SECTION 1.--AS TO THEIR QUALITY.

LEGAL RECREATIONS.

VOL. II.

Curiosities of Wills.

THE CURIOSITIES AND LAW OF WILLS.

BY JOHN PROFFATT, LL.B.,

Counsellor-at-law, author of "Woman before the Law."

"Wills, and the construction of them, do more perplex

a man than any other matter; and to make a certain

construction of them exceedeth _jurisprudentum

artem_."--COKE.

SAN FRANCISCO:

SUMNER WHITNEY & CO.

1876.

COPYRIGHT 1876,

BY

JOHN PROFFATT.

TABLE OF CONTENTS.

INTRODUCTION 9

CHAPTER I.

ORIGIN AND HISTORY OF WILLS 29

CHAPTER II.

FORM AND REQUISITES OF WILLS 41

SECTION 1. Nuncupative Wills.

2. Written Wills.

CHAPTER III.

TESTAMENTARY CAPACITY 68

SECTION 1. Incapacity as to Age.

2. Physical or Mental Incapacity.

3. Senile Dementia.

4. Coverture.

CHAPTER IV.

LEGACIES 93

SECTION 1. As to their Quality.

2. Legacies Vested or Contingent.

3. Conditional Legacies.

4. Payment of Legacies.

5. The Person who may take.

CHAPTER V.

LIMITS TO TESTAMENTARY DISPOSITION 130

CHAPTER VI.

REVOCATION OF WILLS 152

CHAPTER VII.

WILLS AS AFFECTED BY DOMICILE 173

CHAPTER VIII.

CONSTRUCTION OF WILLS 185

PREFACE.

It is far from the thoughts of the publishers or the author of this book

to provide a work merely for entertainment; it is hoped the title will not

mislead so as to suggest this idea.

While it is sought to make it entertaining and the style animated, in the

selection of such apt and striking cases as will illustrate and expound

the principles and rules of law relating to wills, the main idea has been

to make it useful and reliable as a systematic, clear, and concise summary

for the student and lawyer, and interesting to all classes of readers.

It is not expected that it will be used as a work of reference on the

various subjects connected with wills; but it is hoped it will be found so

accurate and practical as to make it serve advantageously for a manual on

this subject, so that a careful reading of it will give a correct

knowledge of the law relating to this interesting and important subject.

It could not be expected that, in a work of a somewhat general character,

the details of the statute law of the several States would be given; but,

as far as practicable, the law has been noticed, so far as it affected

the formalities of execution, attestation, and proof. Many of the

principles of the law relating to wills are of such a general and well

established character as to be adapted to every locality, and therefore it

is believed this work will not have a mere local utility. As far as

possible, every effort has been made to have it accurate; that there may

be some minor inaccuracies is inevitable, but none, it is hoped, of a

serious character.

INTRODUCTION.

The making of a last will and testament is one of the most solemn acts of

a man's life. Few are so frivolous and indifferent as not to realize the

importance of an act which is to live after them, and survive long after

the hand that traced it has mingled with its kindred dust. They feel that,

however regardless people have been of their sayings and doings, however

trivial and unimportant have been their acts in the eyes of others, a

certain attention, respect, and weight will be given to so deliberate and

serious an act as a man's will. They realize, when making it, that they

are exercising one of the highest and most important privileges society

has granted to the individual--the right to speak and order as to the

disposition of his effects and property after he has ceased to live.

Accordingly, men who have been rudely treated by the world, whose

infirmities and eccentricities have subjected them to its ridicule, whose

words would command no hearing from their fellow-men, have eagerly availed

themselves of this last and important opportunity to freely speak their

mind, to vent their spleen on ungrateful friends, to deride an unfeeling

world, and in a cynical manner to express without reserve opinions about

persons and things, which could have no hearing while they lived, but in a

last will and testament will command the attention due to the solemnity

of the occasion. In a word, they take this method to give a parting hit to

an unfriendly and unsympathizing world.

It will be instructive, as well as interesting, as a phase of human

nature, to refer, by way of introduction, to some curious wills, which may

form an inviting prelude to a more serious treatment of the subject.

As might be anticipated, many wills reflect the singular notions, the

eccentricities and prejudices of the makers. In many cases, the testator

speaks his mind so freely that his opinion of others really amounts to a

libel; again, his antipathies or his affections are as freely exhibited;

while the instances are not rare in which he bequeaths to posterity the

benefit of his religious opinions.

Testators often give directions as to the place and manner of their

burial, as well as the expenses of their funeral pageant. In one case, a

testator desired to be buried in a space between the graves of his first

and second wives.[1] Mr. Zimmerman, whose will was proved in 1840, in

England, accompanied the directions for his funeral with something like a

threat in case they were not carried out. In his will he says: "No person

is to attend my corpse to the grave, nor is any funeral bell to be rung;

and my desire is to be buried plainly and in a decent manner; _and if this

be not done, I will come again--that is to say, if I can_." The Countess

Dowager of Sandwich, in her will, written by herself at the age of eighty,

proved in November, 1862, expresses her wish to be buried decently and

quietly--_no undertakers' frauds, or cheating; no scarfs, hatbands, or

nonsense_. In a similar manner, Mrs. Kitty Jenkyn Packe Reading, whose

will was proved in April, 1870, gives explicit directions as to avoiding

useless expense at her funeral. She died abroad, and directed that her

remains be put into a leaden coffin, then enclosed in a wooden coffin, and

to be taken as freight to her residence, Branksome Tower, in England. She

foresaw that in this way the remains could not enter the house through the

door, and directed a window to be taken out of a certain room, in order to

permit her remains to enter.

The memory of the jars and ills of domestic life has so embittered a man's

mind, that if the strife was unequal during his lifetime, he hopes to turn

the scale in his favor when dying, and in his will have a last word, and

in this way cut off his spouse from her inalienable prescriptive right of

having the last word. A man, then, has been known to call his wife

"jealous, disaffectionate, reproachful, and censorious." And again, a

wife's faults and shortcomings have been published to the world, and

children must be mortified to know that in the public documents of the

country allusion is conspicuously made to the failings of their mother, as

when a husband perpetuates his wife's "unprovoked, unjustifiable fits of

passion, violence, and cruelty." The following words are used by an

individual who died in London in June, 1791, in reference to his wife:

"Seeing that I have had the misfortune to be married to the aforesaid

Elizabeth, who ever since our union has tormented me in every possible

way; that not content with making game of all my remonstrances, she has

done all she could to render my life miserable; that Heaven seems to have

sent her into the world solely to drive me out of it; that the strength of

Samson, the genius of Homer, the prudence of Augustus, the skill of

Pyrrhus, the patience of Job, the philosophy of Socrates, the subtlety of

Hannibal, the vigilance of Hermogenes, would not suffice to subdue the

perversity of her character; that no power on earth can change her, seeing

we have lived apart during the last eight years, and that the only result

has been the ruin of my son, whom she has corrupted and estranged from me.

Weighing maturely and seriously all these circumstances, I have

bequeathed, and I bequeath to my said wife, Elizabeth, the sum of _one

shilling_, to be paid unto her within six months after my decease."[2]

Happily, the ills and strifes of conjugal life are not the most frequently

remembered incidents of a man's life; its felicities, its joys and tender

experiences, the fidelity and devotion of a true partner, are often most

vividly and fondly cherished at death, and touchingly alluded to in a

man's last will. In this manner, Sharon Turner, the eminent author of the

"History of the Anglo-Saxons," and other works, who died in London in

1847, at the age of seventy-nine, and whose will was proved in that year,

delights to speak of his wife's affection, and is particularly solicitous

that she should not suffer in her personal appearance by the

unskillfulness of the persons who had taken her portrait. Speaking of his

wife, who was dead, he says: "It is my comfort to have remembered that I

have passed with her nearly forty-nine years of unabated affection and

connubial happiness, and yet she is still living, as I earnestly hope and

believe, under her Saviour's care, in a superior state of being.... None

of the portraits of my beloved wife give any adequate representation of

her beautiful face, nor of the sweet, and intellectual, and attractive

appearance of her living features, and general countenance, and

character."

Too often testators place all the obstacles they can in the way of their

widows marrying again, as will appear more fully in another part of this

work. The following instance is one of the few exceptions, and it

contains, besides, the most graceful tribute to a wife's character, as

given in a will, that we know of. Mr. Granville Harcourt, whose will was

proved in March, 1862, thus speaks of his wife: "The unspeakable interest

with which I constantly regard Lady Waldegrave's future fate induces me to

advise her earnestly to unite herself again with some one who may deserve

to enjoy the blessing of her society during the many years of her possible

survival after my life. I am grateful to Providence for the great

happiness I enjoy in her singular affection; and I pray and confidently

hope she may long continue to possess the same esteem and friendship of

those who are intimate with her, and can appreciate her admirable

qualities, and the respect of all with whom, in any relation of life, she

is connected."[3]

Ladies have not the same opportunity and privilege of restraining their

husbands from marrying again, and we cannot call to mind a single case of

a married woman attempting to do so in a will, but on the contrary, we

have the case of a lady recommending marriage to her husband. Mrs. Van

Hanrigh, whose will was proved in December, 1868, leaves all her property,

which appears to have been considerable, to her husband. Endorsed on the

back of the will is a memorandum, stating that she wishes her clothes to

be sold to pay her funeral expenses, which are to be as small as possible,

and after commending her husband to the care of her brother, she adds: "It

is also my earnest wish that my darling husband should marry, ere long, a

nice, pretty girl, who is a good housewife, and above all, to be careful

that she is of a good temper."

Theologians have speculated and differed upon the nature of Heaven's

happiness, but John Starkey, whose will was proved in November, 1861, had

no doubt of its character, for he states: "The remainder of my wealth is

vested in the affection of my dear wife, with whom I leave it in the good

hope of resuming it more pure, bright, and precious, where neither moth

nor rust doth corrupt, and where there are no railways or monetary panics

or fluctuations of exchange, but the steadfast though progressive and

unspeakable riches of glory and immortality."

The disappointments of life, the inconstancy of friends, and the slights

of the world have so wrought upon some minds as to cause them to record in

a will their estimate of all earthly things, and enlighten posterity by

revealing to it the last impressions of either a cynic or a philosopher.

Soured and chagrined, they rail at what they deem the folly and hypocrisy

of the world, and in a last utterance freely express themselves upon

subjects upon which, perhaps, the proprieties of life made them silent

while they lived. The following document, penned by an Earl of Pembroke

who lived during the political turmoils of the seventeenth century,

testifies to a singular shrewdness and knowledge of character, with a

considerable amount of dry humor. As a literary and historical curiosity,

we may be justified in giving it at length. The copy from which it is

taken bears the signature of the keeper of the records in Doctors'

Commons, Nathaniel Brind, beneath the words "_Concordat cum originali_."

It is as follows:

"I, Philip V, Earl of Pembroke and Montgomery, being, as I am assured, of

unsound health, but of sound memory, as well I remember me that five years

ago I did give my vote for the despatching of old Canterbury, neither have

I forgotten that I did see my king upon the scaffold, yet as it is said

that death doth even now pursue me, and, moreover, that it is yet further

said that it is my practice to yield under coercion, I do now make my last

will and testament.

"Imprimus: As for my soul, I do confess I have often heard men speak of

the soul, but what may be these same souls, or what their destination, God

knoweth; for myself, I know not. Men have likewise talked to me of another

world, which I have never visited, nor do I know even an inch of the

ground that leadeth thereto. When the King was reigning I did make my son

wear a surplice, being desirous that he should become a bishop, and for

myself, I did follow the religion of my master; then came the Scotch, who

made me a Presbyterian; but since the time of Cromwell, I have become an

Independent. These are, methinks, the three principal religions of the

kingdom. If any one of the three can save a soul, I desire they will

return it to him who gave it to me.

"Item: I give my body, for it is plain I cannot keep it, as you see the

chirurgeons are tearing it to pieces. Bury me, therefore; I hold lands and

churches enough for that. Above all, put not my body beneath the church

porch, for I am, after all, a man of birth, and I would not that I should

be interred there where Colonel Pride was born.

"Item: I will have no monument, for then I must needs have an epitaph and

verses over my carcass--during my life I had enough of these.

"Item: I desire that my dogs may be shared among all the members of the

Council of State. With regard to them, I have been all things to all men;

sometimes went I with the Peers, sometimes with the Commons. I hope

therefore they will not suffer my poor curs to want.

"Item: I give my two best saddle-horses to the Earl of Denbigh, whose

legs, methinks, must soon begin to fail him. As regards my other horses, I

bequeath them to Lord Fairfax, that when Cromwell and his council take

away his commission, he may still have some _horse_ to command.

