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diff --git a/41075-8.txt b/41075-8.txt deleted file mode 100644 index f281f16..0000000 --- a/41075-8.txt +++ /dev/null @@ -1,6614 +0,0 @@ -Project Gutenberg's The Curiosities and Law of Wills, by John Proffatt - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: The Curiosities and Law of Wills - -Author: John Proffatt - -Release Date: October 16, 2012 [EBook #41075] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CURIOSITIES AND LAW OF WILLS *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - - - - -LEGAL RECREATIONS. - -VOL. II. - -Curiosities of Wills. - - - - - THE CURIOSITIES AND LAW OF WILLS. - - - BY JOHN PROFFATT, LL.B., - Counsellor-at-law, author of "Woman before the Law." - - - "Wills, and the construction of them, do more perplex - a man than any other matter; and to make a certain - construction of them exceedeth _jurisprudentum - artem_."--COKE. - - - SAN FRANCISCO: - SUMNER WHITNEY & CO. - 1876. - - - - - COPYRIGHT 1876, - BY - JOHN PROFFATT. - - - - -TABLE OF CONTENTS. - - - INTRODUCTION 9 - - - CHAPTER I. - - ORIGIN AND HISTORY OF WILLS 29 - - - CHAPTER II. - - FORM AND REQUISITES OF WILLS 41 - - SECTION 1. Nuncupative Wills. - 2. Written Wills. - - - CHAPTER III. - - TESTAMENTARY CAPACITY 68 - - SECTION 1. Incapacity as to Age. - 2. Physical or Mental Incapacity. - 3. Senile Dementia. - 4. Coverture. - - - CHAPTER IV. - - LEGACIES 93 - - SECTION 1. As to their Quality. - 2. Legacies Vested or Contingent. - 3. Conditional Legacies. - 4. Payment of Legacies. - 5. The Person who may take. - - - CHAPTER V. - - LIMITS TO TESTAMENTARY DISPOSITION 130 - - - CHAPTER VI. - - REVOCATION OF WILLS 152 - - - CHAPTER VII. - - WILLS AS AFFECTED BY DOMICILE 173 - - - CHAPTER VIII. - - CONSTRUCTION OF WILLS 185 - - - - -PREFACE. - - -It is far from the thoughts of the publishers or the author of this book -to provide a work merely for entertainment; it is hoped the title will not -mislead so as to suggest this idea. - -While it is sought to make it entertaining and the style animated, in the -selection of such apt and striking cases as will illustrate and expound -the principles and rules of law relating to wills, the main idea has been -to make it useful and reliable as a systematic, clear, and concise summary -for the student and lawyer, and interesting to all classes of readers. - -It is not expected that it will be used as a work of reference on the -various subjects connected with wills; but it is hoped it will be found so -accurate and practical as to make it serve advantageously for a manual on -this subject, so that a careful reading of it will give a correct -knowledge of the law relating to this interesting and important subject. - -It could not be expected that, in a work of a somewhat general character, -the details of the statute law of the several States would be given; but, -as far as practicable, the law has been noticed, so far as it affected -the formalities of execution, attestation, and proof. Many of the -principles of the law relating to wills are of such a general and well -established character as to be adapted to every locality, and therefore it -is believed this work will not have a mere local utility. As far as -possible, every effort has been made to have it accurate; that there may -be some minor inaccuracies is inevitable, but none, it is hoped, of a -serious character. - - - - -INTRODUCTION. - - -The making of a last will and testament is one of the most solemn acts of -a man's life. Few are so frivolous and indifferent as not to realize the -importance of an act which is to live after them, and survive long after -the hand that traced it has mingled with its kindred dust. They feel that, -however regardless people have been of their sayings and doings, however -trivial and unimportant have been their acts in the eyes of others, a -certain attention, respect, and weight will be given to so deliberate and -serious an act as a man's will. They realize, when making it, that they -are exercising one of the highest and most important privileges society -has granted to the individual--the right to speak and order as to the -disposition of his effects and property after he has ceased to live. -Accordingly, men who have been rudely treated by the world, whose -infirmities and eccentricities have subjected them to its ridicule, whose -words would command no hearing from their fellow-men, have eagerly availed -themselves of this last and important opportunity to freely speak their -mind, to vent their spleen on ungrateful friends, to deride an unfeeling -world, and in a cynical manner to express without reserve opinions about -persons and things, which could have no hearing while they lived, but in a -last will and testament will command the attention due to the solemnity -of the occasion. In a word, they take this method to give a parting hit to -an unfriendly and unsympathizing world. - -It will be instructive, as well as interesting, as a phase of human -nature, to refer, by way of introduction, to some curious wills, which may -form an inviting prelude to a more serious treatment of the subject. - -As might be anticipated, many wills reflect the singular notions, the -eccentricities and prejudices of the makers. In many cases, the testator -speaks his mind so freely that his opinion of others really amounts to a -libel; again, his antipathies or his affections are as freely exhibited; -while the instances are not rare in which he bequeaths to posterity the -benefit of his religious opinions. - -Testators often give directions as to the place and manner of their -burial, as well as the expenses of their funeral pageant. In one case, a -testator desired to be buried in a space between the graves of his first -and second wives.[1] Mr. Zimmerman, whose will was proved in 1840, in -England, accompanied the directions for his funeral with something like a -threat in case they were not carried out. In his will he says: "No person -is to attend my corpse to the grave, nor is any funeral bell to be rung; -and my desire is to be buried plainly and in a decent manner; _and if this -be not done, I will come again--that is to say, if I can_." The Countess -Dowager of Sandwich, in her will, written by herself at the age of eighty, -proved in November, 1862, expresses her wish to be buried decently and -quietly--_no undertakers' frauds, or cheating; no scarfs, hatbands, or -nonsense_. In a similar manner, Mrs. Kitty Jenkyn Packe Reading, whose -will was proved in April, 1870, gives explicit directions as to avoiding -useless expense at her funeral. She died abroad, and directed that her -remains be put into a leaden coffin, then enclosed in a wooden coffin, and -to be taken as freight to her residence, Branksome Tower, in England. She -foresaw that in this way the remains could not enter the house through the -door, and directed a window to be taken out of a certain room, in order to -permit her remains to enter. - -The memory of the jars and ills of domestic life has so embittered a man's -mind, that if the strife was unequal during his lifetime, he hopes to turn -the scale in his favor when dying, and in his will have a last word, and -in this way cut off his spouse from her inalienable prescriptive right of -having the last word. A man, then, has been known to call his wife -"jealous, disaffectionate, reproachful, and censorious." And again, a -wife's faults and shortcomings have been published to the world, and -children must be mortified to know that in the public documents of the -country allusion is conspicuously made to the failings of their mother, as -when a husband perpetuates his wife's "unprovoked, unjustifiable fits of -passion, violence, and cruelty." The following words are used by an -individual who died in London in June, 1791, in reference to his wife: -"Seeing that I have had the misfortune to be married to the aforesaid -Elizabeth, who ever since our union has tormented me in every possible -way; that not content with making game of all my remonstrances, she has -done all she could to render my life miserable; that Heaven seems to have -sent her into the world solely to drive me out of it; that the strength of -Samson, the genius of Homer, the prudence of Augustus, the skill of -Pyrrhus, the patience of Job, the philosophy of Socrates, the subtlety of -Hannibal, the vigilance of Hermogenes, would not suffice to subdue the -perversity of her character; that no power on earth can change her, seeing -we have lived apart during the last eight years, and that the only result -has been the ruin of my son, whom she has corrupted and estranged from me. -Weighing maturely and seriously all these circumstances, I have -bequeathed, and I bequeath to my said wife, Elizabeth, the sum of _one -shilling_, to be paid unto her within six months after my decease."[2] - -Happily, the ills and strifes of conjugal life are not the most frequently -remembered incidents of a man's life; its felicities, its joys and tender -experiences, the fidelity and devotion of a true partner, are often most -vividly and fondly cherished at death, and touchingly alluded to in a -man's last will. In this manner, Sharon Turner, the eminent author of the -"History of the Anglo-Saxons," and other works, who died in London in -1847, at the age of seventy-nine, and whose will was proved in that year, -delights to speak of his wife's affection, and is particularly solicitous -that she should not suffer in her personal appearance by the -unskillfulness of the persons who had taken her portrait. Speaking of his -wife, who was dead, he says: "It is my comfort to have remembered that I -have passed with her nearly forty-nine years of unabated affection and -connubial happiness, and yet she is still living, as I earnestly hope and -believe, under her Saviour's care, in a superior state of being.... None -of the portraits of my beloved wife give any adequate representation of -her beautiful face, nor of the sweet, and intellectual, and attractive -appearance of her living features, and general countenance, and -character." - -Too often testators place all the obstacles they can in the way of their -widows marrying again, as will appear more fully in another part of this -work. The following instance is one of the few exceptions, and it -contains, besides, the most graceful tribute to a wife's character, as -given in a will, that we know of. Mr. Granville Harcourt, whose will was -proved in March, 1862, thus speaks of his wife: "The unspeakable interest -with which I constantly regard Lady Waldegrave's future fate induces me to -advise her earnestly to unite herself again with some one who may deserve -to enjoy the blessing of her society during the many years of her possible -survival after my life. I am grateful to Providence for the great -happiness I enjoy in her singular affection; and I pray and confidently -hope she may long continue to possess the same esteem and friendship of -those who are intimate with her, and can appreciate her admirable -qualities, and the respect of all with whom, in any relation of life, she -is connected."[3] - -Ladies have not the same opportunity and privilege of restraining their -husbands from marrying again, and we cannot call to mind a single case of -a married woman attempting to do so in a will, but on the contrary, we -have the case of a lady recommending marriage to her husband. Mrs. Van -Hanrigh, whose will was proved in December, 1868, leaves all her property, -which appears to have been considerable, to her husband. Endorsed on the -back of the will is a memorandum, stating that she wishes her clothes to -be sold to pay her funeral expenses, which are to be as small as possible, -and after commending her husband to the care of her brother, she adds: "It -is also my earnest wish that my darling husband should marry, ere long, a -nice, pretty girl, who is a good housewife, and above all, to be careful -that she is of a good temper." - -Theologians have speculated and differed upon the nature of Heaven's -happiness, but John Starkey, whose will was proved in November, 1861, had -no doubt of its character, for he states: "The remainder of my wealth is -vested in the affection of my dear wife, with whom I leave it in the good -hope of resuming it more pure, bright, and precious, where neither moth -nor rust doth corrupt, and where there are no railways or monetary panics -or fluctuations of exchange, but the steadfast though progressive and -unspeakable riches of glory and immortality." - -The disappointments of life, the inconstancy of friends, and the slights -of the world have so wrought upon some minds as to cause them to record in -a will their estimate of all earthly things, and enlighten posterity by -revealing to it the last impressions of either a cynic or a philosopher. -Soured and chagrined, they rail at what they deem the folly and hypocrisy -of the world, and in a last utterance freely express themselves upon -subjects upon which, perhaps, the proprieties of life made them silent -while they lived. The following document, penned by an Earl of Pembroke -who lived during the political turmoils of the seventeenth century, -testifies to a singular shrewdness and knowledge of character, with a -considerable amount of dry humor. As a literary and historical curiosity, -we may be justified in giving it at length. The copy from which it is -taken bears the signature of the keeper of the records in Doctors' -Commons, Nathaniel Brind, beneath the words "_Concordat cum originali_." -It is as follows: - -"I, Philip V, Earl of Pembroke and Montgomery, being, as I am assured, of -unsound health, but of sound memory, as well I remember me that five years -ago I did give my vote for the despatching of old Canterbury, neither have -I forgotten that I did see my king upon the scaffold, yet as it is said -that death doth even now pursue me, and, moreover, that it is yet further -said that it is my practice to yield under coercion, I do now make my last -will and testament. - -"Imprimus: As for my soul, I do confess I have often heard men speak of -the soul, but what may be these same souls, or what their destination, God -knoweth; for myself, I know not. Men have likewise talked to me of another -world, which I have never visited, nor do I know even an inch of the -ground that leadeth thereto. When the King was reigning I did make my son -wear a surplice, being desirous that he should become a bishop, and for -myself, I did follow the religion of my master; then came the Scotch, who -made me a Presbyterian; but since the time of Cromwell, I have become an -Independent. These are, methinks, the three principal religions of the -kingdom. If any one of the three can save a soul, I desire they will -return it to him who gave it to me. - -"Item: I give my body, for it is plain I cannot keep it, as you see the -chirurgeons are tearing it to pieces. Bury me, therefore; I hold lands and -churches enough for that. Above all, put not my body beneath the church -porch, for I am, after all, a man of birth, and I would not that I should -be interred there where Colonel Pride was born. - -"Item: I will have no monument, for then I must needs have an epitaph and -verses over my carcass--during my life I had enough of these. - -"Item: I desire that my dogs may be shared among all the members of the -Council of State. With regard to them, I have been all things to all men; -sometimes went I with the Peers, sometimes with the Commons. I hope -therefore they will not suffer my poor curs to want. - -"Item: I give my two best saddle-horses to the Earl of Denbigh, whose -legs, methinks, must soon begin to fail him. As regards my other horses, I -bequeath them to Lord Fairfax, that when Cromwell and his council take -away his commission, he may still have some _horse_ to command. - -"Item: I give all my wild beasts to the Earl of Salisbury, being very sure -that he will preserve them, seeing that he refused the King a doe out of -his park. - -"Item: I bequeath my chaplains to the Earl of Stamford, seeing he has -never had one in his employ, having never known any other than his son my -Lord Gray, who, being at the same time spiritual and carnal, will engender -more than one monster. - -"Item: I give nothing to my Lord Saye, and I do make him this legacy -willingly, because I know that he will faithfully distribute it unto the -poor. - -"Item: Seeing that I do menace a certain Henry Mildmay, but did not trash -him, I do leave the sum of fifty pounds sterling to the lacquey that shall -pay unto him my debt. - -"Item: I bequeath to Thomas May, whose nose I did break at a masquerade, -five shillings. My intention had been to give more; but all who have seen -his history of the Parliament will consider that even this sum is too -large. - -"Item: I should have given to the author of the libel on women, entitled -'News of the Exchange,' threepence, to invent a yet more scurrilous mode -of maligning; but, seeing that he insulteth and slandereth I know not how -many honest persons, I commit the office of paying him to the same lacquey -who undertaketh the arrears of Henry Mildmay. He will teach him to -distinguish between honorable women and disreputable. - -"Item: I give to the Lieutenant-General Cromwell one of my words, the -which he must want, seeing that he hath never kept any of his own. - -"Item: I give to the wealthy citizens of London, and likewise to the -Presbyterians and nobility, notice to look to their skins, for, by order -of the State, the garrison of Whitehall hath provided itself with -poniards, and useth dark lanterns in the place of candles. - -"Item: I give up the ghost." - -One of the most interesting old wills, the first will registered in the -English language in Doctors' Commons, is the will of Lady Alice West, -proved in the year 1395. - -The first will recorded there is in the year 1383, and is in Latin, as -most of the very early wills are. She was the widow of Sir Thomas West. -She begins thus, in the old-fashioned style: "In Dei nomine, Amen. On -Thursday, that is to sey, the XV day of the moneth of Jul, in the yer of -the incarnacion of our Lord Ihu Crist, a thousand and thre hundred and -fourescore and fiftene--I, Alice West, lady of Hynton Martel, in hool -estat of my body and in good mynde beynge, make my testament in the maner -as hit folweth hereafter: In the begynnyng, I bequethe my soule to God -Almighty and to his moder, Seynt Marie, and to al the seyntis of heuene, -and my body to be beryed in Crischerche in the priorie of the chanones in -Hamptschire by the Newe Forest wher as myne auncestres leggeth." - -The wills of persons of distinction were, in spirit, much the same in the -fourteenth century as at present; there are pecuniary and specific -legacies to relatives, legacies to old and present servants, legacies for -charitable purposes, and particular directions about the funeral and place -of burial. - -Dame Alice West's will is too long to give at length, but some extracts, -showing the articles which at that period were so valuable as to be -specifically bequeathed, the amounts of the legacies, and the persons to -whom they were left, may prove interesting. - -The lady commences the disposition of her property as follows: "Also, I -devyse to Thomas, my sone, a bed of tapicers werk with alle the tapices of -sute, red of color, ypouthered with chapes and scochons in the corners of -myn auncestres armes, with that I bequethe to the same Thomas the stoffe -longyng thereto--that is to seye, my best fetherbed, and a blue canevas -and a materas and twey blankettys and a peyre schetes of reynes and sex of -my best pilwes." - -It is an unusual thing in the present day to dispose of bedding by will; -and the reason is, that feather-beds, mattresses, pillows, blankets, and -sheets are comparatively cheap; but in Lady Alice's time they must have -been articles of luxury and a considerable item in the dower of a bride. - -The testatrix next thinks of her daughter-in-law: - -"Also I bequethe to Johane my sone is wyf, a masse book and alle the bokes -that I have of latyn, englisch, and frensch out take the forsayd matyns -book, that is bequethe to Thomas my sone." - -We wonder what books she had, and particularly what English books; a list -of them would be most interesting. She could not have had many, and we -cannot suggest what they were. It should be remembered that this will was -made more than five years before the death of Chaucer, and nearly eighty -years before the first book was printed in English, and books in English -must consequently have been few indeed. Their scarcity made them of great -value; they were carefully treasured, and their future ownership specially -provided for by will. Something might be said as to the education of -ladies of the highest class at that time. Here was a lady possessing books -in English, Latin, and French, which, it is presumable, she could read. -Latin, however, was the language of her religion; French was probably the -tongue she was brought up in, and was the language of the court; and -English was the language of her dependents; so that, as a matter of -course, every lady of rank may have been familiar with the three -languages. - -She further gives certain gifts to members of her family: "To Sir Nichol -Clifton, Knyght, and to Alianore his wif, my doughter, and to Thomas -Clifton here sone, £120, euenliche to be departed betwix ham thre; and if -Thomas here sone forsayd deyeth, I wol that it torne to profet of his -fader and his moder." - -We should not expect to find any will previously to the Reformation -without a legacy to say masses. Lady West gives £18 10_s._, "for to synge -and seye 4400 masses for my lord Sir Thomas West is soule, and for myne, -and for alle cristene soules," and they are to be "done" within "fourteen -night after her deces." There is another bequest to Christ Church, where -she was to be buried, "to bidde and to rede, and synge for my lordes soule -forsayd, and myne, and alle cristene soules, while the world schal laste." - -Having given all the legacies she desires, the testatrix then disposes of -the remainder of her property: "An al the residue of my godes, after the -dettys that I owe ben quyt, and after my testament is parfoned, I bequethe -to the forsayd Thomas my sone"; and after all these directions and -legacies, the good lady finishes her will by ordering the manner of her -own interment; when she dies her body is to be carried to the "forsayd -priorie of Crischerch, and with right litel cost" buried at the first -mass, with a taper of six pounds of wax burning at her head, and another -taper of six pounds of wax burning at her feet. - -The will of Shakspeare, executed on the 25th March, 1616, not quite a -month previous to his death, forms a most interesting document for the -scholar, as well as the lawyer. It is registered in Doctors' Commons -_verbatim_, as it was written, and is prized as a unique and interesting -document relating to the poet. It is written in the usual clerical hand of -the period, on three sheets of paper, fastened at the top. Each sheet is -signed by the poet, the final signature, "By me, William Shakspeare," -being the most distinct. These three autographs, with two appended to -deeds relating to his property in London, constitute the only undoubted -signatures of Shakspeare which we at present possess. - -It commences in the old way, thus: - -"In the name of God, Amen! I, William Shackspeare of Stratford upon Avon, -in the countie of Warr. gent, in perfect health and memorie, God be -praysed! doe make and ordayne this my last will and testament in manner -and forme followeing; That ys to saye, First, I comend my Soule into the -handes of God my Creator, hoping and assuredlie beleeving, through -thonelie merites of Jesus Christe my Saviour, to be made partaker of lyfe -everlastynge, And my bodye to the Earth whereof yt ys made." - -It would be tedious to give _in extenso_ the various items of this -celebrated will; we shall only refer to a few such items as are -sufficiently remarkable. In one item he gives a bequest to his sister -Joan: "I gyve and bequeath unto my said sister Jone XX pounds, and all my -wearing Apparrell, to be paied and delivered within one yeare after my -deceas; and I doe will and devise unto her _the house_ with -thappurtenaunces in Stratford wherein she dwelleth, for her natural lief, -under the yearlie rent of xij{d}," or twelve pence. - -He gives various specific and general legacies; and, if we judge by the -number of such, he must have had numerous friends. In another item he -gives to the poor of Stratford "tenn poundes "; to Mr. Thomas Combe his -sword; to his daughter Judith his "broad silver gilt bole." The most -remarkable item in the will is the following: "_I give unto my wief my -second best bed with the furniture._" He devised to his daughter, Susanna -Hall, his landed property in Stratford, limited to the first or other sons -of her body after her life. - -It is said the object of the poet in leaving the bulk of his property to -Mrs. Hall was evidently to found a family, the darling object of -Shakspeare's ambition. One clause interlined in the will has occasioned a -good deal of marvel and censorious criticism--the bequest to his wife, who -has been represented as cut off by him, not indeed with a shilling, but -with an old bed. But, as she was entitled in law to dower out of his real -estate, Shakspeare may not have deemed it necessary to make any further -bequest to his wife than that of the second-best bed, as a special mark of -affection. This is the explanation now tendered of what must otherwise -have appeared a most extraordinary procedure on the part of the poet. It -must be admitted, however, that, making full allowance for her provision -by right of law, there still remains a feeling of dissatisfaction with the -total exclusion of Anne Shakspeare from all parts of her husband's will, -with the exception of an interlined clause of a dozen words. It is also a -significant fact that, with the exception of the bed, no household -furniture is bequeathed to the widow; so that she must have been left -dependent on her daughters for lodging and residence. - -The will of Henry VIII in some of its provisions is well worth the -attention of the scholar, as it reflects the state of the distinguished -testator's religious opinions, which, contrary to general impressions, -were not entirely in harmony with the views of the Reformers in England. -This will was the subject of judicial examination, in the House of Lords, -in 1860. (8 H. L. Cas. 369.) - -It appears that, by the foundation of Edward III, when he instituted the -order of the Garter, and created the Poor Knights, a certain obligation -had been cast upon the dean and canons of Windsor to provide for the Poor -Knights, the King having promised the dean and canons lands to enable them -to do so. But, by an Act of Parliament, passed in the 22 Edw. IV, reciting -that "the possessions given to the said dean and canons suffice not to -sustain all other charges, and also to bear the charges of the Poor -Knights," it was enacted "that the same dean and canons, and their -successors forever more, be utterly quit and discharged from all manner of -exhibition or charge of or for any of the same Knights." Down to the end -of the reign of Henry VIII, the Poor Knights appear to have been fed only -with promises, and no permanent provision was made for them. In the 3 Hen. -VIII, the dean and canons having, at his request, granted to a Poor -Knight, named Peter Narbonne, an annuity of twenty marks for his life, the -King wrote them a letter of thanks, in which he acknowledges that they -were not bound to find anything for the Poor Knights since the 22 Edw. IV; -thanks them for their bounty to Peter Narbonne; promises them favor in -their suits hereafter as a recompense, and assures them "that they shall -not be burthened with the maintenance of any other Poor Knights till such -time as he should have provided lands for their exhibition, which not only -should be sufficient to discharge the dean and canons of such Knights, but -also of the said annuity." - -The promise was not fulfilled; and when Henry's end approached, the breach -of it lay heavily upon his conscience, and hence the following provision -in his will, which was dated December 30th, 1546, about three weeks before -his death. One of the directions was: "That, as soon as may be after our -departure from this world, the Dean and Chapter shall have manors, etc., -to the yearly value of £600 over all charges, made sure to them and their -successors, forever, upon the conditions hereafter ensuing." Among the -other provisions were the following: - -"And for the due and full accomplishment and performance of all other -things conteined with the same in the form of an indenture, signed with -our own hand, which shall be passed by way of covenant for that purpose -between the said Deane and Cannons and our executors, if it pass not -between us and the said Deane and Cannons in our liefe; that is to say, -the said Deane and Cannons and their successours forever shall finde two -prestes to say masses at the said aulter to be made where we have before -appointed our tomb to be made and stand; and also after our decease kepe -yerely four solemne obites for us within the said College of Windesour, -and at every of the same obites to cause a solemne sermon to be made, and -also at every of the said obites to give to poor people in almes tenne -poundes. - -"And also to give forever yerely to thirtene poor men, who shall be called -Poor Knightes, to every of them twelf pens every daye, and ones in the -yere yerely forever, a long joune of white cloth, with the garter upon the -brest, embrodered with a sheld and cross of Sainte George within the -garter, and a mantel of red cloth, and to such one of the said thirtene -Poor Knightes as shall be appointed to be hed and gouvernour of them, £3 -6s. 8d. yerely forever, over and besides the said twelf pennes by the -daye. - -"And also to cause, every Sonday in the yere, forever, a sermon to be made -forever at Windesour aforesaid, as in the said indenture and covenant -shall be more fully and particularly expressed, willing, charging, and -requiring our son Prince Edwarde, all our executors and counsaillors which -shall be named hereafter, and all other our heirs and successours which -shall be Kinges of this realme, as they will answer before Almighty God at -the dredful day of judgment, that they and every of them do see that the -said indenture and assurance to be made betwene us and the said Deane and -Cannons, or between them and our executours, and all thinges therein -conteined, may be duly put into execution, and observed and kept forever, -perpetually, according to this our last will and testament." - -The Archbishop of Canterbury and the Lord Chancellor, and a great many -other eminent persons, and Councillors of the Privy Council, with "our son -Prince Edwarde," were appointed "executors," and, "as they must and shall -answer at the day of judgment," they were required, "truly and fully to -see this my last will performed in all things with as much speed and -diligence as may be." - -In 1547, a meeting of the executors and Privy Councillors, with the Lord -Protector at their head, was assembled, and a document was drawn up which -recited the material parts of the will relating to this matter, and -directed that "the Barons of the Exchequer, the King's Sergeants, the -Attorney and Solicitor, should deliberately peruse the whole will, and -frankly declare their opinions what the executors may lawfully do, and how -and in what form the said will may be lawfully executed and performed." -This was done, and a special report was afterwards made, declaring that -the will might be carried into effect, and stating how that might be done. - - - - - - -CHAPTER I. - -ORIGIN AND HISTORY OF WILLS. - - -Jurists do not quite agree as to the full extent of a man's interest in, -and control of, the property he acquires. There are different theories as -to the real title to property; most all, however, agree that occupation, -united with labor, is the best ground of a title to exclusive ownership of -property. But how long will this ownership or control continue? During -lifetime, or for a longer period? Some maintain that, by the law of -nature, it only lasts during the life of the owner, and after his decease -the property again becomes merged with the general stock of the public--it -becomes _publici juris_; and that to permit one to order and control its -disposition after he has ceased to live, is a privilege or a concession of -society, and not any inherent natural right. For a large amount of -property is owned in societies advanced in civilization before the right -of testamentary disposition is exercised, which would show that this right -is not coeval with the foundation of society or the acquisition of -property, and therefore nations are not impelled to it by a natural -instinct and impulse. It is claimed that the _jus disponendi_ is a -necessary incident of property--an inseparable quality; but if, by this -term, we understand a right of disposal while a man lives, we can admit -that it belongs to ownership; but it is quite a different thing when a -man ceases to live; for then, naturally, he ceases to have dominion; and -if he has a natural right to dispose of his goods for a short time after -death, why not for millions of years?[4] - -It is not a natural inherent right of the individual to dispose of his -property after his decease; it is no more or less than a right given by -positive law--a right which is founded on convenience and concession. - -For a very obvious reason, we do not find this right in the early -constitution of society, either given or exercised. Society, in early -times, was founded on the family as the initial unit or group, which was -only recognized by the State as entitled to maintenance. Naturally, by -right of this principle in early society, the property acquired by an -individual went into the general stock of the family, as a necessary -_appanage_, and was in the name of the head of that family, and at his -decease, by a principle of early law, devolved in due course upon the -successor, or the _hæres_ of the Roman law, who took it with all the -obligations of the deceased. Society had not yet so advanced as to make -the individual an object of its care and government, and recognize him as -a distinct unit apart from the family; and succession--"universal -succession," as it was called--to the property in the family, was the -usual disposition of property. It took a long while before society -permitted the individual to dispose of his property _out of his family_, -because this was so abnormal and unnatural as to be only dictated by -caprice, passion, or prejudice, insomuch that whenever attempted among the -Romans, the will was set aside as _inofficious_, and it was not permitted -at all in the early English law; and even now is a presumed ground of -imbecility or insanity in a testator. - -The will, as we understand it, is unquestionably of Roman origin--it is -purely a creature of that law, the _corpus juris_, "the public reason of -the Romans." The laws of Solon only permitted wills when the testator had -no children.[5] Among the Hindoos, the right of adoption as a succession -to property effected the same purpose as a will,[6] while among the -Teutonic nations wills were unknown, and the children inherited.[7] - -At first, among the Romans, a will was neither secret, revocable, nor of -effect, until after death--characteristics which we necessarily associate -with a will in modern times. A will then was more like a conveyance in a -man's lifetime--a sale of the family rights, property, and obligations, in -the presence of witnesses, to a person known as the _Emptor Familiæ_, who -assumed the place of the testator as head of the family. He might be -compared to an assignee under our law, with this difference, that the -latter is only liable as far as he has assets. Wills were usually -witnessed by seven witnesses, who sealed outside upon a thread, and after -some time, deposited in the archives during the life of the testator, and -opened in the presence of the prætor or other officer, after decease, and -any person might have a copy, being matter of record.[8] - -The Roman law did not permit the entire disposition of property by will, -if a man had a family. By a law of Justinian, one-fourth, at least, was -required for the children, and when there were four children, they could -claim one-third, which became a general law throughout Europe.[9] - -The Roman influence, connection, and dominion in Great Britain necessarily -introduced Roman laws and usages. It was a connection lasting fully three -hundred years, during which time the country was visited by Roman jurists, -and the people became familiarized with the administration of the civil -law, both through the civil courts and the churches. Accordingly, while -wills were not in use among kindred Teutonic people in the north of -Europe, they were well known and general in the Saxon period in England, -where an unlimited and absolute right of devise was given. In the laws of -King Canute, provision is made for the disposition of property in cases of -_intestacy_, which makes it evident that testamentary dispositions were -recognized;[10] and Canute himself left a will.[11] There are notices of -some twenty-five Anglo-Saxon wills extant. Nearly all of the testators -were people of prominence and distinction, and these wills are preserved -in monastic houses to which they devised property. King Alfred's will, -from its antiquity and its formal character, is one of the most -interesting ancient documents existing. (He died A. D. 900.) It opens -thus: "I, Alfred, King by God's grace, and with Ethered's the Archbishop's -counsel, and all the West Saxon Wights, witness, have considered about my -soul's thrift, and about the inheritance that to me, God and mine -Ancestors did give, and about the inheritance that Ethulf, King, my father -to us, three brothers, bequeathed, Ethelbold, Etherad and me." He provides -for masses thus: "And so divide for me and my father, and for the friends -that be interceded for, and I intercede for, two hundred of pounds, fifty -to the mass priests over all my kingdom, fifty to God's poor ministers, -fifty to the distressed poor, fifty to the church that I at shall rest; -and know not certainly whether the money so much is, nor I know not but of -it more may be, but so I ween." - -It appears that King Alfred's will was prepared by the Archbishop's -counsel, and published in the presence of the West Saxon Wights, or Wise -Men. This gives us a glimpse at the interference of the clergy in such -important affairs, and leads us on a most interesting and important -inquiry as to the connection of wills with ecclesiastical courts. - -The clergy of that time possessed a monopoly of the learning of the day, -and especially of the learning of the civil law, having made it a matter -of study. Reasonably they would be consulted on subjects on which the -civil or Roman law had such a bearing; and as a matter of fact, they soon -became presiding judges with the civil magistrate in cases of probate of -wills. In the early Saxon period, the bishop sat with the earl in the -county court in the administration of testamentary matters; and this was -the case up to the time of the Normans. But the clergy had occasion to -interfere on other grounds, at a very early period. At a very early day, -they sought jurisdiction in probate matters. The practice was probably -favored by the sanction given by the civil law to the intervention of the -bishop to compel the execution of a will where there were legacies _in -pios usus_--to pious uses.[12] When any legacy was disposed of to pious -uses, for the use of the church, for monasteries, or for the poor, the -bishops were to sue for the same, and see to the administration -thereof.[13] But Justinian would not allow further than this, and he -prohibited the bishops interfering generally in the probate of wills.[14] -Upon which a writer remarks: "Here we see the clergy in those days had set -their foot upon the business, and I suppose since that time they never -pulled it wholly out again." - -The popes, as their power increased, endeavored to obtain the jurisdiction -over testaments. Pope Innocent the Fourth claimed for the bishop the power -to dispense property left to a charity, if there be no executor appointed -by the will, and if there be an executor, and he does not discharge the -duty faithfully, the bishop may assume administration.