inasmuch as our only chUd has already departed this life in the tenderest age, we hereby determine that, upon the decease of one or the other of us, the surviving husband or wife shall receive the entire property of the one having died first, — ^that is to say, the existing jointly acquired property," — to him or her un- conditionally. Held, that the instrument was the will of the one who should first die, and not a contract, notwithstanding the reasons given for the dispositions. — In re Diez's Will, 61. An Instrument In writing conveying property, but reserving to the maker "the use, control, and consumption of the same" during the maker's life-time, may be either a deed or a will, the class to which it belongs being determinable upon all the circumstances surrounding the parties and attending its execution. But tlie intention of the maker is the controlling inquiry; and that inten- tion is to be gathered primarily from the lan- fuage of the instrument itself. — Sharp v. Uall, 1. Upon that question it is proper to consider the facts that the maker of the instrument was with- out near relatives; that she was attached to the donee, who was a member of her household; that she employed the .scrivener to write a will, and executed the instrimjont drawn by him, knowing its contents, and had it attested; that she did not deUver it, but had it placed in an envelope with an indorsement that it was not to be opened until her death; that she carofully preserved it until she died; that the maker did not dispose of all her property; and that a clause in such in- strument stated that it was intended in part to dispense viith the necessity of taking out letters of administration on the maker's estate after her death.— Sharp v. Hall, 21. If a paper cannot have operation as a deed, but may as a a\ ill, . then, in a doubtful case, it should be pronounced a will, ut res magis valeat, -Sharp V. HaU, 23. To incorporate a document in the probate of a will, three tilings are necessary: (1) That the will should refer to the dociment as then in ex- istence; (2) proof that the document propounded was in fact written before the will was made; and (3) proof of tlie identity of such document ■n-ith that referred to in the will. — ^In re Kehoo, 23. DTDEX. 01 Testator bequeathed all property ke died po§- ■essed of to his exeeutorg, to be dispoBed of In charity in such manner as "I may direct them; and, In case I may not leave directions or in- structions, then they may dispose of it in such manner as they think fit" He signed a paper bearing the same date as the -will, and in his own handwriting, containing directions for the management of his propei-ty for charitable pur- poses, and headed, "Directions to the executors of _my last will, executed tlie 13th of February, 1879— How they are to manage my affairs." Held, that the will did not sufficiently describe the paper of directions as then existing, and that parol evidence was not admissible to identifj- it as the document referred to in the will, and the incorporation of the directions in the probate should be refused. — In re Kehoe, 23. It seems that any written testamentary docu- ment in existence at the execution of a will may, by reference, be incorporated into and become a Eart of the will, provided the reference in the will I distinct, and clearly identifies, or renders capa- ble of identification by the aid of extrinsic proof, the document to which reference is made. — Brown v. Clark, 61. Two- sisters, each of whom owned personal property in severalty, and wbo were also seised of real estate as tenants in common, executed one and thi same instrument, which, after pro- viding for the payment of their debts, continued: "Second, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever;" and it then ap- pointed an executor, and revoked "all forijjcr wills by us made," and ratified "this and no other to be our last will and testament." This Instrument was presented for probate after the death of both sisters. Held, that it should be admitted to probate as the ■will of both; that it was, in effect, the separate will of each testatrix and might have been revoked by either, in so far as it was her will; and that upon the death of either it might have been probated, as her sep- arate will. — Betts V. Harper, 63. Bee Codicils; Joint Wills ; Mutual Wills. UNDUE INFLUENCE. The Influence that will vitiate a vrill must be such as in some degree destroys the free agency of the testator, and constrains him to do what is against his will, but what he is unable to refuse. or too weak to resist. — Waddington v. Buzby, 2. To make the Influence exercised over a testa- tor undue and Ulegal, it must be such as to de- stroy his free agency; it is immaterial how little the Influence may be, If free agency is thereby destroyed.— KoUwagen v. Rollwagen, 11. It is not sufficient to avoid a will that it results from the legitimate influence which affection or gratitude gives a relative over the testator. But if one take advantage of the affection or grati- tude of another, to obtain an unjust will in his favor, using his influence to control and stibduo the mind of the testator, so as substantially to deprive him of free agency, then the fact that affection or gratitude was the moving cause makes it no less a ca'je of undue influence. — Roll- wagen v. Rollwagen, 11. A will may be contrary to the principles of justice and humanity,— it may be both unnatnrsil and unjust,— yet, if it appears to have been made by a person of sufficient age to be competent to make a will, and also appears to be the free ex- pression of a sntmd mind, it will be upheld.— Aliddleditch t. Williams, 3. Influence operating on a testator in making his will is illegal only when it places the freedom of his will under soma kind of restraint.— Monroe v. Barclay, 16. To establish rnidue Influence snfllclent to in- validate a will it must bo shown that the testator was coerced into doing that which he did not de- sire to do. The mere fact that in making his will he was influenced by immoral considerations does not amount to such undue infltience, so long as the dispositions of the will express his actual wishes and purposes.