"Item: I give all my wild beasts to the Earl of Salisbury, being very sure

that he will preserve them, seeing that he refused the King a doe out of

his park.

"Item: I bequeath my chaplains to the Earl of Stamford, seeing he has

never had one in his employ, having never known any other than his son my

Lord Gray, who, being at the same time spiritual and carnal, will engender

more than one monster.

"Item: I give nothing to my Lord Saye, and I do make him this legacy

willingly, because I know that he will faithfully distribute it unto the

poor.

"Item: Seeing that I do menace a certain Henry Mildmay, but did not trash

him, I do leave the sum of fifty pounds sterling to the lacquey that shall

pay unto him my debt.

"Item: I bequeath to Thomas May, whose nose I did break at a masquerade,

five shillings. My intention had been to give more; but all who have seen

his history of the Parliament will consider that even this sum is too

large.

"Item: I should have given to the author of the libel on women, entitled

'News of the Exchange,' threepence, to invent a yet more scurrilous mode

of maligning; but, seeing that he insulteth and slandereth I know not how

many honest persons, I commit the office of paying him to the same lacquey

who undertaketh the arrears of Henry Mildmay. He will teach him to

distinguish between honorable women and disreputable.

"Item: I give to the Lieutenant-General Cromwell one of my words, the

which he must want, seeing that he hath never kept any of his own.

"Item: I give to the wealthy citizens of London, and likewise to the

Presbyterians and nobility, notice to look to their skins, for, by order

of the State, the garrison of Whitehall hath provided itself with

poniards, and useth dark lanterns in the place of candles.

"Item: I give up the ghost."

One of the most interesting old wills, the first will registered in the

English language in Doctors' Commons, is the will of Lady Alice West,

proved in the year 1395.

The first will recorded there is in the year 1383, and is in Latin, as

most of the very early wills are. She was the widow of Sir Thomas West.

She begins thus, in the old-fashioned style: "In Dei nomine, Amen. On

Thursday, that is to sey, the XV day of the moneth of Jul, in the yer of

the incarnacion of our Lord Ihu Crist, a thousand and thre hundred and

fourescore and fiftene--I, Alice West, lady of Hynton Martel, in hool

estat of my body and in good mynde beynge, make my testament in the maner

as hit folweth hereafter: In the begynnyng, I bequethe my soule to God

Almighty and to his moder, Seynt Marie, and to al the seyntis of heuene,

and my body to be beryed in Crischerche in the priorie of the chanones in

Hamptschire by the Newe Forest wher as myne auncestres leggeth."

The wills of persons of distinction were, in spirit, much the same in the

fourteenth century as at present; there are pecuniary and specific

legacies to relatives, legacies to old and present servants, legacies for

charitable purposes, and particular directions about the funeral and place

of burial.

Dame Alice West's will is too long to give at length, but some extracts,

showing the articles which at that period were so valuable as to be

specifically bequeathed, the amounts of the legacies, and the persons to

whom they were left, may prove interesting.

The lady commences the disposition of her property as follows: "Also, I

devyse to Thomas, my sone, a bed of tapicers werk with alle the tapices of

sute, red of color, ypouthered with chapes and scochons in the corners of

myn auncestres armes, with that I bequethe to the same Thomas the stoffe

longyng thereto--that is to seye, my best fetherbed, and a blue canevas

and a materas and twey blankettys and a peyre schetes of reynes and sex of

my best pilwes."

It is an unusual thing in the present day to dispose of bedding by will;

and the reason is, that feather-beds, mattresses, pillows, blankets, and

sheets are comparatively cheap; but in Lady Alice's time they must have

been articles of luxury and a considerable item in the dower of a bride.

The testatrix next thinks of her daughter-in-law:

"Also I bequethe to Johane my sone is wyf, a masse book and alle the bokes

that I have of latyn, englisch, and frensch out take the forsayd matyns

book, that is bequethe to Thomas my sone."

We wonder what books she had, and particularly what English books; a list

of them would be most interesting. She could not have had many, and we

cannot suggest what they were. It should be remembered that this will was

made more than five years before the death of Chaucer, and nearly eighty

years before the first book was printed in English, and books in English

must consequently have been few indeed. Their scarcity made them of great

value; they were carefully treasured, and their future ownership specially

provided for by will. Something might be said as to the education of

ladies of the highest class at that time. Here was a lady possessing books

in English, Latin, and French, which, it is presumable, she could read.

Latin, however, was the language of her religion; French was probably the

tongue she was brought up in, and was the language of the court; and

English was the language of her dependents; so that, as a matter of

course, every lady of rank may have been familiar with the three

languages.

She further gives certain gifts to members of her family: "To Sir Nichol

Clifton, Knyght, and to Alianore his wif, my doughter, and to Thomas

Clifton here sone, £120, euenliche to be departed betwix ham thre; and if

Thomas here sone forsayd deyeth, I wol that it torne to profet of his

fader and his moder."

We should not expect to find any will previously to the Reformation

without a legacy to say masses. Lady West gives £18 10_s._, "for to synge

and seye 4400 masses for my lord Sir Thomas West is soule, and for myne,

and for alle cristene soules," and they are to be "done" within "fourteen

night after her deces." There is another bequest to Christ Church, where

she was to be buried, "to bidde and to rede, and synge for my lordes soule

forsayd, and myne, and alle cristene soules, while the world schal laste."

Having given all the legacies she desires, the testatrix then disposes of

the remainder of her property: "An al the residue of my godes, after the

dettys that I owe ben quyt, and after my testament is parfoned, I bequethe

to the forsayd Thomas my sone"; and after all these directions and

legacies, the good lady finishes her will by ordering the manner of her

own interment; when she dies her body is to be carried to the "forsayd

priorie of Crischerch, and with right litel cost" buried at the first

mass, with a taper of six pounds of wax burning at her head, and another

taper of six pounds of wax burning at her feet.

The will of Shakspeare, executed on the 25th March, 1616, not quite a

month previous to his death, forms a most interesting document for the

scholar, as well as the lawyer. It is registered in Doctors' Commons

_verbatim_, as it was written, and is prized as a unique and interesting

document relating to the poet. It is written in the usual clerical hand of

the period, on three sheets of paper, fastened at the top. Each sheet is

signed by the poet, the final signature, "By me, William Shakspeare,"

being the most distinct. These three autographs, with two appended to

deeds relating to his property in London, constitute the only undoubted

signatures of Shakspeare which we at present possess.

It commences in the old way, thus:

"In the name of God, Amen! I, William Shackspeare of Stratford upon Avon,

in the countie of Warr. gent, in perfect health and memorie, God be

praysed! doe make and ordayne this my last will and testament in manner

and forme followeing; That ys to saye, First, I comend my Soule into the

handes of God my Creator, hoping and assuredlie beleeving, through

thonelie merites of Jesus Christe my Saviour, to be made partaker of lyfe

everlastynge, And my bodye to the Earth whereof yt ys made."

It would be tedious to give _in extenso_ the various items of this

celebrated will; we shall only refer to a few such items as are

sufficiently remarkable. In one item he gives a bequest to his sister

Joan: "I gyve and bequeath unto my said sister Jone XX pounds, and all my

wearing Apparrell, to be paied and delivered within one yeare after my

deceas; and I doe will and devise unto her _the house_ with

thappurtenaunces in Stratford wherein she dwelleth, for her natural lief,

under the yearlie rent of xij{d}," or twelve pence.

He gives various specific and general legacies; and, if we judge by the

number of such, he must have had numerous friends. In another item he

gives to the poor of Stratford "tenn poundes "; to Mr. Thomas Combe his

sword; to his daughter Judith his "broad silver gilt bole." The most

remarkable item in the will is the following: "_I give unto my wief my

second best bed with the furniture._" He devised to his daughter, Susanna

Hall, his landed property in Stratford, limited to the first or other sons

of her body after her life.

It is said the object of the poet in leaving the bulk of his property to

Mrs. Hall was evidently to found a family, the darling object of

Shakspeare's ambition. One clause interlined in the will has occasioned a

good deal of marvel and censorious criticism--the bequest to his wife, who

has been represented as cut off by him, not indeed with a shilling, but

with an old bed. But, as she was entitled in law to dower out of his real

estate, Shakspeare may not have deemed it necessary to make any further

bequest to his wife than that of the second-best bed, as a special mark of

affection. This is the explanation now tendered of what must otherwise

have appeared a most extraordinary procedure on the part of the poet. It

must be admitted, however, that, making full allowance for her provision

by right of law, there still remains a feeling of dissatisfaction with the

total exclusion of Anne Shakspeare from all parts of her husband's will,

with the exception of an interlined clause of a dozen words. It is also a

significant fact that, with the exception of the bed, no household

furniture is bequeathed to the widow; so that she must have been left

dependent on her daughters for lodging and residence.

The will of Henry VIII in some of its provisions is well worth the

attention of the scholar, as it reflects the state of the distinguished

testator's religious opinions, which, contrary to general impressions,

were not entirely in harmony with the views of the Reformers in England.

This will was the subject of judicial examination, in the House of Lords,

in 1860. (8 H. L. Cas. 369.)

It appears that, by the foundation of Edward III, when he instituted the

order of the Garter, and created the Poor Knights, a certain obligation

had been cast upon the dean and canons of Windsor to provide for the Poor

Knights, the King having promised the dean and canons lands to enable them

to do so. But, by an Act of Parliament, passed in the 22 Edw. IV, reciting

that "the possessions given to the said dean and canons suffice not to

sustain all other charges, and also to bear the charges of the Poor

Knights," it was enacted "that the same dean and canons, and their

successors forever more, be utterly quit and discharged from all manner of

exhibition or charge of or for any of the same Knights." Down to the end

of the reign of Henry VIII, the Poor Knights appear to have been fed only

with promises, and no permanent provision was made for them. In the 3 Hen.

VIII, the dean and canons having, at his request, granted to a Poor

Knight, named Peter Narbonne, an annuity of twenty marks for his life, the

King wrote them a letter of thanks, in which he acknowledges that they

were not bound to find anything for the Poor Knights since the 22 Edw. IV;

thanks them for their bounty to Peter Narbonne; promises them favor in

their suits hereafter as a recompense, and assures them "that they shall

not be burthened with the maintenance of any other Poor Knights till such

time as he should have provided lands for their exhibition, which not only

should be sufficient to discharge the dean and canons of such Knights, but

also of the said annuity."

The promise was not fulfilled; and when Henry's end approached, the breach

of it lay heavily upon his conscience, and hence the following provision

in his will, which was dated December 30th, 1546, about three weeks before

his death. One of the directions was: "That, as soon as may be after our

departure from this world, the Dean and Chapter shall have manors, etc.,

to the yearly value of £600 over all charges, made sure to them and their

successors, forever, upon the conditions hereafter ensuing." Among the

other provisions were the following:

"And for the due and full accomplishment and performance of all other

things conteined with the same in the form of an indenture, signed with

our own hand, which shall be passed by way of covenant for that purpose

between the said Deane and Cannons and our executors, if it pass not

between us and the said Deane and Cannons in our liefe; that is to say,

the said Deane and Cannons and their successours forever shall finde two

prestes to say masses at the said aulter to be made where we have before

appointed our tomb to be made and stand; and also after our decease kepe

yerely four solemne obites for us within the said College of Windesour,

and at every of the same obites to cause a solemne sermon to be made, and

also at every of the said obites to give to poor people in almes tenne

poundes.

"And also to give forever yerely to thirtene poor men, who shall be called

Poor Knightes, to every of them twelf pens every daye, and ones in the

yere yerely forever, a long joune of white cloth, with the garter upon the

brest, embrodered with a sheld and cross of Sainte George within the

garter, and a mantel of red cloth, and to such one of the said thirtene

Poor Knightes as shall be appointed to be hed and gouvernour of them, £3

6s. 8d. yerely forever, over and besides the said twelf pennes by the

daye.

"And also to cause, every Sonday in the yere, forever, a sermon to be made

forever at Windesour aforesaid, as in the said indenture and covenant

shall be more fully and particularly expressed, willing, charging, and

requiring our son Prince Edwarde, all our executors and counsaillors which

shall be named hereafter, and all other our heirs and successours which

shall be Kinges of this realme, as they will answer before Almighty God at

the dredful day of judgment, that they and every of them do see that the

said indenture and assurance to be made betwene us and the said Deane and

Cannons, or between them and our executours, and all thinges therein

conteined, may be duly put into execution, and observed and kept forever,

perpetually, according to this our last will and testament."

The Archbishop of Canterbury and the Lord Chancellor, and a great many

other eminent persons, and Councillors of the Privy Council, with "our son

Prince Edwarde," were appointed "executors," and, "as they must and shall

answer at the day of judgment," they were required, "truly and fully to

see this my last will performed in all things with as much speed and

diligence as may be."

