SECTION 5.--THE PERSON WHO MAY TAKE.

The only person generally disqualified to receive a legacy is the witness

to a will. The law has thought fit to guard a deceased from all

imposition, and it is thought if a person took any beneficial interest

under a will to which he was one of the witnesses, he could not be a

disinterested person to attest its due execution.

In New York, he is disqualified, if such will cannot be proved without his

testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where

there were _three_ witnesses to the will, each of whom took legacies under

it, the Surrogate called the first two, whose names appeared first, which

were sufficient, and omitted calling the third. It was decided that he

only became entitled to the legacy, as the will could be proved without

his testimony.

An executor is not disqualified from receiving a legacy; but in his case,

it seems, it will not carry interest.[185]

In wills, legatees are sometimes designated under a general name or class,

and a difficulty often arises to determine what individuals shall be

included in such a designation. Where a testator uses such general terms,

without defining or limiting them, they have a meaning given them by the

general rules of construction in law. Indeed, the testator's intention may

be frustrated by using certain terms, which may appear to him to include

or exclude certain individuals in his bounty, but which may be so enlarged

or restricted by the rules of law as to defeat their object. As in the

instance where a lady, dying, and intending to give her personal wearing

apparel to her servant maid, bequeathed to her _all her personalty_, which

under the rules of law meant all her personal estate, which was valued at

$60,000, and which under such a term must necessarily go to the servant.

In general, no rule is better settled than that legatees must answer the

description and character given them in the will, but it will presently

appear, from the cases, that there are many important exceptions to it.

We shall refer to some of these general names or classes, sometimes met

with in a will, by which individuals belonging to such classes become

entitled to a legacy.

When a testator leaves a legacy to "children,"[186] it is a general rule,

that those within that designation _at the time of the testator's death_

become entitled; but if, from the expressions and context of the will, it

is ascertained that he intended only those who answered that description

_at the date of the instrument_, such intention will be observed.[187] A

court of equity, however, is careful that a liberal construction be placed

upon such a term, and always, if possible, will hold that it shall include

children in existence at the death of the testator, and especially if the

testator stood in _loco parentis_ to the legatees.[188]

The general rule, it is claimed in Collin v. Collin,[189] is, that in a

will of personal estate the testator is presumed to speak in reference to

the time of his death, and not to any previous or subsequent period.

A child in _ventre sa mere_, at the time of the testator's death, is held

to be in _esse_, if it is afterwards born alive, and to be equally

entitled as those children who were born in the lifetime of the

testator.[190]

If there be a postponement of the division of a legacy given to a class of

individuals until a certain time after the testator's death, every one who

comes under the description at the time when the distribution is made will

be entitled, no matter if he was not in _esse_ at the time of the

testator's death, unless from the will it be gathered that the testator

intended to limit his bounty to those only who were living at the time of

his decease.[191]

And where the legacy in the will indicates a present bequest of a fund

which is to be distributed at a period subsequent to the death of the

testator, those who are in _esse_ at the time of his death will take

vested interests in the fund, but subject to open and let in others who

may come into being, so as to answer the description and belong to the

class at the time appointed for the distribution. Where, however, a fund

is bequeathed to children or others as a class, to be divided equally

among the persons composing the class, when they arrive at the age of

twenty-one, or marriage, only those who shall have been born or begotten

when the oldest arrives at the age of twenty-one, or when the first of the

class is married, are entitled to share in the fund.[192]

Although, as a general rule, a devise to children, without any other

description, means legitimate children, and if the testator has such

children, parol evidence cannot be received to show that a different class

of persons was intended; still, in these cases, as in all others, it is

proper to look into circumstances _dehors_ the will, to see whether there

are any persons answering the description of the legatees in the legal

sense of the term used; and if it appear that there are not any such

persons, it is then allowable to prove the situation of the testator's

family, to enable the court to ascertain who were intended by the testator

as the object of his bounty. Thus, in Gardner v. Heyer,[193] where the

testator died a bachelor, but had for a long time lived and cohabited with

M. Smith, by whom he had and left four children, a son and three

daughters, who had been by him placed at school and acknowledged as his

children, and were generally reputed as such by his friends; and by his

will he gave to his son John $10,000, to be paid to him when he arrived at

the age of twenty-four, the interest in the meantime to be applied to his

maintenance and education; and he also gave to each of his daughters

$3,000, payable at the age of twenty-one, and the interest in the meantime

to be applied to their education and support; and he directed his

executors and trustees to pay $65 to M. Smith, the mother of the children,

quarterly, during her life, if she remained single and had no more

children; and he devised and bequeathed all the residue of his estate,

real and personal, to his executors and trustees, and the survivor of them

in fee, in trust, to pay two-thirds of the income thereof to his son

John, and one-third to his daughters during their lives, with remainder to

their issue; and he gave cross-remainders to the survivors in case any of

the children should die without issue; and he also appointed the executors

and trustees, guardians of the children during their minority, and

earnestly requested that the utmost care should be taken _of their morals

and education_. The court declared that there was no doubt as to the legal

and equitable rights of the children of M. Smith under the will.