[15] - -As a matter of history, in European countries, except England, the church -did not pretend that wills were of ecclesiastical cognizance _sua natura_, -but only such wills as were made for pious uses.[16] So that the origin of -the jurisdiction of ecclesiastical courts touching testamentary matters is -by the custom of England, and not by ecclesiastical law. Blackstone says: -"The spiritual jurisdiction of testamentary causes is a peculiar -constitution of this island; for in almost all other (even in popish) -countries all matters testamentary are under the jurisdiction of the civil -magistrate."[17] - -We have seen that during the Saxon period the bishop presided with the -earl in the administration of testamentary matters; but in the eighteenth -year of William the Conqueror, a separate court was organized for the -bishop, who no longer sat with the civil authorities. This was the -beginning of the ecclesiastical jurisdiction; though at first power was -granted only to adjudicate on such matters as were for the good of the -soul, an expression which the bishops subsequently made very elastic and -comprehensive. The clergy did not acquire the exclusive jurisdiction till -the reign of Henry I, who by charter first established this -jurisdiction.[18] In the time of Richard I, when he was in confinement, -the clergy were more fully established in this right, for they obtained -from him a confirmation of the ecclesiastical immunities.[19] - -The proof of wills was thus well settled and established, for it is spoken -of as an ordinary and undisputed usage, and through all the animated -disputes in the reign of Henry II, as to the civil and ecclesiastical -jurisdiction, it is observable that nothing is advanced against the -authority of the spiritual courts in testamentary causes. In the reign of -Richard II the county courts were prohibited to infere with the probate of -wills.[20] - -By the early common law of England, if a man had a wife and children, he -had only a testamentary disposition of one-third of his property; the -remainder, the shares of the widow and children, were called _rationabiles -partes_, which must be intact. The personal attendance of the clergy on -the dying would ordinarily lead to the disposition of the third which a -person was privileged to bequeath by testament; and, from ancient wills, -it is very evident this power was liberally and generally exercised in -favor of religious uses, such as were deemed for the soul's health of the -testator. Whenever, by accident or extreme feebleness, the exercise of -this right was prevented, the third thus left at the disposal of a person -was of right claimed by the clergy, as the "dead man's part," to be -appropriated for his benefit, _pro animæ salute_. This would lead to the -intervention of the spiritual courts in the distribution of an intestate's -estate, especially as they had full power over the probate. So it became -the invariable custom to take the third of an intestate's goods for pious -uses, which were, to assist in paying for masses for the benefit of the -"defunct's soul," to assist the poor and infirm, to pay for church lights, -religious services, and anniversaries. If a man died without wife or -children, the Ordinary, as the bishop was termed, had the administration -of the whole of an intestate's property, subject to the payment of the -debts of the deceased. It is easy to see what immense power and revenue -accrued to the church in consequence of the establishment of these -privileges; and the influence gained thereby, and the flagrant abuses -resulting from this prerogative, caused just alarm to the civil power, and -led to a struggle to curtail such powers in the reign of Edward III,[21] -when a law was passed providing that the Ordinary should grant the -administration to the next of kin. The Statute of Distribution, in the -reign of Charles II, destroyed the old common-law right to the _pars -rationabilis_, and made the estate distributable among the widow and next -of kin, leaving still, however, in the hands of the administrator, for his -own use, the third formerly retained by the church; and finally, by -statute, in the first year of James II, it was provided that this third -should also be distributed. So, after a struggle of many years, the -administration of the goods of an intestate was taken out of the hands of -the spiritual courts, and rightfully given to the family of the deceased. -The long, slow process is an interesting phase of history for the general -reader, as it is for the lawyer, who finds it necessary to follow it, -because the rules and decisions of the ecclesiastical courts as to the -probate of wills and the administration of personal property have become -incorporated into the body of our law, and form a part of it.[22] - -Up to the thirty-second year of Henry VIII, there was no power to make a -will of real estate. In his reign the Statute of Wills was passed, which -first gave this power, and after that time a person had the right to make -wills of real as well as personal property; but the ecclesiastical courts -had only cognizance of the wills of personal property; the common-law -courts had the jurisdiction of wills relating to real estate. - -The next statute that affected wills was the _Statute of Frauds_, in the -twenty-ninth year of Charles II, which required wills affecting real -estate to be in writing, _signed_ by the testator, and attested in the -presence of three or four credible witnesses. This statute had an immense -influence on our jurisprudence, and is substantially adopted in all our -States, with slight variations.[23] In that statute certain formalities -were insisted upon, but only in regard to a will of real estate; a will of -personal property was not required to be executed in the same manner and -with the like formalities.[24] Before the Statute of Frauds, according to -32 Henry VIII, it was only necessary for the will to be in writing; and -accordingly, where a man beyond the sea wrote a letter, in which he -declared his will to be that his land should go in a certain way, it was -adjudged a good will.[25] And a will written without the appointment of -the testator, if read to him and approved by him, was held good, signing -and sealing not being necessary.[26] - -Now, by statute I Vict., ch. 26, in England, there are required the same -formalities in a will of personal estate as by the Statute of Frauds are -required in a will of real estate, and the same is now the case in nearly -all our States; and, by the same statute, a person has a full testamentary -disposition of all real estate, as well as personal, to which he is -entitled, either in law or in equity, at the time of his death. - -Our American States generally, after the Revolution, adopted the English -common law, as it was at certain periods--some taking one date, and others -a different one; but in all substantially the common law was taken as the -foundation of our municipal law, with the exception of Louisiana. Hence -the law relating to the execution and probate of wills, as administered in -the ecclesiastical courts, was engrafted here, subject to certain -statutory modifications suitable to our polity and circumstances. But we, -having no recognition of an established religion, have given this -jurisdiction to special civil courts, denominated Probate Courts in some -States, as in California; the Orphan's Court, as in New Jersey; the -Surrogate's Court, as in New York. The name Surrogate again brings to our -mind a reminiscence of the former ecclesiastical jurisdiction; it was the -name given to the bishop's deputy. However, in all, no matter by what name -known, the precedents, the decisions, and rules, as established in the -ecclesiastical courts in England, in regard to testamentary matters, have -authority and force; and it is for this reason the history and -adjudication of these courts are so necessary to the lawyer of the present -day.[27] - - - - -CHAPTER II. - -FORM AND REQUISITES OF WILLS. - - -A will, from its nature, is the declaration of a man's mind as to the -proper disposition of his property after death. This declaration, as any -other fact, is established by evidence, oral or written. It is not the -essence of a will that it shall be in writing; the essence is the declared -purpose or intention, and this is established, as any other fact in law, -by witnesses, or by the written declaration of the testator. In Bacon's -Abridgement, a will, therefore, is defined to be, "A declaration of the -mind, either by word or writing, in disposing of an estate; and to take -place after the death of the testator."[28] A distinction was formerly -made between a will and a testament; when lands or tenements were devised -in writing, it was by will, and when goods and chattels were disposed of, -it was by testament; but this distinction is now lost sight of, and the -words are used indiscriminately, and we speak of the posthumous -disposition of an estate, of whatever kind, as by last will and testament. - -Since peculiar perils and obstacles beset a man in his last hours; as much -uncertainty and contention have arisen as to his precise purpose and -declaration; and as there is a strong and very unusual temptation and -opportunity given to designing and evil persons who may surround him, to -falsify his intention to their advantage, it has seemed politic and wise -to legislatures to prescribe a mode by which wills shall be evidenced and -proved, to guard against fraud, imposition, and uncertainty. Hence, in the -statutory enactments of every State, there are precise and strict rules -laid down on the subject; and as writing is the most reliable and -permanent mode of conveying the proof of a person's intention; and as it -is now an acquirement possessed by almost every one, it is now the mode -insisted on for embodying the declaration of a man's last will and -testament, with rare exceptions as to verbal wills. We may, therefore, -speak of wills in two great classes, viz., _Verbal_ and _Written_. - - -SECTION 1.--NUNCUPATIVE WILLS. - -A nuncupative will is a verbal declaration of a person's intention as to -the manner of disposition of his property after death. Formerly, at an -early period, this must have been the usual kind of will in general use, -when writing was a rare acquirement. Before the Statute of Frauds, it was -of as great force and efficacy (except for lands, tenements, and -hereditaments) as a written testament.[29] But as wills of this kind were -found liable to great impositions and frauds, and occasioned many -perjuries, that statute placed them under several restrictions, except -when made by "any soldier in actual military service, or any mariner or -seaman being at sea."[30] - -The imminent dangers, the diseases and sudden death which constantly beset -soldiers and sailors; the utter inability oftentimes to find the time or -the means to make a deliberate or written testamentary disposition of -their effects, seem at all times to have made them a proper exception to -the operation of a rule which the wisdom of later times has found it -expedient, if not absolutely obligatory, to apply to all others. Hence, -almost all governments grant this immunity to this class of persons. It -was a peculiar privilege of the Roman soldiers, who were exempt when on a -military expedition from complying with the strict testamentary law; the -privilege, however, was only well established under the Empire, and after -a time it was extended to the naval service, and officers, rowers, and -sailors were, in this respect, esteemed as soldiers.[31] - -Another class of persons formerly permitted to make this kind of will were -those who were at the point of death, or as it was termed, _in extremis_. -And in many States this privilege is still granted this class. - -For a long period, as far back as a little before the time of Henry VIII, -this kind of will was confined to this class of persons.[32] A writer of -the time of Henry VIII says: "This kind of testament is made commonly when -the testator is now very sick, weak, and past all hope of recovery." -Chancellor Kent says: "This has been the uniform language of the English -law-writers from that time to this day, so that it has become the -acknowledged doctrine, that a nuncupative will is only to be tolerated -when made _in extremis_."[33] - -The danger of collusion and conspiracy among those who surround a feeble -dying person has taught legislatures to be very strict in placing adequate -safeguards around such a one. It was a gross abuse of such an opportunity, -in a remarkable case in the twenty-eighth year of Charles II, that led, it -is supposed, to the enactment of the Statute of Frauds in the next year. - -The case was this:[34] Mr. Cole, at a very advanced age, married a young -woman, who during her lifetime did not conduct herself so as to make the -old man's life a placid or a happy one. After his death she set up a -nuncupative will, said to have been made _in extremis_, by which the whole -estate was given to her, in opposition to a will made three years before -the testator's death, giving £3,000 to charitable uses. The nuncupative -will was proved by nine witnesses; and after examination in the course of -a trial, it appeared most of the witnesses were perjured, and Mrs. Cole -was found guilty of subornation. It was then that Lord Nottingham said: "I -hope to see one day a law that no written will should be revoked but by -writing." He was gratified in seeing such a law the succeeding year. Upon -this, Chancellor Kent observed: "I should hope to see one day a law that -no nuncupative will should be valid in any case."[35] - -The case in which these words were used was a very curious one, and will -be worth while to be stated somewhat fully. We can give no better -statement of it than the admirable summary given by that eminent jurist in -his opinion, where the subject of nuncupative wills received a thorough -discussion. The will was made by a William Jones on the 11th April, 1820, -and was as follows: "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 attention 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." The will -was witnessed by four witnesses. It was finally declared invalid, because -it did not appear the testator made it in his last extremity, and as there -were so many evidences of undue influence. The facts were as given by -Kent: "William Jones was an Irishman by birth and a religious Catholic by -profession. He was born in the county of Dublin, in Ireland, and received -a school education about thirty 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 -apprenticeship of seven years. When this service expired, he worked as a -journeyman for nine or twelve months, and then emigrated to the United -States. This brings us in the history of his life to the 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 -memory of this man. I allude to the change of his paternal name, -_O'Connor_, for that of _Jones_. It does not appear precisely when he -changed his name, but I refer it back to that period as the probable time, -and presume that he and his family were more or less implicated in the -rebellion 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 conjecture as it may, we find him first at -New York, then for two years at Savannah, then living for twelve or -fourteen years in Cuba, and learning the Spanish language, and where he -probably made his fortune. He is next traced on his return to the United -States to the cities of Baltimore, Philadelphia, and New York; and in all -of them he seems to have had business, 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 -$65,000 in property existing in New York, Philadelphia, Baltimore, and the -Island of Cuba; and to show that this claim had pretty fair pretensions to -truth, there were actually found at his lodgings, at his death, bank-books -showing 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 -Taylor, a colored woman, for his hired nurse; and there was a Mrs. -Hazleton, who had rooms and boarded in the same house, who also acted as -his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to -board there, does not appear, nor have we in the case any distinct -lineaments of the character which Mrs. H. sustains, or the business or -purpose of her life. She was able, all at once, and without any remarkable -display of goodness or any adequate cause, to gain a wonderful ascendancy -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 national affection, every -tender recollection of the ties of blood, of his natal soil, 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 varied life into the lap of this mysterious woman--the -acquaintance of a day!" - -From the manifest evils arising from this kind of wills, legislatures are -not disposed to favor them; they seem only adapted to a ruder condition of -society than the one we now live in. So, in the Statute of Wills in -England, passed in 1838,[36] such wills are declared invalid, except as to -soldiers and sailors; and the same is the case in nearly all our American -States. But a few States still permit such wills made by persons _in -extremis_, and bequeathing a limited amount of property. They are not -permitted in New York, except, as in the English statute, to soldiers and -sailors on actual service.[37] They are in California of property to one -thousand dollars, and then must be proved by two witnesses, one of whom is -requested by the decedent to be a witness; and the will must be reduced to -writing within thirty days after death, and proved within six months after -the same was uttered.[38] - -Even as to soldiers and sailors great strictness is required. In the first -place, soldiers must be on actual military service. The military testament -was first conceded by Julius Cæsar to all soldiers, but it was -subsequently limited by Justinian to those engaged on an expedition;[39] -and our courts in modern times have invariably adhered to the principle -that there must be actual warfare. - -In this country, the cases upon the subject of nuncupative wills are -considerably numerous since the last civil war. In a late case, where the -deceased, a soldier, had been duly mustered into the United States service -during the late civil war, and while in camp wrote a letter to a friend, -directing the disposition of the amount due upon certain securities left -in his hands among the brothers and sisters of the deceased, as the holder -should think proper, and that all his other property should go to his -wife, naming her, she paying his debts, and soon after started on an -expedition or raid against Richmond, in which he was made prisoner, and -soon after died in prison, the will was held good as a nuncupative one, -and entitled to probate.[40] - -Sailors must be actually serving on shipboard. Thus, in the case of Lord -Hugh Seymour, the commander-in-chief of the naval force at Jamaica, but -who had his official residence on shore, it was held that he did not -properly come within the exception, for that he was not "at sea" within -the meaning of that expression, and that a nuncupative will made by him -was not valid.[41] It was held in New York that a person employed as cook -on board of a steamship should be classed as a mariner at sea, and -therefore entitled to make a nuncupative will.[42] - - -SECTION 2.--WRITTEN WILLS. - -The statute law of almost every civilized state at the present time -requires a will of real and personal property to be in writing, with the -exceptions noticed in the first section of this chapter. A will, wholly -written by the testator, signed and dated by him, is called a _holographic -will_, and is, in some States, valid, without the usual formalities -required to prove wills.[43] - -The law has not made requisite to the validity of a will that it should -assume any particular form, or be couched in language technically -appropriate to its testamentary character. It is sufficient that the -instrument, however irregular in form, or inartificial in expression, -discloses the intention of the maker respecting the posthumous destination -of his property; and if this appears to be the nature of its contents, the -instrument is regarded as a will, if otherwise witnessed according to the -mode pointed out in the statute. Professional practice, and long-continued -custom, however, have established some technical forms of expression. As -if to appropriately mark the solemnity of the act, and to declare a -consciousness of it, it was the usual way to commence a will, and it is -still observed, with--"In the name of God, Amen"; but this expression is -now considered too formal and quaint, and of late the practice is to -introduce a will in a less formal manner, thus: "I, John Doe, of ----, in -the State of ----, do hereby make and publish this my last will and -testament, hereby revoking all former wills by me at any time made." - -It was also customary to refer to the bodily and mental condition of the -testator, as, "I, A B, being of infirm health, but of sound mind and -disposing memory, and aware of the uncertainty of life, do now make, -etc."; but this, to a great extent, is abrogated. - -Usually, the first direction given is as to the payment of debts and -funeral expenses; but this is merely formal and unnecessary, as the law -would have this done in any event; but it may be of use to show that the -subject of the testator's debts was brought distinctly to his mind, and -may thus aid in the construction of the will.[44] A very general clause -in a will, without many exceptions, is one appointing one or more -executors. Formerly, it was considered indispensable to the validity of a -will that an executor should be named in it;[45] but that opinion no -longer obtains either here or in England;[46] and now where the -appointment of an executor is omitted in a will, administration is granted -to a person with the will annexed. - -Many may have an idea that a formal will requires a seal, no doubt from -the ordinary phraseology at the close of a will, "Signed, sealed, and -published," but there is no State we know of where a seal is now necessary -except in New Hampshire.[47] The use of a seal, however, will be required -when a testator exercises a power of appointment in a will derived from -any prior will or settlement;[48] but if the seal be omitted it will not -render the will void; it will only render the execution void as far as the -power is concerned. For instance: if, by an instrument under seal, a power -is given to a married woman in the nature of an appointment to devise -certain real estate, in such a case she will be required to execute the -will with a seal, if the appointment is to be a valid one. - -The ecclesiastical courts in England and the courts here do not confine -the testamentary disposition to a single instrument, but they will -consider papers of different nature and forms, if not inconsistent, as -constituting altogether the will of the deceased.[49] It is immaterial in -what language a will is written, whether in English, or in Latin, French, -or any other tongue.[50] - -While a will is to be in writing,[51] the law insists upon certain -solemnities in its execution to properly evidence the testator's act and -intention, without which the will is absolutely void; and courts very -strictly construe these requirements, because they are remedial, in order -to guard against very grave perils and mischief. The Statute of Frauds -required that all devises and bequests of any lands or tenements should be -in writing, signed by the testator, or by some other person in his -presence, and by his express direction, and subscribed in his presence by -three or four credible witnesses. This statute has been the model on which -all our statutes, relating to the proof of wills in the different States, -were framed. Some have copied it literally, others have adopted it with -certain necessary modifications. Questions had arisen under this statute -as to what the legislature meant by the word "signed"; namely, whether it -should be construed in its strict sense, and by analogy to other -instruments, or whether it should be liberally expounded and left open as -a question of construction upon intention to be inferred from the facts -and circumstances attending each particular case. The construction had -been, as well in the courts of England as here, that the writing of the -name of the testator in the body of the will, if written by himself, with -the intent of giving validity to the will, was a sufficient _signing_ -within the statute.[52] Thus the old law stood, and the mischief of it -was, that it was not necessary for the testator to have adopted the -instrument after it was finished, by actually signing the same at the -close of the will, and it did not denote clearly that he had perfected and -completed it. To remedy this evil, and to prevent future controversy as to -whether a will signed by the testator in any other part of the instrument -than at the _end_, denoted a complete and perfect instrument, statutes -have been passed in some States requiring the will to be _subscribed_ by -the testator at the end thereof. The statute passed in England in the -first year of Victoria, requires that the will "shall be signed at the -foot or end thereof by the testator, or by some other person, in his -presence and by his direction." Notwithstanding the language of the -Statute of Frauds as to _signing_, without indicating how or where, is -still retained in the statutes of the majority of our States, except in -Arkansas, California, Connecticut, Kentucky, and New York, where it is to -be _subscribed_ at the end, and in Ohio, Pennsylvania, and West Virginia, -where it is to be _signed at the end_ of the will. - -The requirements of the New York statute are as strict, if not the -strictest, of any of our States; and those of California are substantially -the same by the recent civil code of that State.[53] - -The statute is in its terms perfectly explicit. Four distinct ingredients -must enter into and together constitute one entire complete act, essential -to the complete execution of the instrument as a will. 1. There must be a -signing by the testator at the end of the will; 2. The signing must take -place in the presence of each of the witnesses, or be acknowledged to have -been made in their presence; 3. The testator at the time of signing and -acknowledging the writing shall declare it to be his last will; and 4. -There must be two witnesses who shall sign at the end, at the request of -the testator.[54] - -There must be a concurrence of all these four requisites to give validity -to the act, and the omission of either is fatal. Neither of the four, -which united make a valid execution of a will, may be done at a different -time from the rest. If the instrument has in fact been signed at a -previous time, then the signature must be acknowledged to the subscribing -witnesses, which is deemed to be equivalent to a new signing of the -instrument.[55] They cannot all be done at the same instant of time, for -that is impracticable; but at the same interview, one act immediately -following the other, without any interval, and without any interruption to -the continuous chain of the transaction.[56] - -We shall now refer to cases bearing on each of these requisites; and it -will be seen that while the courts have with commendable firmness insisted -upon a rigid compliance with the formula prescribed by the statute, they -have never held that a literal compliance was necessary. No particular -form of words is required to comply with the statute. The only sure guide -is to look at the substance, sense, and object of the law, and with the -aid of these lights endeavor to ascertain whether there has been a -substantial compliance. - -It is sometimes still a matter of controversy as to what may be considered -a subscription or signing of the will at the end or foot thereof. In -Tonnele v. Hall,[57] the writing of the instrument propounded for probate -commenced on the first of several sheets of paper stitched together -immediately below a margin, in this form: "In the name of God, Amen. I, -John Tonnele, of the City of New York being of sound mind and memory, and -considering the uncertainty of life, do make, publish, and declare this to -be my last will and testament, in manner and form following, that is to -say,"--and was continued on that and the four succeeding sheets. At the -end of one of the sheets was the signature, and following was the usual -attestation clause, signed by three witnesses. The next sheet was entirely -blank, and was succeeded by a sheet on which was written, "Map of the -property of John Tonnele in the Ninth and Sixteenth Wards, etc." And also -written on the same, "Reduced map on file in the Register's office in the -City of New York." The map indicated the position, by numbers, etc., of -various lots of land in the City of New York which the will purposed to -dispose of, but it was not signed by the testator nor by the witnesses. In -several clauses of the will devising the real estate, reference was made -to the aforesaid map; but not to the _copy_ of the map annexed. The point -taken in opposition to the will was, that the execution of the instrument -was not in conformity to the first and fourth requisites of the statute; -because, as was insisted, it was neither _subscribed_ by John Tonnele, nor -signed by the witnesses at the _end_ of it. It was contended, that as the -map annexed should be regarded as a component part of the instrument, at -the time of its execution, and as it was written on the last sheet of the -papers composing the instrument, it was necessarily the end of the -instrument, where the subscription by the testator and the signing of the -witnesses should have been made. It was held by the Court of Appeals that -the will was subscribed by the testator _at the end of the will_, within -the meaning and intent of the statute, and that the execution thereof was -valid. - -In the case of the will of Catharine Kerr before the Surrogate of New -York,[58] the closing portion of the will and the signature were as -follows: - -"To the children of Mary Dow, residing in Ireland in County Kilkenny, Give -and bequeath two hundred dollars to be equally divided between them. If -there be a balance, my executors will divide it among my relations that -are not herein mentioned. - - CATHE{RIN} KEER. - -"I hereby appoint Mich'{l Phelan} of 2nd st., and John Kelly of 9th. st., -as my executors to this my last will and testament. - -Witnesses, - - R. KEIN, - MATTHEW M. SMITH." - -"I hereby order my executors to pay all my lawful and debts & funeral -expenses--should it please the Almighty now to call me. This they will do -before paying any legacy above mentioned. - - CATH{E} KEER." - -There was a question as to the genuineness of the subscription, the two -witnesses calling her Keer, and the two subscriptions being of that name, -her Christian name, Catherine, being abbreviated, whilst her real name was -Kerr; and several previous papers were produced, in which her name, proved -to have been signed by herself, was invariably written Catherine Kerr, in -full. The Surrogate held that the form of the will was fatally defective, -because the will was not subscribed by the testatrix and signed by the -attesting witnesses at the end, in conformity with the requirements of the -statute. - -The next requisite is that the testator shall sign the will in the -presence of the witnesses, or acknowledge his signature to them, if it has -been signed previously. The New York statute does not require the -witnesses to sign in the presence of the testator, as the California -statute does.[59] Hence, a difference of opinion has arisen as to whether -the New York statute is satisfied if a testator signs a will at one time, -and afterwards acknowledges it to the witnesses separately at different -times. There is an opinion that the witnesses must be present at the same -time, and when the testator subscribes or acknowledges the instrument;[60] -but it has been laid down, in the case of Butler v. Benson,[61] that a -separate acknowledgment is sufficient. However that may be, no careful -practitioner will ever have a will executed except when both the witnesses -are present; and the attestation clause generally expresses that the -witnesses signed in the presence of each other. - -In Whitbeck v. Patterson,[62] William Patterson, the testator, signed the -will in the presence of one Hughes, who had prepared it for him, but who -did not sign it as a witness. The two then went to a store, where they -found the three persons who signed as witnesses. These witnesses agreed in -the facts that Patterson and Hughes came into the store together, and, as -they came in, Hughes spoke to them, saying that he had a paper that he -wished them to sign; that it was Patterson's last will and testament; that -Hughes thereupon read the attestation clause in the hearing of Patterson, -as well as the witnesses, and then asked Patterson if that was his last -will and testament, to which he replied that it was. One of the witnesses -further swore that he thought the question was then asked him (the -testator) about his signing the will, and the reply of Hughes was, that -"he signed it up to my house"; to which Patterson said "Yes." This, -however, was not recollected by the other witnesses, and Hughes declared, -with a good deal of confidence, that nothing was said in the store about -his having signed it. - -The Surrogate refused to admit the will to probate, on the ground that the -testator had not subscribed the will, or acknowledged the subscription -thereto in the presence of the attesting witnesses; but, on appeal, the -decree of the Surrogate was reversed, and the court held the -acknowledgment was sufficient, because the testator was present and -assented when Hughes said he signed it. - -The third subdivision of the statute provides that the testator, at the -time of making the subscription, or at the time of acknowledging the same, -shall declare the instrument so subscribed to be his last will and -testament. This safeguard was considered necessary, in view of the fact -that persons had been imposed upon, believing they were executing a -different paper, when they had been induced to sign a will. Only a few -States, however, insist on this formality; besides, New York, California, -New Jersey,[63] and North Carolina require a publication. - -There cannot be any uniform, precise mode to make this declaration; it is -sufficient if the testator fully and intelligently communicate his -knowledge of the instrument being his will to the witnesses; so that he -cannot be mistaken as to its nature, and that it shall be so understood by -the witnesses.[64] The minds of the parties must meet; each must -understand the particular business he is engaged in. And this mutual -knowledge must arise from something said, done, or signified -contemporaneously with the execution of the instrument.[65] It will not -suffice that the witnesses have elsewhere, and from other sources, learned -that the document which they are called to attest is a will; it must be a -clear and unequivocal communication of the fact from the testator himself -in some manner to them at the time.[66] - -The leading case on this provision of the statute is that of Remsen v. -Brinckerhoff,[67] determined in the court of last resort in 1841. This -case arose in the Surrogate's Court in New York, on a proceeding to prove -the will of Dorothea Brinckerhoff. The will was signed by the testatrix in -the presence of two witnesses. The attestation was the usual one signed by -the witnesses, showing that the full requirements of the statute were -observed. One of the witnesses, on the trial, testified that the testatrix -executed the will in his presence by writing her name, and acknowledging -it to be her hand and seal for the purpose therein mentioned; that he -subscribed in the presence of the testatrix; that the will was not read to -the testatrix, nor did he read it; he read the last line of the -attestation. Nothing passed between her and him as to its being a will. -The other testified that he saw the testatrix sign the instrument. She did -not say it was her will; but acknowledged her signature for the purposes -therein mentioned. She requested him to sign his name as a witness, and -directed him to write his place of residence. He testified further that he -never saw the testatrix before that time, and remained in the room only no -more than ten or fifteen minutes. On this evidence the Surrogate admitted -the will to probate. Some of the heirs and next of kin appealed to the -Circuit Judge, who confirmed the decree of the Surrogate. They then -appealed to the Chancellor, who reversed the decree of the Surrogate. -Finally, the case was taken to the Court of Errors, and the decision of -the Chancellor was affirmed, that the instrument was invalid, for want of -a declaration, at the time of subscribing or acknowledging the -subscription, that the instrument was a will. - -A late case, decided in the New York Court of Appeals in 1875, will -henceforth be an authority on this point. It was the case of Thompson v. -Seastedt.[68] The case arose on an appeal from the Supreme Court, -reversing a decree of the Surrogate of New York City, refusing to admit to -probate the will of Eliza Seastedt, on the ground that it was not formally -declared by her. It appeared that the will was drawn by direction of the -testatrix as her will, and read over to her as such; that she appeared to -read it over herself, remarked it would do, and signed her name to it, and -procured two of the witnesses to subscribe their names to it. The witness -who drew the will testified that he was asked to go to the house to draw -it, and was a witness to it, although not directly asked to sign it. The -second witness said that he heard the decedent ask the first witness to -sign it as a witness; and her husband swore that she asked both of the -other witnesses to sign it. The second witness also said that she asked -him to witness the signing of her name, and the making of her will, and -her husband said she took it after all had signed it, and put it in an -envelope. It also appeared that the testatrix signed the will in the -presence of the witnesses, and that they signed it in her presence, and in -the presence of each other; also, that the wording of the instrument -declared it to be her last will and testament, and that she declared it to -be such at the time of her subscribing. - -The Supreme Court held that the proof as to the execution, witnessing, -and publication was sufficient to entitle the will to probate; that, -although the testatrix did not, in words, declare the instrument to be her -will, she treated it as such, and designed the witnesses to understand it -to be such, and that this was equivalent to such a declaration, and was -sufficient to satisfy the requirements of the statute. On appeal, the -Court of Appeals affirmed this judgment, in an opinion by Folger, J. - -This must be deemed a satisfactory and equitable decision, and will have a -tendency to check the vexatious and expensive litigation so ruinous to -heirs and to an estate, whenever contestants think there was a disregard -of the slightest technical requisites in the execution of a will. - -The fourth and last requirement of the statute in New York is, that there -must be two witnesses who shall sign at the end at the request of the -testator. In the majority of our States, only _two_ witnesses are required -to properly attest a will. There are, as far as we can make out, about ten -States that require _three_ witnesses. The New England States require -three witnesses, and so do Florida, Georgia, Maryland, South Carolina, and -Mississippi, but in the last only one witness is required for a will of -personal property. - -It is observed that the New York statute does not in terms require the -witnesses to sign in the presence of the testator or in the presence of -each other, as the most of our States do: as, for instance, California, -Connecticut, Georgia, Massachusetts, and many others. The former statute -in the State required a signing _in the presence of the testator_, but -these words having been omitted from the Revised Statutes, it has been -decided in two adjudicated cases that it is not necessary that the -attesting witnesses should sign their names in the presence of the -testator in the strict sense of the requirement of the former law.