In 1547, a meeting of the executors and Privy Councillors, with the Lord

Protector at their head, was assembled, and a document was drawn up which

recited the material parts of the will relating to this matter, and

directed that "the Barons of the Exchequer, the King's Sergeants, the

Attorney and Solicitor, should deliberately peruse the whole will, and

frankly declare their opinions what the executors may lawfully do, and how

and in what form the said will may be lawfully executed and performed."

This was done, and a special report was afterwards made, declaring that

the will might be carried into effect, and stating how that might be done.

CHAPTER I.

ORIGIN AND HISTORY OF WILLS.

Jurists do not quite agree as to the full extent of a man's interest in,

and control of, the property he acquires. There are different theories as

to the real title to property; most all, however, agree that occupation,

united with labor, is the best ground of a title to exclusive ownership of

property. But how long will this ownership or control continue? During

lifetime, or for a longer period? Some maintain that, by the law of

nature, it only lasts during the life of the owner, and after his decease

the property again becomes merged with the general stock of the public--it

becomes _publici juris_; and that to permit one to order and control its

disposition after he has ceased to live, is a privilege or a concession of

society, and not any inherent natural right. For a large amount of

property is owned in societies advanced in civilization before the right

of testamentary disposition is exercised, which would show that this right

is not coeval with the foundation of society or the acquisition of

property, and therefore nations are not impelled to it by a natural

instinct and impulse. It is claimed that the _jus disponendi_ is a

necessary incident of property--an inseparable quality; but if, by this

term, we understand a right of disposal while a man lives, we can admit

that it belongs to ownership; but it is quite a different thing when a

man ceases to live; for then, naturally, he ceases to have dominion; and

if he has a natural right to dispose of his goods for a short time after

death, why not for millions of years?[4]

It is not a natural inherent right of the individual to dispose of his

property after his decease; it is no more or less than a right given by

positive law--a right which is founded on convenience and concession.

For a very obvious reason, we do not find this right in the early

constitution of society, either given or exercised. Society, in early

times, was founded on the family as the initial unit or group, which was

only recognized by the State as entitled to maintenance. Naturally, by

right of this principle in early society, the property acquired by an

individual went into the general stock of the family, as a necessary

_appanage_, and was in the name of the head of that family, and at his

decease, by a principle of early law, devolved in due course upon the

successor, or the _hæres_ of the Roman law, who took it with all the

obligations of the deceased. Society had not yet so advanced as to make

the individual an object of its care and government, and recognize him as

a distinct unit apart from the family; and succession--"universal

succession," as it was called--to the property in the family, was the

usual disposition of property. It took a long while before society

permitted the individual to dispose of his property _out of his family_,

because this was so abnormal and unnatural as to be only dictated by

caprice, passion, or prejudice, insomuch that whenever attempted among the

Romans, the will was set aside as _inofficious_, and it was not permitted

at all in the early English law; and even now is a presumed ground of

imbecility or insanity in a testator.

The will, as we understand it, is unquestionably of Roman origin--it is

purely a creature of that law, the _corpus juris_, "the public reason of

the Romans." The laws of Solon only permitted wills when the testator had

no children.[5] Among the Hindoos, the right of adoption as a succession

to property effected the same purpose as a will,[6] while among the

Teutonic nations wills were unknown, and the children inherited.[7]

At first, among the Romans, a will was neither secret, revocable, nor of

effect, until after death--characteristics which we necessarily associate

with a will in modern times. A will then was more like a conveyance in a

man's lifetime--a sale of the family rights, property, and obligations, in

the presence of witnesses, to a person known as the _Emptor Familiæ_, who

assumed the place of the testator as head of the family. He might be

compared to an assignee under our law, with this difference, that the

latter is only liable as far as he has assets. Wills were usually

witnessed by seven witnesses, who sealed outside upon a thread, and after

some time, deposited in the archives during the life of the testator, and

opened in the presence of the prætor or other officer, after decease, and

any person might have a copy, being matter of record.[8]

The Roman law did not permit the entire disposition of property by will,

if a man had a family. By a law of Justinian, one-fourth, at least, was

required for the children, and when there were four children, they could

claim one-third, which became a general law throughout Europe.[9]

The Roman influence, connection, and dominion in Great Britain necessarily

introduced Roman laws and usages. It was a connection lasting fully three

hundred years, during which time the country was visited by Roman jurists,

and the people became familiarized with the administration of the civil

law, both through the civil courts and the churches. Accordingly, while

wills were not in use among kindred Teutonic people in the north of

Europe, they were well known and general in the Saxon period in England,

where an unlimited and absolute right of devise was given. In the laws of

King Canute, provision is made for the disposition of property in cases of

_intestacy_, which makes it evident that testamentary dispositions were

recognized;[10] and Canute himself left a will.[11] There are notices of

some twenty-five Anglo-Saxon wills extant. Nearly all of the testators

were people of prominence and distinction, and these wills are preserved

in monastic houses to which they devised property. King Alfred's will,

from its antiquity and its formal character, is one of the most

interesting ancient documents existing. (He died A. D. 900.) It opens

thus: "I, Alfred, King by God's grace, and with Ethered's the Archbishop's

counsel, and all the West Saxon Wights, witness, have considered about my

soul's thrift, and about the inheritance that to me, God and mine

Ancestors did give, and about the inheritance that Ethulf, King, my father

to us, three brothers, bequeathed, Ethelbold, Etherad and me." He provides

for masses thus: "And so divide for me and my father, and for the friends

that be interceded for, and I intercede for, two hundred of pounds, fifty

to the mass priests over all my kingdom, fifty to God's poor ministers,

fifty to the distressed poor, fifty to the church that I at shall rest;

and know not certainly whether the money so much is, nor I know not but of

it more may be, but so I ween."

It appears that King Alfred's will was prepared by the Archbishop's

counsel, and published in the presence of the West Saxon Wights, or Wise

Men. This gives us a glimpse at the interference of the clergy in such

important affairs, and leads us on a most interesting and important

inquiry as to the connection of wills with ecclesiastical courts.

The clergy of that time possessed a monopoly of the learning of the day,

and especially of the learning of the civil law, having made it a matter

of study. Reasonably they would be consulted on subjects on which the

civil or Roman law had such a bearing; and as a matter of fact, they soon

became presiding judges with the civil magistrate in cases of probate of

wills. In the early Saxon period, the bishop sat with the earl in the

county court in the administration of testamentary matters; and this was

the case up to the time of the Normans. But the clergy had occasion to

interfere on other grounds, at a very early period. At a very early day,

they sought jurisdiction in probate matters. The practice was probably

favored by the sanction given by the civil law to the intervention of the

bishop to compel the execution of a will where there were legacies _in

pios usus_--to pious uses.[12] When any legacy was disposed of to pious

uses, for the use of the church, for monasteries, or for the poor, the

bishops were to sue for the same, and see to the administration

thereof.[13] But Justinian would not allow further than this, and he

prohibited the bishops interfering generally in the probate of wills.[14]

Upon which a writer remarks: "Here we see the clergy in those days had set

their foot upon the business, and I suppose since that time they never

pulled it wholly out again."

The popes, as their power increased, endeavored to obtain the jurisdiction

over testaments. Pope Innocent the Fourth claimed for the bishop the power

to dispense property left to a charity, if there be no executor appointed

by the will, and if there be an executor, and he does not discharge the

duty faithfully, the bishop may assume administration.[15]

As a matter of history, in European countries, except England, the church

did not pretend that wills were of ecclesiastical cognizance _sua natura_,

but only such wills as were made for pious uses.[16] So that the origin of

the jurisdiction of ecclesiastical courts touching testamentary matters is

by the custom of England, and not by ecclesiastical law. Blackstone says:

"The spiritual jurisdiction of testamentary causes is a peculiar

constitution of this island; for in almost all other (even in popish)

countries all matters testamentary are under the jurisdiction of the civil

magistrate."[17]

We have seen that during the Saxon period the bishop presided with the

earl in the administration of testamentary matters; but in the eighteenth

year of William the Conqueror, a separate court was organized for the

bishop, who no longer sat with the civil authorities. This was the

beginning of the ecclesiastical jurisdiction; though at first power was

granted only to adjudicate on such matters as were for the good of the

soul, an expression which the bishops subsequently made very elastic and

comprehensive. The clergy did not acquire the exclusive jurisdiction till

the reign of Henry I, who by charter first established this

jurisdiction.[18] In the time of Richard I, when he was in confinement,

the clergy were more fully established in this right, for they obtained

from him a confirmation of the ecclesiastical immunities.[19]

The proof of wills was thus well settled and established, for it is spoken

of as an ordinary and undisputed usage, and through all the animated

disputes in the reign of Henry II, as to the civil and ecclesiastical

jurisdiction, it is observable that nothing is advanced against the

authority of the spiritual courts in testamentary causes. In the reign of

Richard II the county courts were prohibited to infere with the probate of

wills.[20]

By the early common law of England, if a man had a wife and children, he

had only a testamentary disposition of one-third of his property; the

remainder, the shares of the widow and children, were called _rationabiles

partes_, which must be intact. The personal attendance of the clergy on

the dying would ordinarily lead to the disposition of the third which a

person was privileged to bequeath by testament; and, from ancient wills,

it is very evident this power was liberally and generally exercised in

favor of religious uses, such as were deemed for the soul's health of the

testator. Whenever, by accident or extreme feebleness, the exercise of

this right was prevented, the third thus left at the disposal of a person

was of right claimed by the clergy, as the "dead man's part," to be

appropriated for his benefit, _pro animæ salute_. This would lead to the

intervention of the spiritual courts in the distribution of an intestate's

estate, especially as they had full power over the probate. So it became

the invariable custom to take the third of an intestate's goods for pious

uses, which were, to assist in paying for masses for the benefit of the

"defunct's soul," to assist the poor and infirm, to pay for church lights,

religious services, and anniversaries. If a man died without wife or

children, the Ordinary, as the bishop was termed, had the administration

of the whole of an intestate's property, subject to the payment of the

debts of the deceased. It is easy to see what immense power and revenue

accrued to the church in consequence of the establishment of these

privileges; and the influence gained thereby, and the flagrant abuses

resulting from this prerogative, caused just alarm to the civil power, and

led to a struggle to curtail such powers in the reign of Edward III,[21]

when a law was passed providing that the Ordinary should grant the

administration to the next of kin. The Statute of Distribution, in the

reign of Charles II, destroyed the old common-law right to the _pars

rationabilis_, and made the estate distributable among the widow and next

of kin, leaving still, however, in the hands of the administrator, for his

own use, the third formerly retained by the church; and finally, by

statute, in the first year of James II, it was provided that this third

should also be distributed. So, after a struggle of many years, the

administration of the goods of an intestate was taken out of the hands of

the spiritual courts, and rightfully given to the family of the deceased.

The long, slow process is an interesting phase of history for the general

reader, as it is for the lawyer, who finds it necessary to follow it,

because the rules and decisions of the ecclesiastical courts as to the

probate of wills and the administration of personal property have become

incorporated into the body of our law, and form a part of it.[22]

Up to the thirty-second year of Henry VIII, there was no power to make a

will of real estate. In his reign the Statute of Wills was passed, which

first gave this power, and after that time a person had the right to make

wills of real as well as personal property; but the ecclesiastical courts

had only cognizance of the wills of personal property; the common-law

courts had the jurisdiction of wills relating to real estate.

The next statute that affected wills was the _Statute of Frauds_, in the

twenty-ninth year of Charles II, which required wills affecting real

estate to be in writing, _signed_ by the testator, and attested in the

presence of three or four credible witnesses. This statute had an immense

influence on our jurisprudence, and is substantially adopted in all our

States, with slight variations.[23] In that statute certain formalities

were insisted upon, but only in regard to a will of real estate; a will of

personal property was not required to be executed in the same manner and

with the like formalities.[24] Before the Statute of Frauds, according to

32 Henry VIII, it was only necessary for the will to be in writing; and

accordingly, where a man beyond the sea wrote a letter, in which he

declared his will to be that his land should go in a certain way, it was

adjudged a good will.[25] And a will written without the appointment of

the testator, if read to him and approved by him, was held good, signing

and sealing not being necessary.[26]

Now, by statute I Vict., ch. 26, in England, there are required the same

formalities in a will of personal estate as by the Statute of Frauds are

required in a will of real estate, and the same is now the case in nearly

all our States; and, by the same statute, a person has a full testamentary

disposition of all real estate, as well as personal, to which he is

entitled, either in law or in equity, at the time of his death.