— Wingrove v. Wingrove, To establish such undue influence it Is not sufficient to sho(v that a person has the power to unduly overbear the mind of the testator; but it must be further shown that that power was so exorcised as to produce the will in question. — Wingrove v. Wingrove, 17. To invalidate a will for fraud or undue influ- ence, it must appear that the fraud or undue in- fluence had some effect upon the testator in pro- ducir.g the very act of making his vpill. — ^Monroe V. Barclay, 13. A will cannot be impeached for undue influ- ence, unless the influence under which it is made is such and is so exerted as to induce a disposi- tion by the testator of his property contrary to his own_ wishes and desires. It is immaterial how the influence was acquired, if it was exerted in a manner overcoming or destroying the free exercise of testator's will in the disposition of his property. — Monroe v. Barclay, 13. The fact that the influences producing a will sprang from an unlawful marital relation he- tweeu testatrix and legatee wi!i not render the vrill void, tmless such influences were exerted in restraint of the free exercise of her will by the testatrix. — Monroe v. Barclay, 13. On the contest of a will the court refused to charge that if a man knowingly and wrongfully marries and cohabits in a stale of adultery with a woman who is the lawful wife of another man, and by the influence of sucti marriage and co- habitation procures a will from her in bis favor, and disinheriting her real husbnad, that will is void for illegal influence. H'hl no en-or, for, tm- less the influence placed testatrix under some re- straint overcoming her free Jtgency, it woidd not invalidate the will, and such restraint could not necessarily be implied from the assumed facts, and that the question of the existence of such re- straint was properly left to the jury.— Monroe v. Barclay, 13. Undue influence may be shown by all the facts and circumstances surrounding testator, the nat- ure of the will, his family relations, the condi- tion of his health and mind, his dependency upon and subjection to the control of the person sup- posed to have wielded the influence, the oppor- tunity and disposition to vrield it, and the acts and declarations of such person. — ^Rollwagen v. Rollwagen, 11. In 1871 testator, an imeducated man, who could neither read nor write, worth about $700,- 000 in real estate, married a niece of his de- ceased wife, who for several years had been his housekeeper. At that time he was a confirmed invaUd, having nearly lost the power of speech, and his infirmities increased until his death, in October, 1873. In the year 1872 it appeared from the evidence of his intimate friend that he could not speak a word, nor utter an iutelligiblii sound. In April, 1873, he discharged his old business agent, and emplo.ved a brother of his ■n-ife, a man of no business capacity, to take charge of his property, and a large and expensive residence was purchased and furnished. In the fall of 1872, and again in June, 1873, the brother employed attorneys to draw wiUs for testator in favor of the wife, by which the residuary estate was tied up until his youngest grandchild should come of age, the brother being made trustee. The wife gave all the directions for making the will, claiming to understand the soimds made by testator, none of which were intelligible to the attorney, nor did testator at such time utter any INDEX. word or Intelligible sonnd. In September, 1873, a codicil TraB drawn under Bimilar circumstances, increasing tlie gift to the wife. None of testa- tor's cluldren or grandcliildren were present at the execution of the wills or codicil, nor did it appear that they knew of them. Hdd, that it did not appear fiiat testator understood and as- sented to tbe provisions of the uistruments, and that they were procured by imdue iufluence. — RoUwagen v. RoUwagen, 11. Undue influence, in a case where no relation of trust exists, cannot be presumed. — Middleditch V. WUliams, 7. The facts that the draughtsman of the will is sole executor, and his wife and son are favored legatees, will not invalidate the will, where there is no more direct and certain evidence of fraud or undue influence, and the testatrix had exclud- ed other relatives in a former will, and had given good reasons therefor, and the draughtsman, who was her nearest relative upon whom she could rely, had advised her in the care of her property, and assisted her in her business. — Waddington v. Buzby, 1. The fact that the will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not, of itself, invalidate the will. — Waddington t. Buzby, 2. The declarations of a testator are competent to show the condition of his mind, but not to prove undue influence. — ^Middleditch v. Will- iams, 3. Where the act of destruction of a vrill by the testator is produced by undue influence, the ef- fect is the same as where a testator, not having testamentary capacity, destroys his will or codi- cil; the instrtmient destroyed stands unieToked. —Rich T. GUkey, 43. Witnesses. Bee .attestation; Evidence. Women. Bee ATarrloffe. WOEDS AND PHRASES. "Clause." A clause is a subdivision of a writ- ten or printed document. Words which, sep- arated from the context, have no sense or mean- ing, do not constitute a clause.— Eschbach v. Col- lins, 51. "End of the will." A statute requiring that a will be subscribed by the testator "at the end of the wHl" means, in the absence of controlling statutory declarations, a subscription at the ac- tual physical termination of the instrument, and not at that portion thereof which testator intend- ed to be the end.— In re O'Neil's Will, 39. "Mariners." In the provision of the statute of wills, that no nuncupative will shall be valid, the exception in behalf of mariners includes the whole service, applying equally to superior offi- cers and to common seamen. — ^Hubbard v. Hub- bard, 25. "Presence." Statute providing for attestation of a will "in the presence of" the testator does not, in some states, require absolutely that the witnessing must be done in the actual sight of the testator, nor yet within the same room with him; if the witnesses sign within his hearing, knowledge, and understanding, and so near as not to be substantially away from him, they are considered to be in his presence.— Cook v. Win- chester, 31. "Revocation." In a statute prescribing the manner in which a devise, or any clause thereof, may be revoked, "revocation" cannot be con- strued to mean mutation; it is not a synonym of alteration. To revoke a testamentary disposi- tion means to annul it, and the revocation of a clause implies the destruction of that clause. — Eschbach v. Collins, 51. "Sea." In legal parlance, waters within the ebb and flow of the tide are considered the sea. —Hubbard v. Hubbard, 25. "Sign." The etymology of the word "sign" does not necessarily require the signing to be at the bottom of the instrument. — ^Adiams t. Field, 36. Signing a will at the beguining may, if so de- signed, be a suflicient signing, within a statute simply requiring that a will be "signed" by the testator.- Adams v. Field, 36. wsrx puBi.isHi>e co.. pbihtsbs ahs irsBioTTPSBa. sr. raiv. uaa. KP 755 A7 R33 Autboc Reeves, Alfred. Vol. Tide - Cases on wil 1 fi . Copy Date Boiiowei's Name