[69] In -Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom, -and the witnesses signed in an adjoining room. The door between the two -rooms was open, but the place where the witnesses signed was in a part of -the room where the testatrix could not see the witnesses signing without -putting her head down to the foot of the bed, if she could then; and they -did not look to be able to say whether they could see her face at the time -or not. In such States as require a signing in the presence of the -testator these wills would not be entitled to probate. Even in these -States, a strict literal compliance is not required; the courts adopt what -is termed a doctrine of a constructive presence; which in plain language -is just this--if a testator could see, and won't see, he should see, and -must be supposed to have seen. There never were finer distinctions made on -any matter in law than just on this point; indeed, they are more nice than -wise, and hair-splitting was never carried to a finer point. Thus, where a -testator lay in a bed in one room, and the witnesses went through a small -passage into another room, and there set their names at a table in the -middle of the room, and opposite to the door, and both that and the door -of the room where the testator lay were open, so that he might see them -subscribe their names if he would, and though there was no positive proof -that he did see them subscribe, yet that was sufficient under the statute, -because he might have seen them; it shall therefore be considered in his -presence.[70] But where the attesting witnesses retired from the room -where the testator had signed, and subscribed their names in an adjoining -room, and the jury found that from one part of the testator's room a -person, by inclining himself forward, with his head out at the door, might -have seen the witnesses, but that the testator was not in that part of the -room, it was held that the will was not duly attested.[71] It would almost -seem, from these and other decisions, that the validity of the act -depended upon the range of the organs of sight of the devisor, or upon the -agility of his movements; whether he were able to turn his body to the -foot of the bed, or stretch his neck out of the door. - -In Georgia, the testator must have been in such a position as to be able -to see the witnesses sign, to constitute presence.[72] And where the -witnesses did not sign in the same room where the testator was, it raises -a presumption that it was not in his presence; but if the jury find that -he might have seen it, and knew it was going on, and approved it, it is -good.[73] - -The whole requirements of the statute are generally embodied in an -attestation clause which is signed at the end by witnesses. This is no -part of the will, and might be omitted without endangering the will, -provided the witnesses, whose names are subscribed, can testify as to the -observance of the various requirements; but it is unsafe to trust to the -memory of witnesses, and almost always the attestation clause is appended. -In those States where no subscribing is required, the following is a good -form: - -"Signed, sealed, published, and declared, by the said A B, the said -testator, as and for his last will and testament, in the presence of us, -who, in his sight and presence, and at his request, and in the sight and -presence of each other, have subscribed our names as witnesses thereto." - -The following is suited to the requirements of the Revised Statutes of New -York: - -"Subscribed and acknowledged by the testator, A B, in the presence of each -of us, who have subscribed our names as attesting witnesses thereto at the -request of the said testator. And the said testator, A B, at the time of -making such subscription and acknowledgment, did declare this instrument -so subscribed to be his last will and testament." - -A more general form is the following: - -"Signed, sealed, published, and declared by the testator, to be his last -will and testament, in the presence of us, who, at his request, and in his -presence, and in the presence of each other, have subscribed our names as -witnesses." - - - - -CHAPTER III. - -TESTAMENTARY CAPACITY. - - -As a general rule, this capacity exists; but there are certain conditions -which preclude the exercise of this privilege, because of an inability to -exercise it either safely, wisely, or intelligently; and these conditions -may be, with respect to age, physical or mental incapacity, and coverture. - - -SECTION 1.--INCAPACITY AS TO AGE. - -The age at which a person is permitted to exercise this right varies with -the nature of the property, whether it be real or personal property. Under -the old common law, a male was qualified to make a will of personal -property at fourteen, and a female at twelve;[74] and this was the rule in -England until 1838.[75] This was the rule of the Roman law; but now it is -changed by statute both in England and in this country. In New York, males -require to be of the age of eighteen, and females of the age of sixteen, -before they can make a will of personal property.[76] - -In many of our States, the same age is required for making a will of -personal as for real property; and as a general rule, the age required is -twenty-one; but in three of our States, California, Connecticut, and -Nevada, a person of the age of eighteen is qualified to make a will of -personal and real estate. In some, a female attains her majority for this -purpose earlier than a male person, as in Illinois, Maryland, and Vermont, -where a female is qualified at eighteen. - -With regard to the reckoning of the period of a person's majority, there -is a novel and exceptional mode in law. Thus, if a person be born on the -first of February, at eleven o'clock at night, and the last day of -January, in the one-and-twentieth year, at one o'clock in the morning, he -makes his will and dies, it is a good will, for he, at the time, was of -age. This rule, first laid down by Lord Holt,[77] is well established by -sound authority.[78] With regard to which, Redfield remarks: "We feel -compelled to declare that the rule thus established in computing the age -of capacity, seems to us to form a very singular departure, both from all -other legal modes of computing time, and equally from the -commonly-received notions on the subject."[79] - - -SECTION 2.--PHYSICAL OR MENTAL INCAPACITY. - -The physical incapacity of the deaf and dumb formerly disqualified them -from making a will. Blackstone lays down the rule:[80] "Such persons as -are born deaf, blind, and dumb, as they have always wanted the common -inlets of understanding, are incapable of having _animum testandi_, and -their testaments are therefore void." And in Bacon's Abridgment,[81] it is -said: "A man who is both deaf and dumb, and is so by nature, cannot make a -will; but a man who is so by accident may, by writing or signs, make a -will." But since this class of persons have, of late, been brought to a -considerable intelligence by the humane efforts of worthy men to -communicate knowledge to them, there is no longer any reason or sense in -excluding them from the testamentary privilege. However, in their cases, -greater circumspection is needed in communicating with them as to their -intention, and a stricter regard is paid to the observance of the -requirements of execution. The question was carefully examined by the -Surrogate of New York,[82] with the following results: - -The law does not prohibit deaf, dumb, or blind persons from making a will. -Defects of the senses do not incapacitate, if the testator possesses -sufficient mind to perform a valid testamentary act. The statute does not -require a will to be read to the testator in the presence of the -witnesses; but it is proper to do so when the testator is blind and cannot -read. In such cases, the evidence must be strong and complete that the -mind accompanied the will, and that the testator was in some mode made -cognizant of its provisions. This may be established by the subscribing -witnesses, or by other proof. - -So, also, it seems a drunken man, who is so excessively drunk that he is -deprived of the use of his reason and understanding, cannot make a will -during that time; for it is requisite, when the testator makes his will, -that he be of sound and perfect memory; that is, that he have a competent -memory and understanding to dispose of his estate with reason.[83] - -We come now to treat of that incapacity which gives rise to most frequent -and difficult litigation, and upon which judicial discrimination is most -generally exercised--the incapacity of those who are of unsound mind, or -persons _non compos mentis_. - -There is no investigation in the whole domain of law that is attended with -so many lamentable phases, where the foibles, indeed, the ludicrous side, -of human nature, are more exposed; for it happens that those who will most -carefully and tenderly screen a man's weaknesses, vagaries, and -eccentricities whilst he is living, will, if a contest takes place in -which they are interested, after his death, most readily reveal, in all -their nakedness and boldness of outline, the infirmities and superstitions -of the deceased.[84] - -As a principle of law of universal application, a person of unsound mind -is incompetent to make a valid disposition of his property, either before -or after his decease, except during a lucid interval. The only difficulty -is, to determine exactly and unerringly the particular persons who may be -thus classed, and to agree upon some mode or standard by which we can -class such unfortunate people. Here is the difficulty; for all men do not -view a person's acts in the same manner, and are not similarly impressed -by them. What, to some, would infallibly be the exhibitions of a diseased -mind, may, to others, be the harmless frolics of a person of odd and -eccentric manners. And, just for this reason, the decisions of courts have -fluctuated, and, on this subject, have been the least satisfactory. When -we lay down a definition of insanity, and agree upon it, we are next met -with the further difficulty, to bring the facts of a person's life or -actions within it, and so to classify them. - -What is the definition of a person _non compos mentis_? The law has to -depend on medical writers for this information. Taylor, in his Medical -Jurisprudence, gives us a definition as follows: "The main character of -insanity, in a legal view, is said to be the existence of _delusion_; -_i. e._, that a person should believe something to exist which does not -exist, and that he should act upon this belief." Another definition is -this: "Where there is delusion of mind, there is insanity; that is, when -persons believe things to exist which exist only, or, at least, in that -degree exist only, in their own imagination, and of the non-existence of -which neither argument nor proof can convince them: these are of unsound -mind."[85] - -The rule of the common law, until within the last hundred years, was, that -it required that a person should be absolutely a lunatic, that there -should be entire alienation of mind, in order to incapacitate him from -making a will; and there was no such theory then as partial insanity, or -_monomania_, which the law takes notice of in modern times. The rise and -acceptance of this theory mark an epoch in legal adjudications; it is -certainly an advance in the science of law in the last century. - -The germ of this theory was first broached in the celebrated case of -Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane, -took up an idea that his brother had administered poison to him, and this -became the prominent feature of his insanity. In a few months he recovered -his senses, and was able to attend to his business, but could never divest -his mind of the morbid delusion that his brother had attempted to poison -him, under the influence of which (so said) he disinherited him. - -On a trial in the Court of King's Bench upon an issue _devisavit vel non_, -a jury found against the will; but a contrary verdict was had in another -court, and the case ended in a compromise. On the theory of the common -law, as it then stood, this will being made in a lucid interval should -have been valid.[87] - -The case in which the law first sanctioned the view of partial insanity, -which is also one of the landmark cases therefore, was the case of Dew v. -Clark,[88] which excited great interest, and received a very thorough -examination by one of the ablest judges of modern times, Sir John Nicholl. -It was proved that the testator regarded his daughter as invested with -singular depravity, a peculiar victim of vice and evil, the special -property of Satan from her birth, and in consequence disinherited her. The -syllabus of the case presents in so clear and concise manner the pith of -the decision, that it will be useful to quote it: - -"Partial insanity is good in defeasance of a will founded immediately (so -to be presumed) in or upon such partial insanity. If A, then, makes a -will, plainly inofficious in respect to B, and _is proved, at the time of -making it, to have been under morbid delusion_ as to the character and -conduct of B, the Court will relieve by pronouncing this will to be -invalid, and holding A to have died intestate." - -It is from this case, as a starting point, has arisen the theory of -monomania, as applied to testamentary capacity. Henceforth a valuable and -practicable rule was established, subsequently recognized and enforced in -the best considered cases both in England and America--a rule not so much -depending on precedent as it does on sound reason and argument. There must -be two elements, co-existing, to afford sufficient ground for pronouncing -a will invalid at the instigation of relatives and others, who deem -themselves cut off from the bounty of a testator by his monomaniacal -delusions. - -_First._ There must be a plainly inofficious will; or a will wanting in -natural affection and duty. - -_Second._ There must be morbid delusion actually existing at the time of -making, in respect to the persons cut off, or prompting the provisions of -the inofficious instrument. - -This theory is now consistently followed in the courts of this country, -and an examination of a few remarkable and historical cases will -illustrate the application. - -It is thus adopted as a principle of decision in Seaman's Friend Society -v. Hopper,[89] by Judge Denio: "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 assumption of their existence, he is, _so far as they -are concerned_, under a morbid delusion, and delusion in that sense is -insanity. If the deceased, in the present case, was unconsciously laboring -under a delusion, as thus defined, in respect to his wife and family -connections, who would have naturally been the objects of his testamentary -bounty _when he executed_ his will, or when he dictated it, and the court -can see that its dispository provisions were or might have been caused or -affected by the delusions, the instrument is not his will, and cannot be -supported as such in a court of justice." The same was the ruling in Leach -v. Leach.[90] - -Still, there needs to be a careful limitation of this theory. If we were -to undertake to class all those who exhibit aberrations of conduct in -various directions of life, who labor under hallucinations, and a wild -imagination in regard to certain matters, whose credulity or whims provoke -our mirth as much as our astonishment, as possessing a diseased mind, we -should class among such some of the most singularly gifted and acute minds -of the world. We all know of numerous cases in which - - "Some one peculiar quality - Doth so possess a man, that it doth draw - All his effects, his spirits and his powers - In their confluxions all to run one way." - -Hence we must distinguish between mere eccentricity and monomania. In -monomania, a man is not conscious of entertaining opinions different from -the mass of men, and refuses to be convinced of laboring, in any degree, -under mental unsoundness; the eccentric man is aware of his peculiarity, -and persists in his course from choice, and in defiance of the popular -sentiment. A remarkable case of eccentricity, as the court determined, -bordering very close on monomania, was in the case of Morgan v. Boys,[91] -where the will was upheld, on the ground that there was no satisfactory -proof of actual unsoundness of mind. The testator devised his property to -a stranger, thus wholly disinheriting the heir, or next of kin, and -directed that his executors should "cause some parts of his bowels to be -converted into fiddle strings--that others should be sublimed into -smelling salts, and the remainder of his body should be vitrified into -lenses for optical purposes." In a letter attached to the will, the -testator said: "The world may think this to be done in a spirit of -singularity, or whim, but I have a mortal aversion to funeral pomp, and I -wish my body to be converted into purposes useful to mankind." The -testator was shown to have conducted his affairs with such prudence and -ability, that, so far from being imbecile, he had always been regarded by -his associates, through life, as a person of indisputable capacity.[92] - -Some wills have been refused probate upon the ground of a disgusting -fondness for animals, evinced by the testators during their lives or in -the testamentary act. In one case, the testatrix, being a female, -unmarried, kept fourteen dogs of both sexes, which were provided with -kennels in her drawing-room.[93] - -In another case, a female, who lived by herself, kept a multitude of cats, -which were provided with regular meals, and furnished with plates and -napkins. This strange fondness for animals, in solitary females, is not -altogether unusual, and is not to be regarded as any certain indication of -insanity.[94] - -We will now refer to three cases with some particularity, originating in -the Surrogate's Court in New York, each of which is very curious and -instructive, and in which we can perceive the application of the rule -regarding monomania. - -The first is the case of Thompson v. Quimby.[95] There were several -reasons assigned by the contestants for their attack upon Mr. Thompson's -will. Among them was the allegation "that the decedent was laboring under -delusions amounting to insanity, and had not a disposing mind during the -preparation, or at the time of the execution of the will." The instrument -was drawn and executed during his last illness, and but a short time -before his death. It was a voluminous document, and in it some provision -was made for many of his descendants and kinsfolk, but the bulk of his -large estate (about $400,000) was left for charitable or religious -purposes. - -The testimony established that the testator was a believer in many -superstitions of a vulgar character, and had held them with great -pertinacity for many years. Among other delusions, it was claimed he -believed in the black art; that he read and experimented upon the -teachings of magic; was familiar with disembodied spirits; that he could -work spells by formula or incantation; that he could cure diseases by -amulets, or by papers bearing certain cabalistic inscriptions, which were -to be worn about the person of the sufferer. He professed to know where -Captain Kidd's treasures were secreted at Montauk Point, and actually, in -company with another, undertook, by the aid of a divining rod, to locate -the exact spot where the riches were buried. The experiment was a failure, -because, as he declared, the charm under which he worked was broken by the -inopportune remarks of his attendant. On one of these occasions he beheld -the apparition of the devil (it seems, he had a belief in that personage) -in the shape of a large bull, and spoke of this taurine manifestation of -the father of evil with great seriousness. It was also alleged that he -claimed to see ghosts; that he believed in the supernatural character and -significance of dreams, in the philosopher's stone, in clairvoyance, -spiritualism, mesmerism, magic glasses, and that he owned a whistle with -which he could get everything he wanted. This, and much more to the same -effect, was adduced as testimony to prove the insanity of the testator. - -On the other side, it was shown that the testator was a shrewd and -intelligent man of business, clear and firm in his judgments. He was -largely engaged in affairs; was connected with moneyed institutions; had -succeeded in accumulating wealth by his own efforts; was associated in -large and responsible enterprises of commerce, and was a regular attendant -at Dr. Spring's Presbyterian church. - -While the Surrogate did accredit all that was deposed to, to sustain his -insanity, he did arrive at this conclusion: "After making every possible -reasonable allowance, I have no doubt that Mr. Thompson's mind was -impressed with a sincere belief in many absurd notions. There seems -sufficient evidence to show that he believed in mesmerism, clairvoyance, -divining and mineral rods, dreams, and spiritual influences. He searched -for the supposed deposits of Kidd, and ascribed his failure in two -instances to the utterance of certain words by the operator. That he said -he saw the devil in the shape of a bull seems to be well established. He -believed likewise in the efficacy of cures for rheumatism, and fever and -ague." Now, there was nothing whatever to connect any of these aberrations -or infatuations of the testator with the provisions of his will, or with -any one of them; they did not affect his testamentary disposition of his -property; and there could not, therefore, have been a successful -impeachment of his will on the ground of monomania, or partial insanity. -The Surrogate decreed in favor of the will, and the Supreme Court -sustained his decree. - -The next case we allude to, to further furnish an illustration of the -rule, is the recent case of the Bonard Will. This case is of the very -greatest importance, because it was argued with unusual skill and ability, -and the testimony of the medical experts was sifted with a thoroughness -and minuteness which elicited much instruction upon the more obscure -phenomena of mental disease, and the facts revealed being such as to -present very distinctly the question of the testamentary capacity of one -who entertained singular tenets of a so-called faith. It will be advisable -to state the facts somewhat fully. Louis Bonard, a native of France, died -at the city of New York, in the Roman Catholic hospital of St. Vincent, on -the 20th day of February, 1871. His life had evidently been an eventful -one; for, while the testimony leaves in doubt much, and fails altogether -to account for more of his antecedent history, it was known that he had -been a traveler and a trader in South and Central America, and that he had -been a dealer in sham jewelry; that he came to this country some time -prior to the year 1855, and had brought with him money; that he had had -losses, but at length became successful, and made investments in real -estate, which enabled him to accumulate a fortune amounting, at the time -of his death, to about one hundred and fifty thousand dollars. During the -period of his residence in New York, he lived as a miser. He preferred the -society and companionship of artisans and mechanics. He had no relatives -in America nor in Europe, so far as was ascertained at the time of the -trial, although it has since transpired that he has kindred in France. He -was a man of erratic habits and singular beliefs, the latter of which -seemed to intensify as his age advanced. He was a misanthrope; but was -possessed of an unbounded affection for the brute creation. The evidence -shows that he was a believer in metempsychosis; that he expressed the -opinion that there might be an emperor in any animal he beheld; that he -remonstrated with a person who suggested it would be humane to kill an -injured kitten, because, he averred, there was a human soul in the -animal's body. But he was a man dextrous and cunning in mechanical arts. -He constructed machines for various purposes; he had mental resources -likewise, and was a reader of books. The testimony, fairly viewed, showed -that he railed at religion and priests; yet he died in the peace of the -Roman Catholic Church, and in full communion.[96] - -There appeared also the fact that Mr. Bonard combined with his ardent love -of animals an unbounded admiration for the benevolence of Mr. Henry Bergh. -Memoranda were found among his papers which plainly showed he had some -ulterior purpose concerning that gentleman. On the 11th of February, 1871, -and while he was very ill, he made a will, bequeathing a portion of his -property to two of his friends. On the 13th he made another, revoking the -former, and left all his estate, real and personal, to the Society for the -Prevention of Cruelty to Animals, of which Mr. Bergh was then, as now, -the honored president. Here was a case, bold in its outlines, and -presenting the salient features of a dogma of a heathen creed, -constituting the avowed belief of a man who was born and who died in the -Catholic faith. The opinion of the learned Surrogate is very able and -interesting. He declares that the belief which Mr. Bonard held did not -constitute insanity; that "if a court is to ascribe insanity to a man, or -a class of men, constituting a sect according to his or their opinion or -belief as to a future state, the logical deduction would necessarily be, -that a major portion of all mankind, comprised in all other and different -sects, were of unsound mind, or monomaniacs on that subject." The learned -Surrogate then proceeds to consider the facts of this case, not as -presenting one of general insanity, but as one in which the only -appearance of unsoundness of mind consisted in the alleged monomania -concerning the transmigration of souls. But he adverts to the fact that -there was no connection necessarily of this belief with the terms of the -will--that there was nothing _in the will_ to show that he held the -opinions alleged any more than he was impressed with a belief in utter -annihilation after death; nor was there any testimony to associate any -provision of the will with a belief respecting the future condition of the -human soul. These considerations, coupled with the further fact that "the -testator had neither wife nor child, father nor mother, nor any known, -near, or remote relatives living, or others on whom he was or felt himself -under obligation to bestow his property," induced the court to sustain -the will and overrule the allegation of mental incapacity. - -But let us suppose that, actuated by this belief, so uncommon in the -present day, Mr. Bonard, having before his mind the fate of an itinerant -cur running around the city, yelled and hooted at by idle lads, or stunned -by a policeman's baton, had feared that his soul after death might pass -into the body of such a hapless vagrant, and, under the impression of this -possible fate, had provided a safe asylum where such unfortunates might -find shelter from the pelting storm; and still further, that there were -relatives who would appear and contest the will. Then we introduce quite a -different and a new element into the consideration of the case. - -This would have indicated that the dispository provisions were intended by -the testator for his own physical comfort and benefit in another sphere of -physical existence, and would have furnished one and the principal element -of that quality of unsoundness of mind which the law recognizes as such in -cases of disputed wills. - -A late case in New York, decided in June, 1875, by the Surrogate, is -another illustration. This was the case of the will of Harriet Douglas -Cruger, made when the decedent was seventy-nine years of age, and in which -she disposed of the bulk of her very large estate to the American Bible -Society, and the Board of Foreign Missions of the Presbyterian Church. The -history of the lady's life is an eventful and interesting one. Belonging -to a family of wealth and standing, possessed of a large private fortune, -and endowed by education and training with rare personal and mental -accomplishments, she married early in life, and met with disappointment -and misfortune; for it was soon followed by a separation, and a law suit -which continued for over eight years, between herself and her husband. She -had some nephews and nieces, to whom, at one time, she expressed an -intention of leaving her property. In the year 1866, she suffered an -injury which affected her mind, and then, at times, was undoubtedly a -raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her -physician, Dr. Parker, testify to her condition then as one of undoubted -lunacy. She had on her mind a delusion that the devil was bodily present -under her bed, and because of this was in the greatest anxiety and terror. -She told her pastor of it, and further communicated to him her intention -to give, as a means for her soul's salvation, the most of her property to -the religious and charitable societies of her church. He very prudently -dissuaded her from this, properly instructing her that her salvation could -not depend on such an act, and endeavoring to reason her out of her -delusion, but to no purpose. In the fall of 1867, a will was prepared by -Charles O'Connor, who was deceived as to her condition, giving her -property to the societies named. The will was contested, and rejected, -according to the established rule, that her insane delusion, acting on her -mind at the time, affected the disposition of her property, and her will -was clearly the offspring of such a delusion. - -In the case of Austen v. Graham,[97] the testator was a native of England, -but had lived in the East, and was familiar with Eastern habits and -superstitions, and professed his belief in the Mohammedan religion. He -died in England, leaving a will, which, after various legacies, gave the -residue to the poor of Constantinople, and also towards erecting a -cenotaph in that city, inscribed with his name, and bearing a light -continually burning therein. The court pronounced the testator to be of -unsound mind, principally upon the ground of this extraordinary bequest, -which sounded like folly, together with the wild and extravagant language -of the testator, proved by parol. But on appeal it was held that as the -insanity attributed to the testator was not monomania, but general -insanity, or mental derangement, the proper mode of testing its existence -was to review the life, habits, and opinions of the testator, and on such -a review there was nothing absurd or unnatural in the bequest, or anything -in his conduct at the date of the will indicating derangement, and it was -therefore admitted to probate. - - -SECTION 3.--SENILE DEMENTIA. - -The imbecility and feebleness of mind resulting from extreme old age is -another cause of testamentary incapacity. Not that the law fixes a limit -beyond which it is presumed a testator cannot exercise the testamentary -disposition of his property intelligently; but it takes into account the -well known, familiar instances of the loss of a person's memory and mental -capacity, owing to the decrepitude of old age, and it accepts evidence in -those instances where senile decay is alleged, as to the ability of an -aged person to rightly and understandingly make his will. It was said, in -a case in the Ecclesiastical Court in England, that "extreme old age -raises some doubt of capacity, but only so far as to excite the vigilance -of the court."[98] - -But if a man in his old age becomes a very child again in his -understanding, and becomes so forgetful that he knows not his own name, he -is then no more fit to make his testament than a natural fool, a child, or -a lunatic.[99] - -Courts are not disposed to accept every statement regarding the eccentric -or weak movements of an old person as incapacitating such a one from -making a will; on the contrary, there is every disposition to permit such -a one, if not unmistakably enfeebled in intellect, or unduly influenced, -to exercise a right that throws around one, at such a period, a dignity -and power entitling them to the respectful regards of those who otherwise -might not bestow upon them the attention due to the helplessness of old -age. Chancellor Kent well expressed this leaning of courts, in the case of -Van Alst v. Hunter.[100] He says: "A man may freely make his testament, -how old soever he may be.... It is one of the painful consequences of old -age, that it ceases to excite interest, and is apt to be left solitary and -neglected. The control which the law still gives to a man over the -disposal of his property is one of the most efficient means which he has, -in protracted life, to command the attention due to his infirmities. The -will of such an aged man ought to be regarded with great tenderness, when -it appears not to have been procured by fraudulent acts, but contains -those very dispositions which the circumstances of his situation and the -course of the natural affections dictated." - -In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick, -at the time of making the will offered for proof, was ninety years of age, -and the probate was contested on the ground of testamentary incompetency -and undue influence. It was shown that though the old lady did not -remember the decease of her son and his wife, that she had sufficient -intelligence to inquire about a certain one of her houses, its repairs, -and the collection of the rent. One witness stated, as instances of her -bad memory, that she forgot to pay her a dollar she had borrowed (a defect -of memory not confined to old age); that she was in the habit of making -statements, and afterwards denying she had made them, (not confined to old -age, by any means) and that she would repeat the same questions after they -had been answered. As an instance of the popular belief as to the capacity -of old age, one witness said: "She had a bad memory; she was like other -old people eighty years old; we consider them childish." Another witness, -a lady, testified: "As long as I can bring my memory to bear, (a -considerable time, it appeared) she has been childish. In my opinion, she -was childish twenty-five years ago. She would sing childish and foolish -songs, and tell foolish stories, which I considered unbecoming for a woman -of her years, and the people would all laugh at it. She would talk -sometimes of getting married, and would fancy she was making ready to be -married." Against all this was the testimony of her pastor, Rev. Dr. -Berrian, that her conversation was devout and pertinent, and he considered -her a rather remarkable person for her age. Her physician also testified -that he never observed any indication of unsound mind. - -Surrogate Bradford, in an able opinion, examined the evidence carefully -and at length, and came to the conclusion to admit the will to probate. -About her levity, he remarks: "It is worthy of remark, that persons -attaining great age often possess a large degree of that cheerful and -lively manner which characterizes youth, and which probably in them -contributes greatly to a green old age, when others, not so old, and -possessing less of this sprightliness and vivacity, appear more decrepid -and stricken in years." - -As a principle of such cases, he announces: "Great age alone does not -constitute testamentary disqualification, but, on the contrary, it calls -for protection and aid to further its wishes. When a mind capable of -acting rationally, and a memory sufficient in essentials, are shown to -have existed, and the last will is in consonance with definite and well -settled intentions, it is not unreasonable in its provisions, and has been -executed with fairness." - - -SECTION 4.--COVERTURE. - -The incapacity arising from coverture is to a great extent removed, and is -gradually disappearing by remedial legislation, and for this reason it -will not be necessary to treat of it at much length. - -There has been a tendency, for many years past, to remove the various -property disabilities attaching to a married woman, and which were only to -be justified, if then at all, by quite a different state of social -organization from the present. Perhaps in no branch of the law have there -been so many radical changes as in that part pertaining to the status of a -married woman. A lawyer who had only in his mind the old common-law theory -and rules, and had neglected to make himself familiar with modern -legislation on this subject, would find himself strangely bewildered to -define a married woman's rights and powers at the present time. - -Still, testamentary power did not come as soon as other rights. Even when -the right to a separate and independent ownership of property was granted, -the right to a testamentary disposition did not accompany it; as, for -instance, in the State of New York, the right to retain for her own use -any personal or real property coming to her during marriage, free from any -control of the husband, was granted in 1848, but it was not until the -next year she was empowered to dispose of it by will. - -Married women were excepted from the Statute of Wills of the reign of -Henry VIII, which first allowed the disposition of real estate by will in -England; but they frequently exercised testamentary disposition under a -power given them when an estate was conferred upon them to their separate -use.[102] - -They had what was called a _power of appointment_ by will, given by the -donor of the estate, who was presumed to make the will through them as an -instrument. - -They could only make a will of personal property by the consent of the -husband under the old law,[103] and this is the case yet in a few States. -In Massachusetts, a married woman can dispose of only half of her personal -property by will without the consent of her husband;[104] and some such -restriction exists in many of our States. - -The law of the American States in regard to the separate estate of the -wife being exclusively under her control, and subject to any disposition -on her part, is fast verging towards the rules of the Roman civil law, -which allowed a married woman the same testamentary capacity, in all -respects, as a _feme sole_.[105] In most of the more important and -commercial States, the wife's right to dispose of her estate by will, both -real and personal, is recognized to the fullest extent by statute.[106] -The only general restriction is, that she cannot defeat, in her will of -her real estate, her husband's right of curtesy. In some States, where the -estates by dower and curtesy are abolished, this restriction, of course, -cannot exist, as, for instance, in California. - -In New York, the power to dispose of her separate real estate by will -seems to be unrestricted, for there is no limitation mentioned. But -opinions differ on this question: some hold that the husband's right of -curtesy is not cut off by the statute, while others hold that the whole -unrestricted disposition of her property is given, and that she can defeat -her husband's curtesy, even if issue be born and the estate become vested. -The matter is in a little uncertainty, because we have not as yet an -authoritative opinion of the highest court on the subject, since the -remedial statutes were passed. We are inclined to think, however, that the -wife can defeat her husband's right of curtesy by a disposition of her -estate by will.[107] - -It would be impracticable to give the various statutes of the States on -this subject, and, besides, it would be useless, as the changes are very -frequent, and what would be correct for a State today may to-morrow be -obsolete; we have only endeavored to give some general information on the -subject. - - - - -CHAPTER IV. - -LEGACIES. - - -People generally understand quite well what is meant by a legacy in a -will; but there is a popular meaning attached to the word, which differs -from the strict legal meaning. Popularly, we suppose a legacy to be -anything--property of any kind, whether real or personal--left to a person -in a will; whereas, the strict legal meaning is, that it is a gift of -money, or some particular thing, left to a person in a will. When real -estate is given, we then term it a _devise_, in a legal point of view; but -the word _bequest_ is a more general term, as it may designate either a -legacy or a devise. - -In this chapter, we shall treat of legacies: 1. _As to their Quality_; 2. -_Vested or Contingent_; 3. _Conditional_; 4. _Payment_; and 5. _The Person -who may take_. - - -SECTION 1.