Our American States generally, after the Revolution, adopted the English

common law, as it was at certain periods--some taking one date, and others

a different one; but in all substantially the common law was taken as the

foundation of our municipal law, with the exception of Louisiana. Hence

the law relating to the execution and probate of wills, as administered in

the ecclesiastical courts, was engrafted here, subject to certain

statutory modifications suitable to our polity and circumstances. But we,

having no recognition of an established religion, have given this

jurisdiction to special civil courts, denominated Probate Courts in some

States, as in California; the Orphan's Court, as in New Jersey; the

Surrogate's Court, as in New York. The name Surrogate again brings to our

mind a reminiscence of the former ecclesiastical jurisdiction; it was the

name given to the bishop's deputy. However, in all, no matter by what name

known, the precedents, the decisions, and rules, as established in the

ecclesiastical courts in England, in regard to testamentary matters, have

authority and force; and it is for this reason the history and

adjudication of these courts are so necessary to the lawyer of the present

day.[27]

CHAPTER II.

FORM AND REQUISITES OF WILLS.

A will, from its nature, is the declaration of a man's mind as to the

proper disposition of his property after death. This declaration, as any

other fact, is established by evidence, oral or written. It is not the

essence of a will that it shall be in writing; the essence is the declared

purpose or intention, and this is established, as any other fact in law,

by witnesses, or by the written declaration of the testator. In Bacon's

Abridgement, a will, therefore, is defined to be, "A declaration of the

mind, either by word or writing, in disposing of an estate; and to take

place after the death of the testator."[28] A distinction was formerly

made between a will and a testament; when lands or tenements were devised

in writing, it was by will, and when goods and chattels were disposed of,

it was by testament; but this distinction is now lost sight of, and the

words are used indiscriminately, and we speak of the posthumous

disposition of an estate, of whatever kind, as by last will and testament.

Since peculiar perils and obstacles beset a man in his last hours; as much

uncertainty and contention have arisen as to his precise purpose and

declaration; and as there is a strong and very unusual temptation and

opportunity given to designing and evil persons who may surround him, to

falsify his intention to their advantage, it has seemed politic and wise

to legislatures to prescribe a mode by which wills shall be evidenced and

proved, to guard against fraud, imposition, and uncertainty. Hence, in the

statutory enactments of every State, there are precise and strict rules

laid down on the subject; and as writing is the most reliable and

permanent mode of conveying the proof of a person's intention; and as it

is now an acquirement possessed by almost every one, it is now the mode

insisted on for embodying the declaration of a man's last will and

testament, with rare exceptions as to verbal wills. We may, therefore,

speak of wills in two great classes, viz., _Verbal_ and _Written_.

SECTION 1.--NUNCUPATIVE WILLS.

A nuncupative will is a verbal declaration of a person's intention as to

the manner of disposition of his property after death. Formerly, at an

early period, this must have been the usual kind of will in general use,

when writing was a rare acquirement. Before the Statute of Frauds, it was

of as great force and efficacy (except for lands, tenements, and

hereditaments) as a written testament.[29] But as wills of this kind were

found liable to great impositions and frauds, and occasioned many

perjuries, that statute placed them under several restrictions, except

when made by "any soldier in actual military service, or any mariner or

seaman being at sea."[30]

The imminent dangers, the diseases and sudden death which constantly beset

soldiers and sailors; the utter inability oftentimes to find the time or

the means to make a deliberate or written testamentary disposition of

their effects, seem at all times to have made them a proper exception to

the operation of a rule which the wisdom of later times has found it

expedient, if not absolutely obligatory, to apply to all others. Hence,

almost all governments grant this immunity to this class of persons. It

was a peculiar privilege of the Roman soldiers, who were exempt when on a

military expedition from complying with the strict testamentary law; the

privilege, however, was only well established under the Empire, and after

a time it was extended to the naval service, and officers, rowers, and

sailors were, in this respect, esteemed as soldiers.[31]

Another class of persons formerly permitted to make this kind of will were

those who were at the point of death, or as it was termed, _in extremis_.

And in many States this privilege is still granted this class.

For a long period, as far back as a little before the time of Henry VIII,

this kind of will was confined to this class of persons.[32] A writer of

the time of Henry VIII says: "This kind of testament is made commonly when

the testator is now very sick, weak, and past all hope of recovery."

Chancellor Kent says: "This has been the uniform language of the English

law-writers from that time to this day, so that it has become the

acknowledged doctrine, that a nuncupative will is only to be tolerated

when made _in extremis_."[33]

The danger of collusion and conspiracy among those who surround a feeble

dying person has taught legislatures to be very strict in placing adequate

safeguards around such a one. It was a gross abuse of such an opportunity,

in a remarkable case in the twenty-eighth year of Charles II, that led, it

is supposed, to the enactment of the Statute of Frauds in the next year.

The case was this:[34] Mr. Cole, at a very advanced age, married a young

woman, who during her lifetime did not conduct herself so as to make the

old man's life a placid or a happy one. After his death she set up a

nuncupative will, said to have been made _in extremis_, by which the whole

estate was given to her, in opposition to a will made three years before

the testator's death, giving £3,000 to charitable uses. The nuncupative

will was proved by nine witnesses; and after examination in the course of

a trial, it appeared most of the witnesses were perjured, and Mrs. Cole

was found guilty of subornation. It was then that Lord Nottingham said: "I

hope to see one day a law that no written will should be revoked but by

writing." He was gratified in seeing such a law the succeeding year. Upon

this, Chancellor Kent observed: "I should hope to see one day a law that

no nuncupative will should be valid in any case."[35]

The case in which these words were used was a very curious one, and will

be worth while to be stated somewhat fully. We can give no better

statement of it than the admirable summary given by that eminent jurist in

his opinion, where the subject of nuncupative wills received a thorough

discussion. The will was made by a William Jones on the 11th April, 1820,

and was as follows: "I now say, as I have repeatedly said before, that I

leave all the property I am possessed of to Mary Hazleton; I do this in

consequence of the good treatment and kind attention I have received from

her during my sickness. She is worthy of it. No other person shall inherit

my property. I wish you all in the room to take notice of this." The will

was witnessed by four witnesses. It was finally declared invalid, because

it did not appear the testator made it in his last extremity, and as there

were so many evidences of undue influence. The facts were as given by

Kent: "William Jones was an Irishman by birth and a religious Catholic by

profession. He was born in the county of Dublin, in Ireland, and received

a school education about thirty years before his death, and which carries

us back to the year 1790. He had then living parents, brothers, and

sisters, and he was the youngest of the family. He was apprenticed to a

house carpenter in the city of Dublin, and served a regular

apprenticeship of seven years. When this service expired, he worked as a

journeyman for nine or twelve months, and then emigrated to the United

States. This brings us in the history of his life to the year 1798, and

perhaps that fact may enable us to give some probable solution of the only

circumstance that seems (if we except the will) to cast any shade over the

memory of this man. I allude to the change of his paternal name,

_O'Connor_, for that of _Jones_. It does not appear precisely when he

changed his name, but I refer it back to that period as the probable time,

and presume that he and his family were more or less implicated in the

rebellion in Ireland in 1798, in consequence of an ill-fated attempt to

effect a revolution in that kingdom. It is probable that he may have

emigrated for safety; and, for greater safety, laid down the name of

_O'Connor_, which was then memorable in the Irish annals, on the side of

the unfortunate. But be this conjecture as it may, we find him first at

New York, then for two years at Savannah, then living for twelve or

fourteen years in Cuba, and learning the Spanish language, and where he

probably made his fortune. He is next traced on his return to the United

States to the cities of Baltimore, Philadelphia, and New York; and in all

of them he seems to have had business, pecuniary concerns, and friends.

These are the few and imperfect sketches of his biography to be selected

from the case, before we find him rich in the fruits of his enterprise,

but sick with a disease of the liver, at the boarding-house of Mrs. Fox,

in Cherry street, in New York, the latter end of March, 1820.

"Jones, while at the house of Mrs. Fox, claimed to be worth altogether

$65,000 in property existing in New York, Philadelphia, Baltimore, and the

Island of Cuba; and to show that this claim had pretty fair pretensions to

truth, there were actually found at his lodgings, at his death, bank-books

showing deposits to his credit in one or more banks of New York to between

thirteen and fourteen thousand dollars.

"He had been sick at Mrs. Fox's about five weeks when he is said to have

made the will now under consideration. During that time he had one Ellen

Taylor, a colored woman, for his hired nurse; and there was a Mrs.

Hazleton, who had rooms and boarded in the same house, who also acted as

his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to

board there, does not appear, nor have we in the case any distinct

lineaments of the character which Mrs. H. sustains, or the business or

purpose of her life. She was able, all at once, and without any remarkable

display of goodness or any adequate cause, to gain a wonderful ascendancy

over the affections of this sick man. If her story be true, and the will

genuine, she obliterated from Jones' breast the sense of friendship, the

charities of religion, the deep-rooted traces of national affection, every

tender recollection of the ties of blood, of his natal soil, of the

school-fellows of his youth, of father and mother, brother and sister,

relative and friend. He was persuaded at one nod to pour the accumulated

treasures of his varied life into the lap of this mysterious woman--the

acquaintance of a day!"

From the manifest evils arising from this kind of wills, legislatures are

not disposed to favor them; they seem only adapted to a ruder condition of

society than the one we now live in. So, in the Statute of Wills in

England, passed in 1838,[36] such wills are declared invalid, except as to

soldiers and sailors; and the same is the case in nearly all our American

States. But a few States still permit such wills made by persons _in

extremis_, and bequeathing a limited amount of property. They are not

permitted in New York, except, as in the English statute, to soldiers and

sailors on actual service.[37] They are in California of property to one

thousand dollars, and then must be proved by two witnesses, one of whom is

requested by the decedent to be a witness; and the will must be reduced to

writing within thirty days after death, and proved within six months after

the same was uttered.[38]

Even as to soldiers and sailors great strictness is required. In the first

place, soldiers must be on actual military service. The military testament

was first conceded by Julius Cæsar to all soldiers, but it was

subsequently limited by Justinian to those engaged on an expedition;[39]

and our courts in modern times have invariably adhered to the principle

that there must be actual warfare.

In this country, the cases upon the subject of nuncupative wills are

considerably numerous since the last civil war. In a late case, where the

deceased, a soldier, had been duly mustered into the United States service

during the late civil war, and while in camp wrote a letter to a friend,

directing the disposition of the amount due upon certain securities left

in his hands among the brothers and sisters of the deceased, as the holder

should think proper, and that all his other property should go to his

wife, naming her, she paying his debts, and soon after started on an

expedition or raid against Richmond, in which he was made prisoner, and

soon after died in prison, the will was held good as a nuncupative one,

and entitled to probate.[40]

Sailors must be actually serving on shipboard. Thus, in the case of Lord

Hugh Seymour, the commander-in-chief of the naval force at Jamaica, but

who had his official residence on shore, it was held that he did not

properly come within the exception, for that he was not "at sea" within

the meaning of that expression, and that a nuncupative will made by him

was not valid.[41] It was held in New York that a person employed as cook

on board of a steamship should be classed as a mariner at sea, and

therefore entitled to make a nuncupative will.[42]

SECTION 2.--WRITTEN WILLS.

The statute law of almost every civilized state at the present time

requires a will of real and personal property to be in writing, with the

exceptions noticed in the first section of this chapter. A will, wholly

written by the testator, signed and dated by him, is called a _holographic

will_, and is, in some States, valid, without the usual formalities

required to prove wills.[43]

The law has not made requisite to the validity of a will that it should

assume any particular form, or be couched in language technically

appropriate to its testamentary character. It is sufficient that the

instrument, however irregular in form, or inartificial in expression,

discloses the intention of the maker respecting the posthumous destination

of his property; and if this appears to be the nature of its contents, the

instrument is regarded as a will, if otherwise witnessed according to the

mode pointed out in the statute. Professional practice, and long-continued

custom, however, have established some technical forms of expression. As

if to appropriately mark the solemnity of the act, and to declare a

consciousness of it, it was the usual way to commence a will, and it is

still observed, with--"In the name of God, Amen"; but this expression is

now considered too formal and quaint, and of late the practice is to

introduce a will in a less formal manner, thus: "I, John Doe, of ----, in

the State of ----, do hereby make and publish this my last will and

testament, hereby revoking all former wills by me at any time made."

It was also customary to refer to the bodily and mental condition of the

testator, as, "I, A B, being of infirm health, but of sound mind and

disposing memory, and aware of the uncertainty of life, do now make,

etc."; but this, to a great extent, is abrogated.

