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Title: The Curiosities and Law of Wills
Author: Proffatt, John
Language: English
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Curiosities of Wills.


  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




  INTRODUCTION                                    9


  ORIGIN AND HISTORY OF WILLS                    29


  FORM AND REQUISITES OF WILLS                   41

    SECTION 1. Nuncupative Wills.
            2. Written Wills.


  TESTAMENTARY CAPACITY                          68

    SECTION 1. Incapacity as to Age.
            2. Physical or Mental Incapacity.
            3. Senile Dementia.
            4. Coverture.


  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.




  REVOCATION OF WILLS                           152


  WILLS AS AFFECTED BY DOMICILE                 173


  CONSTRUCTION OF WILLS                         185


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.


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

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

"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

"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

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

"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

"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.



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

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

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



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_.


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]


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

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

"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.


"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.


  R. KEIN,

"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.


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

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

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

"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

"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



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.


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]


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

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

_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

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

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.


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."


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

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

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



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_.


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

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

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]


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]


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

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

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

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

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


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

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.


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

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

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.

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._"



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

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

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

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

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

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

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

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

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

The case occupied a long time in litigation, and the subject of charitable
bequests was most exhaustively examined.[230]



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

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

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.



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

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.

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

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

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

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]



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

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

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

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

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

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

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.



  =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.


  =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.


  =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.


  =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.


  =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.


  ="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.


  =Geigley, William=--will of, p. 108.

  =Grandchildren=, construction of term in will, p. 193.

  =Greenwood=, singular delusion of, p. 73.


  =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.


  =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.


  =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.


  =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


  =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.


  =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.


  =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.


  =Ordinary=--his privileges in early English law, p. 37.


  =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.


  =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.


  =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.


  =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.


  =United States=--bequests to, pp. 136, 140, 150.

  =Uses and trusts=--law of, to avoid Statute of Mortmain, p. 132.


  =Van Hanrigh, Mrs.=--will of, p. 14.

  =Virginia=--bequest to, in trust, by Commodore Levy, p. 133.


  =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.


  =Zimmerman=--will of, p. 10.


[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

[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

  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

[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.

[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

[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

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.

[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.

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

[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.

[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.

[370] Pond v. Bergh, 10 Paige, 140; 12 Mass. 537; Estate of Wood, 36 Cal.

[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}.

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