--AS TO THEIR QUALITY. - -Of legacies, there are two kinds--a general legacy, and a specific legacy; -with the former is classed what is termed a pecuniary legacy. A legacy is -general when it is so given as not to amount to the giving of some -particular thing, or money, belonging to the testator. A legacy is -specific when it is a bequest of a specified part of the testator's -personal estate, which may be distinguished from all others of the same -kind. Thus, for example, "I give a diamond ring" is a general legacy, -which may be satisfied by the delivery of any ring of that kind; while "I -give the diamond ring presented to me by A" is a specific legacy, which -can only be fulfilled by the delivery of the identical ring mentioned; for -the object is accurately referred to and described, and the legacy can -only be satisfied by a delivery in _specie_.[108] - -Again, if the testator have many brooches and horses, and bequeath "a -brooch" or "a horse" to B, in these cases it is a general legacy; for it -is uncertain, from the description, whether any _particular_ brooch or -horse was intended; so that the bequest may be satisfied by the delivery -of something of the same species as that mentioned.[109] But a bequest "of -such part of my stock of horses as A shall select, to be fairly appraised, -to the value of $800," or "of all the horses which I may have in my stable -at the time of my death," is specific.[110] - -A bequest to a wife in the following words: "I give and bequeath to my -wife, A, the annual sum of £300 sterling each and every year during her -natural life, in order that she may live in quiet and easy circumstances," -and which, with other legacies afterwards given to her, was expressed to -be in lieu of dower, was held to be specific. - -If there be an error in the description of the chattel intended to be -specifically given, the mistake may be of such a nature as not to permit -a failure of the specific bequest. If, therefore, A, having _one_ horse -only, which is white, bequeath it to B by the words "my _black_ horse," -the mistake is obvious and easily remedied, and the legatee will be -entitled to the specific horse, although it be not of the color described; -for there can be no doubt of that being the horse _intended_ for him, and -the legacy will be specific.[111] If the testator had _two_ white horses -of different values, and, intending one of them in particular for B, -bequeathed it to him by the words, "my white horse," it is presumed that -evidence is admissible to show which of the two horses was intended.[112] - -As respects the doctrine of specific bequests, the intention of testators -upon this subject, as in every question of the construction of wills, is -the principal object to be ascertained; and it is, therefore, necessary -that the intention be either expressed in reference to the thing -bequeathed, or otherwise clearly appear from the will. The intention must -be clear, and courts in general are averse to construing legacies to be -specific.[113] - -With respect to legacies for money, securities for money, debts, etc., -under some circumstances even pecuniary legacies are held to be specific, -as of a certain sum of money in a certain bag or chest;[114] or of £200, -the balance due the testator from his partner on the last settlement -between them;[115] but a legacy of "£400 to be paid to A," in cash, is a -general legacy.[116] - -Stock or government securities, or shares in public companies, may be -specifically bequeathed, where, to use the expression often applied, there -is a clear reference to the "corpus" of the fund. Thus, the word "my," -preceding the word stock or annuities, has been several times adjudged -sufficient to render the legacy specific; as where the bequest is of "_my_ -capital stock of £1,000 in the India Company's stock."[117] So a bequest -of all the testator's right, interest, and property in thirty shares of -the Bank of the United States of America is a specific legacy.[118] - -The distinction between these two sorts of legacies is of the greatest -importance; for, in the settlement of an estate by executors or -administrators, articles not specifically bequeathed are first to be sold -to pay debts and other legacies; and, if there be a deficiency to pay -debts, the general or pecuniary legatees have first to abate ratably, or -contribute in proportion to the value of their individual legacies.[119] -The principle on which this is done is, the presumed intention of the -testator to give a preference to those legatees, by severing particular -parts of his personal estate from the rest. But another distinction -between them is, that, if the particular thing bequeathed happens, during -the lifetime of the testator, to become extinguished, or in some way -disposed of by him, which, in law, is called an _ademption_, the legacy -fails, which cannot be the case with a general legacy; so that, though -specific legacies have, in some respects, the advantage of those that are -general, yet, in other respects, they are distinguished from them to their -disadvantage.[120] - -The bequest of all a man's personal estate generally is not specific; the -very terms of such a disposition demonstrate its generality.[121] But if a -man, having personal property at A and elsewhere, bequeath all his -personal estate _at_ A to a particular person, the legacy is specific; -and, if there is a deficiency of assets to pay other legacies, such a -legatee shall not be obliged to abate with the other legatees.[122] So, -where the testator bequeaths the residue of all his personal estate _in -the Island of Jamaica_, this is a specific legacy.[123] - -It has been held in Pennsylvania that a pecuniary legacy may be exempt -from abatement, as in the case of a wife or child destitute of other -provision, or where a legacy is given in lieu of dower.[124] - - -SECTION 2.--LEGACIES VESTED OR CONTINGENT. - -A legacy is said to be _vested_ when the right to it, either in the -present or in the future, is absolutely given to a person, and does not -depend upon the happening of some event. It is _contingent_, if the -payment of it is dependent upon the happening of some event; as, if a -person shall marry, or attain a certain age. The cases establish the -principle that contingent or executory interests, though they do not vest -in possession, may vest in right, so as to be transmissible to the -executors or the administrators of the party dying before the contingency -on which they depend takes effect; but where that contingency is the -endurance of life of the party till a particular period, the interest will -obviously be altogether extinguished by his death before that period.[125] - -The general principle as to the lapse of legacies by the death of the -legatee may be stated to be, that if the legatee die before the testator's -decease, or before any other condition precedent to the vesting of the -legacy is performed, the legacy lapses, and is not payable to the -executors or the administrators of the legatee.[126] But this general rule -may be controlled by the manifest intention of the testator appearing upon -the face of the will, that the legacy shall not lapse, and by his -distinctly providing a substitute for the legatee dying in his lifetime. - -The authorities appear to have settled that a testator may, if he thinks -fit, prevent a legacy from lapsing; though, in order to effect this -object, he must declare, either expressly or in terms from which his -intention can with sufficient clearness be collected, what person or -persons he intends to substitute for the legatee dying in his lifetime. - -In ascertaining the intention of the testator, in this respect, the -courts of equity have established two positive rules of construction: 1. -That a bequest to a person _payable_, or _to be paid_, at or when he shall -attain twenty-one years of age, or at the end of any other certain -determinate time, confers on him a vested interest immediately on the -testator's death, as _debitum in præsenti solvendum in futuro_, and -transmissible to his executors or administrators; for the words _payable_, -or _to be paid_, are supposed to disannex the time from the gift of the -legacy, so as to leave the gift immediate, in the same manner, in respect -to its vesting, as if the bequest stood singly, and contained no mention -of time. 2. That if the words _payable_, or _to be paid_, are omitted, and -the legacies are given _at_ twenty-one, or _if_, _when_, _in case_, or -_provided_, the legatees attain twenty-one, or any other future definite -time, and make the legatee's right to depend on his being alive at the -time fixed for its payment, consequently, if the legatee happens to die -before that period arrives, his personal representatives will not be -entitled to the legacy.[127] - -The application of this rule was well illustrated in the case of Patterson -v. Ellis,[128] and the doctrine discussed and maintained in an opinion by -Chief Justice Savage, in the Court of Errors, in New York. It was there -held, that where the gift of a legacy is absolute, and the time of payment -only postponed, as where the sum of $1,000 is given to A, to be paid when -he shall attain the age of twenty-one, the _time_ not being of the -substance of the gift postpones the payment, but not the vesting of the -legacy; and if the legatee die before the period specified, his -representatives are entitled to the money. But where the legacy is given -_when_ the legatee shall attain the age of twenty-one, or _provided_ he -attains that age, time is of the substance of the gift, and the legacy -does not vest until the contingency happens. - -But even where the legacy is given _when_ the legatee attains the age of -twenty-one, if the devisor directs the _interest_ of the legacy to be -applied, in the meantime, for the benefit of the legatee, there being an -absolute gift of the _interest_, the principal will be deemed to have -vested.[129] The giving of interest before the payment has been considered -as evidence of an intention to vest the legacy. Hence, when a portion was -devised to a child with interest, but not to be paid or payable until the -child should attain twenty-one years, or be married, and the child died -under twenty-one, and unmarried, it was decreed that the portion should go -to the administrator of the child.[130] - -The rule with respect to the vesting of legacies payable out of real -estate is somewhat different. It is this: Where the gift is immediate, but -payment is postponed until the legatee attains the age of twenty-one -years, or marries, there _it is contingent, and will fail if the legatee -dies before the time_ of payment arrives; but where the payment is -postponed in regard to the convenience of the person, and the -circumstances of the estate charged with the legacy--and not on account of -the age, condition, or circumstances of the legatee--in such a case it -will be vested, and must be paid, although the legatee should die before -the time of payment.[131] - -The rule in question is always liable to the operation of the more general -and powerful rule, namely, that the intention of the testator, to be -gathered from the words of the will, must prevail. - -As an illustration of the rule in regard to the vesting of legacies on -personal estate, the following is in point: A testator bequeathed to his -daughters the sum of £3,000, five per cent. navy annuities, and all the -dividends and proceeds arising therefrom, to be equally divided between -them, and all his estate at S, to be equally divided between them _when -they should arrive at twenty-four years of age_. One of his daughters died -before she attained the age of twenty-four years. The court was of opinion -that, according to the true rule of construction, the word _when_ could -not be otherwise considered than as denoting the _period of payment_, and -must not be deemed as a condition precedent upon which the legacy was to -vest, but merely postponing the payment of this £3,000, with the dividends -thereon, till twenty-four.[132] - -A legacy of £30 was given to an infant to bind him an apprentice. The -infant died before he attained a proper age to be bound an apprentice. It -was decreed that this legacy was vested, and the infant being seventeen -years old, and having made a will, and named an executor, it was allowed -to be a good disposition of the £30.[133] - -As to charging legacies on real estate, and observing the rule above laid -down, the following is in point: - -T S, by will, gave his daughter £1,000, to be paid by his executor at her -age of twenty-one, or marriage, which should first happen, willing the -same to be raised out of the rents and profits of the lands; and further -willed, that in case his son should die before the age of twenty-one, or -without heirs of his body lawfully begotten, then from and after the death -of his son, he gave all his said lands, etc., to the defendant, he making -up his daughter's portion to £2,000; and the daughter died soon after the -testator's death, an infant, unmarried, upon which her mother took out -letters of administration and claimed the £2,000; it was decreed that she -was not entitled to any part of it, for it appears that the intention of -the testator was that it should be for a portion, and it is expressly -called a portion in the will; it is no personal legacy, but money to be -raised out of the rents and profits of lands, and the payment is expressly -to be at twenty-one years, or marriage.[134] - - -SECTION 3.--CONDITIONAL LEGACIES. - -By the bestowal of legacies a rare opportunity is offered to testators -either to gratify some peculiar desire, or to restrain or control some one -who is the beneficiary. It is on the legal principle of _quid pro quo_, a -consideration for a consideration. Accordingly, we find that testators, in -bestowing their bounty by way of legacies, avail themselves of the -opportunity to effect various objects--some to regulate and restrain a -wayward, errant child, some to curb the eager readiness of a widow to find -a new partner, some to check a child rashly rushing into wedlock, and some -to gratify a whim or a prejudice. - -The law allows conditions to be annexed to a legacy, provided they are not -against public policy or good morals. - -A conditional legacy is defined to be a bequest whose existence depends -upon the happening or not happening of some uncertain event, by which it -is either to take place or be defeated.[135] No precise form of words is -necessary to create conditions in wills; wherever it clearly appears that -it was the testator's intent to make a condition, that intent shall be -carried into effect. - -Conditions are subject to the well-known division, into conditions -precedent and conditions subsequent. When a condition is of the former -sort, the legatee has no vested interest till the condition is performed; -when it is of the latter, the interest of the legatee vests, in the first -instance, subject to be divested by the non-performance or breach of the -condition. - -Whether a condition be precedent or subsequent, that is, whether it must -be performed before the legatee can be entitled to an absolute interest in -the bequest, or not till after, of course depends upon the words and -intention of the testator. But a testator, in making a bequest, may use -words of condition, which, however, shall not be construed as such, if it -clearly appear that they do not involve the _motive_ and _reason_ of the -bequest.[136] Any consideration exacted from the beneficiary, or any duty -imposed on him, unless it is spread over a very unusual period of time, is -a condition precedent. A condition that the beneficiary shall cease to -resort to public houses is a condition precedent, and is not void for -uncertainty.[137] - -In the case of Tattersall v. Howell,[138] a legacy was given, provided the -legatee changed his course of life, and gave up all low company, and -frequenting public houses. And Sir William Grant held that this was a -condition such as the court could carry into effect, and directed an -inquiry whether the legatee had discontinued to frequent public houses, -keeping low company, etc. - -Had this been a devise of land, it would have been a void condition, as -will appear in the next chapter.[139] - -In Dunstan v. Dunstan, the executors were required by the will to pay to -the legatee annually $200, and also one-fifth of the testator's estate, in -case the legatee should refrain from vicious habits, and conduct himself -with sobriety and good morals. About two years after the testator's death, -the legatee filed his bill against the executors, insisting that he had -reformed, and claiming the payment of his share of the estate. The -defendants had refused to pay over to the claimant his one-fifth of the -estate, not being satisfied of his complete reformation. The provision of -the will was supported, and as the complete reformation of the legatee was -not distinctly proved, and a sufficient time had not elapsed between the -death of the testator and the filing of the bill to enable the executors -to form a sound opinion as to the permanency of the legatee's good -conduct, it was held that the executors were right in refusing to place -the whole property in his hands at that time, and it was referred to a -Master to ascertain and report whether there had been such a permanent -reformation in his character and habits as to entitle him to receive the -whole amount bequeathed to him at that time. - -If the condition is at all capable of being construed as subsequent, it -will be deemed to be such. Thus, in Page v. Hayward,[140] lands were -devised to A and B in case they married a person named S. They married -each a person of a different name, yet they were held to take vested -interests, the condition being subsequent, and being capable of being -performed, as their husbands might die, and they might then marry persons -of the coveted name. - -A testator declared that if either Jane or Mary married into the families -of Prudence or Resignation, and had a son, then he gave all his estate to -such son; but if they did not marry, then the estate was to go to A. Jane -and Mary married, but not into the families mentioned, and A claimed the -estate; but it was held that during the lives of Jane and Mary the claim -was premature, for one of them might afterwards satisfy the -condition.[141] - -The race as well as the religious antipathy of a testator sometimes crops -out in his will.[142] The testator in the following instance must have had -as much dislike to Scotchmen as the celebrated Dr. Johnson. He devised his -real and personal estate to trustees, out of which to pay an annuity to -his wife for life, and out of the residue to pay sufficient for the -maintenance, education, and support of his only daughter until she should -attain the age of twenty-one years, or marry, and then in fee, with a -proviso that if either his wife or daughter should marry a Scotchman, then -his wife or daughter so marrying should forfeit all benefit under his -will, and the estates given should descend to such person or persons as -would be entitled under his will in the same manner as if his wife or -daughter were dead. It was held that such partial restraint of marriage -was legal, and that, the daughter having while under age married a -Scotchman, and died leaving a son, the son could not inherit.[143] - -The most interesting inquiry in connection with conditional legacies, is, -as to how far conditions annexed to legacies which restrain marriage are -to be performed, and in what case the neglect or non-performance of them -will forfeit the legacy. The Roman civil law made absolutely void all such -conditions in restraint of marriage, as against the policy of the State; -but our law has not evinced the same impatience of nuptial restrictions, -for a condition inhibiting marriage until majority, or any other -reasonable age, or requiring consent, or restraining marriage with any -_particular_ individual, and in the case of a widow, even a general -restraint, is lawful.[144] - -Thus, if an annuity be bequeathed by a man to his wife for so many years, -if she shall remain so long a widow, it is a good conditional bequest, -because of the particular interest every husband has in his wife remaining -a widow, for thereby she will the better take care of the concerns of his -family.[145] But if a stranger gives a legacy upon such condition, it is -not a good condition, for there is no more reason restraining a widow -from marrying than a maid.[146] - -In the American States, we permit such a condition to be annexed to a -legacy, as well as in England.[147] - -A restraint of this sort, annexed as a condition, occurred in a case in -Pennsylvania,[148] in connection with the will of William Geigley, and, as -a singular instance of a testator's forethought and exactness, together -with an unusual effusion of sentimental argument, very seldom met with in -the sober, well considered decisions of courts, it will be interesting to -refer to it. - -The testator provided as follows: "I will and bequeath to my loving wife, -Susan Geigley, all my real and personal estate that I am possessed of, -(with a few exceptions, that I will afterwards bequeath to my brother -George) provided my wife Susan remains a widow during her life. But in -case she should marry again, my will is, she then shall leave the -premises, and receive all the money and property she had of her own, or -that I received of hers.... It is my will and desire, that if my wife -remain a widow during her life on the premises, that after her death all -the money or property that I got or had of my wife's shall be paid to her -friends, whomsoever she wills it to; and all property belonging to me as -my own at my death (not including my wife's part) I will and bequeath to -my father and mother, if living. But if they are both deceased, my will -is that my brother, George Geigley, and my sister, Catharine Geigley, -shall have the whole of that share or part that was my own, to them, their -heirs and assigns, forever." - -This condition was held to be good, and, the widow having married, the -mother became entitled to the proceeds of the real estate. - -The language of the judge before whom the case was at first heard is -deserving of a place in legal literature, as something rare in these -matter-of-fact, prosaic days. He thought it shocking to his sense of -personal liberty that any such restraint should be valid, and concludes -his decision with the following beautiful effusion: - -"The principle of reproduction stands next in importance to its elder-born -correlative, self-preservation, and is equally a fundamental law of -existence. It is the blessing which tempered with mercy the justice of -expulsion from Paradise. It was impressed upon the human creation by a -beneficent Providence to multiply the images of himself, and thus to -promote His own glory and the happiness of His creatures. Not man alone, -but the whole animal and vegetable kingdom are under an imperious -necessity to obey its mandates. From the lord of the forest to the monster -of the deep--from the subtlety of the serpent to the innocence of the -dove--from the celastic embrace of the mountain Kalmia to the descending -fructification of the lily of the plain, all nature bows submissively to -this primeval law. Even the flowers which perfume the air with their -fragrance, and decorate the forests and fields with their hues, are but -curtains to the nuptial bed. The principles of morality--the policy of the -nation--the doctrines of the common law--the law of nature and the law of -God--unite in condemning as void the condition attempted to be imposed by -this testator upon his widow." - -It may be considered an unfair partiality in our law that wives are not -allowed the same privilege to prohibit their husbands from marrying again; -for it has just been lately decided in England, in the case of Allen v. -Jackson,[149] that while a restraint of a _widow_ is a good condition and -valid as such, a similar restraint of a _widower_ in regard to his -marriage is invalid, and of no effect. It would seem at first blush that -the same rule should govern in each case; but Vice-Chancellor Wood, in -Newton v. Marsden,[150] suggested a reason which he thinks justifies the -distinction, namely, that a condition restraining the marriage of a widow -is valid, because it is not an arbitrary prohibition of marriage, but the -condition of a gift, made to the widow because she was a widow, and -because the circumstances would be entirely changed if she entered into a -new relation.[151] - -While the law sanctions, in this case, the restraint of a second marriage, -it does not tolerate a general restraint of a first marriage; as Swinburne -says:[152] "A prohibition of the first marriage is much more odious in law -than the second." The utmost privilege it has given in this respect is to -permit a restraint as to time, place, or person, as not to marry before -twenty-one, not to marry at York, not to marry a papist. Still, the law is -not indulgent of such conditions, and in some cases will not permit a -forfeiture if the condition is not observed. Thus, if a legacy be given on -condition of asking consent to marriage, if the person marries without -such consent, he does not lose the legacy. Such a condition is said to be -_in terrorem_ only--something like an idle threat, to prevent persons -exercising an imprudent choice. - -In Bellasis v. Ermine,[153] a suit was brought for £8,000, given to the -plaintiff's wife. The defendant pleaded that it was given her provided she -married with the consent of A, and, if not, that she should have but £100 -per annum; and that she married without the consent of A. It was ordered -that the plea be overruled. And the court all declared that this proviso -was but _in terrorem_, to make the person careful, and that it would not -defeat the portion. But it was said that if the party who gave the -portion had limited it to another, in the case of her marriage without the -consent of A, there it would have been otherwise. We, in this country, -follow the same law.[154] So long, therefore, as the legacy does not go to -another named in the will, in case of a breach of the condition, the -legatee will be entitled, notwithstanding a marriage without consent. The -reason of this is said to be, that the courts cannot relieve against the -forfeiture without doing an injury to the person to whom it is limited -over.[155] Thus, A bequeathed £3,000 to his daughter, the plaintiff -Garret's wife, at twenty-one or marriage, and recommended her to the care -of S, provided that, if she married without the consent of S, her legacy -of £3,000 was to cease, and she was to have but £500, and made the -defendant, his son, executor. The plaintiff married the daughter without -the consent of S, yet the court decreed her the whole £3,000, with -interest from the marriage, and principally because it was not expressly -devised over.[156] - -However, courts do not permit this doctrine of _in terrorem_ to apply, in -case the marriage is to be with consent _during minority_. In such a case -the condition is enforced, as it is deemed a safe and proper one for the -protection of youth. - -The reason of the application of the doctrine _in terrorem_, is, that if a -consent be withheld after a person has attained majority, it may be for a -long period, either from caprice, willfulness, or some other cause, and -would practically restrain marriage, which is what the law will not -permit.[157] - -If a portion be given on condition that the daughter should never marry, -such a condition should be rejected as repugnant to the original -institution of mankind.[158] - -So, if a condition be illegal, or contrary to the policy of the law, as, -if a legacy be given to a woman if she does not cohabit with her husband -and lives apart, such a condition is void, and the legatee is entitled -absolutely.[159] - - -SECTION 4.--PAYMENT OF LEGACIES. - -Attention is now to be given to the payment of legacies. It is evident -that an executor cannot safely pay a legacy until he ascertains that the -personal estate of the deceased is sufficient to pay the debts, and for -this reason the law generally allows the space of a year to satisfy -himself as to the condition of the personal estate.[160] And should an -executor, acting under the impression that the condition of the assets was -such as to entitle him to pay a legacy before the end of the year, pay it -before, and if, afterwards, a deficiency arises, he is responsible for the -payment of any claim or demand against the estate. Sometimes the -exigencies of a person may require an earlier payment of a legacy, and in -this case an executor may pay such legacy, provided he gets a bond, with -two good sureties, to refund in case of any deficiency; this is the case -by statute in New York,[161] and in many other States. Even if a testator -desires a payment of a legacy before the expiration of a year, an executor -is not bound to make payment.[162] As regards the time of payment, the law -makes no difference between general or specific legacies. - -The next inquiry may be as to when a legacy is to be paid, where a legatee -is to become entitled at twenty-one, or at some other age, and dies, -having a vested interest, before he attains the specified age. In this -case, it is a rule that no payment is to be made until the time arrives -when the deceased, if living, would become entitled.[163] But if interest -be given during minority, the representative of the deceased may claim the -legacy immediately.[164] - -A legacy of £500 was given to the eldest son of A to be begotten, to place -him out apprentice; A had a son born after the death of the testator; and -on a bill brought by him for the legacy, it was decreed to be paid, though -it was before the time when he was fit to be placed out an -apprentice.[165] The following case brings up a reminiscence of a state of -society that is now very unfamiliar to us at the present day: - -The testator by his will emancipated his slave, and devised to him two -hundred dollars, "to assist him in buying his wife." The specification of -the object of the bequest does not qualify it, nor affect the legatee's -right to it. The executors, it was decided, cannot compel him to use the -two hundred dollars in the matrimonial market, nor delay him payment until -he makes a purchase there.[166] - -A testator devised as follows: "I lend to my wife the plantation whereon I -now live, and after her decease I give and bequeath the said land to my -child that my wife is now pregnant with, if a boy; and if it should be a -girl, I give the said land to my son H, upon his paying to the said child, -if a girl, one hundred pounds." The child proved to be a girl; and it was -held that the legacy of one hundred pounds was not payable until the death -of the testator's widow.[167] - -If a legacy be given to A, with a bequest over if he succeed to a certain -estate, or upon condition that it shall be void in that event, the legacy -must be paid to A, notwithstanding.[168] - -If a legacy be devised generally, it is regularly to carry interest from -the expiration of the first year after the death of the testator; but if -it be a specific legacy upon which interest can accrue, the interest will -be given from the death of the testator, and it is immaterial whether the -enjoyment of the principal is postponed by the testator or not.[169] Even -if there be a direction to pay a general legacy as soon as possible, -interest only begins at the end of a year.[170] But if the legatee, being -of full age, neglects to demand it at that time, he cannot have interest -but from the time of the demand, because a legacy differs from a -debt.[171] - -While this was formerly the rule, it is not now in force, for it has been -held that, no matter whether the legatee demands or not, the legacy will -draw interest. It was so decided in a case in New York.[172] - -The general rule is, that a legacy payable at a future day does not carry -interest before the time of payment; and the rule applies to an infant -payable at twenty-one, unless in the case of an infant having a right to -demand maintenance from the testator, or of the legacy to him being a -residue, or there are special circumstances showing clearly an intention -to give interest.[173] And if a legacy is given in lieu of dower, or is -decreed to be a satisfaction of a debt, the court always allows interest -from the death of the testator.[174] - -A legacy to a child whose support and maintenance is otherwise provided -for by the bounty of the testator, like a legacy to a more distant -relative, or to a stranger, is not payable and does not draw interest -until one year after the death of the testator, where no time of payment -is prescribed by the will.[175] - -An annuity bestowed by will, without mentioning any time of payment, is -considered as commencing at the death of the testator, and the first -payment as due at the expiration of one year; from which latter period -interest may be claimed in cases where it is allowed at all.[176] - -The rule as to interest being reckoned on a specific legacy from the death -of the testator was strictly applied in the case of Churchill v. -Speake,[177] where a testator made a specific bequest of a mortgage for -£1,000 to his wife, and desired her to give the sum of £500 to M C, his -grandchild; "but, for the time and manner of doing it, I leave it freely -to herself, and as she shall see it best for her"; and the wife exercised -this freedom so well as to live twenty years after the testator, and never -paid the £500; and the court decreed payment of it to M C, with interest -from the testator's death. - -The inquiry to whom legacies are to be paid is one of great importance to -the executor, who must be careful to pay legacies into the hands of those -who have authority to receive them. It is a general rule that, where the -legatee is an infant, and would be entitled to receive a legacy if he were -of age, the executor is not justified in paying it either to the infant, -or to the father, or any other relation of the infant, on his account, -without the sanction of a court of equity.[178] And even in the case of a -child who has attained majority, payment to the father is not good, unless -it be made by the consent of the child, or confirmed by his subsequent -ratification. It may happen that an executor has, with the most honorable -intentions, paid the legacy to the father of the infant; nevertheless, he -will be held liable to pay it over again to the legatee on his coming of -age. And although such cases have been attended with many circumstances of -hardship to the executor, yet he has been held responsible, on the policy -of obviating a practice so dangerous to the interests of infants, and so -naturally productive of domestic discord.[179] - -Many of our States regulate the payment of legacies to infants by statute, -as in New York, where a legacy of $50 may be paid to the father of the -legatee, to the use and for the benefit of such minor; but, if it exceeds -$50, it must be paid to the general guardian of the infant, who will be -required to file a bond to pay it over to the infant.[180] - -It was formerly the law that, if a legacy was given to a married woman, it -should be paid to the husband. So, where a legacy was given to a married -woman living separate from her husband, with no maintenance, and the -executor paid it to the wife, and took her receipt for it; yet, on a suit -instituted by the husband against the executor, he was decreed to pay it -over again, with interest.[181] It was also adjudged that, if the husband -and wife were divorced _a mensa et thoro_, and a legacy was left to her, -the husband alone could give a proper receipt for it, and consequently to -him alone was it payable.[182] - -But now, by statutes in almost all of our States, a married female may -take by devise and bequest, and hold to her sole and separate use, real -and personal property, or any interest or estate therein, in the same -manner, and with the like effect, as if she were unmarried. - - -SECTION 5.--THE PERSON WHO MAY TAKE. - -The only person generally disqualified to receive a legacy is the witness -to a will. The law has thought fit to guard a deceased from all -imposition, and it is thought if a person took any beneficial interest -under a will to which he was one of the witnesses, he could not be a -disinterested person to attest its due execution. - -In New York, he is disqualified, if such will cannot be proved without his -testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where -there were _three_ witnesses to the will, each of whom took legacies under -it, the Surrogate called the first two, whose names appeared first, which -were sufficient, and omitted calling the third. It was decided that he -only became entitled to the legacy, as the will could be proved without -his testimony. - -An executor is not disqualified from receiving a legacy; but in his case, -it seems, it will not carry interest.[185] - -In wills, legatees are sometimes designated under a general name or class, -and a difficulty often arises to determine what individuals shall be -included in such a designation. Where a testator uses such general terms, -without defining or limiting them, they have a meaning given them by the -general rules of construction in law. Indeed, the testator's intention may -be frustrated by using certain terms, which may appear to him to include -or exclude certain individuals in his bounty, but which may be so enlarged -or restricted by the rules of law as to defeat their object. As in the -instance where a lady, dying, and intending to give her personal wearing -apparel to her servant maid, bequeathed to her _all her personalty_, which -under the rules of law meant all her personal estate, which was valued at -$60,000, and which under such a term must necessarily go to the servant. - -In general, no rule is better settled than that legatees must answer the -description and character given them in the will, but it will presently -appear, from the cases, that there are many important exceptions to it. - -We shall refer to some of these general names or classes, sometimes met -with in a will, by which individuals belonging to such classes become -entitled to a legacy. - -When a testator leaves a legacy to "children,"[186] it is a general rule, -that those within that designation _at the time of the testator's death_ -become entitled; but if, from the expressions and context of the will, it -is ascertained that he intended only those who answered that description -_at the date of the instrument_, such intention will be observed.[187] A -court of equity, however, is careful that a liberal construction be placed -upon such a term, and always, if possible, will hold that it shall include -children in existence at the death of the testator, and especially if the -testator stood in _loco parentis_ to the legatees.[188] - -The general rule, it is claimed in Collin v. Collin,[189] is, that in a -will of personal estate the testator is presumed to speak in reference to -the time of his death, and not to any previous or subsequent period. - -A child in _ventre sa mere_, at the time of the testator's death, is held -to be in _esse_, if it is afterwards born alive, and to be equally -entitled as those children who were born in the lifetime of the -testator.[190] - -If there be a postponement of the division of a legacy given to a class of -individuals until a certain time after the testator's death, every one who -comes under the description at the time when the distribution is made will -be entitled, no matter if he was not in _esse_ at the time of the -testator's death, unless from the will it be gathered that the testator -intended to limit his bounty to those only who were living at the time of -his decease.