Usually, the first direction given is as to the payment of debts and

funeral expenses; but this is merely formal and unnecessary, as the law

would have this done in any event; but it may be of use to show that the

subject of the testator's debts was brought distinctly to his mind, and

may thus aid in the construction of the will.[44] A very general clause

in a will, without many exceptions, is one appointing one or more

executors. Formerly, it was considered indispensable to the validity of a

will that an executor should be named in it;[45] but that opinion no

longer obtains either here or in England;[46] and now where the

appointment of an executor is omitted in a will, administration is granted

to a person with the will annexed.

Many may have an idea that a formal will requires a seal, no doubt from

the ordinary phraseology at the close of a will, "Signed, sealed, and

published," but there is no State we know of where a seal is now necessary

except in New Hampshire.[47] The use of a seal, however, will be required

when a testator exercises a power of appointment in a will derived from

any prior will or settlement;[48] but if the seal be omitted it will not

render the will void; it will only render the execution void as far as the

power is concerned. For instance: if, by an instrument under seal, a power

is given to a married woman in the nature of an appointment to devise

certain real estate, in such a case she will be required to execute the

will with a seal, if the appointment is to be a valid one.

The ecclesiastical courts in England and the courts here do not confine

the testamentary disposition to a single instrument, but they will

consider papers of different nature and forms, if not inconsistent, as

constituting altogether the will of the deceased.[49] It is immaterial in

what language a will is written, whether in English, or in Latin, French,

or any other tongue.[50]

While a will is to be in writing,[51] the law insists upon certain

solemnities in its execution to properly evidence the testator's act and

intention, without which the will is absolutely void; and courts very

strictly construe these requirements, because they are remedial, in order

to guard against very grave perils and mischief. The Statute of Frauds

required that all devises and bequests of any lands or tenements should be

in writing, signed by the testator, or by some other person in his

presence, and by his express direction, and subscribed in his presence by

three or four credible witnesses. This statute has been the model on which

all our statutes, relating to the proof of wills in the different States,

were framed. Some have copied it literally, others have adopted it with

certain necessary modifications. Questions had arisen under this statute

as to what the legislature meant by the word "signed"; namely, whether it

should be construed in its strict sense, and by analogy to other

instruments, or whether it should be liberally expounded and left open as

a question of construction upon intention to be inferred from the facts

and circumstances attending each particular case. The construction had

been, as well in the courts of England as here, that the writing of the

name of the testator in the body of the will, if written by himself, with

the intent of giving validity to the will, was a sufficient _signing_

within the statute.[52] Thus the old law stood, and the mischief of it

was, that it was not necessary for the testator to have adopted the

instrument after it was finished, by actually signing the same at the

close of the will, and it did not denote clearly that he had perfected and

completed it. To remedy this evil, and to prevent future controversy as to

whether a will signed by the testator in any other part of the instrument

than at the _end_, denoted a complete and perfect instrument, statutes

have been passed in some States requiring the will to be _subscribed_ by

the testator at the end thereof. The statute passed in England in the

first year of Victoria, requires that the will "shall be signed at the

foot or end thereof by the testator, or by some other person, in his

presence and by his direction." Notwithstanding the language of the

Statute of Frauds as to _signing_, without indicating how or where, is

still retained in the statutes of the majority of our States, except in

Arkansas, California, Connecticut, Kentucky, and New York, where it is to

be _subscribed_ at the end, and in Ohio, Pennsylvania, and West Virginia,

where it is to be _signed at the end_ of the will.

The requirements of the New York statute are as strict, if not the

strictest, of any of our States; and those of California are substantially

the same by the recent civil code of that State.[53]

The statute is in its terms perfectly explicit. Four distinct ingredients

must enter into and together constitute one entire complete act, essential

to the complete execution of the instrument as a will. 1. There must be a

signing by the testator at the end of the will; 2. The signing must take

place in the presence of each of the witnesses, or be acknowledged to have

been made in their presence; 3. The testator at the time of signing and

acknowledging the writing shall declare it to be his last will; and 4.

There must be two witnesses who shall sign at the end, at the request of

the testator.[54]

There must be a concurrence of all these four requisites to give validity

to the act, and the omission of either is fatal. Neither of the four,

which united make a valid execution of a will, may be done at a different

time from the rest. If the instrument has in fact been signed at a

previous time, then the signature must be acknowledged to the subscribing

witnesses, which is deemed to be equivalent to a new signing of the

instrument.[55] They cannot all be done at the same instant of time, for

that is impracticable; but at the same interview, one act immediately

following the other, without any interval, and without any interruption to

the continuous chain of the transaction.[56]

We shall now refer to cases bearing on each of these requisites; and it

will be seen that while the courts have with commendable firmness insisted

upon a rigid compliance with the formula prescribed by the statute, they

have never held that a literal compliance was necessary. No particular

form of words is required to comply with the statute. The only sure guide

is to look at the substance, sense, and object of the law, and with the

aid of these lights endeavor to ascertain whether there has been a

substantial compliance.

It is sometimes still a matter of controversy as to what may be considered

a subscription or signing of the will at the end or foot thereof. In

Tonnele v. Hall,[57] the writing of the instrument propounded for probate

commenced on the first of several sheets of paper stitched together

immediately below a margin, in this form: "In the name of God, Amen. I,

John Tonnele, of the City of New York being of sound mind and memory, and

considering the uncertainty of life, do make, publish, and declare this to

be my last will and testament, in manner and form following, that is to

say,"--and was continued on that and the four succeeding sheets. At the

end of one of the sheets was the signature, and following was the usual

attestation clause, signed by three witnesses. The next sheet was entirely

blank, and was succeeded by a sheet on which was written, "Map of the

property of John Tonnele in the Ninth and Sixteenth Wards, etc." And also

written on the same, "Reduced map on file in the Register's office in the

City of New York." The map indicated the position, by numbers, etc., of

various lots of land in the City of New York which the will purposed to

dispose of, but it was not signed by the testator nor by the witnesses. In

several clauses of the will devising the real estate, reference was made

to the aforesaid map; but not to the _copy_ of the map annexed. The point

taken in opposition to the will was, that the execution of the instrument

was not in conformity to the first and fourth requisites of the statute;

because, as was insisted, it was neither _subscribed_ by John Tonnele, nor

signed by the witnesses at the _end_ of it. It was contended, that as the

map annexed should be regarded as a component part of the instrument, at

the time of its execution, and as it was written on the last sheet of the

papers composing the instrument, it was necessarily the end of the

instrument, where the subscription by the testator and the signing of the

witnesses should have been made. It was held by the Court of Appeals that

the will was subscribed by the testator _at the end of the will_, within

the meaning and intent of the statute, and that the execution thereof was

valid.

In the case of the will of Catharine Kerr before the Surrogate of New

York,[58] the closing portion of the will and the signature were as

follows:

"To the children of Mary Dow, residing in Ireland in County Kilkenny, Give

and bequeath two hundred dollars to be equally divided between them. If

there be a balance, my executors will divide it among my relations that

are not herein mentioned.

CATHE{RIN} KEER.

"I hereby appoint Mich'{l Phelan} of 2nd st., and John Kelly of 9th. st.,

as my executors to this my last will and testament.

Witnesses,

R. KEIN,

MATTHEW M. SMITH."

"I hereby order my executors to pay all my lawful and debts & funeral

expenses--should it please the Almighty now to call me. This they will do

before paying any legacy above mentioned.

CATH{E} KEER."

There was a question as to the genuineness of the subscription, the two

witnesses calling her Keer, and the two subscriptions being of that name,

her Christian name, Catherine, being abbreviated, whilst her real name was

Kerr; and several previous papers were produced, in which her name, proved

to have been signed by herself, was invariably written Catherine Kerr, in

full. The Surrogate held that the form of the will was fatally defective,

because the will was not subscribed by the testatrix and signed by the

attesting witnesses at the end, in conformity with the requirements of the

statute.

The next requisite is that the testator shall sign the will in the

presence of the witnesses, or acknowledge his signature to them, if it has

been signed previously. The New York statute does not require the

witnesses to sign in the presence of the testator, as the California

statute does.[59] Hence, a difference of opinion has arisen as to whether

the New York statute is satisfied if a testator signs a will at one time,

and afterwards acknowledges it to the witnesses separately at different

times. There is an opinion that the witnesses must be present at the same

time, and when the testator subscribes or acknowledges the instrument;[60]

but it has been laid down, in the case of Butler v. Benson,[61] that a

separate acknowledgment is sufficient. However that may be, no careful

practitioner will ever have a will executed except when both the witnesses

are present; and the attestation clause generally expresses that the

witnesses signed in the presence of each other.

In Whitbeck v. Patterson,[62] William Patterson, the testator, signed the

will in the presence of one Hughes, who had prepared it for him, but who

did not sign it as a witness. The two then went to a store, where they

found the three persons who signed as witnesses. These witnesses agreed in

the facts that Patterson and Hughes came into the store together, and, as

they came in, Hughes spoke to them, saying that he had a paper that he

wished them to sign; that it was Patterson's last will and testament; that

Hughes thereupon read the attestation clause in the hearing of Patterson,

as well as the witnesses, and then asked Patterson if that was his last

will and testament, to which he replied that it was. One of the witnesses

further swore that he thought the question was then asked him (the

testator) about his signing the will, and the reply of Hughes was, that

"he signed it up to my house"; to which Patterson said "Yes." This,

however, was not recollected by the other witnesses, and Hughes declared,

with a good deal of confidence, that nothing was said in the store about

his having signed it.

The Surrogate refused to admit the will to probate, on the ground that the

testator had not subscribed the will, or acknowledged the subscription

thereto in the presence of the attesting witnesses; but, on appeal, the

decree of the Surrogate was reversed, and the court held the

acknowledgment was sufficient, because the testator was present and

assented when Hughes said he signed it.

The third subdivision of the statute provides that the testator, at the

time of making the subscription, or at the time of acknowledging the same,

shall declare the instrument so subscribed to be his last will and

testament. This safeguard was considered necessary, in view of the fact

that persons had been imposed upon, believing they were executing a

different paper, when they had been induced to sign a will. Only a few

States, however, insist on this formality; besides, New York, California,

New Jersey,[63] and North Carolina require a publication.

There cannot be any uniform, precise mode to make this declaration; it is

sufficient if the testator fully and intelligently communicate his

knowledge of the instrument being his will to the witnesses; so that he

cannot be mistaken as to its nature, and that it shall be so understood by

the witnesses.[64] The minds of the parties must meet; each must

understand the particular business he is engaged in. And this mutual

knowledge must arise from something said, done, or signified

contemporaneously with the execution of the instrument.[65] It will not

suffice that the witnesses have elsewhere, and from other sources, learned

that the document which they are called to attest is a will; it must be a

clear and unequivocal communication of the fact from the testator himself

in some manner to them at the time.[66]

The leading case on this provision of the statute is that of Remsen v.

Brinckerhoff,[67] determined in the court of last resort in 1841. This

case arose in the Surrogate's Court in New York, on a proceeding to prove

the will of Dorothea Brinckerhoff. The will was signed by the testatrix in

the presence of two witnesses. The attestation was the usual one signed by

the witnesses, showing that the full requirements of the statute were

observed. One of the witnesses, on the trial, testified that the testatrix

executed the will in his presence by writing her name, and acknowledging

it to be her hand and seal for the purpose therein mentioned; that he

subscribed in the presence of the testatrix; that the will was not read to

the testatrix, nor did he read it; he read the last line of the

attestation. Nothing passed between her and him as to its being a will.

The other testified that he saw the testatrix sign the instrument. She did

not say it was her will; but acknowledged her signature for the purposes

therein mentioned. She requested him to sign his name as a witness, and

directed him to write his place of residence. He testified further that he

never saw the testatrix before that time, and remained in the room only no

more than ten or fifteen minutes. On this evidence the Surrogate admitted

the will to probate. Some of the heirs and next of kin appealed to the

Circuit Judge, who confirmed the decree of the Surrogate. They then

appealed to the Chancellor, who reversed the decree of the Surrogate.

Finally, the case was taken to the Court of Errors, and the decision of

the Chancellor was affirmed, that the instrument was invalid, for want of

a declaration, at the time of subscribing or acknowledging the

subscription, that the instrument was a will.

A late case, decided in the New York Court of Appeals in 1875, will

henceforth be an authority on this point. It was the case of Thompson v.

Seastedt.[68] The case arose on an appeal from the Supreme Court,

reversing a decree of the Surrogate of New York City, refusing to admit to

probate the will of Eliza Seastedt, on the ground that it was not formally

declared by her. It appeared that the will was drawn by direction of the

testatrix as her will, and read over to her as such; that she appeared to

read it over herself, remarked it would do, and signed her name to it, and

procured two of the witnesses to subscribe their names to it. The witness

who drew the will testified that he was asked to go to the house to draw

it, and was a witness to it, although not directly asked to sign it. The

second witness said that he heard the decedent ask the first witness to

sign it as a witness; and her husband swore that she asked both of the

other witnesses to sign it. The second witness also said that she asked

him to witness the signing of her name, and the making of her will, and

her husband said she took it after all had signed it, and put it in an

envelope. It also appeared that the testatrix signed the will in the

presence of the witnesses, and that they signed it in her presence, and in

the presence of each other; also, that the wording of the instrument

declared it to be her last will and testament, and that she declared it to

be such at the time of her subscribing.

The Supreme Court held that the proof as to the execution, witnessing,

and publication was sufficient to entitle the will to probate; that,

although the testatrix did not, in words, declare the instrument to be her

will, she treated it as such, and designed the witnesses to understand it

to be such, and that this was equivalent to such a declaration, and was

sufficient to satisfy the requirements of the statute. On appeal, the

Court of Appeals affirmed this judgment, in an opinion by Folger, J.

This must be deemed a satisfactory and equitable decision, and will have a

tendency to check the vexatious and expensive litigation so ruinous to

heirs and to an estate, whenever contestants think there was a disregard

of the slightest technical requisites in the execution of a will.

The fourth and last requirement of the statute in New York is, that there

must be two witnesses who shall sign at the end at the request of the

testator. In the majority of our States, only _two_ witnesses are required

to properly attest a will. There are, as far as we can make out, about ten

States that require _three_ witnesses. The New England States require

three witnesses, and so do Florida, Georgia, Maryland, South Carolina, and

Mississippi, but in the last only one witness is required for a will of

personal property.

It is observed that the New York statute does not in terms require the

witnesses to sign in the presence of the testator or in the presence of

each other, as the most of our States do: as, for instance, California,

Connecticut, Georgia, Massachusetts, and many others. The former statute

in the State required a signing _in the presence of the testator_, but

these words having been omitted from the Revised Statutes, it has been

decided in two adjudicated cases that it is not necessary that the

attesting witnesses should sign their names in the presence of the

testator in the strict sense of the requirement of the former law.[69] In

Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom,

and the witnesses signed in an adjoining room. The door between the two

rooms was open, but the place where the witnesses signed was in a part of

the room where the testatrix could not see the witnesses signing without

putting her head down to the foot of the bed, if she could then; and they

did not look to be able to say whether they could see her face at the time

or not. In such States as require a signing in the presence of the

testator these wills would not be entitled to probate. Even in these

States, a strict literal compliance is not required; the courts adopt what

is termed a doctrine of a constructive presence; which in plain language

is just this--if a testator could see, and won't see, he should see, and

must be supposed to have seen. There never were finer distinctions made on

any matter in law than just on this point; indeed, they are more nice than

wise, and hair-splitting was never carried to a finer point. Thus, where a

testator lay in a bed in one room, and the witnesses went through a small

passage into another room, and there set their names at a table in the

middle of the room, and opposite to the door, and both that and the door

of the room where the testator lay were open, so that he might see them

subscribe their names if he would, and though there was no positive proof

that he did see them subscribe, yet that was sufficient under the statute,

because he might have seen them; it shall therefore be considered in his

presence.[70] But where the attesting witnesses retired from the room

where the testator had signed, and subscribed their names in an adjoining

room, and the jury found that from one part of the testator's room a

person, by inclining himself forward, with his head out at the door, might

have seen the witnesses, but that the testator was not in that part of the

room, it was held that the will was not duly attested.[71] It would almost

seem, from these and other decisions, that the validity of the act

depended upon the range of the organs of sight of the devisor, or upon the

agility of his movements; whether he were able to turn his body to the

foot of the bed, or stretch his neck out of the door.

In Georgia, the testator must have been in such a position as to be able

to see the witnesses sign, to constitute presence.[72] And where the

witnesses did not sign in the same room where the testator was, it raises

a presumption that it was not in his presence; but if the jury find that

he might have seen it, and knew it was going on, and approved it, it is

good.[73]

The whole requirements of the statute are generally embodied in an

attestation clause which is signed at the end by witnesses. This is no

part of the will, and might be omitted without endangering the will,

provided the witnesses, whose names are subscribed, can testify as to the

observance of the various requirements; but it is unsafe to trust to the

memory of witnesses, and almost always the attestation clause is appended.

In those States where no subscribing is required, the following is a good

form:

"Signed, sealed, published, and declared, by the said A B, the said

testator, as and for his last will and testament, in the presence of us,

who, in his sight and presence, and at his request, and in the sight and

presence of each other, have subscribed our names as witnesses thereto."

The following is suited to the requirements of the Revised Statutes of New

York:

"Subscribed and acknowledged by the testator, A B, in the presence of each

of us, who have subscribed our names as attesting witnesses thereto at the

request of the said testator. And the said testator, A B, at the time of

making such subscription and acknowledgment, did declare this instrument

so subscribed to be his last will and testament."

A more general form is the following:

"Signed, sealed, published, and declared by the testator, to be his last

will and testament, in the presence of us, who, at his request, and in his

presence, and in the presence of each other, have subscribed our names as

witnesses."

CHAPTER III.

TESTAMENTARY CAPACITY.

As a general rule, this capacity exists; but there are certain conditions

which preclude the exercise of this privilege, because of an inability to

exercise it either safely, wisely, or intelligently; and these conditions

may be, with respect to age, physical or mental incapacity, and coverture.

SECTION 1.--INCAPACITY AS TO AGE.

The age at which a person is permitted to exercise this right varies with

the nature of the property, whether it be real or personal property. Under

the old common law, a male was qualified to make a will of personal

property at fourteen, and a female at twelve;[74] and this was the rule in

England until 1838.[75] This was the rule of the Roman law; but now it is

changed by statute both in England and in this country. In New York, males

require to be of the age of eighteen, and females of the age of sixteen,

before they can make a will of personal property.[76]

In many of our States, the same age is required for making a will of

personal as for real property; and as a general rule, the age required is

twenty-one; but in three of our States, California, Connecticut, and

Nevada, a person of the age of eighteen is qualified to make a will of

personal and real estate. In some, a female attains her majority for this

purpose earlier than a male person, as in Illinois, Maryland, and Vermont,

where a female is qualified at eighteen.

With regard to the reckoning of the period of a person's majority, there

is a novel and exceptional mode in law. Thus, if a person be born on the

first of February, at eleven o'clock at night, and the last day of

January, in the one-and-twentieth year, at one o'clock in the morning, he

makes his will and dies, it is a good will, for he, at the time, was of

age. This rule, first laid down by Lord Holt,[77] is well established by

sound authority.[78] With regard to which, Redfield remarks: "We feel

compelled to declare that the rule thus established in computing the age

of capacity, seems to us to form a very singular departure, both from all

other legal modes of computing time, and equally from the

commonly-received notions on the subject."[79]

SECTION 2.--PHYSICAL OR MENTAL INCAPACITY.

The physical incapacity of the deaf and dumb formerly disqualified them

from making a will. Blackstone lays down the rule:[80] "Such persons as

are born deaf, blind, and dumb, as they have always wanted the common

inlets of understanding, are incapable of having _animum testandi_, and

their testaments are therefore void." And in Bacon's Abridgment,[81] it is

said: "A man who is both deaf and dumb, and is so by nature, cannot make a

will; but a man who is so by accident may, by writing or signs, make a

will." But since this class of persons have, of late, been brought to a

considerable intelligence by the humane efforts of worthy men to

communicate knowledge to them, there is no longer any reason or sense in

excluding them from the testamentary privilege. However, in their cases,

greater circumspection is needed in communicating with them as to their

intention, and a stricter regard is paid to the observance of the

requirements of execution. The question was carefully examined by the

Surrogate of New York,[82] with the following results:

The law does not prohibit deaf, dumb, or blind persons from making a will.

Defects of the senses do not incapacitate, if the testator possesses

sufficient mind to perform a valid testamentary act. The statute does not

require a will to be read to the testator in the presence of the

witnesses; but it is proper to do so when the testator is blind and cannot

read. In such cases, the evidence must be strong and complete that the

mind accompanied the will, and that the testator was in some mode made

cognizant of its provisions. This may be established by the subscribing

witnesses, or by other proof.

So, also, it seems a drunken man, who is so excessively drunk that he is

deprived of the use of his reason and understanding, cannot make a will

during that time; for it is requisite, when the testator makes his will,

that he be of sound and perfect memory; that is, that he have a competent

memory and understanding to dispose of his estate with reason.[83]

We come now to treat of that incapacity which gives rise to most frequent

and difficult litigation, and upon which judicial discrimination is most

generally exercised--the incapacity of those who are of unsound mind, or

persons _non compos mentis_.

There is no investigation in the whole domain of law that is attended with

so many lamentable phases, where the foibles, indeed, the ludicrous side,

of human nature, are more exposed; for it happens that those who will most

carefully and tenderly screen a man's weaknesses, vagaries, and

eccentricities whilst he is living, will, if a contest takes place in

which they are interested, after his death, most readily reveal, in all

their nakedness and boldness of outline, the infirmities and superstitions

of the deceased.[84]

As a principle of law of universal application, a person of unsound mind

is incompetent to make a valid disposition of his property, either before

or after his decease, except during a lucid interval. The only difficulty

is, to determine exactly and unerringly the particular persons who may be

thus classed, and to agree upon some mode or standard by which we can

class such unfortunate people. Here is the difficulty; for all men do not

view a person's acts in the same manner, and are not similarly impressed

by them. What, to some, would infallibly be the exhibitions of a diseased

mind, may, to others, be the harmless frolics of a person of odd and

eccentric manners. And, just for this reason, the decisions of courts have

fluctuated, and, on this subject, have been the least satisfactory. When

we lay down a definition of insanity, and agree upon it, we are next met

with the further difficulty, to bring the facts of a person's life or

actions within it, and so to classify them.

What is the definition of a person _non compos mentis_? The law has to

depend on medical writers for this information. Taylor, in his Medical

Jurisprudence, gives us a definition as follows: "The main character of

insanity, in a legal view, is said to be the existence of _delusion_;

_i. e._, that a person should believe something to exist which does not

exist, and that he should act upon this belief." Another definition is

this: "Where there is delusion of mind, there is insanity; that is, when

persons believe things to exist which exist only, or, at least, in that

degree exist only, in their own imagination, and of the non-existence of

which neither argument nor proof can convince them: these are of unsound

mind."[85]

The rule of the common law, until within the last hundred years, was, that

it required that a person should be absolutely a lunatic, that there

should be entire alienation of mind, in order to incapacitate him from

making a will; and there was no such theory then as partial insanity, or

_monomania_, which the law takes notice of in modern times. The rise and

acceptance of this theory mark an epoch in legal adjudications; it is

certainly an advance in the science of law in the last century.

The germ of this theory was first broached in the celebrated case of

Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane,

took up an idea that his brother had administered poison to him, and this

became the prominent feature of his insanity. In a few months he recovered

his senses, and was able to attend to his business, but could never divest

his mind of the morbid delusion that his brother had attempted to poison

him, under the influence of which (so said) he disinherited him.

On a trial in the Court of King's Bench upon an issue _devisavit vel non_,

a jury found against the will; but a contrary verdict was had in another

court, and the case ended in a compromise. On the theory of the common

law, as it then stood, this will being made in a lucid interval should

have been valid.[87]

The case in which the law first sanctioned the view of partial insanity,

which is also one of the landmark cases therefore, was the case of Dew v.

Clark,[88] which excited great interest, and received a very thorough

examination by one of the ablest judges of modern times, Sir John Nicholl.

It was proved that the testator regarded his daughter as invested with

singular depravity, a peculiar victim of vice and evil, the special

property of Satan from her birth, and in consequence disinherited her. The

syllabus of the case presents in so clear and concise manner the pith of

the decision, that it will be useful to quote it:

"Partial insanity is good in defeasance of a will founded immediately (so

to be presumed) in or upon such partial insanity. If A, then, makes a

will, plainly inofficious in respect to B, and _is proved, at the time of

making it, to have been under morbid delusion_ as to the character and

conduct of B, the Court will relieve by pronouncing this will to be

invalid, and holding A to have died intestate."

It is from this case, as a starting point, has arisen the theory of

monomania, as applied to testamentary capacity. Henceforth a valuable and

practicable rule was established, subsequently recognized and enforced in

the best considered cases both in England and America--a rule not so much

depending on precedent as it does on sound reason and argument. There must

be two elements, co-existing, to afford sufficient ground for pronouncing

a will invalid at the instigation of relatives and others, who deem

themselves cut off from the bounty of a testator by his monomaniacal

delusions.

_First._ There must be a plainly inofficious will; or a will wanting in

natural affection and duty.