[191] - -And where the legacy in the will indicates a present bequest of a fund -which is to be distributed at a period subsequent to the death of the -testator, those who are in _esse_ at the time of his death will take -vested interests in the fund, but subject to open and let in others who -may come into being, so as to answer the description and belong to the -class at the time appointed for the distribution. Where, however, a fund -is bequeathed to children or others as a class, to be divided equally -among the persons composing the class, when they arrive at the age of -twenty-one, or marriage, only those who shall have been born or begotten -when the oldest arrives at the age of twenty-one, or when the first of the -class is married, are entitled to share in the fund.[192] - -Although, as a general rule, a devise to children, without any other -description, means legitimate children, and if the testator has such -children, parol evidence cannot be received to show that a different class -of persons was intended; still, in these cases, as in all others, it is -proper to look into circumstances _dehors_ the will, to see whether there -are any persons answering the description of the legatees in the legal -sense of the term used; and if it appear that there are not any such -persons, it is then allowable to prove the situation of the testator's -family, to enable the court to ascertain who were intended by the testator -as the object of his bounty. Thus, in Gardner v. Heyer,[193] where the -testator died a bachelor, but had for a long time lived and cohabited with -M. Smith, by whom he had and left four children, a son and three -daughters, who had been by him placed at school and acknowledged as his -children, and were generally reputed as such by his friends; and by his -will he gave to his son John $10,000, to be paid to him when he arrived at -the age of twenty-four, the interest in the meantime to be applied to his -maintenance and education; and he also gave to each of his daughters -$3,000, payable at the age of twenty-one, and the interest in the meantime -to be applied to their education and support; and he directed his -executors and trustees to pay $65 to M. Smith, the mother of the children, -quarterly, during her life, if she remained single and had no more -children; and he devised and bequeathed all the residue of his estate, -real and personal, to his executors and trustees, and the survivor of them -in fee, in trust, to pay two-thirds of the income thereof to his son -John, and one-third to his daughters during their lives, with remainder to -their issue; and he gave cross-remainders to the survivors in case any of -the children should die without issue; and he also appointed the executors -and trustees, guardians of the children during their minority, and -earnestly requested that the utmost care should be taken _of their morals -and education_. The court declared that there was no doubt as to the legal -and equitable rights of the children of M. Smith under the will. - -A bequest to an unborn, illegitimate child, the mother being described, is -valid, unless the child be pointed out as having a certain father, for -then it is void, the bastard being in point of law nobody's child--_filius -nullius_.[194] - -A bequest by a husband to his "beloved wife," not mentioning her by name, -applies exclusively to the individual who answers the description at the -date of the will, and is not to be extended to an after taken wife.[195] - -A testator was betrothed to a lady, and by a codicil to his will, after -mentioning her name, and alluding to his intended marriage with her, he -gave £3,000 _to his wife_. Before the marriage he died, and it was held -that the lady was entitled to the legacy.[196] - -A gift to "my servants," it is thought, will extend to those in -testator's service at the date of the will, though they leave it before -his death.[197] Redfield prefers to comprise, by such a phrase, only those -who are in the testator's service at the time of his decease, no matter -whether they were his servants at the time of his making his will or -not.[198] The best rule would be not to admit those who entered the -testator's service recently before his death, nor those who left before -that time, but to hold only those entitled who were in his service when -the will was made as well as at his death. - -Difficulties sometimes arise from the want of explicitness in pointing out -a legatee by a testator, and again from a mistake in naming or designating -him. The general rule upon the subject is, that when the name or -description of the legatee is erroneous, and there is no reasonable doubt -as to the person who was intended to be named or described, the mistake -will not disappoint the bequest. The error may be rectified and the true -intention of the testator ascertained in two ways: 1. By the context of -the will; 2. To a certain extent by parol evidence. - -1. The mistake may be rectified by the context. Thus an error in the -_name_ of the legatee may be obviated by the accuracy of his -_description_: as where a legacy is given to "my namesake _Thomas_, the -second son of my brother," and the testator's brother had no son named -Thomas, but his second son is named _William_, there is sufficient -certainty in the description to entitle the second son. - -And again, where the testator bequeathed to his brother, Cormac Connolly, -and to his two sisters, Mary and Ann, a certain residue, and afterwards by -a codicil bequeathed as follows: "To my nephew, Cormac Connolly, the son -of my brother, Cormac Connolly, the sum of five hundred dollars for his -ecclesiastical education, which sum is to be taken from what I have -bequeathed to my brother Cormac, and to my sisters Mary and Ann." And it -appeared the testator never had a brother named Cormac, but that he had a -nephew, Cormac, who was the son of his only surviving brother James, who -was pursuing classical studies in Ireland with a view to an ecclesiastical -education, and who was the only nephew of that name; it was held that the -legatee intended by the testator by the name of his brother, Cormac, was -the father of his nephew, Cormac, and that his brother James was the -person entitled to share in the residuary estate.[199] - -So, an error in the _description_ may be obviated by the certainty of the -_name_; as, where a legacy was given to "Charles Millar Standen and -Caroline Eliz. Standen, _legitimate_ son and daughter of Charles Standen, -now residing with a company of players," and it appeared they were -_illegitimate_ children, their claim was nevertheless supported.[200] - -The mistake may, to a certain extent, be rectified by parol evidence. The -admissibility of parol evidence in these cases has given rise to much -discussion; it forms one of the exceptions to the general rule, not to -admit parol evidence where a will is void for uncertainty. This is treated -of under the _seventh proposition_ of Wigram on Wills,[201] in a very -exhaustive manner, and the cases fully examined. We will merely here point -out when such evidence is admissible and when it is rejected. The rule is -thus laid down: Where the object of a testator's bounty, or the subject of -disposition, is described in terms which are applicable indifferently to -more than one _person_ or _thing_, evidence is admissible to prove which -of the persons or things so described was intended by the testator. - -Thus, when a _blank_ is left for the Christian name of the legatee, parol -evidence is admissible to supply the omission, as in the case of Price v. -Page,[202] in which the testator bequeathed "to ---- Price, the son of ----- Price, the sum of £100." No person but the plaintiff claimed the -legacy, and he produced evidence from which it appeared that he was the -son of a niece of the testator; that his father and grandfather's names -were Price; that the testator had no other relation of that name, and that -he had been before frequently the object of the testator's care; that the -testator said he had and would provide for the plaintiff. Upon this -evidence, Lord Alvanley determined in favor of the claim. - -When the omission consists of the _entire_ name of the legatee, parol -evidence cannot be admitted to supply the blank; for that would amount to -a bequest by oral testimony. Thus, in Winne v. Littleton,[203] A -bequeathed all his personal estate to his executor, leaving a blank, and -died without naming _any_ person executor. The legacy was adjudged to be -void. And in Hunt v. Hort,[204] a woman devised her houses in the city and -at Richmond to her niece, dame Margaret Hort, and Richard Baker, her -attorney, in trust to sell. She then gave some pictures specifically, and -thus proceeded: "My other pictures to become the property of Lady ----." -The testatrix then made her niece, Harriet Hunt, her residuary legatee, -and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was -of opinion that he could not supply the blank by parol evidence, and -observed that, where there was only a title given, it was the same as a -total blank. - -If, however, a legatee be described by initials of his name only, parol -evidence may be given to prove his identity. This was done in the case of -Abbott v. Massie,[205] where the bequest was: "Pint Silver Mug and all my -China to Mrs. G., and £10 for mourning." Mrs. Gregg claimed the legacies, -and (the Master having refused to admit testimony) offered to show that -she was the person intended. Exception was taken to his ruling, upon which -the court declared that he ought to receive evidence to prove who Mrs. G. -was. - -The principle upon which parol evidence is admitted in these cases is a -presumption of possible ignorance in the testator of the Christian name of -the legatee, or of his being accustomed to calling a person by the name -of Mrs. B, a presumption which, being raised upon the face of the will, -may be confirmed and explained by extrinsic evidence. Upon this ground, it -is consistent with the established doctrine that such evidence is -admissible to remove _latent_ ambiguities, but cannot be admitted to -explain _patent_ ambiguities in a will. This is founded on Lord Bacon's -well-known maxim: "_Ambiguitas verborum latens verificatione suppletur._" - - - - -CHAPTER V. - -LIMITS TO TESTAMENTARY DISPOSITION. - - -While the law has generally granted the privilege of testamentary -disposition, it has not deemed it expedient or politic to give the -absolute and unrestricted power, so that a person can make a posthumous -disposition of his property in _any_ way he thinks proper. For the public -welfare, it has seemed judicious to impose certain restrictions on the -right exercised by a person in distributing his property after his -decease. It is well known that if an uncontrolled, absolute power were -given, that individuals would sometimes disregard the claims of those who -have a natural right to their bounty, and gratify their pride, their -whims, or their vagaries in disposing of their property by will. - -The possession of a large amount of property during a man's lifetime gives -him such a consciousness of power and authority, that it is difficult to -disabuse his mind of the idea that he cannot perpetuate his name, his -influence and control, after his death, by distributing and disposing of -his property according to his pleasure. - -The law is full of instances where men have attempted, by schemes in -devising their property, to establish a name and an influence that would -abide long after the mind that conceived them had ceased to act or -control. - -This has been the ambition, we may call it the infirmity, of some great -minds; indeed, it seems sometimes a special characteristic of such persons -to desire to live thus in the memory of posterity, by some remarkable and -striking mode of disposing of their property after their decease, so as to -leave some visible token of their influence and prestige, either in an -institution or in a family,[206] either in a charity or a monument. - -When properly and judiciously exercised, this desire has led to the -foundation of those noble institutions for the relief of the indigent and -helpless, for the promotion of knowledge and education, for the -development of science and art, and for the furtherance of various -benevolent designs, which are the boast and glory of our modern -civilization, and which have done so much to foster and advance that -civilization. - -But at an early period this desire or infirmity was made use of by the -clergy, who wielded such vast influence over the dying, to induce -testators to dispose of property for enriching churches and monasteries, -and various other institutions. So great did the evil become, and so many -grievous abuses sprung up, that the public welfare was threatened and -endangered, and in consequence of this, a bitter and determined struggle -ensued between the civil and spiritual powers, lasting through centuries -and giving a peculiar bias to certain legislation. As soon as some means -would be devised to check the abuses, and to limit the power of the -clergy, some new device would be contrived by their ingenuity to evade -the rules or nullify a law. The establishment of the law of Uses and -Trusts is a good example of these ingenious devices to evade a statute. - -The several Statutes of Mortmain had their origin in this effort of the -civil power to curb the influence of the spiritual power, and check a -dangerous tendency to enrich corporations of a religious or eleemosynary -character. These several acts occupy a prominent place in English history, -and characterize a very important epoch of that history. Their influence -has extended to us, who have gathered experience from the past, and this -is plainly evinced in our Statutes of Wills in the different States, which -disqualify corporations from taking by devise unless expressly -authorized.[207] - -It was found, however, that an indiscriminate prohibition would prevent -the foundation of many worthy and useful institutions, which, instead of -being a menace, would be a safeguard to the welfare of the State; and -hence a distinction arose between such bequests as were for charitable -uses, and those for superstitious uses, the latter of which were so -obnoxious to the law, and forbidden by it. A superstitious use is thus -defined in Bacon's Abridgement.[208] It is, "where lands, tenements, -rents, goods, or chattels are given secured, or appointed for and towards -the maintenance of a priest and chaplain to say mass; for the maintenance -of a priest or other man, to pray for the soul of any dead man, in such a -church, or elsewhere; to have and maintain perpetual obits, lamps, -torches, etc.,[209] to be used at certain times, to help to save the souls -of men out of purgatory; these and such like uses are declared to be -superstitious." - -Devises to charitable uses were supported in England at an early period in -the common law, which is supposed to have derived its maxims on this head -from the civil law. Lord Nottingham says, in the case of the -Attorney-General v. Tancred,[210] that devises to corporations, though -void under the Statute of Wills, were good in equity _if given_ to -charitable uses.[211] - -The Statute of the 43d of Elizabeth enumerates what charitable uses were. -They were, according to this statute, gifts for the relief of aged, -impotent, and poor people; for maintenance of sick and maimed soldiers and -mariners; for ease of poor inhabitants concerning payment of taxes; for -aid of young tradesmen, handicraftsmen, and persons decayed; for relief, -stock, and maintenance of houses of correction; for marriages of poor -maids;[212] for education and preferment of orphans; for schools of -learning, free schools, and scholars in universities; for relief or -redemption of prisoners or captives; for repair of bridges, ports, havens, -causeways, churches, sea-banks, and highways. - -But as it was found that persons "dying and languishing"--_in -extremis_--were frequently unduly influenced to dispose of their property -to such charitable purposes, against the rights of their family or -kindred, it was enacted by the Statute of Mortmain, 9 George II, that no -property in land, or arising out of land, could pass to such purposes, -unless by deed indented, sealed, and delivered in the presence of two or -more credible witnesses, twelve calendar months before the death of the -donor or grantor.[213] Of course, these statutes have no operation in this -country, unless by special enactment. The statute of Elizabeth not being -in force in New York, it was therefore insisted that no devise to -charitable uses was, in consequence, valid. - -The fluctuations of the law on this point present a remarkable and not a -very satisfactory example of varying judicial opinion in that State. The -earlier decisions of its highest court have lately been overruled, and the -earlier doctrines on the subject discarded. Thus, in Williams v. -Williams,[214] it was held that the law of charitable uses was not founded -on the statute of Elizabeth, but was a part of the common law, which is -still in force here, so far as conformable to our polity and adapted to -our institutions; and that a court of equity, exercising the chancery -jurisdiction of the English courts, will carry out the purpose of a -testator; and that, notwithstanding the statutory prohibition against -devises of lands to corporations, a devise of a charity, not directly to a -corporation, but in trust for a charitable corporation, would be good. -Subsequent cases followed this decision of Williams v. Williams; but later -cases have altered the law in New York. The case which effected a change, -and finally determined the law, is of historical as well as legal -importance, and deserves a detailed statement. - -It is the case of Levy v. Levy,[215] most learnedly and ably argued and -examined in the various courts of the State. Commodore Uriah P. Levy, the -testator, was an eminent and wealthy officer of the United States navy, of -the Jewish religion, who became the owner of the famous farm of Jefferson, -at Monticello, in Virginia, and who died in New York in March, 1862, -leaving property valued at over half a million dollars. In his will, after -making various bequests, he provided: - -"After paying the above legacies and bequests, or investing for the same, -and subject to my wife's dower and use of furniture, I give, devise, and -bequeath my farm and estate at Monticello, in Virginia, formerly belonging -to President Thomas Jefferson, together with all the rest and residue of -my estate, real, personal, or mixed, not hereby disposed of, wherever or -however situated, to the people of the United States, or such persons as -Congress shall appoint to receive it, and especially all my real estate in -the city of New York, in trust, for the sole and only purpose of -establishing and maintaining at said farm of Monticello, in Virginia, an -agricultural school, for the purpose of educating as practical farmers, -children of the warrant officers of the United States navy whose fathers -are dead. Said children are to be educated in a plain way in the ordinary -elementary branches to fit them for agricultural life, and to be supported -by this fund, from the age of twelve to sixteen, and each of them to be -brought up to do all the usual work done on a farm; the said farm to be so -cultivated by the said boys and their instructors as to raise all they may -require to feed themselves, and the schoolmaster and one other teacher, -and one superintendent of the said farm. I also give and bequeath, for the -purpose of giving such fuel and fencing for said Monticello farm-school, -two hundred acres of woodland of my Washington Farm, called the Bank Farm, -in Virginia, the said two hundred acres to be taken from said farm hereby -devised to my nephew Ashel, and to be designated by said Ashel. - -"In establishing said farm-school, I especially require that no -professorships be established in said school, or professors employed in -the institution; my intention in establishing this school is charity and -usefulness, and not for the purpose of pomp. In proportion to the -smallness of number of the teachers, so will industry prevail. - -"The institution must be kept within the revenue derived from this -endowment; and under no circumstances can any part of the real or personal -estate hereby devised be disposed of, but the rent and income of all said -estate, real and personal, is to be held forever inviolate, for the -purpose of sustaining this institution. The estate and lands in New York -can be leased to great advantage for that purpose. - -"Should the Congress of the United States refuse to accept of this -bequest, or refuse to take the necessary steps to carry out this -intention, I then devise and bequeath all the property hereby devised to -the people of the State of Virginia, instead of the people of the United -States. Provided they, by acts of their legislature, accept and carry it -out as herein directed. And should the people of Virginia, by neglect of -their legislature, decline to accept this said bequest, I then devise and -bequeath all of my said property to the Portuguese Hebrew Congregation of -the city of New York, the Old Portuguese Hebrew Congregation in -Philadelphia, and the Portuguese Hebrew Congregation of Richmond, -Virginia: provided, they procure the necessary legislation to entitle them -to hold said estate, and to establish an agricultural school at said -Monticello for the children of said societies who are between the ages of -twelve and sixteen years, and whose fathers are dead, and also similar -children of any other denomination, Hebrew or Christian. - -"I direct my executors hereinafter named, or such of them as shall -qualify, to invest the funds arising from said estate in some safe, paying -stocks as fast as they accumulate, and to hold the whole of the property -and estate hereby devised and bequeathed for said school, and in their -hands, until the proper steps have been taken by Congress, or the -legislature of Virginia, or the said Hebrew Benevolent Congregations, to -receive the same and discharge said executors." - -The court, in its decision, extensively reviewed preceding cases, and held -that, at common law, the trust would be void for want of a certain donee -or beneficiary of the use or trust, whom the law could recognize. That it -was uncertain which class of beneficiaries would be the parties in -interest, and if the class were ascertainable, that the individuals -thereof were indeterminate and unascertainable, and there was no -ascertained beneficiary in whose favor performance might be enforced. - -The court determined that the law of charitable trusts, as existing and -enforced in England, being based on the statute of Elizabeth, was -abrogated and annulled in the State by the act of 1788, which repealed the -statute of Elizabeth; and that the legislature by that act intended to -abrogate the entire system of indefinite trusts, which were understood at -the time to be supported by that statute alone, as being opposed to the -general policy of our government and to the spirit of our institutions. - -The court also determined that the trustees named, viz., The People of the -United States, or the State of Virginia, were incompetent to take as -trustees, they being created for certain determinate political purposes, -and having no other function or existence.[216] Nor could the Hebrew -Congregations, it was held, so act, as the trust was not within the acts -or province of their incorporation; the one in New York could only take -property for its own use, and the foreign corporations could not take and -act as trustees of lands in this State. The court was further of opinion -that the whole of the peculiar system of English jurisprudence, for -supporting, regulating, and enforcing public or charitable uses, is not -the law of the State of New York when in conflict with statutory -prohibitions relative to uses and trusts.[217] - -This case was afterwards followed by Bascom v. Albertson,[218] holding and -approving the views of Levy v. Levy, which may now be considered as -finally settling the law on this head in New York. - -The statement of the law, as decided in New York, is not in harmony with -the decisions in a large majority of the States. There is unquestionably a -difference of opinion on this subject. The gist of inquiry is: Does the -law of charitable uses exist in those States where the statute of -Elizabeth is not in force, or has been repealed? Or, is the law -appertaining to this subject founded on the common law, or is it the -creation of the statute? There is no question that the weight of judicial -opinion is greatly in favor of the doctrine that the law is not a creation -of the statute, but is founded on the common law jurisdiction in the Court -of Chancery, and as such can be administered by the courts in the absence -of any special statute.[219] - -The statute of Elizabeth is in force in Massachusetts, Pennsylvania, North -Carolina, and Kentucky. It is not in force in Maryland, Virginia, -California, and New York. - -In some of the States, corporations are specially empowered by statute to -take a certain amount of property by devise.[220] In New York, there is a -statute, passed in 1860, which prohibits a person having a husband, wife, -child, or parent, from devising or bequeathing to any charitable or -literary corporation more than half of his or her estate, after payment of -debts. - -The most frequent and dangerous propensity which law has to check and -guard against in testators is that of perpetuating in their family for -generations vast property and estates. The desire of founding a family of -vast wealth and influence to preserve one's property is not an uncommon -one; it appeals to some of the dearest and most personal feelings of a -man's nature; it is peculiarly gratifying to pride and pomp, and, if not -limited and checked, would be dangerous to the public welfare, as it -withdraws from the channels of trade and enterprise a large extent of -property. Hence, every civilized country finds it necessary to define the -extent of a man's control over his property, how long his volition can -regulate its use after death, and to what purposes it shall be put. The -common law permitted a control in this respect which would be entirely -incompatible with our republican institutions and equality of our -citizens. - -Under that law, a man had the power to tie up his property and suspend the -power of alienation, as it was termed, for any number of lives in being, -and twenty-one years and a fraction afterwards. He could order the -accumulation of the rents, income, or profits for a similar period. The -case which first drew attention to the danger of such a power was one of -the most famous in English law, and one that has since been a warning and -an incentive to legislation both here and in England. Perhaps, for the -amount involved, the tediousness and length of the litigation, and the -singularity of the provisions, there has never been a more famous case -than that of Thellusson v. Woodford,[221] tried before Lord Chancellor -Loughborough, in the year 1798. The case afforded a remarkable instance of -the unnatural meanness and ostentation of the testator, in depriving his -immediate descendants of their just share of his fortune, not to found any -noble charity, but that his fortune might accumulate in the hands of -trustees, for the miserable satisfaction of enjoying in anticipation the -wealth and aggrandizement of a distant posterity who should bear his name. - -Peter Thellusson was born at Paris, of Swiss parentage, his father being a -minister from Geneva to the French court. He settled in London as a -merchant at an early age, was naturalized, and, on the foundation of a -fortune of £10,000, raised the princely possessions which afterwards -became the subject of litigation. It is said that he was generally -respected, and, though a severe economist, lived in a style suitable to -his wealth. His three sons were all members of Parliament. In the -sixty-first year of his age, being at the time in perfect health and legal -sanity, he made and executed his last will, bearing date April 2d, 1796, -and thereby disposed of his property upon trust during the natural lives -of his three sons, and of the sons of each of these then in being, and of -any such issue as any of his grandsons might have as should be living at -the time of his decease. During the lives of the survivors or survivor of -these persons mentioned, the trustees were to collect and receive the -rents and invest them, and, upon the decease of the last survivor, all the -accumulated estates should be divided into three lots, of equal value, and -settled upon the eldest male lineal descendant then living of each of his -three sons; and, if there should be a failure of male descendants of two -of his said three sons, the sole male lineal descendant of the testator -should become entitled to the whole three lots, consolidated into one huge -mass of landed property. The property was thus tied up in the hands of -trustees, and kept from enjoyment for three generations. Shortly after -executing this extraordinary will, on 21st July, 1797, Mr. Thelusson died. -The money which the will sought to accumulate was estimated at £600,000. -An accountant of that time calculated the accumulation--limiting it to -seventy-five years, the shortest possible period during which the property -would be tied up--at £27,182,000, an immense sum, but which he deemed -would be considerably less than the sum it would be likely to reach when -the improvement of money at a higher rate and the lengthened duration of -the last survivor were taken into account. It was estimated, by one of the -counsel in the case, that if there were three descendants to take, each -would have an income of £650,000 a year; if only one, he would have an -income of £1,900,000 a year, more than double the revenue of the king's -civil list, and surpassing the largest territorial fortune then known in -Europe. Chancellor Kent, regarding it from his time, has said that if the -limitation should extend to upwards of one hundred years, as it might, the -property will amount to upwards of one hundred millions sterling. - -The children brought an action to have the will set aside, but the court -decided against them, and gave judgment confirming the trusts. The case -attracted wide and deep attention from the magnitude of the fortune sought -to be reared, and from the important principle of public policy involved. -It was argued on both sides by the most eminent counsel at the bar, but -nevertheless the Chancellor was compelled to hold the will valid, much, it -is said, against his inclination. Next year, he was instrumental in -getting Statute 39 and 40 Geo. III passed, restraining dispositions by way -of accumulation to the life of the grantor, or twenty-one years after his -decease, or the minority of any party living at the time of his -decease.[222] - -The property was accordingly left to accumulate; but the ambitious and -vain visions of the testator and the alarm of the public were destined to -disappointment. The structure which threatened even to overshadow the land -in its ascending greatness has not risen to a disproportionate size. The -operation of the trusts has proved practically a failure, as the -accumulated mass of wealth is likely to fall far short of the amount which -fanciful calculators had predicted. It has shared the inevitable fate of -all such vast estates that get into the grist-mill of the lawyers. The -litigation has been so expensive, that what with fees of lawyers, fees of -courts, commissions to trustees, and the expense of management, the -_corpus_ of the estate has been pretty well eaten up. The expenses of -management from January, 1816, to 1833, exceeded £122,700. The only -increase in respect of income was £8,356, and an accumulation of capital -of £326,364. - -The extent of time to which property is allowed to accumulate is very -carefully and strictly defined in our statutes. It is generally only -during a person's minority, as in New York and California, and the same is -believed to be the rule in general.[223] - -The power of suspending the alienation of property by a devise is limited -to lives in being in some States, or in others to _two_ lives in -being,[224] and no matter how short may be the duration, the suspension -will be invalid if it is not made to depend on _life_ as the condition of -the limitation.[225] On this account, some very worthy and benevolent -schemes of testators have failed. - -The two lives must be designated. This may be done either by naming two -persons in _particular_, or else by describing a _class_ of persons, and -bounding the suspense of alienation by the lives of the _two first_ who -shall die out of the class. The limitation may be restricted for a shorter -period than two lives--it may be for a single life. The estate may also be -limited so as to depend on some event besides life, provided it must vest -within two lives; as an estate to A for ten years, if B and C, or either -of them, shall so long live; here, the estate may determine either by the -lapse of the ten years, or by the death of B and C; but it can in no event -exceed two designated lives. So, an estate during minority, widowhood, or -other stage of existence, through which _two_ individuals may pass, would -be good, because it could not by any possibility extend beyond two -designated lives.[226] - -These technical rules have rendered many a noble scheme abortive, and -frustrated the benevolent and reformatory intentions of many a testator. - -In the following instance, a testator's paternal solicitude for the reform -of a wayward son, and his disapproval of his mode of life, were -emphatically expressed; and an unfortunate oversight of this inflexible -rule hindered the restraint the parent thought to place on his son after -his decease. The father, however, with the usual confidence of a parent, -had not abandoned all hope as to his ultimate recovery, for he thought fit -to make him one of his executors, and thus placed him in the rather novel -position of being a censor of his own conduct. - -In the seventh clause of his will, after certain clear devises and -bequests to other persons, was this recital and provision, viz: "Whereas, -my son P, to whom sundry bequests are made in the following will, has -unfortunately contracted habits of inebriation, and in consequence of -which, I fear he would squander or misuse the bequests to him made, I do, -therefore, annul and make void this will as to him, unless he reforms and -continues a sober, industrious, and moral man, for the space of two years -after my decease, giving to my executors satisfactory evidence and -assurance of a thorough reformation. And, therefore, it is my will, that -the property so willed to him should be held in trust for him, not to -exceed three years after my decease; and if within that time such -reformation does not take place, I desire my said executors to divide his -portion among such of my heirs as may seem to them most to need and -deserve the same."[227] - -It was held that this provision of the will was void, both as a _trust_, -and as a _power in trust_; and that the son took the bequest -notwithstanding. - -The court deemed it "an unusual and extraordinary provision"; and as the -period of suspension was measured by time alone, and not by _life_, this -of itself rendered the provision nugatory. - -It has been decided that if a bequest be made to certain trustees, to hold -during the life of two persons designated, or until the legislature -incorporate a hospital during the lifetime of the said persons, it is -good.[228] It was in this way the will of Mr. Roosevelt was drawn, through -which the Roosevelt Hospital in New York was founded. He bequeathed the -residue of his estate, after other bequests, to nine trustees, five of -whom were presidents of certain charitable institutions, for the -establishment of an hospital for the reception and relief of sick and -diseased persons, and directed them to apply to the legislature for a -charter to incorporate the same, and in case the legislature should refuse -to grant this within two years next after his death, _provided two lives -named in his will should continue so long_, then the trustees were to pay -over the same to the United States for a similar purpose. - -It was held that this provision did not violate the statute of -perpetuities, but that the corporation could take only in case the charter -was granted within the two lives named. There was no need to consider the -validity of the devise to the United States. The charter was granted in -February, 1864, and now the hospital stands conspicuous among the -charities of New York city. - -An oversight in the observance of this rule against perpetuities caused -the failure of a grand and meritorious scheme conceived by the late Mr. -Rose of New York. He died in 1860, and left a large amount of -property--estimated at two millions of dollars--to found an institution -called the "Rose Beneficent Association,"[229] whose object it was to -educate and train waifs picked up on the streets, and make them useful -citizens. He gave the bequests upon the contingency of raising $300,000 -from other sources within _five years_. If that sum was not so raised, the -estate was given to other charitable beneficiaries. The utmost limit of -the suspension was five years, but it was not circumscribed by lives as -the Statute of Perpetuities requires, and it was adjudged to be void. It -should be stated as a warning that this will of Mr. Rose was drawn by -himself. - -The case occupied a long time in litigation, and the subject of charitable -bequests was most exhaustively examined.[230] - - - - -CHAPTER VI. - -REVOCATION OF WILLS. - - -It is one of the well-understood qualities of a will, at the present time, -that it is revocable during the testator's lifetime. It was shown, in a -former part of this work, that this quality did not in early times attach -to a will; that a will, at first, was in the nature of an executed -contract; a conveyance, in fact, and irrevocable.[231] However, as a will -has no effect until death, it necessarily follows that a person has full -control of the subject-matter, and can change his mind as he pleases -regarding its disposition so long as he lives. This is now accepted as a -postulate in the law of wills.[232] The only inquiry, therefore, will be -as to what acts or occurrences shall be deemed sufficient to revoke a will -previously made. - -There are two modes in which a will may be revoked: _First_, it may be -revoked by the happening of some events subsequent to the making as, in -the judgment of law, will amount to a revocation. We may term this an -implied revocation. _Secondly_, it may be revoked by a certain deliberate -act of the maker, intending to cancel a previous will, or with _animo -revocandi_, as the legal phrase is. - -The events which would operate to produce an implied revocation of a will -were formerly a subject of wide and constant discussion. The courts in -England, and until lately in this country, occupied themselves very -frequently in discussing this subject of implied revocation, and, for a -long time, there was no general agreement on the precise events that -would, in the judgment of law, amount to a revocation. At an early period -in the English law, it was determined that the marriage of a _feme sole_ -was sufficient to revoke a will made by her previous to her marriage. It -was expressed thus, in the quaint language of the time: "It was adjudged, -on great deliberation, that the taking of a husband, and the coverture at -the time of her death, was a countermand of the will."[233] This -enunciation of the law has ever since prevailed as a principle in the law -of wills. But a similar marriage in the case of a man did not have the -same effect. The courts were at first not agreed as to whether the birth -of a child after the making of a will would be sufficient to effect a -revocation. In one case, it was decided that this event alone did not -amount to a revocation;[234] but in another case, where there were _four_ -children born subsequently to the making of the will, this, combined with -other circumstances, was held to be a revocation.[235] It came to pass -that the courts became finally agreed on the question that marriage, -together with the birth of issue, was sufficient to effect a revocation of -a will.