_Second._ There must be morbid delusion actually existing at the time of

making, in respect to the persons cut off, or prompting the provisions of

the inofficious instrument.

This theory is now consistently followed in the courts of this country,

and an examination of a few remarkable and historical cases will

illustrate the application.

It is thus adopted as a principle of decision in Seaman's Friend Society

v. Hopper,[89] by Judge Denio: "If a person persistently believes supposed

facts, which have no real existence except in his perverted imagination,

and against all evidence and probability, and conducts himself, however

logically, upon the assumption of their existence, he is, _so far as they

are concerned_, under a morbid delusion, and delusion in that sense is

insanity. If the deceased, in the present case, was unconsciously laboring

under a delusion, as thus defined, in respect to his wife and family

connections, who would have naturally been the objects of his testamentary

bounty _when he executed_ his will, or when he dictated it, and the court

can see that its dispository provisions were or might have been caused or

affected by the delusions, the instrument is not his will, and cannot be

supported as such in a court of justice." The same was the ruling in Leach

v. Leach.[90]

Still, there needs to be a careful limitation of this theory. If we were

to undertake to class all those who exhibit aberrations of conduct in

various directions of life, who labor under hallucinations, and a wild

imagination in regard to certain matters, whose credulity or whims provoke

our mirth as much as our astonishment, as possessing a diseased mind, we

should class among such some of the most singularly gifted and acute minds

of the world. We all know of numerous cases in which

"Some one peculiar quality

Doth so possess a man, that it doth draw

All his effects, his spirits and his powers

In their confluxions all to run one way."

Hence we must distinguish between mere eccentricity and monomania. In

monomania, a man is not conscious of entertaining opinions different from

the mass of men, and refuses to be convinced of laboring, in any degree,

under mental unsoundness; the eccentric man is aware of his peculiarity,

and persists in his course from choice, and in defiance of the popular

sentiment. A remarkable case of eccentricity, as the court determined,

bordering very close on monomania, was in the case of Morgan v. Boys,[91]

where the will was upheld, on the ground that there was no satisfactory

proof of actual unsoundness of mind. The testator devised his property to

a stranger, thus wholly disinheriting the heir, or next of kin, and

directed that his executors should "cause some parts of his bowels to be

converted into fiddle strings--that others should be sublimed into

smelling salts, and the remainder of his body should be vitrified into

lenses for optical purposes." In a letter attached to the will, the

testator said: "The world may think this to be done in a spirit of

singularity, or whim, but I have a mortal aversion to funeral pomp, and I

wish my body to be converted into purposes useful to mankind." The

testator was shown to have conducted his affairs with such prudence and

ability, that, so far from being imbecile, he had always been regarded by

his associates, through life, as a person of indisputable capacity.[92]

Some wills have been refused probate upon the ground of a disgusting

fondness for animals, evinced by the testators during their lives or in

the testamentary act. In one case, the testatrix, being a female,

unmarried, kept fourteen dogs of both sexes, which were provided with

kennels in her drawing-room.[93]

In another case, a female, who lived by herself, kept a multitude of cats,

which were provided with regular meals, and furnished with plates and

napkins. This strange fondness for animals, in solitary females, is not

altogether unusual, and is not to be regarded as any certain indication of

insanity.[94]

We will now refer to three cases with some particularity, originating in

the Surrogate's Court in New York, each of which is very curious and

instructive, and in which we can perceive the application of the rule

regarding monomania.

The first is the case of Thompson v. Quimby.[95] There were several

reasons assigned by the contestants for their attack upon Mr. Thompson's

will. Among them was the allegation "that the decedent was laboring under

delusions amounting to insanity, and had not a disposing mind during the

preparation, or at the time of the execution of the will." The instrument

was drawn and executed during his last illness, and but a short time

before his death. It was a voluminous document, and in it some provision

was made for many of his descendants and kinsfolk, but the bulk of his

large estate (about $400,000) was left for charitable or religious

purposes.

The testimony established that the testator was a believer in many

superstitions of a vulgar character, and had held them with great

pertinacity for many years. Among other delusions, it was claimed he

believed in the black art; that he read and experimented upon the

teachings of magic; was familiar with disembodied spirits; that he could

work spells by formula or incantation; that he could cure diseases by

amulets, or by papers bearing certain cabalistic inscriptions, which were

to be worn about the person of the sufferer. He professed to know where

Captain Kidd's treasures were secreted at Montauk Point, and actually, in

company with another, undertook, by the aid of a divining rod, to locate

the exact spot where the riches were buried. The experiment was a failure,

because, as he declared, the charm under which he worked was broken by the

inopportune remarks of his attendant. On one of these occasions he beheld

the apparition of the devil (it seems, he had a belief in that personage)

in the shape of a large bull, and spoke of this taurine manifestation of

the father of evil with great seriousness. It was also alleged that he

claimed to see ghosts; that he believed in the supernatural character and

significance of dreams, in the philosopher's stone, in clairvoyance,

spiritualism, mesmerism, magic glasses, and that he owned a whistle with

which he could get everything he wanted. This, and much more to the same

effect, was adduced as testimony to prove the insanity of the testator.

On the other side, it was shown that the testator was a shrewd and

intelligent man of business, clear and firm in his judgments. He was

largely engaged in affairs; was connected with moneyed institutions; had

succeeded in accumulating wealth by his own efforts; was associated in

large and responsible enterprises of commerce, and was a regular attendant

at Dr. Spring's Presbyterian church.

While the Surrogate did accredit all that was deposed to, to sustain his

insanity, he did arrive at this conclusion: "After making every possible

reasonable allowance, I have no doubt that Mr. Thompson's mind was

impressed with a sincere belief in many absurd notions. There seems

sufficient evidence to show that he believed in mesmerism, clairvoyance,

divining and mineral rods, dreams, and spiritual influences. He searched

for the supposed deposits of Kidd, and ascribed his failure in two

instances to the utterance of certain words by the operator. That he said

he saw the devil in the shape of a bull seems to be well established. He

believed likewise in the efficacy of cures for rheumatism, and fever and

ague." Now, there was nothing whatever to connect any of these aberrations

or infatuations of the testator with the provisions of his will, or with

any one of them; they did not affect his testamentary disposition of his

property; and there could not, therefore, have been a successful

impeachment of his will on the ground of monomania, or partial insanity.

The Surrogate decreed in favor of the will, and the Supreme Court

sustained his decree.

The next case we allude to, to further furnish an illustration of the

rule, is the recent case of the Bonard Will. This case is of the very

greatest importance, because it was argued with unusual skill and ability,

and the testimony of the medical experts was sifted with a thoroughness

and minuteness which elicited much instruction upon the more obscure

phenomena of mental disease, and the facts revealed being such as to

present very distinctly the question of the testamentary capacity of one

who entertained singular tenets of a so-called faith. It will be advisable

to state the facts somewhat fully. Louis Bonard, a native of France, died

at the city of New York, in the Roman Catholic hospital of St. Vincent, on

the 20th day of February, 1871. His life had evidently been an eventful

one; for, while the testimony leaves in doubt much, and fails altogether

to account for more of his antecedent history, it was known that he had

been a traveler and a trader in South and Central America, and that he had

been a dealer in sham jewelry; that he came to this country some time

prior to the year 1855, and had brought with him money; that he had had

losses, but at length became successful, and made investments in real

estate, which enabled him to accumulate a fortune amounting, at the time

of his death, to about one hundred and fifty thousand dollars. During the

period of his residence in New York, he lived as a miser. He preferred the

society and companionship of artisans and mechanics. He had no relatives

in America nor in Europe, so far as was ascertained at the time of the

trial, although it has since transpired that he has kindred in France. He

was a man of erratic habits and singular beliefs, the latter of which

seemed to intensify as his age advanced. He was a misanthrope; but was

possessed of an unbounded affection for the brute creation. The evidence

shows that he was a believer in metempsychosis; that he expressed the

opinion that there might be an emperor in any animal he beheld; that he

remonstrated with a person who suggested it would be humane to kill an

injured kitten, because, he averred, there was a human soul in the

animal's body. But he was a man dextrous and cunning in mechanical arts.

He constructed machines for various purposes; he had mental resources

likewise, and was a reader of books. The testimony, fairly viewed, showed

that he railed at religion and priests; yet he died in the peace of the

Roman Catholic Church, and in full communion.[96]

There appeared also the fact that Mr. Bonard combined with his ardent love

of animals an unbounded admiration for the benevolence of Mr. Henry Bergh.

Memoranda were found among his papers which plainly showed he had some

ulterior purpose concerning that gentleman. On the 11th of February, 1871,

and while he was very ill, he made a will, bequeathing a portion of his

property to two of his friends. On the 13th he made another, revoking the

former, and left all his estate, real and personal, to the Society for the

Prevention of Cruelty to Animals, of which Mr. Bergh was then, as now,

the honored president. Here was a case, bold in its outlines, and

presenting the salient features of a dogma of a heathen creed,

constituting the avowed belief of a man who was born and who died in the

Catholic faith. The opinion of the learned Surrogate is very able and

interesting. He declares that the belief which Mr. Bonard held did not

constitute insanity; that "if a court is to ascribe insanity to a man, or

a class of men, constituting a sect according to his or their opinion or

belief as to a future state, the logical deduction would necessarily be,

that a major portion of all mankind, comprised in all other and different

sects, were of unsound mind, or monomaniacs on that subject." The learned

Surrogate then proceeds to consider the facts of this case, not as

presenting one of general insanity, but as one in which the only

appearance of unsoundness of mind consisted in the alleged monomania

concerning the transmigration of souls. But he adverts to the fact that

there was no connection necessarily of this belief with the terms of the

will--that there was nothing _in the will_ to show that he held the

opinions alleged any more than he was impressed with a belief in utter

annihilation after death; nor was there any testimony to associate any

provision of the will with a belief respecting the future condition of the

human soul. These considerations, coupled with the further fact that "the

testator had neither wife nor child, father nor mother, nor any known,

near, or remote relatives living, or others on whom he was or felt himself

under obligation to bestow his property," induced the court to sustain

the will and overrule the allegation of mental incapacity.

But let us suppose that, actuated by this belief, so uncommon in the

present day, Mr. Bonard, having before his mind the fate of an itinerant

cur running around the city, yelled and hooted at by idle lads, or stunned

by a policeman's baton, had feared that his soul after death might pass

into the body of such a hapless vagrant, and, under the impression of this

possible fate, had provided a safe asylum where such unfortunates might

find shelter from the pelting storm; and still further, that there were

relatives who would appear and contest the will. Then we introduce quite a

different and a new element into the consideration of the case.

This would have indicated that the dispository provisions were intended by

the testator for his own physical comfort and benefit in another sphere of

physical existence, and would have furnished one and the principal element

of that quality of unsoundness of mind which the law recognizes as such in

cases of disputed wills.

A late case in New York, decided in June, 1875, by the Surrogate, is

another illustration. This was the case of the will of Harriet Douglas

Cruger, made when the decedent was seventy-nine years of age, and in which

she disposed of the bulk of her very large estate to the American Bible

Society, and the Board of Foreign Missions of the Presbyterian Church. The

history of the lady's life is an eventful and interesting one. Belonging

to a family of wealth and standing, possessed of a large private fortune,

and endowed by education and training with rare personal and mental

accomplishments, she married early in life, and met with disappointment

and misfortune; for it was soon followed by a separation, and a law suit

which continued for over eight years, between herself and her husband. She

had some nephews and nieces, to whom, at one time, she expressed an

intention of leaving her property. In the year 1866, she suffered an

injury which affected her mind, and then, at times, was undoubtedly a

raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her

physician, Dr. Parker, testify to her condition then as one of undoubted

lunacy. She had on her mind a delusion that the devil was bodily present

under her bed, and because of this was in the greatest anxiety and terror.

She told her pastor of it, and further communicated to him her intention

to give, as a means for her soul's salvation, the most of her property to

the religious and charitable societies of her church. He very prudently

dissuaded her from this, properly instructing her that her salvation could

not depend on such an act, and endeavoring to reason her out of her

delusion, but to no purpose. In the fall of 1867, a will was prepared by

Charles O'Connor, who was deceived as to her condition, giving her

property to the societies named. The will was contested, and rejected,

according to the established rule, that her insane delusion, acting on her

mind at the time, affected the disposition of her property, and her will

was clearly the offspring of such a delusion.

In the case of Austen v. Graham,[97] the testator was a native of England,

but had lived in the East, and was familiar with Eastern habits and

superstitions, and professed his belief in the Mohammedan religion. He

died in England, leaving a will, which, after various legacies, gave the

residue to the poor of Constantinople, and also towards erecting a

cenotaph in that city, inscribed with his name, and bearing a light

continually burning therein. The court pronounced the testator to be of

unsound mind, principally upon the ground of this extraordinary bequest,

which sounded like folly, together with the wild and extravagant language

of the testator, proved by parol. But on appeal it was held that as the

insanity attributed to the testator was not monomania, but general

insanity, or mental derangement, the proper mode of testing its existence

was to review the life, habits, and opinions of the testator, and on such

a review there was nothing absurd or unnatural in the bequest, or anything

in his conduct at the date of the will indicating derangement, and it was

therefore admitted to probate.

SECTION 3.--SENILE DEMENTIA.

The imbecility and feebleness of mind resulting from extreme old age is

another cause of testamentary incapacity. Not that the law fixes a limit

beyond which it is presumed a testator cannot exercise the testamentary

disposition of his property intelligently; but it takes into account the

well known, familiar instances of the loss of a person's memory and mental

capacity, owing to the decrepitude of old age, and it accepts evidence in

those instances where senile decay is alleged, as to the ability of an

aged person to rightly and understandingly make his will. It was said, in

a case in the Ecclesiastical Court in England, that "extreme old age

raises some doubt of capacity, but only so far as to excite the vigilance

of the court."[98]

But if a man in his old age becomes a very child again in his

understanding, and becomes so forgetful that he knows not his own name, he

is then no more fit to make his testament than a natural fool, a child, or

a lunatic.[99]

Courts are not disposed to accept every statement regarding the eccentric

or weak movements of an old person as incapacitating such a one from

making a will; on the contrary, there is every disposition to permit such

a one, if not unmistakably enfeebled in intellect, or unduly influenced,

to exercise a right that throws around one, at such a period, a dignity

and power entitling them to the respectful regards of those who otherwise

might not bestow upon them the attention due to the helplessness of old

age. Chancellor Kent well expressed this leaning of courts, in the case of

Van Alst v. Hunter.[100] He says: "A man may freely make his testament,

how old soever he may be.... It is one of the painful consequences of old

age, that it ceases to excite interest, and is apt to be left solitary and

neglected. The control which the law still gives to a man over the

disposal of his property is one of the most efficient means which he has,

in protracted life, to command the attention due to his infirmities. The

will of such an aged man ought to be regarded with great tenderness, when

it appears not to have been procured by fraudulent acts, but contains

those very dispositions which the circumstances of his situation and the

course of the natural affections dictated."

In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick,

at the time of making the will offered for proof, was ninety years of age,

and the probate was contested on the ground of testamentary incompetency

and undue influence. It was shown that though the old lady did not

remember the decease of her son and his wife, that she had sufficient

intelligence to inquire about a certain one of her houses, its repairs,

and the collection of the rent. One witness stated, as instances of her

bad memory, that she forgot to pay her a dollar she had borrowed (a defect

of memory not confined to old age); that she was in the habit of making

statements, and afterwards denying she had made them, (not confined to old

age, by any means) and that she would repeat the same questions after they

had been answered. As an instance of the popular belief as to the capacity

of old age, one witness said: "She had a bad memory; she was like other

old people eighty years old; we consider them childish." Another witness,

a lady, testified: "As long as I can bring my memory to bear, (a

considerable time, it appeared) she has been childish. In my opinion, she

was childish twenty-five years ago. She would sing childish and foolish

songs, and tell foolish stories, which I considered unbecoming for a woman

of her years, and the people would all laugh at it. She would talk

sometimes of getting married, and would fancy she was making ready to be

married." Against all this was the testimony of her pastor, Rev. Dr.

Berrian, that her conversation was devout and pertinent, and he considered

her a rather remarkable person for her age. Her physician also testified

that he never observed any indication of unsound mind.

Surrogate Bradford, in an able opinion, examined the evidence carefully

and at length, and came to the conclusion to admit the will to probate.

About her levity, he remarks: "It is worthy of remark, that persons

attaining great age often possess a large degree of that cheerful and

lively manner which characterizes youth, and which probably in them

contributes greatly to a green old age, when others, not so old, and

possessing less of this sprightliness and vivacity, appear more decrepid

and stricken in years."

As a principle of such cases, he announces: "Great age alone does not

constitute testamentary disqualification, but, on the contrary, it calls

for protection and aid to further its wishes. When a mind capable of

acting rationally, and a memory sufficient in essentials, are shown to

have existed, and the last will is in consonance with definite and well

settled intentions, it is not unreasonable in its provisions, and has been

executed with fairness."

SECTION 4.--COVERTURE.

The incapacity arising from coverture is to a great extent removed, and is

gradually disappearing by remedial legislation, and for this reason it

will not be necessary to treat of it at much length.

There has been a tendency, for many years past, to remove the various

property disabilities attaching to a married woman, and which were only to

be justified, if then at all, by quite a different state of social

organization from the present. Perhaps in no branch of the law have there

been so many radical changes as in that part pertaining to the status of a

married woman. A lawyer who had only in his mind the old common-law theory

and rules, and had neglected to make himself familiar with modern

legislation on this subject, would find himself strangely bewildered to

define a married woman's rights and powers at the present time.

Still, testamentary power did not come as soon as other rights. Even when

the right to a separate and independent ownership of property was granted,

the right to a testamentary disposition did not accompany it; as, for

instance, in the State of New York, the right to retain for her own use

any personal or real property coming to her during marriage, free from any

control of the husband, was granted in 1848, but it was not until the

next year she was empowered to dispose of it by will.

Married women were excepted from the Statute of Wills of the reign of

Henry VIII, which first allowed the disposition of real estate by will in

England; but they frequently exercised testamentary disposition under a

power given them when an estate was conferred upon them to their separate

use.[102]

They had what was called a _power of appointment_ by will, given by the

donor of the estate, who was presumed to make the will through them as an

instrument.

They could only make a will of personal property by the consent of the

husband under the old law,[103] and this is the case yet in a few States.

In Massachusetts, a married woman can dispose of only half of her personal

property by will without the consent of her husband;[104] and some such

restriction exists in many of our States.

The law of the American States in regard to the separate estate of the

wife being exclusively under her control, and subject to any disposition

on her part, is fast verging towards the rules of the Roman civil law,

which allowed a married woman the same testamentary capacity, in all

respects, as a _feme sole_.[105] In most of the more important and

commercial States, the wife's right to dispose of her estate by will, both

real and personal, is recognized to the fullest extent by statute.[106]

The only general restriction is, that she cannot defeat, in her will of

her real estate, her husband's right of curtesy. In some States, where the

estates by dower and curtesy are abolished, this restriction, of course,

cannot exist, as, for instance, in California.

In New York, the power to dispose of her separate real estate by will

seems to be unrestricted, for there is no limitation mentioned. But

opinions differ on this question: some hold that the husband's right of

curtesy is not cut off by the statute, while others hold that the whole

unrestricted disposition of her property is given, and that she can defeat

her husband's curtesy, even if issue be born and the estate become vested.

The matter is in a little uncertainty, because we have not as yet an

authoritative opinion of the highest court on the subject, since the

remedial statutes were passed. We are inclined to think, however, that the

wife can defeat her husband's right of curtesy by a disposition of her

estate by will.[107]

It would be impracticable to give the various statutes of the States on

this subject, and, besides, it would be useless, as the changes are very

frequent, and what would be correct for a State today may to-morrow be

obsolete; we have only endeavored to give some general information on the

subject.

CHAPTER IV.

LEGACIES.

People generally understand quite well what is meant by a legacy in a

will; but there is a popular meaning attached to the word, which differs

from the strict legal meaning. Popularly, we suppose a legacy to be

anything--property of any kind, whether real or personal--left to a person

in a will; whereas, the strict legal meaning is, that it is a gift of

money, or some particular thing, left to a person in a will. When real

estate is given, we then term it a _devise_, in a legal point of view; but

the word _bequest_ is a more general term, as it may designate either a

legacy or a devise.

In this chapter, we shall treat of legacies: 1. _As to their Quality_; 2.

_Vested or Contingent_; 3. _Conditional_; 4. _Payment_; and 5. _The Person

who may take_.

SECTION 1.--AS TO THEIR QUALITY.

Of legacies, there are two kinds--a general legacy, and a specific legacy;

with the former is classed what is termed a pecuniary legacy. A legacy is

general when it is so given as not to amount to the giving of some

particular thing, or money, belonging to the testator. A legacy is

specific when it is a bequest of a specified part of the testator's

personal estate, which may be distinguished from all others of the same

kind. Thus, for example, "I give a diamond ring" is a general legacy,

which may be satisfied by the delivery of any ring of that kind; while "I

give the diamond ring presented to me by A" is a specific legacy, which

can only be fulfilled by the delivery of the identical ring mentioned; for

the object is accurately referred to and described, and the legacy can

only be satisfied by a delivery in _specie_.[108]

Again, if the testator have many brooches and horses, and bequeath "a

brooch" or "a horse" to B, in these cases it is a general legacy; for it

is uncertain, from the description, whether any _particular_ brooch or

horse was intended; so that the bequest may be satisfied by the delivery

of something of the same species as that mentioned.[109] But a bequest "of

such part of my stock of horses as A shall select, to be fairly appraised,

to the value of $800," or "of all the horses which I may have in my stable

at the time of my death," is specific.[110]

A bequest to a wife in the following words: "I give and bequeath to my

wife, A, the annual sum of £300 sterling each and every year during her

natural life, in order that she may live in quiet and easy circumstances,"

and which, with other legacies afterwards given to her, was expressed to

be in lieu of dower, was held to be specific.

If there be an error in the description of the chattel intended to be

specifically given, the mistake may be of such a nature as not to permit

a failure of the specific bequest. If, therefore, A, having _one_ horse

only, which is white, bequeath it to B by the words "my _black_ horse,"

the mistake is obvious and easily remedied, and the legatee will be

entitled to the specific horse, although it be not of the color described;

for there can be no doubt of that being the horse _intended_ for him, and

the legacy will be specific.[111] If the testator had _two_ white horses

of different values, and, intending one of them in particular for B,

bequeathed it to him by the words, "my white horse," it is presumed that

evidence is admissible to show which of the two horses was intended.[112]

As respects the doctrine of specific bequests, the intention of testators

upon this subject, as in every question of the construction of wills, is

the principal object to be ascertained; and it is, therefore, necessary

that the intention be either expressed in reference to the thing

bequeathed, or otherwise clearly appear from the will. The intention must

be clear, and courts in general are averse to construing legacies to be

specific.[113]

With respect to legacies for money, securities for money, debts, etc.,

under some circumstances even pecuniary legacies are held to be specific,

as of a certain sum of money in a certain bag or chest;[114] or of £200,

the balance due the testator from his partner on the last settlement

between them;[115] but a legacy of "£400 to be paid to A," in cash, is a

general legacy.[116]

Stock or government securities, or shares in public companies, may be

specifically bequeathed, where, to use the expression often applied, there

is a clear reference to the "corpus" of the fund. Thus, the word "my,"

preceding the word stock or annuities, has been several times adjudged

sufficient to render the legacy specific; as where the bequest is of "_my_

capital stock of £1,000 in the India Company's stock."[117] So a bequest

of all the testator's right, interest, and property in thirty shares of

the Bank of the United States of America is a specific legacy.[118]

The distinction between these two sorts of legacies is of the greatest

importance; for, in the settlement of an estate by executors or

administrators, articles not specifically bequeathed are first to be sold

to pay debts and other legacies; and, if there be a deficiency to pay

debts, the general or pecuniary legatees have first to abate ratably, or

contribute in proportion to the value of their individual legacies.[119]

The principle on which this is done is, the presumed intention of the

testator to give a preference to those legatees, by severing particular

parts of his personal estate from the rest. But another distinction

between them is, that, if the particular thing bequeathed happens, during

the lifetime of the testator, to become extinguished, or in some way

disposed of by him, which, in law, is called an _ademption_, the legacy

fails, which cannot be the case with a general legacy; so that, though

specific legacies have, in some respects, the advantage of those that are

general, yet, in other respects, they are distinguished from them to their

disadvantage.[120]

The bequest of all a man's personal estate generally is not specific; the

very terms of such a disposition demonstrate its generality.[121] But if a

man, having personal property at A and elsewhere, bequeath all his

personal estate _at_ A to a particular person, the legacy is specific;

and, if there is a deficiency of assets to pay other legacies, such a

legatee shall not be obliged to abate with the other legatees.[122] So,

where the testator bequeaths the residue of all his personal estate _in

the Island of Jamaica_, this is a specific legacy.[123]

It has been held in Pennsylvania that a pecuniary legacy may be exempt

from abatement, as in the case of a wife or child destitute of other

provision, or where a legacy is given in lieu of dower.[124]