[236] - -In the application of this rule, cases of great hardship have sometimes -occurred; but it has been steadily adhered to, even under circumstances in -regard to real estate, at least; as where the testator left his wife -_enceinte_ without knowing it, as was the case in Doe v. Barford, above, -where Lord Ellenborough held that the birth of a child _alone_, even under -these circumstances, was not sufficient to revoke the will which was made -after marriage. He said: "Marriage, indeed, and the having of children, -where _both_ these circumstances have occurred, has been deemed a -presumptive revocation; but it has not been shown that either of them -_singly_ is sufficient. I remember a case some years ago of a sailor who -made his will in favor of a woman with whom he cohabited, and afterwards -went to the West Indies, and married a woman of considerable substance; -and it was held, notwithstanding the hardship of the case, that the will -swept away from the widow every shilling of the property, for the birth of -a child must necessarily concur to constitute an implied revocation. In -Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the -pregnancy of the wife, with the knowledge of the husband, and the -subsequent birth of a posthumous child, came within the rule, the same as -if the child had been born during the parent's life." - -This subject was elaborately examined by Chancellor Kent, in the case of -Brush v. Wilkins,[237] where the authorities from the earliest times were -quoted and examined, and the same conclusion reached. - -This inquiry is not of much practical importance now, either here or in -England, for statutory enactments have laid down the law precisely and -satisfactorily as to what circumstances shall be deemed sufficient to -produce the revocation of a will. And this is very desirable, since much -uncertainty and discussion is thereby avoided, and the devolution of -property exactly determined.[238] There is scarcely a State we know of -where statutes have not been passed, setting the matter at rest, and -fixing the law on the subject. - -By the recent English statute, wills are held absolutely revoked by the -subsequent marriage of the testator, whether made by a man or woman, -unless such will be made in execution of certain powers; and it is further -provided that no will shall be revoked, by any presumption of intention, -on the ground of an alteration of circumstances. - -In the statutes of the different States there is this difference: In some, -the birth of a child after making a will, where such child is unprovided -for, will work a revocation; while in others, it will only revoke it _pro -tanto_, that is, so as to allow the child to have the same share as if the -parent died intestate. - -In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids -the will _in toto_.[239] - -By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New -York, New Jersey, Pennsylvania, Delaware, and California, children born -after the making of the will inherit as if the parent died intestate, -unless the will comprises some provision for them, or they are -particularly referred to in it. The will is thus revoked _pro tanto_.[240] - -In Virginia and Kentucky, the birth of a child after the will, if there -were none previously, revokes the will, unless the child dies unmarried or -an infant.[241] - -The statute law of some States goes further, and entitles not only -children but their _issue_ to claim portion of testator's estate, if such -children were unprovided for, and unmentioned in the will. This is the -case in the California code,[242] and in Maine, New Hampshire,[243] Rhode -Island, and Massachusetts. - -By the New York revised statutes, if a will disposes of the whole estate, -marriage and the birth of a child revoke the will, if either the wife or -child survive the testator.[244] Parol evidence is not admissible to rebut -this presumption. Wherever the question has arisen, it has generally been -held, even in the States where by statute children omitted in the will of -the parent are entitled to the same share of his estate as if he had died -intestate, that marriage and the birth of issue, after the making of a -will, do amount to an implied revocation of the will.[245] - -In many of the States, marriage alone, after making the will, amounts to a -revocation. In Virginia, it is revoked by marriage;[246] also, in West -Virginia; so in California, unless a provision be made for the wife.[247] -In others, it only revokes the will _pro tanto_, as in Pennsylvania and -Delaware.[248] In the State of Illinois, where the husband and wife are -made heirs to each other, marriage by the testator after making his will, -wherein no provision in contemplation of such new relation exists, amounts -to a revocation.[249] The marriage of a woman after making her will, will -produce a revocation in general. It is so in New York and California;[250] -and in California it is not revived by death of the husband. This -provision is in harmony with the early cases in England.[251] - -It must not be inferred from the previous statement that a testator has no -power to disinherit or cut off a child. The law does not withhold this -power; it only presumes, by the omission to mention the name of a child -in a will, that the claim of that child was overlooked by the testator, -and the court, exercising its equitable power, interferes on behalf of -such child to see it gets its due share of the property. But where the -intention is expressed, and much more so where a reason is given, for -cutting off a child from a participation in a testator's property, the -courts cannot interfere in behalf of such disinherited child, unless on -some imputation of insanity or undue influence. - -Another, and a more usual mode in which a will may be revoked, is by an -express deliberate act of the testator. This may be done by a subsequent -testamentary document, or by some physical destruction or cancelation of -the will. A very common phrase used in a will is: "And I hereby revoke all -former and other wills and testamentary dispositions by me at any time -heretofore made." However, the insertion of a clause like this is not of -much importance, as a will professing to dispose of the _whole_ of a -testator's property necessarily displaces and supersedes all antecedent -testamentary instruments.[252] Such a clause might be useful in those -instances in which the intention to dispose of the entire estate was not -so clearly manifested as to preclude attempts to adopt, wholly or -partially, the contents of former wills as part of the testator's -disposition; since a will may be composed of _several_ papers of -_different_ dates, each professing to be such when they are capable of -standing together.[253] - -Mere proof of the execution of a subsequent will, therefore, is not -sufficient to invalidate a prior will. There must be proof of a clause of -revocation, or there must be plainly contrary or inconsistent -provisions.[254] And where the contents of the last will cannot be -ascertained, it is not a revocation of the former will. This was decided -by the Court of King's Bench in England, more than one hundred and fifty -years ago, in the case of Hutchins v. Bassett;[255] and that decision was -subsequently affirmed upon a writ of error in the House of Lords. In the -subsequent case of Harwood v. Goodright,[256] which came before the Court -of King's Bench in 1774, it was held that a former will was not revoked by -a subsequent one, the contents of which could not be ascertained; although -it was found by a special verdict that the disposition which the testator -made of his property by the last will was different from that made by the -first will, but in what particulars the jurors could not ascertain. This -case also was carried to the House of Lords upon a writ of error, and the -judgment was affirmed. As these two decisions of the court of _dernier -resort_ in England were previous to the Revolution, they conclusively -settle the law on this subject here.[257] - -Again, where there are several codicils or other testamentary papers of -different dates, it is a question of intention upon all the circumstances -of the case, which and how far either is a revocation of another, or -whether the dispositions of the latter are to be considered as additional -and cumulative to those of the prior. Parol evidence, however, is not to -be admitted in order to investigate the _animus_ with which the act was -done, unless there is such doubt and ambiguity, _on the face of the -papers_, as requires the aid of extrinsic evidence to explain it.[258] - -In a late case,[259] the subject of receiving parol evidence in regard to -the fact and intent of the revocation of wills, is very carefully -examined, and the principle declared, that where the testator executed a -will, and subsequently executed another, which he took away with him, and -which on his decease could not be found, the earlier one being found, that -the solicitor who drew the will, or any other witness familiar with its -contents, might give evidence thereof; and it appearing that the -provisions of the later one were inconsistent with those of the former, it -was held to amount to a revocation. The practice, in the American courts, -of receiving parol evidence of the contents of a lost will, seems to be -universal, and without question, notwithstanding the stringent statutory -requirements in regard to the mode of executing wills.[260] The evidence -must come from witnesses who have read the will, and whose recollection of -its contents is trustworthy.[261] But in cases of fraud, more indulgence -is allowed to the proof, and in Jones v. Murphy,[262] the court said: "It -is better, surely, that a person should die intestate than that the -spoliator should be rewarded for his villainy." The English courts do not -grant the same indulgence to admit alleged lost wills to probate. In a -late case, where the contents of the will were propounded for probate -after a delay of seven years, and no sufficient explanation given of the -manner or cause of the loss, and when no draft of the will could be -produced, but only oral proof of its contents, due execution, and that it -could not have been revoked, probate was denied.[263] - -The question as to what extent a codicil shall control the provisions in -the will is not always easy of solution. Each case depends almost -exclusively upon its own peculiar circumstances, and will not, therefore, -be much guide to others, unless the facts are very similar. But the -general rule of construction is that already stated, to allow all the -provisions of the will to stand which are not inconsistent with those of -the codicil, and in determining this, to seek for the intention of the -testator, as far as practicable.[264] Where a codicil refers to the former -of two inconsistent wills, by date, as the last will of the testator, it -has the effect to cancel the intermediate will, and evidence of mistake -cannot be admitted.[265] Where a codicil named the wife as "sole executrix -of this my will," it was held that the appointment of other executors in -the will was revoked.[266] - -It has been held that a revocation is not valid, in most of the American -States, unless done with the same formality required in the execution of -the will itself.[267] - -Thus, writing the word "obsolete" on the margin of his will by the -testator, but without signing the same in any of the modes allowed by law, -will not amount to a revocation.[268] - -In a somewhat recent case in Pennsylvania, the question of revocation -arose, in regard to a bequest to charity.[269] The court held that, where -there are two wills, in some respects inconsistent, the latter revokes the -former only so far as they are inconsistent with each other, unless there -is an express clause of revocation. But where the property given -specifically in the first will is, in the second, contained in a general -devise to the same objects, and for the same purpose, and the appointment -of other executors, there is a manifest inconsistency, and it evinces an -intention that both wills should not stand. - -Many times it happens that a testator, dissatisfied with an executor or -devisee named in his will, erases the name of such executor or devisee; -but this will not always effect his purpose, as it should be done by a -subsequent codicil, properly executed. Thus, where a testator (without a -republication of his will) made alterations and corrections in it, with -the intent, not to destroy it, but to enlarge and extend a devise already -made, it was held not a revocation of the devise.[270] - -The physical destruction or cancelation of a will by a testator is the -most palpable and unmistakable mode of its revocation. In what manner or -in what different modes this may be done was first laid down in the -Statute of Frauds, where revocation was to be effected by "burning, -canceling, tearing, or obliterating" the will. These four phrases have -been generally adopted and inserted in our statutes, with either some -modification or enlargement. - -The enumeration of these several modes for the destruction of a will by a -testator, to amount to its revocation, has not prevented controversy and -uncertainty; for law cannot define acts in words so precisely and -unmistakably as to preclude all doubt and quibbling. There are sure to be -some who will play upon words--a mental recreation to which legal minds -are somewhat given--and who will insist upon an exact literal conformity -when a revocation is sought to be maintained under this provision. It -would seem to an ordinary mind hardly possible to admit of a doubt that -_cutting_ a will was, in effect, equivalent to _tearing_; yet a legal -quibble went so far as to question this, when it became necessary to -decide that cutting was, in effect, the same as tearing.[271] Probably, -the legislature of West Virginia took into consideration a knotty question -of this kind, and took good care to save a legal luminary stumbling over a -question of this sort; for, by the statute of that State, it is provided -that a revocation in this manner may be effected by "_cutting_, tearing, -burning, obliterating, canceling, or destroying the same." - -To avoid any limited construction of the words as used in the English -Statute of Frauds, it is generally provided in our statutes that a -revocation may be made as in that statute, or by _otherwise destroying_ -the will.[272] This cuts off a great deal of uncertain construction, and -removes a great temptation for fine legal distinctions. In the New York -statute, a revocation is effected in this way, if the will is _burnt, -torn, obliterated, canceled, or destroyed_, with intent and for the -purpose of revoking the same.[273] - -The statute very wisely requires two things to be combined before it -concludes that a will is revoked. There must be the _act_ of destruction -with the _intent_, or the _animo revocandi_, as the law terms it. Under -the English statute, it had been determined that the mere acts named will -not constitute a valid revocation unless done with the intent to -revoke.[274] Lord Mansfield here explains very graphically the acts which -might often occur, which would destroy the writing, but would not amount -to a revocation of the will; as, if a man were to throw ink upon his will -instead of sand; or, having two wills, of different dates, should direct -the former to be destroyed, and by mistake the latter is canceled. In -neither case would it amount to a revocation of the will, although the -writing were irrevocably gone. - -Revocation is an act of the mind which must be demonstrated by some -outward and visible sign. The statute prescribes what those signs are. If -any of these are performed in the slightest manner, joined with a declared -intent to revoke, it will be an effectual revocation.[275] - -It would be manifestly a harsh and an unjust construction to place upon -the statute, that because a will was destroyed in any one of the modes -pointed out, that a strict interpretation required a revocation. Hence, -where the destruction was done unadvisedly, or by some other casualty, it -was held, it could not amount to a revocation. Thus, where a will was -gnawed to pieces by rats, but the pieces, being collected, were afterwards -put together, the will was admitted to probate.[276] - -And in Perkes v. Perkes,[277] a testator having quarreled with a person -who was a devisee in his will, in a fit of passion took the will out of -the desk, and, addressing some words to a bystander, tore it twice -through, but was prevented from proceeding further by the interference of -the other person and the submission of the devisee; and he then became -calm, put up the pieces and said: "It is a good job it is no worse"; and -after fitting the pieces together, added: "There is nothing ripped that -will be any signification to it." The jury found that the act of canceling -was incomplete at the time the testator was stopped; and the court was of -opinion that that conclusion was right, and that the will was not revoked. - -Where a testator, with an intent to revoke his will, endeavors to destroy -it in some of the modes pointed out, but through the fraud, imposition, or -other deception of a person; the act is prevented being completed, it -shall not prevent a revocation. The following case is a striking one, and -illustrates this principle. A testator, (who had for two months declared -himself discontented with his will) being one day in bed near the fire, -ordered M W, who attended him, to fetch his will, which she did and -delivered it to him, it being then whole, only somewhat erased. He opened -it, looked at it, then gave it something of a rip with his hands, and so -tore it as almost to tear a bit off, then rumpled it together, and threw -it upon the fire, but it fell off. It must soon have been burnt, had not M -W taken it up, which she did, and put it in her pocket. The testator did -not see her take it up, but seemed to have some suspicion of it, as he -asked her what she was about, to which she made little or no answer. The -testator, several times afterwards, said that was not and should not be -his will, and bid her destroy it. She said at first, "so I will, when you -have made another"; but afterwards, upon his repeated inquiries, she told -him that she had destroyed it, though in fact it was never destroyed, that -she believed he imagined it was destroyed. She asked him who his estate -would go to when the will was burnt; he answered, to his sister and her -children. He afterwards told a person that he had destroyed his will, and -should make no other until he had seen his brother, J M, and desired the -person to tell his brother that he wanted to see him. He afterwards wrote -to his brother, saying, "I have destroyed my will, which I made, for upon -serious consideration, I was not easy in my mind about that will," and -desired him to come down, saying, "If I die intestate, it will cause -uneasiness." The testator, however, died without making another will. The -jury, with the concurrence of the judge, thought this a sufficient -revocation of the will, and on a motion for a new trial it was so held, -and that throwing it on the fire, with an intent to burn, though it was -only very slightly singed and fell off, was sufficient within the -statute.[278] - -The English courts are more strict in requiring a substantial compliance -with the statute than our courts are. In the American cases, the intention -is looked upon as the most material and controlling element: as where a -testator asked for his will on his sick bed, and was handed an old letter, -which he destroyed, supposing it to be his will, it was held to be a good -revocation.[279] - -And where a testator threw his will upon the fire, _animo revocandi_, and -it was taken off and preserved, before any words were burned, and without -the testator's knowledge, it was decided, by a very able court, that it -did amount to revocation.[280] So, where a testatrix burns a paper, which -she supposes to be her will, and by mistake or the fraud of others burns a -different paper, and remains under this misapprehension during her life, -it amounts, in law, to a revocation.[281] But in a case in Vermont it was -held that the mere intention or desire to revoke one's will, until carried -into effect in the manner prescribed in the statute, can have no effect; -however, if such intention is defeated by fraud, a court of equity will -prevent a party moving from any benefit of such fraud.[282] - -The two words "canceling" and "obliterating" have occasioned more -uncertainty than the others used in the statute, because it is not so -easily or exactly determined what acts shall amount to a cancelation and -what to an obliteration of the will. In one case, the will was found with -another testamentary paper, but the place in which the names of the -attesting witnesses should have appeared, upon the latter, was scratched -over with a pen and ink, so that no letter of a name could be deciphered: -it was held that this paper was thereby revoked, and the will was admitted -to probate alone.[283] - -It seems to be settled, that from the fact of interlineations and erasures -appearing upon the face of a will, no such presumption arises, as in the -case of deeds and other instruments, that they were made before execution. -But in regard to a will the case is different. Hence, where the testator -makes an alteration in his will by erasure and interlineation, or in any -other mode, without authenticating such alteration by a new attestation in -the presence of witnesses, or other form required by the statute, the -will, therefore, stands in legal force the same as it did before, so far -as it is legible after the attempted alteration,[284] but if the former -reading cannot be made out by inspection of the paper, probate is -decreed, and such illegible portions are treated as blanks. - -In a case in Pennsylvania,[285] where the will was found in the testator's -private desk, with the seals of the envelope broken, and a black line -drawn through the name of the testator, and there was no evidence how or -with what intent it was done, it was held a sufficient revocation. -Vice-Chancellor Wood, in a case in New York,[286] decided that where a -testator, having torn off the signature from the first four sheets of his -will, and struck his pen through the signature upon the remaining sheet, -the _animus revocandi_ being proved, it was a sufficient revocation. - -The clearest statement of the law on this head was made by an eminent -judge, whose language very clearly sums up the law. Chief Justice Ruffin, -in a case in North Carolina,[287] says: - -"The statute does not define what is such a cancelation or obliteration as -shall amount, conclusively, to a revocation of a will. Burning, or the -utter destruction of the instrument by any other means, are clear -indications of purpose which cannot be mistaken. - -"But obliterating may be accidental, or may be partial, and therefore is -an equivocal act, in reference to the whole instrument, and particularly -to the parts that are unobliterated. So, canceling, by merely drawing -lines through the signature, leaving it legible, and leaving the body of -the instrument entire, is yet more equivocal, especially if the instrument -be preserved by the party, and placed in his depository as a valuable -paper. It may be admitted that the slightest act of cancelation, with -intent to revoke absolutely, although such intent continue but for an -instant, is a total and perpetual revocation, and the paper can only be -set up as a new will. But that is founded upon the intent. Without such -intention, no such effect can follow; for the purpose of the mind gives -the character to the act. When, therefore, there appears a cancelation, it -becomes necessary to look at the extent of it, at all the conduct of the -testator, at what he proposed doing at the time, at what he did -afterwards.... For, although every act of canceling imports, _prima -facie_, that it is done _animo revocandi_, yet it is but a presumption -which may be repelled by accompanying circumstances." - -There seems to be no question, according to Jarman,[288] that, under the -Statute of Frauds and other similar statutes, as _parts_ of an entire will -may be revoked, in the same mode the whole may be so revoked. The same -rule has been adopted in this country, to some extent. The question was -ably examined by Surrogate Bradford, in a case in New York.[289] In that -case, a testator, after his will had been prepared and executed, becoming -dissatisfied with one of the devisees, his own daughter, struck out the -devise to her, which was contained in these words: "To my beloved and only -daughter, Sarah Ann McPherson, I give and bequeath," etc. In a note to the -foot of the page, he gave as a reason for striking out this devise, the -bad treatment of his daughter, and afterwards altered a phrase in his will -where "children" was used, and substituted "sons" instead, so as to -exclude the said daughter. In examining this question, the learned -Surrogate assumed that a _part_ of a will might be obliterated in the same -mode as the whole, and referred to various decisions in support of this -view. He, however, held that, as the subsequent alteration, substituting -"sons" for "children," was invalid, not having been re-witnessed, as is -required, that the obliteration of the devise was not effectual as to that -part, and could not be treated as a revocation. - -In Kentucky, in the case of Brown's Will,[290] it was declared that a -cancelation of a portion of the devises, the testator's signature being -left untouched, did not affect the residue of the dispositions, which -remained unaltered, the testator's intention not to revoke them being -clearly established. - - - - -CHAPTER VII. - -WILLS AS AFFECTED BY DOMICILE. - - -There is a certain respect paid by the laws of one nation or community to -those of another, which is termed international comity, which, for general -convenience and utility, is observed and regarded by tribunals when -certain acts done in one place are to be construed in another. - -Of course, such comity is merely conventional--there is no binding -obligation to enforce it; but from long observance, and the customary -regard tribunals have given to certain rules of international comity, -these rules have been so long sanctioned by precedent and authority as now -to have the force of law. The law relating to wills as affected by -domicile is, to a great extent, founded on such rules of international -comity, or _leges gentium_. - -The principles of law appertaining to this subject are well settled and -recognized, and are now invariably acted upon. The language of wills is -supposed to speak the sense of the testator according to the received laws -or usages of the country where he is domiciled, by a sort of tacit -reference to them, unless there is something in the language which repels -or controls such a conclusion. - -In regard to personalty, (in an especial manner) the law of the place of -the testator's domicile governs in the distribution thereof, and will -govern in the interpretation of wills, unless it is manifest the testator -had the laws of some other country in his own view. This is usually -expressed by the legal formula, that, with regard to personal property, -the _lex domicilii_ governs.[291] The law on this subject has never been -more clearly expressed, or better summarized, than by the Lord Chancellor, -in the case of Enohin v. Wylie.[292] His lordship there says: "I hold it -to be now put beyond the possibility of a question, that the -administration of the personal estate of a deceased person belongs to the -court of the country where the deceased was domiciled at his death. All -questions of testacy or intestacy belong to the judge of the domicile. It -is the right and duty of that judge to constitute the personal -representative of the deceased. To the courts of the domicile belong the -interpretation and construction of the will of the testator. To determine -who are the next of kin, or heirs of the personal estate of the testator, -is the prerogative of the judge of the domicile. In short, the court of -the domicile is the _forum concursus_ to which the legatees under the will -of a testator,[293] or the parties entitled to the distribution of the -estate of an intestate, are required to resort." - -As a will is governed in its interpretation according to the law of the -place where the testator had his domicile, therefore, if a testator, born -and domiciled in England during his whole life, should, by his will, give -his personal estate to his heir-at-law, that the _descriptio personæ_ -would have reference to, and be governed by, the import of the terms in -the sense of the laws of England.[294] The import of them might be very -different if the testator were born or domiciled in France, Pennsylvania, -or Massachusetts. - -To ascertain what the testator means, we must first ascertain _what was -his domicile_, and whether he had reference to the laws of that place or -the laws of any foreign country.[295] - -The law of the domicile governs as to the proper mode of execution and -attestation of wills of personal property; hence it is accepted as a rule -of universal application, that a will of personal property, duly admitted -to probate where a person has his domicile, is conclusive on all other -courts, and is sufficient to pass personal property, wherever -situated.[296] - -It has been a subject of discussion, whether a will, made by a person -according to the law of his domicile at the time when made, will be -operative if he subsequently changes his domicile, and dies in his new -domicile. This is a question of grave importance, and one on which there -is a serious conflict of authority. The question is then presented, as to -what law should govern, whether the law of the domicile _at the time the -will was made_, or the law of the domicile _at the time of decease_. - -This question arose in New York, in a case which passed through all the -subordinate courts, and was finally determined by its highest court, after -very thorough and learned examination. It was the case of Moultrie v. -Hunt.[297] - -The testator, Benjamin F. Hunt, resided at Charleston, and there made his -will, in August, 1849, conformable to the laws of South Carolina. He -subsequently removed to New York, where he established his domicile, and -where he died. His will was attested, at his request, by three witnesses; -but Mr. Hunt did not state to the witnesses the nature of the paper which -he requested them to attest, and, therefore, omitted to comply with one of -the requisites of the statute in New York, which requires a publication of -the will, to be a valid execution thereof. - -The Surrogate, when the case came before him, decided to admit the will to -probate, and made a decree accordingly. This decree was affirmed by the -Supreme Court, whence it was taken on appeal to the Court of Appeals, and -it was there reversed, a very able judge (Denio) writing the opinion of -the court. His opinion was very able and elaborate, and a thorough -examination was made of all the authorities. He holds that a will cannot -operate so as to confer rights of property until the death of the -testator, until which event it is, in its essence, ambulatory and -revocable. Therefore, it is the law in force _at the death of the -testator_ that should govern as to the due execution of a will and the -capacity of a testator. He illustrated this in the case of the legislature -making laws that would have the effect of invalidating wills already made, -and shows that where a will was witnessed by but two witnesses, three -being required at the time it was made, that it was subsequently validated -by a law in force at the decease of the testator, allowing two witnesses -to attest a will. He quotes from Story[298] to show that it is the law of -the domicile _at the time of death_ that should govern as to the proper -execution, and he approves that doctrine, and holds it applicable to this -case; which, it was held, should be governed by the law of New York, the -law of the domicile of the testator at the time of his death, and -therefore Mr. Hunt was considered as dying intestate in respect to -personal property in New York. Judge Redfield, in his work on wills, -approves of this doctrine,[299] and the same point has been decided in -Missouri.[300] - -The question, however, is not free from doubt, as very able jurists differ -on it. As far as New York is concerned, it has settled the law there. - -The case of the will of General Kosciusko, before the Supreme Court of the -United States, in December, 1852, was in many respects the most notable -and interesting case on this subject ever examined. In that case, it was -necessary to examine, carefully and strictly, the law of wills as affected -by domicile, and the manner of acquiring a domicile, and the mode of -proving it. This case, besides its importance in a legal point of view, is -of much public interest, as bringing up some memorable incidents connected -with our revolutionary struggle and the eminent personages who -participated in that struggle. It is found in the case of Ennis v. -Smith,[301] and we will be justified in stating the facts somewhat in -detail. - -Kosciusko made four wills, one in the United States in 1798, another in -Paris in 1806, the third and fourth in Switzerland, whilst sojourning -there during the years 1816 and 1817. In his third will there was a -revocation clause, canceling the first and second wills, in these words: - -"Je revoque tous les testaments et codiciles que J'ai pu faire avant le -présent auquel seul Je m'arrète comme contenant mes dernierès volantes." - -The object of the suit in the Supreme Court was as to the disposition of a -fund belonging to Kosciusko in the United States, which, it was claimed, -was undisposed of by his will, and to which the descendants of his sisters -laid claim if he died intestate as to this property in the United States. -The origin of this fund is full of interest. Kosciusko came here in 1776, -entered our army as a volunteer in the Engineers, participated in all the -struggles of our revolutionary war, and retired at its close with the rank -of Brigadier General, poorer than when he came, and actually a creditor of -our government for his military pay. During his absence in Europe, -participating in the heroic struggle of his native land, he became -entitled, under a military certificate, to the sum of $12,280.54, and not -being able to receive it then, Congress passed a law in 1799 giving him -interest from the 1st of January, 1793, to 31st December, 1797. When the -money was paid it was invested in American stocks, and placed under the -care of Jefferson. By judicious care and management the fund increased to -the sum of $17,159.63, which was the subject of the suit in 1852. Before -his departure from the country, in 1798, he made his will in his own -handwriting, directing this fund to be laid out in the purchase of young -negroes, who were to be _educated and emancipated_. In regard to this, he -wrote to Jefferson, September 15th, 1817, as follows: - -"We all grow old, and for that reason, my dear and respectable friend, I -ask you, as you have full power to do, to arrange it in such a manner, -that after the death of our worthy friend, Mr. Barnes, some one as honest -as himself may take his place, so that I may receive the interest of my -money punctually; of which money after my death, you know the fixed -destination. As for the present, do what you think best." - -As the will of 1816 revoked the two previous wills, the disposition of the -fund became canceled. - -But in the will of 1817, by the second clause, he provided: "Je léque tous -mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur -Zavier Zeltner, les hommes ce dessus." It was on this clause the dispute -arose; because it was claimed that by the words "mes effets," the property -in the United States passed, that it was a residuary devise, and that all -went to the two persons named. On the other hand, it was claimed, that as -Kosciusko, having been domiciled for fifteen years in France, and was only -temporarily sojourning in Switzerland, that the law of France should -control, and that the proper interpretation of such a phrase was that it -referred to property as belonging at the time and which was attached to -his person, and that the subsequent words restricted its meaning, and -prevented it having a general signification. It was held that as to this -property in the United States Kosciusko died intestate; and that, on the -principle that personal property, wherever it may be, is to be -distributed, in case of intestacy, according to the law of the domicile of -the intestate, that the disposition of this property should be governed by -the law of France, the proper domicile of Kosciusko. There was some -difficulty to ascertain the domicile, but it was shown that he did not -leave Poland compulsorily, which would be an important consideration in -determining his _intent_; but he left voluntarily to obtain a civil status -in France, which he conscientiously thought he could not enjoy in Poland -whilst it continued under a foreign dominion. - -With regard to real estate, a different rule prevails. It would not -comport with the dignity or independence of one country to allow real -property, which by its nature is fixed and immovable, to be controlled and -affected by foreign laws. Hence it is the law of the place where the real -estate is situated that governs in its distribution, and as to the proper -execution of a will devising it. This is expressed by the formula that the -_lex locus rei sitæ_ governs. Thus, a devise of lands in England, though -made abroad, must be executed pursuant to the English statute. Thus, where -C made his will abroad, devising lands in England, but the same was -executed in the presence of _two_ witnesses, (three being necessary, at -the time of its execution, to devise lands in England) in accordance with -the law where he was domiciled, it was held that the will must be void as -to lands in England, which lands can only pass by such a will as the laws -of England require, and that the _lex rei sitæ_ should govern.[302] - -And if a testator, by his will, direct personal property to be invested, -in another State, in certain trusts of real estate there lawful, but not -lawful by the law of the State where the testator is domiciled, the trusts -will be declared void. - -This was the case where a testator, a resident of the State of New York at -the time of his death, who, by his will, directed his personal property -and the proceeds of his real estate there situated to be invested in real -estate in the State of Ohio, upon trusts which were invalid by the law of -New York, it was held that the devise in trust was invalid, as it was -inconsistent with the law of the testator's domicile.[303] - -Jarman[304] considers that a will of realty is construed according to the -law of the country where the land is situated; but Story,[305] -Greenleaf,[306] and others are of opinion that this doctrine of the _lex -rei sitæ_ does not apply to the construction, as distinguished from the -execution, of wills. There are several American authorities on either -side, the balance, however, being in favor of the law as stated by Jarman. - -A will has always been presumed, in England, to speak only from the death -of the testator as to personalty, but before 1838, from its date as to -realty. By 1 Vict., Ch. 26, devises and bequests were to be from _death_ -of the testator, unless a contrary intention appears. The rules thus -settled by this act have long been adopted in most of our States.[307] A -will is presumed in the following States to speak only from the testator's -death, as regards the subject-matter (as distinguished from the objects) -of the testator's bounty: California, Maryland, Missouri, New York, and -Pennsylvania. - -In Virginia, wills of land speak from the making of the instrument, unless -it discloses an intention to the contrary.[308] It is so in Massachusetts, -New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina, -Connecticut, and Kentucky; though a testator may, in these States, convey -by his will any after-acquired land, provided he declares his intention to -that effect. The construction, however, on these statutes virtually raises -a presumption that wills speak only from the death of the testator, if -there is nothing in the context to the contrary.[309] - -It seems the better opinion, that the law of the domicile of the testator -will govern as to what shall be regarded as personal estate, and what -real. Thus, in Kentucky, shares in the capital stock of railroad companies -are considered as real property,[310] and, according to this rule, a will -made by a person domiciled there must be executed as a will of real -estate, to convey such shares. - -And the law of the place of domicile must govern as to what ought to be -regarded as testamentary capacity. - -Thus, in England, administration was granted upon the probate of the will -of a married woman, domiciled in Spain, she being also a native of that -country, it appearing that by the law of that country a _feme covert_ may -dispose of her property by will, with certain limitations, the same as a -_feme sole_.[311] - - - - -CHAPTER VIII. - -CONSTRUCTION OF WILLS. - - -It is obvious that within the scope of the present work it is inexpedient -to treat of this subject extensively; it is considered only necessary to -advert to a few of the leading and generally recognized rules followed in -the construction of wills, both here and in England. - -The main purpose, in this direction, is to ascertain the true intention of -the testator, from the language used in the instrument, and this intention -shall prevail above every other construction which might be placed on the -language. This is the cardinal rule of all construction, but it is to be -taken with this limitation, that the intention will govern only so far as -it is consistent with the rules of law. The general intent overrides all -mere technical and grammatical rules of construction. - -This intention is to be ascertained from the whole will taken together, -from a full view of everything contained within "the four corners of the -instrument,"[312] and not from the language of any particular provision -when taken by itself; and, for the purpose of construction, a will and -codicil may be considered together, and construed as different parts of -the same instrument.[313] But where several parts are absolutely -irreconcilable, the latter must prevail.[314] - -The rule as to intention, governing in all cases, is somewhat liable to -misconception, because it is susceptible of, and may be taken in, two -senses. - -For by intention, it may be inferred that we are to seek for some probable -purpose as existing in the testator's mind at the time; or may seek to -extract that intention from the meaning of the language which he has used. -It is in this latter sense alone in which construction is employed. The -will must be in writing, and the only question is, what is the meaning of -the words used in that writing? And to ascertain this, every part of it -must be considered, with the help of those surrounding circumstances which -are admissible in evidence to explain the words, and to put the court as -nearly as possible in the situation of the writer. - -This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he -said: "The intent of a testator will not do, unless there be sufficient -words in the will to manifest that intent; neither is the intent to be -collected from the circumstances of his estate, and other matters -collateral and foreign to the will, but from the words and tenor of the -will itself." The rule was well illustrated in the case of Doe v. -Dring,[316] where a testator, intending, no doubt, to dispose of _all_ his -property for the benefit of his family, used these words: "All and -singular my _effects_ of what nature and kind soever." Lord Ellenborough -said, that if he were asked his private opinion as to what the testator -really meant when he used these words, he would reply, that he must be -supposed to have meant that which his duty prescribed to him, to convey -_all_ his property for the maintenance of his family; but as a _judge_, he -was not at liberty to collect his meaning from matters _dehors_, but only -from expressions used on the face of the will, and that the expression -"effects" had always a meaning, in the absence of anything in the context, -which necessarily excluded real estate. However, if the context shows that -by the expression, "all my personal estates," the testator meant to -include real property, it will be so held by reason of the clear intention -manifested on the face of the will.[317] - -An introductory clause expressing a testator's desire to dispose of all -the property he should "leave behind him" may be referred to, to construe -the will as passing all lands belonging to the testator at the time of his -death.[318] - -It is one of the most troublesome questions in law, as to how far parol -evidence can be admitted to ascertain the intention of a testator. The -principle was early established, that parol evidence should not be -admitted to vary, contradict, or enlarge the terms of a will, and this is -still rigidly adhered to. This was well established in what is known as -Lord Cheney's Case,[319] where it is said that "otherwise it were great -inconvenience that not any may know by the written words of the will what -construction to make, if it might be controlled by collateral averment, -out of the will." - -Chancellor Kent, in Mann v. Mann,[320] examined this subject with much -industry and learning, and declared the result to be: that from Cheney's -Case down to this day, it has been a well-settled rule that parol evidence -cannot be admitted to supply or contradict, enlarge or vary the words of a -will, nor to explain the intention of the testator, except in two specific -cases: 1st. Where there is a latent ambiguity arising _dehors_ the will, -as to the person or subject meant to be described; and 2d. To rebut a -resulting trust. - -What is a latent ambiguity is thus described in the quaint but expressive -language of Lord Bacon: "_Latens_ is that which seemeth certain, and -without ambiguity for anything that appeareth upon the deed or instrument; -but there is some collateral matter out of the deed that breedeth the -ambiguity; as, if I grant my manor of S to J F and his heirs, here -appeareth no ambiguity at all; but if the truth be that I have the manors -both of North S and South S, this ambiguity is matter in fact, and, -therefore, it shall be holpen by averment, whether of them was that the -party intend should pass." - -A patent ambiguity is one that is apparent on the face of the will, and is -only to be remedied, by construction of the language, if possible. As, -for example, if the devise is to one of the sons of J S, who has several -sons, such an uncertainty in the description of the devisee cannot be -explained by parol proof.[321] - -As a general rule, courts do not admit parol evidence in cases of patent -ambiguity; but on this head there is a difference of decision in this -country. We have no uniform rule throughout the United States, either by -statute or construction, as to the extent to which parol testamentary -evidence is admissible. In some States, the English rules will be followed -in the main, which is to admit no extrinsic evidence except to explain a -latent ambiguity. But in many of the States, undoubtedly, extrinsic -evidence of the testator's circumstances, as distinguished from his -intention, will be admitted in aid of the construction of any expression -left ambiguous by the context.[322] In New York, the courts adhere to the -English rule, and admit no extrinsic evidence, except to explain a latent -ambiguity.[323] In Maryland, the strict rules of construction prevail, and -no parol evidence is admitted except as in England.[324] The same is the -rule in Ohio.[325] - -It seems to be a universally received doctrine in the American courts, -that extrinsic evidence of the declarations of the testator, made at the -time, before or after the execution of the will, cannot be received to -show the intention of the testator by the use of particular words therein, -or by its general scope; as, that by the use of the word "children" he -meant to include step-children;[326] or that a bequest to the parent was -intended for the children of such parent, who was known by the testator to -have died; or that the term "children" was intended to include -illegitimate children;[327] or in any sense to vary the express provisions -of the will, or to show in what sense he used a well-settled term of -law.[328] Nor are the declarations of the testator admissible to show the -existence of a will at the time they were made.[329] But, in a case in -Michigan, it was held, where, after the death of the testator, a will -twenty-five years old was discovered in a barrel among waste papers, and -either torn or worn into several pieces, which were scattered loose among -the papers in the barrel, that the declarations of the testator, made -after the date of the will, were admissible, not as separate and -independent evidence of revocation, but as tending to explain whether the -instrument was thus torn accidentally, or with intent to revoke.[330] The -code of California has settled this question for that State; it excludes -all declarations of the testator's intention.[331] - -To ascertain the intention of the testator from the language of the -instrument, certain rules of construction have been established, which -have obtained the acquiescence and authority of the courts. If technical -words are used by the testator, he will be presumed to have employed them -in their legal sense, unless the context contain a clear indication to the -contrary.[332] Courts, therefore, have no right or power to say that the -testator did not understand the meaning of the words he has used, or to -put a construction upon them different from what has been long received, -or what is affixed to them by the law.[333] There can be no place for -construction, for the discovery of the testator's intention, when he has -used words of an unequivocal, definite sense in law, and, however it may -frustrate any presumed worthy designs, the import of the terms as used -must prevail.[334] - -In Hicks v. Salitt,[335] the court said: "When a testator uses a word -which has a well-known, ordinary acceptation, it must appear very certain -that he has said, on the face of the will, that he uses it in another -sense, before the ordinary sense can be interfered with.... In order to -alter the meaning of a word, it must appear, not that the testator _might_ -have meant it in a different sense, but that he _must_ have meant it in a -different sense." - -The right of every testator to use words in a sense different from the -technical legal sense, provided it is apparent, is well established and -acknowledged. Thus, in deference to the context, the word "money" has been -held to pass stock in the funds;[336] though its technical meaning, -according to Coke, only implies gold and silver, or the lawful circulating -medium of a country.[337] - -This technical meaning of the word was applied in Mann v. Mann,[338] where -a testator bequeathed "all the rest, residue, and remainder of the -_moneys_ belonging to his estate at the time of his decease," which was -held not to comprehend promissory notes, bonds and mortgages, and other -securities, there being nothing in the will itself to show that the -testator intended to use the word in that extended sense. And the words -"nephews and nieces" have been held to include great-nephews and -great-nieces, different from the import of these terms as settled in -law;[339] and the word "family" has been held to include a husband.[340] - -In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question -whether the testatrix intended to include great-grandchildren under the -term grandchildren, considered the fact that she had, in another part of -the will, called a great-grandchild her granddaughter, as conclusive -evidence of her intention to include such great-granddaughter in the -residuary clause of the will, under the general description of her -grandchildren. - -The court is bound to give effect to every word of a will without change -or rejection, provided an effect can be given to it not inconsistent with -the general intent of the whole will taken together.[342] Thus, if one -devises land to A B in fee, and afterwards in the same will devises the -same land to C D, for life, both parts of the will shall stand; and in the -construction of the law, the devise to C D shall be first.[343] But when -it is impossible to form one consistent whole, the separate parts being -_absolutely_ irreconcilable, the latter will prevail.[344] Thus, where the -testator, by one clause of his will, bequeathed a slave to his son, -remainder to his issue, remainder over; and by a subsequent clause -bequeathed the same slave to his daughter, with like limitations, it was -held that the clauses were inconsistent, and the last revoking the first, -that the daughter was entitled to the legacy.[345] - -If a testator's intention cannot operate to its full extent, it shall -take effect as far as possible.[346] And where a will contains different -trusts, some of which are valid, and others void or unauthorized by law; -or where there are distinct and independent provisions as to different -portions of the testator's property, or different estates or interests in -the same portions of the property are created, some of which provisions, -estates, or interests are valid, and others are invalid, the valid trusts, -provisions, estates, or interests created by the will will be preserved, -unless those which are valid and those which are invalid are so dependent -upon each other that they cannot be separated without defeating the -general intent of the testator.[347] - -Words, in general, are to be taken in the ordinary and grammatical sense, -unless a clear intention to use them in another can be collected.[348] -Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a -court of construction, in the interpretation of wills, is to give to each -word employed, if it can with propriety receive it, the natural ordinary -meaning which it has in the vocabulary of ordinary life, and not to give -words employed in that vocabulary an artificial, a secondary, and a -technical meaning. Thus, a testator, in a clause of his will, provided -that the share of the estate of any of his children dying without issue -should be equally divided among the survivors of his children or -grandchildren, and it was held that a step-daughter was not a surviving -_child_ of the testator, within the intent and meaning of this clause of -the will, so as to entitle her to a portion of the shares of one of the -testator's daughters, who died without leaving issue, even though this -step-daughter was acknowledged to be of the family, and treated there as a -child.[350] - -And the word "children" does not, ordinarily and properly speaking, -comprehend grandchildren or issue generally; these being included in that -term is only permitted in two cases, viz., from necessity which occurs -where the will would remain inoperative unless the sense of the word -"children" were extended beyond its natural import, and where the testator -has clearly shown by _other_ words that he did not intend to use the term -"children" in its proper, actual meaning, but in a more extensive sense. -In Osgood v. Lovering,[351] the word was held to include grandchildren, it -being apparent from the context, that this was the meaning given by the -testator.[352] - -This term imports legitimate children only;[353] but if it is notorious -that a testator had no such legitimate children, but had others who went -by reputation, and were acknowledged as his children, these can take under -this term.[354] - -In Lord Woodhouslee v. Dalrymple,[355] a legacy was given "to the -_children_ of the late C K, who shall be living at my decease"; C K being -dead at the date of the will leaving illegitimate children, (of whom three -were living at the testator's death) and not having had at the date of the -will, nor having ever had, any _legitimate_ children, the three -illegitimate children were held to be entitled. - -The word "issue" is a term of more general signification than children; it -includes not only children, but all lineal descendants, however remote, -for successive generations. It has been called by Lord Holt a _nomen -collectivum_;[356] but this word has frequently been construed to signify -children, where it was so apparent from the context.[357] - -The phrase, "dying without issue," in wills, for a long time occasioned -much obscurity, and was a fruitful source of litigation. Thus, if an -executory devise were limited to take effect on a dying without _heirs_, -or on a failure of issue, or "without leaving issue," or "without -_issue_," the limitation was held to be void, because the contingency was -_too remote_, as these phrases being interpreted to mean an _indefinite -failure of issue_, the vesting of the estate would thus be suspended -beyond the period allowed by law. But other words used in the will might -control this construction, as to show that the testator intended to limit -the vesting of the estate to issue living at the time of the death of the -first taker. This contrary intent would be inferred by the use of the -words "living," or "leaving issue behind," or "without children." Unless -such qualifying words, however, were used, the words "_dying without -issue_" were construed as meaning an indefinite failure of issue.[358] - -The statute law of New York, and many of the States, has settled the -construction of this term, as it is provided under these statutes that it -shall be construed to mean _heirs_ or _issue_ living at the death of the -person named as ancestor.[359] - -Gifts and devises are sometimes made to a "family," and the decisions have -given to the word the same construction as "kindred," or "relations."[360] - -In Robinson v. Waddelon,[361] a testator gave all the residue of his -effects to be equally divided between his two daughters and their husbands -_and families_; the court rejected the words "husbands and families," and -held that the two daughters took the residue equally and absolutely as -tenants in common. - -Roper has the following observations on devises and bequests to a -_family_: "The word _family_, when applied to personal property, is -synonymous with "kindred" or "relations." If it be asked, of what family -is A, the question will be answered by being informed from what person he -is descended, and whoever is related by blood to that stock is related to, -and of, the family of A. This being the _ordinary_ acceptation of the -word, it may nevertheless be confined to particular relations by the -context of wills; or the term may be enlarged by it, so that the -expression may in some cases mean _children_, or _next of kin_, and in -others may even include relations by marriage."[362] - -Personal chattels are not unfrequently described by reference to locality, -as where a testator bequeaths the "household goods," "things," "property," -or "effects" which are in or about a house. These words, it seems, in -general, will not pass cash, bank notes, bonds, notes, or other _choses in -action_ being in the house.[363] - -In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his -household goods, and other goods, plate, and stock, within doors and -without, and bequeathed the residue of his estate to J S. It was held that -the ready money and bonds did not pass by the word _goods_, for then the -bequest of the residue would be void. - -Bequests of "chattels and effects" are clearly adequate to pass the whole -personal estate, yet where these words are collocated with household -goods, they may be, and frequently are, restrained to articles _ejusdem -generis_.[365] - -A testator, after several legacies of bank stock and other stock and -money, concluded his will as follows: "The remainder of my worldly -substance, consisting of furniture, bedding, carpets, china, kitchen -furniture, looking-glasses, crockery, etc., I give to my two daughters, -etc.; these, with all money of mine that may remain in bank at the time of -my death, with all claims or demands of whatever nature, I give to my two -daughters, etc." The testator had several shares of bank stock and other -stock, not specifically bequeathed. It was held that this bank stock and -other stock did not pass under the above bequest.[366] - -The courts of equity, even in England, do not seem disposed to apply the -rule _ejusdem generis_ with so much strictness as formerly. In the late -case of Swinfen v. Swinfen,[367] it was decided that in a bequest -particularized by one word, followed by general words, the latter was not -to be restricted to things _ejusdem generis_; as where the bequest was, -"all my estate at S or thereto adjoining, also all furniture, or other -moveable goods here," it was held that the live-stock and implements of -husbandry in and about the premises passed by the bequest. It was also -held that money in the house at the time of the testator's death passed to -the legatee. - -In Brown v. Cogswell,[368] where the bequest was of "all my household -furniture, wearing apparel, and all the rest and residue of personal -property, saving and excepting one feather bed," it was held to carry the -entire residuum of personal property. A bequest of furniture in a -particular house (except plate) will include plated articles in use in -the house, the word "plate" meaning solid plate only. Such a bequest -embraces only the articles permanently in use in the house.[369] - -Words, however, in a will, which if allowed to stand would produce -repugnant and inconsistent results, may be rejected.[370] Others may be -supplied where there is no doubt in regard to the words intended, and -others may be transposed and changed to carry out the sense and intention -of the testator.[371] - -The will must be most favorably and benignly expounded to pursue and -effectuate, if possible, the intention of the testator,[372] and of two -modes of construction, that is to be preferred which will prevent a total -intestacy.[373] The strict rules of construction adopted in England, when -strictly and unflinchingly applied, had often the effect of invalidating -wills; but there has, of late, been evinced a tendency to relax this -stringency of construction, and the proportion of wills and bequests which -have been declared void for uncertainty has been constantly diminishing; -and, at present, it is becoming more rare, unless through some fatal -accident or miscarriage in the preparation of the instrument. The same -tendency is observable in the decisions of the American courts. - -Construction with the aid of precedents and analogies is only resorted to -to ascertain the intention of a testator; all construction is subordinate -to that single purpose; and analogy and precedent should have no further -influence when they lead one side of the intention. They should only be -used as our assistants to this end. - -It will be found useful and appropriate, at the conclusion of this -chapter, to give the seven propositions of Sir James Wigram, in his -approved and reliable work respecting the admission of extrinsic evidence -in aid of the interpretation of wills. He divided the subject into seven -propositions, as follows: - -Proposition I.--A testator is always presumed to use the words in which he -expresses himself according to their strict and primary acceptation, -unless from the context of the will it appears that he has used them in a -different sense, in which case the sense in which he thus appears to have -used them will be the sense in which they are to be construed. - -Proposition II.--Where there is nothing in the context of a will from -which it is apparent that a testator has used the words in which he has -expressed himself in any other than their strict and primary sense, and -where his words, so interpreted, are _sensible with reference to extrinsic -circumstances_, it is an inflexible rule of construction, that the words -of the will shall be interpreted in their strict and primary sense, and in -no other, although they maybe capable of some popular or secondary -interpretation, and although the most conclusive evidence of intention to -use them in such popular or secondary sense be tendered. - -Proposition III.--Where there is nothing in the context of a will from -which it is apparent that a testator has used the words in which he has -expressed himself in any other than their strict and primary sense, but -his words, so interpreted, are _insensible with reference to extrinsic -circumstances_, a court of law may look into the extrinsic circumstances -of the case, to see whether the meaning of the words be sensible in any -popular or secondary sense, of which, _with reference to these -circumstances_, they are capable. - -Proposition IV.--Where the characters in which a will is written are -difficult to be deciphered, or the language of the will is not understood -by the court, the evidence of persons skilled in deciphering writing, or -who understand the language in which the will is written, is admissible to -_declare_ what the characters are, or to inform the court of the proper -meaning of the words. - -Proposition V.--For the purpose of determining the object of a testator's -bounty, or the subject of disposition, or the quantity of interest -intended to be given by his will, a court may inquire into every -_material_ fact relating to the person who claims to be interested under -the will, and to the property which is claimed as the subject of -disposition, and to the circumstances of the testator, and of his family -and affairs, for the purpose of enabling the court to identify the person -or thing intended by the testator, or to determine the quantity of -interest he has given by his will. The same (it is conceived) is true of -every other disputed point, respecting which it can be shown that a -knowledge of extrinsic facts can, in any way, be made ancillary to the -right interpretation of a testator's words. - -Proposition VI.--Where the words of a will, aided by evidence of the -material facts of the case, are insufficient to determine the testator's -meaning, no evidence will be admissible to prove what the testator -intended, and the will (_except in certain special cases in Proposition -VII_) will be void for uncertainty. - -Proposition VII.--Notwithstanding the rule of law which makes a will void -for uncertainty where the words, aided by evidence of the material facts -of the case, are insufficient to determine the testator's meaning, courts -of law, in certain special cases, admit extrinsic evidence of _intention_, -to make certain the _person_ or _thing_ intended, where the description in -the will is insufficient for the purpose. These cases may be thus defined: -Where the object of a testator's bounty, or the subject of disposition, -(_i. e._, the _person_ or _thing_ intended) is described in terms which -are applicable indifferently to more than one _person_ or _thing_, -evidence is admissible to prove which of the persons or things so -described was intended by the testator. - - - - -INDEX. - - - A. - - =Abatement=--of legacies, p. 96. - - =Accumulation=--how far allowed in common law, p. 143. - extraordinary case of, p. 143. - limits to, p. 145. - - =Acknowledgment=--of signature to will, p. 55. - - =Ademption=--of legacy, p. 97. - - =Age=--of person making will, pp. 68, 69. - manner of reckoning, p. 69. - extreme, not an incapacity, pp. 86, 87. - - =Alienation=--suspension of power in will, how limited, p. 146. - utmost period permitted, p. 147. - - =Alfred, King=--will of, pp. 32, 33. - - =Ambiguity=--latent, definition of, p. 188. - latent, parol evidence admitted to explain, p. 188. - patent, what it is, p. 188. - - =Animals=--singular regard for in wills, pp. 77, 78. - regard of Louis Bonard for, p. 82. - - =Annuity in will=--when to commence, p. 117. - - =Attestation=--of will, p. 64. - forms of, p. 67. - - - B. - - =Bacon, Lord=--maxim of, in regard to parol evidence, p. 129. - - =Bastard=--not classed in law as a child, p. 124. - - =Bequest=--meaning of, p. 93. - - =Blind persons=--their capacity to make will, p. 70. - - =Bonard, Louis=--will of, p. 82. - singular life and belief of, pp. 81-83. - - =Bradford, Surrogate=--his principles in admitting will of aged persons, - p. 88. - - =Brinckerhoff, Dorothea=--will of, p. 62. - - =Burial=--directions for, in will, pp. 10, 16, 21, 77. - - =Burning will=--a mode of revocation, p. 163. - - - C. - - =Cancelation of will=--a mode of revocation, p. 163. - what shall amount to, p. 169. - - =Canute=--will of, p. 32. - - =Capacity=--to make will, as to age, pp. 68, 85. - physical and mental, pp. 69-71. - - =Charitable uses=--devises to, formerly allowed, pp. 132, 133. - doctrine of, derived from civil law, p. 133. - doctrine of, existed in common law, pp. 135, 141. - this denied in Levy v. Levy, p. 139. - law of, has varied in New York, p. 135. - researches of Prof. Dwight on, p. 151. - what are, p. 133. - - ="Chattels and effects"=--what shall pass by in will, p. 198. - - =Child=--does not include step-child, p. 195. - illegitimate, when a bequest to is good, p. 124. - in _ventre sa mere_ can take interest in will, p. 121. - - =Children=--meaning of term in will, pp. 121, 122, 195. - imports legitimate only, p. 195. - - =Clergy=--early connection of with wills, p. 33. - exclusive jurisdiction over wills, p. 35. - intervention in probate matters, p. 34. - their influence over the dying, pp. 36, 131. - - =Codicil=--how far will control provision in will, p. 161. - when it will cancel a will, p. 162. - how several are to be construed, p. 160. - - =Concanen, Edward=--will of, p. 111. - - =Conditions=--in will, how far legal, p. 107. - illegal, p. 113. - precedent and subsequent, what are, pp. 103, 104. - - =Construction=--of will, purpose of, pp. 185, 191. - - =Constantinople=--bequest to poor of, p. 86. - - =Corporations=--prohibited from taking by devise, p. 132. - what are allowed to take by devise in New York, p. 142. - - =Coverture=--formerly incapacitated woman making will, p. 90. - not now generally an incapacity, p. 91. - - =Cromwell=--singular bequest to, p. 18. - - =Cruger, Harriet Douglas=--will of, p. 84. - her history and singular delusion, p. 85. - - =Curtesy=--married woman cannot defeat right in will in some States, - p. 92. - married women may defeat in New York, p. 92. - - =Cutting=--a will equivalent to tearing, p. 164. - - - D. - - =Deaf and dumb=--their capacity to make will, pp. 69, 70. - - =Declarations=--of testator, not admitted to show intention in a will, - p. 190. - - =Delusion=--what it is, pp. 72, 75. - of Harriet Douglas Cruger, p. 85. - - =Denbigh, Earl of=--singular bequest to, p. 17. - - =Devise=--meaning of term, distinguished from legacy, p. 93. - - =Domicile=--how determined, p. 175. - law of relating to wills part of leges gentium, p. 173. - law of governs in interpretation of wills, p. 175. - law of at time of decease governs, p. 176. - - =Drunken men=--when incapable of making will, p. 71. - - - E. - - =Eccentricity=--difference between and monomania, p. 76. - remarkable case of, p. 76. - - =Ecclesiastical=--jurisdiction over wills, rise of, p. 35. - courts' decisions binding in law of wills, p. 40. - - ="Effects"=--meaning of in will, pp. 187, 198. - meaning of in will of Kosciusko, p. 179. - - =Emptor familiæ=--position of in Roman law, p. 31. - - =Erasures=--and interlineations in a will, effect of, p. 169. - - =Executor=--appointment of in will, p. 52. - allowed a year to settle estate, p. 114. - duty of in paying legacy to child, p. 118. - not disqualified to receive legacy, p. 120. - responsibility of in paying legacies, p. 114. - when to pay legacy, pp. 114, 115. - - - F. - - ="Family"=--construction of term in will, pp. 192, 197. - explanation of term by Roper, p. 197. - - =Female=--able to make will earlier than male in some States, p. 69. - - =Females=--their fondness for animals, p. 77. - - =Fraud=--preventing revocation of a will, pp. 166, 168. - - =Funeral expenses=--provided for in will, pp. 11, 14. - directions for payment not necessary, p. 51. - - - G. - - =Geigley, William=--will of, p. 108. - - =Grandchildren=, construction of term in will, p. 193. - - =Greenwood=, singular delusion of, p. 73. - - - H. - - =Harcourt, Mr. Granville=--will of, p. 13. - - =Hæres=--of Roman law, description of, p. 30. - - =Henry VIII=--will of, providing for dean and canons of Windsor, p. 24. - - =Hindoos=--no will among, p. 31. - - =Holographic will=, p. 50. - singular example of in California, p. 50. - - =Hunt, Benjamin F.=--will of, illustrating law of domicile, p. 176. - - - I. - - =Insanity=--definition of, p. 72. - partial not recognized in early law, p. 73. - partial, how far invalidates a will, p. 74. - - =Interest=--on legacies, when to commence, p. 116. - on specific legacies, p. 117. - on legacy before payment causes legacy to vest, p. 100. - - =In terrorem=--doctrine of, pp. 111, 112. - - =In extremis=--persons in allowed to make nuncupative wills, p. 43. - persons in frequently unduly influenced, p. 135. - - =Intention=--governs in the construction of a will, pp. 95, 101, 185. - most considered in revocation of will, p. 168. - governs so far as consistent with rules of law, p. 185. - how ascertained, p. 185. - to operate as far as possible, if not wholly, p. 193. - - ="Issue"=--meaning of term in a will, p. 196. - - ="Issue, dying without"=--former construction of, p. 196. - meaning now by statute, p. 197. - - - J. - - =Jefferson=--farm of, at Monticello, devised by Commodore Levy, p. 106. - given charge of fund belonging to Kosciusko, p. 179. - - =Justinian=--law of as to portion reserved for children, p. 32. - limited bishop's interference in probate matters, p. 34. - limited military testament to those actually on an expedition, p. 48. - - - K. - - =Kensett, William=--singular disposition of his body, p. 77. - - =Kerr, Catharine=--will of, p. 58. - - =Kidd, Captain=--treasures of, superstition regarding, p. 79. - - =Kosciusko=--will of before United States Supreme Court, p. 178. - interesting facts regarding his career, p. 179 - - - L. - - =Latent ambiguity=--what is, p. 188. - - =Legacy=--abatement of, p. 96. - ademption of, when takes place, p. 97. - contingent, definition of, p. 97. - conditional, and variety, pp. 103-105. - conditional, what conditions are valid, p. 103. - conditional, in restraint of marriage, p. 107. - general, examples of, pp. 93-95. - general, importance of distinction, p. 96. - in lieu of dower draws interest from death of testator, p. 117. - interest on, when to begin, pp. 116, 117. - payable out of real estate, pp. 100, 102. - payment of, pp. 114, 115. - payment of, to whom, p. 118. - pecuniary sometimes held specific, p. 95. - specific, definition of, p. 93. - specific, various examples of, p. 94. - to infants, to whom paid, p. 118. - to a class, who shall take, p. 122. - vested, when becomes, pp. 99, 100. - - =Legatee=--how ascertained in some cases, p. 125. - error in description of, how remedied, p. 126. - who may be, p. 119. - - =Levy, Commodore=--remarkable will of, p. 136. - - =Lex domicilii=--governs will of personal property, p. 174. - - =Lex rei sitæ=--governs will of real property, p. 182. - - - M. - - =Marriage=--revokes will previously made by a woman, p. 157. - of children, attempt to control, p. 113. - restraint of, how far legal, p. 111. - of poor maids, provisions of Henry Raine for, pp. 133, 134. - - =Married women=--capacity to take legacy or devise, p. 119. - legacy to, formerly paid to husband, p. 119. - power of to make will of personal property, p. 91. - law of American States is giving more enlarged privileges to, p. 91. - power of, by will in New York, p. 92. - - =Masses=--legacy to say, pp. 21, 25. - - =May, Thomas=--singular bequest to, p. 17. - - ="Money"=--strict meaning of, in a will, p. 192. - may include stock in funds, p. 192. - held to include real and personal property, p. 192. - - =Monticello=--devised by Commodore Levy, p. 136. - - =Monomania=--what it is, recognition of in law, p. 73. - when will avoid will, p. 75. - rise of theory in Dew v. Clark, p. 74. - different from eccentricity, p. 76. - - - N. - - =Nephews and nieces=--who are meant by, p. 192. - - =Non compos mentis=--incapacity of to make will, p. 71. - who are, p. 72. - - =Nuncupative will=--its nature, p. 42. - limitations of in Statute of Frauds, p. 43. - generally limited to soldiers, sailors, and persons in extremis, - p. 43. - decision on in Cole v. Mordaunt, p. 44. - cases on numerous, since civil war, p. 49. - opinion of Kent in relation to, p. 45. - was in general use before Statute of Frauds, p. 42. - how limited in New York and California, p. 48. - limitations of, by statute in England, p. 48. - - - O. - - =Ordinary=--his privileges in early English law, p. 37. - - - P. - - =Parol evidence=--when admissible, pp. 123, 126, 129, 160. - of contents of lost will is received, p. 160. - is not so readily in England, p. 161. - not admitted to vary, contradict, or enlarge the terms of a will, - p. 187. - in what cases is admitted, p. 188. - - =Pembroke, Earl of=--curious will of, p. 15. - - =Perpetuities=--statute against, p. 150. - - =Personal estate=--when a bequest of may be specific, p. 97. - may include real estate sometimes, p. 87. - - =Personal property=--age at which will of may be made, p. 68. - - ="Personalty"=--meaning of term in will, p. 120. - law of domicile governs in wills, p. 173. - - ="Plate"=--meaning of term in will, p. 200. - - =Power=--execution of, in a will, p. 52. - - =Power of appointment=--given married women to make will, pp. 52, 91. - - =Publication of will=--and in what States required, pp. 60-64. - - - R. - - =Raine, Henry=--will of, p. 132. - - =Rationabiles partes=--meaning of in early English law, p. 36. - - =Reading, Mrs. Kitty Jenkyn Packe=--will of, p. 11. - - =Real estate=--legacy payable out of, rule as to, p. 100. - will of, pp. 38, 69. - - =Restraint of marriage=--in will, p. 107. - curious case of, p. 113. - not permitted in Roman law, p. 107. - of widow allowed in our law, p. 110. - of widower not allowed, p. 111. - in general not permitted, p. 113. - - =Revocation of will=--may take place in two modes, p. 152. - an implied revocation a subject of discussion, p. 153. - by marriage of feme sole, p. 153. - implied not by birth of child, p. 153. - by marriage and birth of child implied, p. 154. - by subsequent will, when, pp. 159, 162. - not effected by writing "obsolete" on will, p. 162. - by burning, canceling, tearing, etc., p. 163. - what acts amount to in New York, p. 165. - requires two things--act and intent, p. 166. - - =Ridley, Hon. Araminta Monck=--will of, p. 106. - - =Robbins, James=--will of, p. 110. - - =Roman will=--nature, and manner of making, p. 32. - - =Roman Catholic=--not to marry a, a condition in will, pp. 106, 111. - - =Roosevelt=--will of, founding hospital in New York, p. 149. - - =Rose=--will of declared void, founding "Rose Benevolent Institution," - p. 150. - - - S. - - =Salisbury, Earl of=--singular bequest to, p. 17. - - =Sandwich, Countess Dowager=--will of, p. 11. - - =Scotchman=--not to marry a, a condition in a will, p. 106. - - =Seal=--not required in will, except in New Hampshire, p. 52 - - =Seastedt, Eliza=--will of, p. 63. - - =Senile dementia=--what it is, p. 86. - when an incapacity to make will, p. 87. - - ="Servants"=--meaning of term in a will, p. 125. - - =Shakspeare=--will of, p. 21. - his singular provision for his wife, p. 22. - - =Signature=--to will, effect of tearing off by a testator, p. 170. - - =Society for Prevention of Cruelty to Animals=--bequest to, p. 82. - - =Solon=--laws of relating to wills, p. 31. - - =Specific legacy=--defined, p. 93. - interest on begins from testator's death, p. 116. - - =Starkey, John=--will of, p. 14. - - =Statute=--of Distributions, p. 37. - of Frauds, pp. 38, 44, 53. - of Frauds, influence of in jurisprudence, p. 38. - of Mortmain, pp. 132, 135. - of Wills, p. 38. - of 43 Elizabeth in regard to charitable uses, p. 133. - of 43 Elizabeth not in force in New York, p. 135. - of 43 Elizabeth, where in force, p. 141. - - =Subscription=--to will, p. 55. - - =Succession, universal=--among Romans, p. 30. - - =Superstitious use=--definition of, pp. 132, 133. - - =Surrogate=--derivation of term, p. 40. - - - T. - - =Testament=--meaning of term, p. 41. - - =Testamentary capacity=--generally exists, p. 68. - as to age, p. 68. - - =Testamentary disposition=--law places limits on, pp. 130, 142. - limits to, in early English law, p. 36. - - =Thelusson, Peter=--extraordinary will of, p. 143. - - =Thompson, Mr.=--singular habits of, p. 78. - - =Tonnele, John=--will of, p. 56. - - =Trusts=--what are valid in a will, p. 140. - - =Turner, Sharon=--will of, p. 12. - - - U. - - =United States=--bequests to, pp. 136, 140, 150. - - =Uses and trusts=--law of, to avoid Statute of Mortmain, p. 132. - - - V. - - =Van Hanrigh, Mrs.=--will of, p. 14. - - =Virginia=--bequest to, in trust, by Commodore Levy, p. 133. - - - W. - - =West, Lady Alice=--curious will of, p. 18. - - =Wife=--who will answer for in a will, p. 124. - reproachful allusions to in a will, pp. 11, 12. - affectionate allusions to in a will, pp. 13, 14. - - =Will=--acknowledgment of signature to, p. 55. - appointment of executor in, p. 52. - attestation of, p. 64. - definition and nature of, p. 41. - destroying, what it signifies, p. 164. - directions in as to burial, pp. 10, 11, 16, 77. - directions in as to debts, p. 51. - divided into two classes, verbal and written, p. 42. - duplicate, effect of destroying, p. 163. - erasures in, p. 163. - holographic, and where valid, p. 50. - importance of, p. 9. - inofficious, pp. 31, 75. - introductory clause in, p. 51. - language of, immaterial, p. 53. - making, solemnity of act, pp. 9, 51. - may consist of many instruments, pp. 52, 158. - mode of writing, p. 53. - nature of, among Romans, pp. 31, 32. - not of effect until death, pp. 121, 152. - opinions of others in, freely expressed, pp. 10, 15. - of personal property, pp. 68, 121. - of real estate, p. 69. - of real estate, must conform to law where real estate is situated, - p. 182. - power of disposition by, in early law, p. 36. - publication of, where required, pp. 60-64. - qualities of, p. 152. - references to wives in, pp. 11, 12, 110. - restraints on marriage in, pp. 14, 105-108, 111. - requisites as to execution of, p. 55. - right to make did not exist in early society, p. 30. - seal not required in, p. 52. - signing of, how under Statute of Frauds, p. 54. - signing of, illustrated in cases, pp. 56, 60. - what it is necessary to contain, pp. 50, 51. - witnesses to, number required, p. 64. - - =Widow=--prohibited remarrying by will, p. 108. - recommended to marry, p. 13. - - =Widower=--cannot be prohibited remarrying by will, p. 110. - - =Witnesses=--manner of signing by, pp. 64-66. - number required in different States, p. 64. - cannot take interest by the will, p. 119. - cutting out names of in will, effect of, p. 164. - - - Z. - - =Zimmerman=--will of, p. 10. - - - - -FOOTNOTES: - -[1] Illustrated London News, October 18th, 1873. I have selected from this -reliable journal many of the examples of curious wills I give in this -introduction, taken from Doctors' Commons, London. - -[2] Illustrated London News, February 21st, 1874. - -[3] Illustrated London News, November 8th, 1873. - -[4] Black. II, 21. - -[5] Thirlwall: Hist. of Greece, 187. - -[6] Dwight's Introd. to Maine's Ancient Law. - -[7] Tac. Germ. 2. - -[8] Dig. lib. 28, tit. 2. - -[9] Spence: Eq. Juris. I, 188. - -[10] Selden: Orig. Prob. Juris., 15. - -[11] Milton, p. 318. - -[12] Selden, pp. 3, 4. - -[13] Code: lib. I, tit. 3, leg. 42. - -[14] Idem, leg. 41. - -[15] Decret. lib. 3, tit. 26, C. 19. - -[16] Marriot v. Marriot, 1 Strange 667. - -[17] Black. III, 95. - -[18] Matt. Paris, fo. 56. - -[19] Idem, fo. 161. - -[20] 1 Strange 667. - -[21] Black. II, ch. 32. - -[22] Hale, Hist. of Com. Law, 28. - -[23] Greenleaf, Evid., vol. I, §26. - -[24] Lord Hardwicke, in Ross v. Ewer, 3 Atk. 156, said: "There is nothing -that requires so little solemnity as the making of a will of personal -estate. There is scarcely any paper writing that will not be admitted as -such." - -[25] Moore, 177. - -[26] Cro. Eliz. 100. - -[27] It should be observed that the ecclesiastical jurisdiction over wills -is now abolished in England; and, since 1857, the jurisdiction is given to -the Court of Probate and Divorce. - -[28] Wills--A. - -[29] Swinb. Pt. I, Sec. 12. - -[30] 29 Car. II, Ch. 3, Sec. 23. - -[31] Dig. lib. 37, tit. 12, Sec. 1. - -[32] Redfield on Wills, I, p. 184. - -[33] 20 Johns. 511. - -[34] Cole v. Mordaunt, 4 Ves. 196. - -[35] Prince v. Hazleton, 20 Johns. 513. - -[36] 1 Vict. ch. 26. - -[37] 2 R. S. 60. - -[38] Civil Code, 1289-90. - -[39] Code, lib. 6, tit. 21. - -[40] Leathers v. Greenacre, 53 Maine 561. - -[41] 2 Curteis 339. - -[42] 4 Bradf. 154. - -[43] Such a will is valid in California, Louisiana, Tennessee, and North -Carolina. In the case of Clarke v. Ransome, decided in the Supreme Court, -California, October, 1875, the following document was on this ground held -to be testamentary in its character: - -"DEAR OLD NANCE:--I wish to give you my watch, two shawls, and also -$5,000. - - Your old friend, E. A. GORDON." - -It appeared in evidence that for some years Mrs. Gordon and Miss Ransome, -who was the person meant by "dear old Nance," had been on terms of -intimacy. Mrs. Gordon had previously executed a will, by which she had -devised to her brother the whole of the estate, with the exception of -several specific legacies, one of which was to Miss Ransome for $1,000. It -further appeared that after the will had been duly made and executed, Mrs. -Gordon desired to make a further provision for Miss Ransome, and for that -purpose drew up, wholly in her own handwriting, and delivered to Miss -Ransome, the paper above propounded as a will. The court held that this -paper should be admitted to probate as a testamentary instrument; but -against this Chief Justice Wallace gave a dissenting opinion, on the -ground that the paper was the mere expression of a wish, and was not -intended by the decedent to operate as a will. - -Vide Pacific Law Rep., Nov. 9, 1875. - -[44] Redfield on Wills, I, p. 675. - -[45] Swimb. Pt. I, Sec. 3. - -[46] Redfield on Wills, I, p. 5. - -[47] N. H. Rev. Stat. Ch. 156, Sec. 6. - -[48] Hight v. Wilson, 1 Dall. 94; Arndt v. Arndt, 1 S. & R. 256. - -[49] Campbell v. Logan, 2 Bradf. 90. - -[50] Swimb., Pt. 4, Sec. 25. - -[51] The statute of Pennsylvania requires every will to "be in writing," -and the curious question was recently presented to the Court of Common -Pleas of Chester County, whether a writing on a slate, intended by the -decedent to be her last will and testament, came within the statute. The -court thought the case not within the spirit of the statute, because a -slate was neither intended for nor adapted to writing of a permanent -character. The rule has been carried quite far enough by the admission to -probate of wills written with lead pencils, as was done in Dyer's Estate, -3 Ecc. E. 92, and in Dickson v. Dickson, 1 Id. 222. In 21 P. F. Smith, -454, it was thought that a will should not be written or signed in pencil, -on account of the facility of alteration; but the point was not decided. -In Merritt v. Clason, 12 Johns. 102, a memorandum required by the Statute -of Frauds, written with a lead pencil, was held sufficient, and in Clason -v. Bailey, 14 Johns. 484, this point was affirmed. In Rymes v. Clarkson, 1 -Phillim. 22, it was ruled that a codicil written in pencil was valid. See -also Geary v. Physic, 5 Barn. and Cress. 234, and McDowell v. Chambers, 1 -Strobh. Eq. 347. - -[52] Jarman on Wills, 70. - -[53] Civil Code, 1276. - -[54] 2 Rev. Stat. 63. - -[55] Doe v. Roe, 2 Barb. 200. - -[56] Seguine v. Seguine, 2 Barb. 385, 395. - -[57] 4 Comst. 140. - -[58] McGuire v. Kerr, 2 Bradf. 244. - -[59] Civil Code, 1276. - -[60] Dayton on Surrog. p. 78. - -[61] 1 Barb. 533. It is claimed he may subscribe in presence of one, and -acknowledge it separately to the other. 4 Kent, 516; 36 N. Y. 416. - -[62] 10 Barb. 608. - -[63] Den v. Mitton, 7 Halst. 70. - -[64] Torrey v. Bowen, 15 Barb. 304. - -[65] Lewis v. Lewis, 1 Kern. 222. - -[66] 1 Denio, 33. - -[67] 26 Wend. 325. - -[68] Not yet reported; may be in 59 N. Y. - -[69] Ruddon v. McDonald, 1 Bradf. 352; Lyon v. Smith, 11 Barb. 124. - -[70] Davy v. Smith, 3 Salk. 395. - -[71] Doe v. Manifold, 1 M. & S. 294. - -[72] Reed v. Roberts, 26 Ga. 294. - -[73] Lamb v. Girtman, 26 Ga. 625. - -[74] Black. II, 497. - -[75] Redfield on Wills, I, 15. - -[76] 2 Rev. Stat. 60. - -[77] 1 Salk. 44. - -[78] Black. I, 463; 2 Kent, 233. - -[79] Wills, I, 20. - -[80] Com. II, 497. - -[81] Wills, B. - -[82] Weir v. Fitzgerald, 2 Bradf. 42. - -[83] Swinb. Pt. II, Secs. 1 and 6. - -[84] No better illustration of this ever took place than the case of the -will of Captain Ward, over whose will a remarkable contest is taking place -[1875] in Detroit. - -[85] Sir John Nicholl, in Dew v. Clark, 3 Add. 79. - -[86] White v. Wilson, 13 Vesey, 88. - -[87] The case of Lucas v. Parsons, 24 Ga. 640, was very similar to this -case of Greenwood. There, the testator's delusion was in respect to his -eldest son, whom he disinherited. The will was set aside. - -[88] 3 Add. 75. - -[89] 33 N. Y. 619. - -[90] 11 Penn. L. I. 179. - -[91] Taylor, Med. Jur. p. 657. - -[92] Mr. William Kensett, whose will was proved in Doctors' Commons, -London, in 1855, left his body to the Directors of the Imperial Gas -Company, London, to be placed in one of their retorts, and consumed to -ashes; if not, he directed it to be placed in the family grave in St. -John's Wood Cemetery, _to assist in poisoning the neighborhood_. Generally -the curious wills are home-made, but this of Mr. Kensett was made by a -solicitor. - -[93] Taylor, p. 658. - -[94] Redfield on Wills, I, p. 84. - -In June, 1828, the London papers recorded the singular will of a testator -named Garland, containing the following clause: I bequeath to my monkey, -my dear and amusing Jacko, the sum of £10 sterling per annum, to be -employed for his sole use and benefit; to my faithful dog Shock, and my -well-beloved cat Tib, a pension of £5 sterling; and I desire that, in case -of the death of either of the three, the lapsed pension shall pass to the -other two, between whom it is to be equally divided. On the death of all -three, the sum appropriated to this purpose shall become the property of -my daughter Gertrude, to whom I give the preference among my children, -because of the large family she has, and the difficulty she finds in -bringing them up.--Ill. London News, March 2d, 1874. - -[95] 2 Bradf. 449. - -[96] I am indebted to an admirable essay by Edward Patterson, Esq., of the -New York Bar, for the full facts in this case. - -[97] 29 Eng. L. and Eq. 38. - -[98] Kinleside v. Harrison, 2 Phillm. 419. - -[99] 1 Wms. Exrs. 36; Potts v. House, 6 Ga. 324. - -[100] 5 Johns. Ch. 148. - -[101] 2 Bradf. 360. - -[102] 2 Kent 175. - -[103] Tucker v. Inman, 4 M. & G. 1049. - -[104] Gen. Stat., 1855. - -[105] Black. II, 497. - -[106] Redfield on Wills, I, 26. - -[107] 2 Lans. (N. Y.) 21. - -[108] Toucht. 433. - -[109] 1 Atk. 417. - -[110] Richards v. Richards, 9 Price 219. - -[111] Toucht. 433. - -[112] Selwood v. Mildmay, 3 Ves. 306; 1 Bro. C. C. 477. - -[113] Ellis v. Walker, Amb. 310; Kirby v. Potter, 4 Ves. 748; Tifft v. -Porter, 8 N. Y. 516. - -[114] 1 Atk. 508. - -[115] 3 Bro. C. C. 416. - -[116] Richards v. Richards, 9 Price, 226. - -[117] Barton v. Cooke, 5 Ves. 461. - -[118] Walton v. Walton, 7 Johns. 258. - -[119] 2 Ves. Sen. 561. - -[120] Wms. Exrs. 994. - -[121] 1 Roper, 215. - -[122] Sayer v. Sayer, 2 Vern. 688. - -[123] 5 Ves. 150. - -[124] Duncan v. Alt, 3 Penn. 383. - -[125] Wms. Exrs. 759. - -[126] Idem. 1035. - -[127] Bacon's Ab. Leg. (E); 2 Vent. 342; Moore v. Smith, 9 Watts, 403. - -[128] 11 Wend. 259. - -[129] 2 Vern. 673; Van Wyck v. Bloodgood, 1 Bradf. 154. - -[130] Collins v. Metcalfe, 1 Vern. 462. To avoid the lapse of a legacy by -the death of the legatee during the lifetime of the testator, the -following States have provided against it, if any issue of the legatee be -living at the death of the testator: Pennsylvania, South Carolina, -Virginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, -Mississippi, Maine, Rhode Island. (4 Kent, 542.) - -[131] 1 Roper, 216; 1 Paige, 33; Harris v. Fly, 7 Paige, 429; Sweet v. -Chase, 2 N. Y. 73. - -[132] May v. Wood, 3 Bro. 471. - -[133] Barlow v. Grant, 1 Vern. 255. - -[134] Duke of Chandos v. Talbot, 2 P. Wms. 612; Smith v. Smith, 2 Vern. -92. - -[135] 1 Roper, 645. - -[136] Bacon's Ab. Leg. (F.) - -[137] 37 Miss. 114. - -[138] 2 Meriv. 26. - -[139] Moore v. Moore, 47 Barb. 257. - -[140] 2 Salk. 570. - -[141] Randall v. Payne, 1 Bro. C. C. 55. - -[142] A legacy was sometimes given on condition that the legatee should -not marry a Roman Catholic. As late as April, 1869, the Hon. Araminta -Monck Ridley, in London, left a clause in her will that "if any or either -of my said children, either in my lifetime, or at any time after my -decease, _shall marry a Roman Catholic_, or shall join or enter any -Ritualistic brotherhood or sisterhood, then in any of the said cases, the -several provisions, whether original, substitutive, or accruing, hereby -made for the benefit of such child or children, shall cease and determine, -and become absolutely void." - -[143] Perrin v. Lyon, 9 East. 170. - -[144] Scott v. Tyler, 2 Bro. C. C. 488. This is a leading case, and the -arguments of the leading counsel engaged contain much of the law on the -subject. See Amb. 209. - -[145] Godolp. Leg. 45. - -[146] Godolp. 46. - -[147] 2 Redfield, 295. - -[148] Commonwealth v. Stauffer, 10 Penn. 350. - -[149] L. R. 19 Eq. 631. - -[150] 2 J. and H. 356. - -[151] In the following instance, a testator is not content only to have -his wife remain a widow--he must have her display the appropriate -_insignia_ of her situation. Mr. James Robbins, whose will was proved in -October, 1864, in London, declares: "That, in the event of my dear wife -not complying with my request, _to wear a widow's cap after my decease_, -and in the event of her marrying again, that then, and in both cases, the -annuity which shall be payable to her out of my estate shall be £20 per -annum and not £30." As there was no stipulation as to the time the widow's -cap was to be worn, probably Mrs. Robbins found it easy to comply with the -letter of the request in her husband's will, and yet indulge her own taste -in the matter. In contradistinction to this was the will of Mr. Edward -Concanen, proved in 1868. He says: "And I do hereby bind my said wife that -she do not, after my decease, offend artistic taste, or blazon the sacred -feelings of her sweet and gentle nature, by the exhibition of a widow's -cap." - -[152] Wills, Pt. 4, Sec. 12. - -[153] 1 Ch. Ca. 22. - -[154] Parsons v. Winslow, 6 Mass. 169. - -[155] 2 Ves. 265. - -[156] Garret v. Pritty, 2 Vern. 293. - -[157] The case of Bayeaux v. Bayeaux, 8 Paige, 333, is a curious example -of an attempt made by a testator to regulate and control the choice of his -children in marriage. - -The testator died at the city of Troy, in March, 1839, leaving a widow and -three infant children. By his will, made a few months before his death, -and evidently without the aid or advice of counsel, he placed the -following condition on a legacy to his children: - -"I charge upon my children, in every possible case, and under all -circumstances, never to make a matrimonial engagement, or bind themselves -to any individuals by promise of marriage, without full parental -approbation and consent as it regards the favored individual. And while I -consider it unjust as well as unwise for a parent to coerce, or to attempt -forcibly to induce a child to marry an object it cannot love, so do I also -deem it without any possible excuse on the part of the child to marry -without the full consent of the parents. And in the event of disobedience -on the part of my child, in this respect, my wish, desire, and intention -is to cut that child off from any participation of the benefits arising -from any property I may leave at my decease, of every kind and description -whatever." - -The provisions of the will were in many respects so vague and indefinite, -that Chancellor Walworth remarked: "It is very evident that this will was -drawn by the decedent himself, or by some other person equally ignorant, -not only of legal language, but of legal principles." He held that the -children took the same shares as if their father died intestate. - -[158] Lord Comyns' Rep. 728. - -[159] Brown v. Peck, 1 Eden. 140. - -[160] 10 Ves. 13. This was the time allowed in the civil law, 2 Salk. 415. - -[161] 2 Rev. Stat. 90. - -[162] Benson v. Maude, 6 Madd. 15. - -[163] 2 Vern. 31. Roden v. Smith, Amb. 588. - -[164] Cricket v. Dolby, 3 Ves. 13. - -[165] Nevil v. Nevil, 2 Vern. 431. - -[166] Joe v. Hart's Executors, 2 J. J. Marsh. 351. - -[167] 1 Hawks 241. - -[168] Fawkes v. Gray, 18 Ves. 131. - -[169] Wms. Exrs. 1221; 2 Bradf. 77. - -[170] 8 Ves. 410. - -[171] Poph. 104. - -[172] Marsh v. Hague, 1 Edw. Ch. 174. - -[173] Ves. 10. - -[174] Wms. Exrs. 1222. - -[175] Williamson v. Williamson, 6 Paige, 298. - -[176] 5 Binney 475. - -[177] 1 Vern. 251. - -[178] 1 Johns. Ch. 3. - -[179] Wms. Exrs. 1206-7. - -[180] 2 Rev. St. 450. - -[181] Palmer v. Trevor, 1 Vern. 261; Toller 320. - -[182] Wms. Exrs. 1213. - -[183] 2 Rev. St. 65. So in California: Civil Code 1282. - -[184] 1 Seld. 125. - -[185] Morris v. Kent, 2 Edw. Ch. 182; Preston on Leg. 281. - -[186] The word "children" includes only the immediate legitimate -descendants, and not a step-child: Cromer v. Pinckney, 3 Barb. Ch. 466; -Mowatt v. Carrow, 7 Paige, 339. Nor does it include grandchildren: -Radcliff v. Buckley, 10 Ves. 195; 4 Watts, 82. - -[187] Sherer v. Bishop, 4 Bro. C. C. 55; 2 Ves. 84. - -[188] Doe v. Clark, 2 H. Bl. 399; Balm v. Balm, 3 Sim. 492. - -[189] 1 Barb. Ch. 637; Wms. Exrs. 934. - -[190] Rawlins v. Rawlins, 2 Cox's Ca. 425; Marsellis v. Thalheimer, 2 -Paige, 35. - -[191] Jenkins v. Freyer, 4 Paige, 47. - -[192] Collin v. Collin, 1 Barb. Ch. 630. - -[193] 2 Paige, 11. - -[194] Pratt v. Flamen, 5 Har. & Johns. 10. - -[195] Garrett v. Niblock, 1 R. & M. 629; Lady Lincoln v. Pelham, 10 Ves. -106. - -[196] Schloss v. Stiebel, 6 Sim. 1. - -[197] 1 Jarman, 306. - -[198] Vol. II, 96. - -[199] Connolly v. Pardon, 1 Paige, 291. In Thomas v. Stevens, 4 Johns. Ch. -607, a legacy to Cornelia Thompson was held a good bequest to Caroline -Thompson, it appearing that she was the person intended. - -[200] Standen v. Standen, 2 Ves. Jr. 589. - -[201] See Chap. VIII. - -[202] 4 Ves. 680. - -[203] 2 Cha. Ca. 51. - -[204] 3 Bro. C. C. 311. - -[205] 3 Ves. 148. - -[206] Vide the case of Shakspeare, Introduction, p. 23. - -[207] 2 N. Y. Rev. St. 57; Civil Code Cal. 1275. In Indiana, -Massachusetts, and Pennsylvania, there is no Mortmain act. - -[208] Charitable Uses (D). The doctrine of Superstitious Uses cannot be to -much extent applicable here, as we have no religion recognized and -established by the State. - -[209] Vide Will of Lady Alice West, p. 18. - -[210] Ch. Prec. 272. Eyre v. Countess of Salisbury, 2 P. Wms. 119. - -[211] Lord Hardwicke, in Jones v. Williams, Amb. 651, defines a charitable -use as "a gift to a general public use, which extends to the poor as well -as the rich." - -[212] It may be thought a singular purpose of charity to provide for the -"marriages of poor maids," and one that would accomplish but little in a -field where the objects would be so numerous; nevertheless, the benevolent -designs of men have been turned in that channel, as well as in other -various directions mentioned in the statute. - -By the will of Mr. Henry Raine, a wealthy London brewer, a fund was -established for just such a purpose. Among the notable charitable -institutions of London, there is none more novel in inception or more -unique in management than Raine's Asylum, established by him in 1736, for -clothing, educating, and properly training for domestic service forty -young girls, taken from a lower school previously established by him. On -arriving at the age of twenty-two, any girl who has been educated in the -asylum, and who can produce satisfactory testimonials of her conduct while -in service, may become a candidate for a marriage portion of one hundred -pounds, for which six girls are allowed to draw twice in each year, on the -first of May and the fifth of November. The drawing is in this manner: The -treasurer, in compliance with the explicit directions of Mr. Raine, takes -a half sheet of white paper and writes thereon the words, "one hundred -pounds." Next, he takes as many blank sheets as, with the one written on, -will correspond with the number of candidates present. Each of these half -sheets is wrapped tightly round a little roller of wood, tied with a -narrow green ribbon, the knot of which is firmly sealed. The rolls are -then formally deposited in a large canister placed upon a small table in -the middle of the room. This being done, the candidates, one at a time, -advance towards the canister, each drawing therefrom one of the small -rolls. When all have drawn, they proceed to the chairwoman, who cuts the -ribbon which secures each roll, and bids the candidates unfold the various -papers. There is no need to ask which of them has gained the prize--the -sparkling eyes of the fortunate "hundred-pound girl" reveal the secret -more quickly than it could be spoken by the lips. The scene seems to be -one in which Mr. Raine took deep interest, for in his will, after -appointing his nephews to purchase £4,000 stock in order to make a -permanent provision for these marriage portions, he says: "I doubt not but -my nephews would cheerfully purchase the said stock if they had seen, as I -have, six poor innocent maidens come trembling to draw the prize, and the -fortunate maid that got it, burst out in tears with excess of joy." The -portion drawn in May is given after a wedding on the fifth of November; -the November portion being given in like manner on May day. The author -witnessed one of these marriage ceremonies in the church of St. -George's-in-the-East. - -The number of marriage portions given since the opening of the asylum is -said to exceed three hundred. - -[213] This statute has been adopted in Massachusetts, North Carolina, -Kentucky, Indiana, Pennsylvania, and several other States. 2 Kent 285. In -Pennsylvania, the will, to make a valid devise to charitable uses, must be -made a month before the testator's decease. Price v. Maxwell, 28 Penn. 23. - -[214] 8 N. Y. 525. - -[215] 33 N. Y. 97, reversing 40 Barb. 585. - -[216] The case of the Smithsonian Institute was adduced as an argument to -show that the United States could take by devise. In that case Mr. -Smithson, an Englishman by birth, and a citizen of that country, -bequeathed to the United States all, or nearly all, of his property, to be -applied to the establishment of an institution for the increase and -diffusion of useful knowledge. But Wright, J., said that this furnished no -evidence of capacity, simply as a political organization, to take and hold -property for charitable purposes. That was an English charity, and the -case was determined by the law of the domicile. It was a charity under the -statute of Elizabeth, and administered as such, and took effect only on a -law of Congress organizing the institution in the District of Columbia. - -[217] In New York, as in many if not all the States, the law relating to -trusts as it formerly existed in England in its intricate details, has -been abolished, and only express, active trusts are permitted, where the -trustee has some active duty to perform in the management of the estate. -These express trusts are of four kinds: 1. To sell land for the benefit of -creditors; 2. To sell, mortgage, or lease lands, to pay legacies or other -charges; 3. Where the trustee is authorized to receive the rents and -profits, and apply them to the use of some person during his life, or for -a shorter period; 4. To receive rents and income to accumulate for the -benefit of minors, to cease at majority. The same trusts only are allowed -in California: Civil Code 857. It is therefore held that all trusts, for -any purpose whatever, not coming under one of these four classes, are -void, as it was apparent in the enumeration of these the legislature -intended to exclude all others. Hence, in the drawing of wills, attention -is most particularly needed to see that no trusts are created other than -those above. - -[218] 34 N. Y. 584. It is not uncommon for persons to devise property to -the United States Government. The last case in New York was somewhat -singular. It is in the case of United States v. Fox, in 52 N. Y. 530. The -testator there devised "to the Government of the United States at -Washington, District of Columbia, for the purpose of assisting to -discharge the debt contracted by the war for the subjugation of the -rebellious Confederate States." It was held that the government had no -capacity to take. This case is now appealed to the Federal Courts, but -with little prospect of reversal. - -[219] Burbank v. Whitney, 24 Pick. 146; Beall v. Fox, 4 Ga. 404; Griffin -v. Graham, 1 Hawks, 96; 7 Vt. 249; Vidal v. Gerard, 2 How. 127. The -doctrine was elaborately argued and examined in the Gerard Will Case, 28 -Penn. 54, and it was maintained that it was founded on the common law. - -[220] There are many institutions permitted by statute in New York to take -property by devise or bequest. By Laws 1848, ch. 319, benevolent, -charitable, literary, scientific, missionary, or Sabbath-school societies -can take a devise or bequest, the clear annual income of which shall not -exceed $10,000; but, to be valid, the will must be executed two months -before testator's death. By Laws 1841, ch. 261, colleges and literary -incorporated institutions are allowed to take for certain purposes. And, -by Laws 1864, the State can take a devise for benefit and support of -common schools. For these reasons, it is held the law of charitable uses -is not so much required in New York; and, by special enactment, the -legislature will incorporate societies to take a devise for pious, -benevolent, or charitable purposes. - -[221] 4 Ves. 227. - -[222] In case the trust exceeds this term, it is void _in toto_, and not -merely _pro tanto_; Griffiths v. Vere, 1 Ves. 136, 10 Penn. St. 326. - -[223] A direction to accumulate all the testator's estate for fifteen -years by investment and reinvestment in bonds is valid in Illinois. Rhoads -v. Rhoads, 43 Ill. 239. - -But in New York an accumulation for three years, and also ten years, was -held invalid: 4 Sandf. 442; 7 Barb. 590. - -[224] In New York it is _two_ lives; in California, _any_ lives in being: -Civil Code, 715. - -[225] Schettler v. Smith, 41 N. Y. 328. - -[226] The maximum period during which alienation may be suspended may, in -one instance, under the New York statutes, and those of a great many other -States, be suspended for two lives in being, and twenty-one years and a -fraction afterwards, in certain cases of minority. For example, an estate -to A for life, remainder to B for life, remainder to his children in fee, -but in case such children shall die under the age of twenty-one years, -then to D in fee. Here, it will be observed, the ownership may be legally -suspended for the lives of A and B, and the actual infancy of B's -children; but in no event can such suspension exceed that length of time -before the remainder becomes vested. If one of the children reach -twenty-one, D's remainder is cut off. In the example just given, suppose -the children of B die before attaining twenty-one, and that B, at his -death, leaves his wife _enceinte_, there would then be a suspension of -alienation for a few months more than twenty-one years. - -The extent to which variation from the ordinary term of gestation may take -place in women, whether the birth be premature or protracted, is one of -the difficult problems involved in medical jurisprudence. On this subject -the highest medical authorities are at issue; some adhering closely to the -regular period of forty weeks as the extreme term; while others extend -their indulgence even to the utmost verge of eleven calendar months. See -Long v. Blackall, 7 Term R. 104; Cadell v. Palmer, 1 Cl. & Finn. 372. - -[227] Moore v. Moore, 47 Barb. 257. - -[228] Burrill v. Boardman, 43 N. Y. 254. - -[229] Rose v. Rose, 4 Abb. Ct. App., Dec., 108. - -[230] The argument of Prof. Dwight, one of the counsel, in two volumes, -presents a marvelous and most scholarly amount of research upon the law of -charitable uses, from the earliest times. - -[231] See page 31. - -[232] Swinburne, Part 7, Sec. 14, says: "Concerning the making of a latter -testament, so large and ample is the liberty of making testaments that a -man may, as oft as he will, make a new testament, even until his last -breath; neither is there any cautel under the sun to prevent this liberty; -but no man can die with two testaments, and therefore the last and newest -is of force; so that, if there were a thousand testaments, the last of all -is the best of all, and makes void the former." - -[233] 4 Co. Rep. 60. - -[234] Doe v. Barford, 4 Man. & S. 16. - -[235] Johnston v. Johnston, 1 Phillim. 447. - -[236] Wellington v. Wellington, 4 Burr. 2165. - -[237] 4 Johns. Ch. 506. Of course, this rule was only good where the issue -of the marriage were otherwise unprovided for, or had no means of -maintenance. - -[238] The law respecting implied revocations was a fruitful source of -difficult and expensive litigation, and often defeated the intention of -testators, instead of carrying it into effect. Lord Mansfield has said -that some of the decisions on this head had brought "a scandal on the -law"; and, on another occasion, he remarked "that all revocations not -agreeable to the intention of the testator are founded on artificial and -absurd reasoning." 3 Burr. 491. - -[239] Ash v. Ash, 9 Ohio, 383; Stat. Ohio, (1831) p. 243; Stat. Ind. 1821; -Stat. Ill. 1829; G. Laws, Conn. p. 370, last edition. - -[240] 4 Kent, 525; Cal. Civ. Code, 1306. - -[241] 4 Kent, 526. - -[242] Sec. 1307. - -[243] Gage v. Gage, 9 Foster, 533. - -[244] 2 Rev. Stat. 64. - -[245] Redfield, I, 298. - -[246] Rev. Stat. 1849, Ch. 122. - -[247] Civil Code, 1290. So in Rhode Island, Rev. Stat. Ch. 154. - -[248] Tomlinson v. Tomlinson, 1 Ashm. 224. - -[249] Tyler v. Tyler, 19 Ill. 151. - -[250] 2 N. Y. Rev. Stat. 64; Civil Code, 1299. - -[251] Cotter v. Layer, 2 P. Wms. 623. - -[252] In re Fisher, 4 Wis. 254; Simmons v. Simmons, 26 Barb. 68; Smith v. -McChesney, 15 N. J. Ch. 359. - -[253] Campbell v. Logan, 2 Bradf. 90. - -[254] Cutto v. Gilbert, 9 Moore, P. C. C. 131. - -[255] Mod. 203. - -[256] 1 Cowp. 87. - -[257] Nelson v. McGiffert, 3 Barb. Ch. 162. In some States this is settled -by statute. Thus, in California, an antecedent will is not revived by the -revocation of a subsequent will unless an intention appear: Civil Code, -1297. The same in New York: 2 Rev. Stat. 66. - -[258] Wms. Exrs. 136 and cases cited. The general effect of a subsequent -will in revoking one of an earlier date, by reason of its inconsistent -provisions, is very extensively discussed in the late and important case -of Colvin v. Warford, 20 Md. 357. - -[259] Brown v. Brown, 8 El. & Bl. 876. - -[260] Howard v. Davis, 2 Binney, 406; Jackson v. Betts, 6 Cow. 483; Steele -v. Price, 5 B. Mon. 58; 8 Met. 486. - -[261] 7 B. Mon. 408. - -[262] 8 Watts & Serg. 275. - -[263] Wharram v. Wharram, 10 Jur. N. S. 499. A will and codicil were torn -to pieces by a testator's eldest son, after the death of his father; the -pieces were saved, by which, and by oral evidence, the court arrived at -the substance of those instruments, and in effect pronounced for them. -Foster v. Foster, 1 Addams, 462. - -[264] Patch v. Graves, 3 Denio, 348; 28 Vt. 274. - -[265] 4 Ves. 610. - -[266] 3 Sw. & Tr. 478. - -[267] 14 Mass. 208; Hine v. Hine, 31 Penn. 246. - -[268] Lewis v. Lewis, 2 W. & S. 455. - -[269] Price v. Maxwell, 28 Penn. 23. - -[270] Howard v. Halliday, 7 Johns. R. 394. If two wills, in duplicate, -were in possession of the testator, and he destroyed one, did this, in -effect, work a revocation? This was in some doubt. The California Code has -set at rest this question for that State, in Sec. 1295, where it is -provided that a destruction of one of the copies shall amount to a -revocation. See Onions v. Tyrer, 2 Vern. 742. - -[271] Hobbs v. Knight, 1 Curteis, 289. And the cutting out of the -principal part, as the signature of the testator, or of the witnesses, -will be a revocation of the whole will: 1 Jarman, 161. - -[272] Where the word "destroying" is used in the statute, as one mode of -revocation, it is generally held to include all modes of defacing not -specifically enumerated in the statute, and does not require an absolute -and entire destruction. Johnson v. Brailsford, 2 Nott & McCord, 272. - -[273] 2 Rev. Stat. 66. It is the same in California: Civil Code, 1292. - -[274] Burtenshaw v. Gilbert, 1 Cowp. 49. - -[275] Dan v. Brown, 4 Cow. 490. - -[276] Etheringham. v. Etheringham, Aleyn, 2. - -[277] 3 B. & Ald. 489. - -[278] Bibb v. Thomas, 2 W. Bl. 1043. - -[279] Pryor v. Coggin, 17 Ga. 444. - -[280] White v. Carter, 1 Jones (N. C.) Law, 197. - -[281] Smiley v. Gambill, 2 Head, 164. - -[282] Blanchard v. Blanchard, 32 Vt. 62. - -[283] 7 Jur. N. S. 52. - -[284] 1 Jarman, 133. - -[285] Bap. Church v. Roberts, 2 Penn. 110. - -[286] 1 Johns. Ch. 530. - -[287] Bethell v. Moore, 2 Dev. & Batt. 311. - -[288] 1 Jarman, 125. - -[289] McPherson v. Clark, 3 Bradf. 92. - -[290] 1 B. Mon. 57. - -[291] 2 Doug. (Mich.) 515. - -[292] 8 Jur. N. S. 897. - -[293] Legatees are entitled to be paid in the money of the country in -which the testator is domiciled and the will is made. 2 Atk. 465; 2 Bro. -C. C. 39. - -[294] Harrison v. Nixon, 9 Peters, 483. - -[295] To determine a person's domicile is sometimes a matter of some -difficulty. It is determined on two principles: the _fact_ of one's -residence, and the _intent_ of remaining there as at one's home; or it -depends upon _habitation_ and the _animo manendi_. Residence and domicile -are not convertible terms, because they are not the same things. The Roman -definition has been admired for its expressiveness and force. It is there -defined: "It is not doubted that individuals have a home in that place -where each one has established his hearth, and the sum of his possessions -and fortunes; whence he will not depart if nothing calls him away; whence -if he has departed he seems to be a wanderer, and if he returns he ceases -to wander." (Code, lib. 10, tit. 39.) It must be assumed as a fact that -every person has a domicile, or home, and the domicile of origin remains -until another is obtained, not by merely moving or changing, but by -leaving it with no intention of returning, without _animo revertendi_. But -an intention to change is not sufficient to alter a domicile until it is -actually changed. Therefore, death _en route_ does not alter domicile. -(State v. Hallet, 8 Ala. 159.) One who goes abroad, _animo revertendi_, -does not change his domicile, because only the fact of residence is -changed, and not the intent. But if he remains very long abroad, and in -one place, the intent may be inferred from the fact. The Supreme Court of -the United States have intimated that an exercise of the right of suffrage -would be the highest evidence, and almost conclusive against the party. -(Shelton v. Tiffin, 6 How. 185.) - -[296] The doctrine was well settled in a very early case in Pennsylvania, -decided by Judge Tilgham, in 1808: the case of Desasbats v. Berquier, 1 -Binn. 336; and this case has ever since been quoted and approved as a good -statement of the law on this point. There, a will was executed in St. -Domingo by a person domiciled there, and sought to be enforced in -Pennsylvania, where the effects of the deceased were. It appeared not to -have been executed according to the laws of St. Domingo, though it was -conceded that it would have been a good will if executed by a citizen of -Pennsylvania. The alleged will was held to be invalid. - -[297] 23 N. Y. 394. - -[298] Confl. Laws, Sec. 481; Adams v. Wilbur, 2 Sumner, 266. - -[299] Wills, I, 404. - -[300] Nat v. Coons, 10 Mo. 543. - -[301] 14 How. 400. - -[302] Coppin v. Coppin, 2 P. Wms. 291. This was accepted as an -indisputable proposition, in Lynes v. Townsend, 33 N. Y. 558. - -[303] Wood v. Wood, 5 Paige, 596; 9 Wheat. 565. - -[304] Vol. I, 1. - -[305] Conf. Laws, Sec. 479. - -[306] Evid. 671. - -[307] Gold v. Judson, 21 Conn. 616. - -[308] 8 Cranch, 66; G. Stat. (Mass.) C. 92; 7 Met. 141; 6 N. H. 47. - -[309] Cushing v. Aylwin, 12 Met. 169. - -[310] Washburne, Real Prop. I, 166. - -[311] Re Maraver, 1 Hagg. 498. - -[312] Hoxie v. Hoxie, 7 Paige, 187. - -[313] Hone v. Van Schaick, 3 Barb. Ch. 488. - -[314] 2 W. Bl. 976. - -[315] 1 Salk. 234. - -[316] 2 Mau. and Sel. 454. - -[317] Roe v. Pattison, 16 East. 221; Wheeler's Heirs v. Dunlap, 13 B. Mon. -293. - -[318] Youngs v. Youngs, 45 N. Y. 254. - -[319] 5 Co. 68 b. - -[320] 1 Johns. Ch. 231. - -[321] 2 Vern. 624. - -[322] Brownfield v. Brownfield, 20 Penn. 55; Johnson v. Johnson, 32 Ala. -637. Where there is no ambiguity on the face of a will, evidence is -inadmissible to explain it: Hill v. Alford, 46 Ga. 247. - -[323] Jackson v. Sill, 11 Johns. 201. - -[324] Walston v. White, 5 Md. 297. - -[325] Worman v. Teagarden, 2 Ohio N. S. 380. - -[326] Asay v. Hoover, 5 Penn. 21. - -[327] 2 Sneed, 618. - -[328] Allen v. Allen, 18 How. (U. S.) 385. - -[329] Betts v. Jackson, 6 Wend. 187. - -[330] Lawyer v. Smith, 8 Mich. 411. - -[331] Civil Code, 1340; Estate of Garraud, 35 Cal. 336. - -[332] 4 Vesey, 329; 1 Salk. 238. - -[333] Hodgson v. Ambrose, 1 Doug. 341. - -[334] Theall v. Theall, 6 La. 220. - -[335] 18 Jur. 915. - -[336] Dowson v. Gaskoin, 2 Kee. 14. The word "money" used in making a -devise in a will, will be construed to include both personal and real -property, if it appears from the context, and on the face of the -instrument, that such was the intention of the testator. Estate of Miller, -48 Cal. 165. - -[337] Co. Litt. 207. - -[338] 1 Johns. Ch. 231. - -[339] James v. Smith, 14 Sim. 214. - -[340] 5 Vesey, 159. - -[341] 2 Eden, 194. - -[342] Thus, in a case in California, Norris v. Henley, 27 Cal. 439, a -testator devised his real estate upon a particular street, one-third to -each of three persons by name, "to have and to hold their lifetime, and -then to go to their heirs and assigns, _but never to sell_." It was held -to create a fee, and these words, "never to sell," had no effect. - -[343] Cro. Eliz. 9. - -[344] Sims v. Doughty, 5 Ves. 243: Parks v. Parks, 9 Paige, 107. - -[345] Frazer v. Boone, 1 W. R. Hill, 367. - -[346] 3 P. Wms. 259; Cal. Civ. Code, 1317. - -[347] Parks v. Parks, 9 Paige, 107; Williams v. Williams, 4 Seld. 525; -Hawley v. James, 16 Wend. 61. - -[348] Chrystie v. Phyfe, 19 N. Y. 344. - -[349] 8 Jur. N. S. 825. - -[350] Matter of Hallet, 8 Paige, 375. - -[351] 33 Maine, 464. - -[352] Hughes v. Hughes, 12 B. Mon. 121. - -[353] Metham v. Duke of Devon, 1 P. Wms. 529. - -[354] Cartwright v. Vawdry, 5 Vesey, 530; Gardner v. Heyer, 2 Paige, 12. - -[355] 2 Meriv. 419. - -[356] 1 Vent. 231; Moore v. Moore, 12 B. Mon. 655. - -[357] Sibley v. Perry, 7 Ves. 522; Pope v. Pope, 14 Beav. 591. - -[358] Hopkins v. Jones, 2 Barr, 69; Moore v. Moore, 12 B. Mon. 653. - -[359] N. Y. Rev. Stat. Vol. III, p. 12. - -[360] 9 Vesey, 319. - -[361] 8 Sim. 134. - -[362] Legacies, Ch. II, Sec. 10. - -[363] Jones v. Sefton, 4 Vesey, 166. - -[364] 3 P. Wms. 112. - -[365] Timewell v. Perkins, 2 Atk. 103. The word "estate" in a will carries -everything, unless restrained by particular expressions: Turbett v. -Turbett, 3 Yeates, 187. - -[366] Delamater's Estate, 1 Wharton, 362. - -[367] 29 Beav. 207. - -[368] 5 Allen, 556. - -[369] Holder v. Ramsbottom, 9 Jur. N. S. 350; Nichols v. Osborn, 2 P. Wms. -419. - -[370] Pond v. Bergh, 10 Paige, 140; 12 Mass. 537; Estate of Wood, 36 Cal. -75. - -[371] Wootton v. Redd, 12 Gratt. 196. - -[372] 3 Burr, 1634. - -[373] 4 Vesey, 406. - - - - -Transcriber's Notes: - -Passages in italics are indicated by _italics_. - -Passages in bold are indicated by =bold=. - -Superscripted characters are indicated by {superscript}. - - - - - - -End of Project Gutenberg's The Curiosities and Law of Wills, by John Proffatt - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CURIOSITIES AND LAW OF WILLS *** - -***** This file should be named 41075-8.txt or 41075-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/1/0/7/41075/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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