A bequest to an unborn, illegitimate child, the mother being described, is

valid, unless the child be pointed out as having a certain father, for

then it is void, the bastard being in point of law nobody's child--_filius

nullius_.[194]

A bequest by a husband to his "beloved wife," not mentioning her by name,

applies exclusively to the individual who answers the description at the

date of the will, and is not to be extended to an after taken wife.[195]

A testator was betrothed to a lady, and by a codicil to his will, after

mentioning her name, and alluding to his intended marriage with her, he

gave £3,000 _to his wife_. Before the marriage he died, and it was held

that the lady was entitled to the legacy.[196]

A gift to "my servants," it is thought, will extend to those in

testator's service at the date of the will, though they leave it before

his death.[197] Redfield prefers to comprise, by such a phrase, only those

who are in the testator's service at the time of his decease, no matter

whether they were his servants at the time of his making his will or

not.[198] The best rule would be not to admit those who entered the

testator's service recently before his death, nor those who left before

that time, but to hold only those entitled who were in his service when

the will was made as well as at his death.

Difficulties sometimes arise from the want of explicitness in pointing out

a legatee by a testator, and again from a mistake in naming or designating

him. The general rule upon the subject is, that when the name or

description of the legatee is erroneous, and there is no reasonable doubt

as to the person who was intended to be named or described, the mistake

will not disappoint the bequest. The error may be rectified and the true

intention of the testator ascertained in two ways: 1. By the context of

the will; 2. To a certain extent by parol evidence.

1. The mistake may be rectified by the context. Thus an error in the

_name_ of the legatee may be obviated by the accuracy of his

_description_: as where a legacy is given to "my namesake _Thomas_, the

second son of my brother," and the testator's brother had no son named

Thomas, but his second son is named _William_, there is sufficient

certainty in the description to entitle the second son.

And again, where the testator bequeathed to his brother, Cormac Connolly,

and to his two sisters, Mary and Ann, a certain residue, and afterwards by

a codicil bequeathed as follows: "To my nephew, Cormac Connolly, the son

of my brother, Cormac Connolly, the sum of five hundred dollars for his

ecclesiastical education, which sum is to be taken from what I have

bequeathed to my brother Cormac, and to my sisters Mary and Ann." And it

appeared the testator never had a brother named Cormac, but that he had a

nephew, Cormac, who was the son of his only surviving brother James, who

was pursuing classical studies in Ireland with a view to an ecclesiastical

education, and who was the only nephew of that name; it was held that the

legatee intended by the testator by the name of his brother, Cormac, was

the father of his nephew, Cormac, and that his brother James was the

person entitled to share in the residuary estate.[199]

So, an error in the _description_ may be obviated by the certainty of the

_name_; as, where a legacy was given to "Charles Millar Standen and

Caroline Eliz. Standen, _legitimate_ son and daughter of Charles Standen,

now residing with a company of players," and it appeared they were

_illegitimate_ children, their claim was nevertheless supported.[200]

The mistake may, to a certain extent, be rectified by parol evidence. The

admissibility of parol evidence in these cases has given rise to much

discussion; it forms one of the exceptions to the general rule, not to

admit parol evidence where a will is void for uncertainty. This is treated

of under the _seventh proposition_ of Wigram on Wills,[201] in a very

exhaustive manner, and the cases fully examined. We will merely here point

out when such evidence is admissible and when it is rejected. The rule is

thus laid down: Where the object of a testator's bounty, or the subject of

disposition, is described in terms which are applicable indifferently to

more than one _person_ or _thing_, evidence is admissible to prove which

of the persons or things so described was intended by the testator.

Thus, when a _blank_ is left for the Christian name of the legatee, parol

evidence is admissible to supply the omission, as in the case of Price v.

Page,[202] in which the testator bequeathed "to ---- Price, the son of

---- Price, the sum of £100." No person but the plaintiff claimed the

legacy, and he produced evidence from which it appeared that he was the

son of a niece of the testator; that his father and grandfather's names

were Price; that the testator had no other relation of that name, and that

he had been before frequently the object of the testator's care; that the

testator said he had and would provide for the plaintiff. Upon this

evidence, Lord Alvanley determined in favor of the claim.

When the omission consists of the _entire_ name of the legatee, parol

evidence cannot be admitted to supply the blank; for that would amount to

a bequest by oral testimony. Thus, in Winne v. Littleton,[203] A

bequeathed all his personal estate to his executor, leaving a blank, and

died without naming _any_ person executor. The legacy was adjudged to be

void. And in Hunt v. Hort,[204] a woman devised her houses in the city and

at Richmond to her niece, dame Margaret Hort, and Richard Baker, her

attorney, in trust to sell. She then gave some pictures specifically, and

thus proceeded: "My other pictures to become the property of Lady ----."

The testatrix then made her niece, Harriet Hunt, her residuary legatee,

and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was

of opinion that he could not supply the blank by parol evidence, and

observed that, where there was only a title given, it was the same as a

total blank.

If, however, a legatee be described by initials of his name only, parol

evidence may be given to prove his identity. This was done in the case of

Abbott v. Massie,[205] where the bequest was: "Pint Silver Mug and all my

China to Mrs. G., and £10 for mourning." Mrs. Gregg claimed the legacies,

and (the Master having refused to admit testimony) offered to show that

she was the person intended. Exception was taken to his ruling, upon which

the court declared that he ought to receive evidence to prove who Mrs. G.

was.

The principle upon which parol evidence is admitted in these cases is a

presumption of possible ignorance in the testator of the Christian name of

the legatee, or of his being accustomed to calling a person by the name

of Mrs. B, a presumption which, being raised upon the face of the will,

may be confirmed and explained by extrinsic evidence. Upon this ground, it

is consistent with the established doctrine that such evidence is

admissible to remove _latent_ ambiguities, but cannot be admitted to

explain _patent_ ambiguities in a will. This is founded on Lord Bacon's

well-known maxim: "_Ambiguitas verborum latens verificatione suppletur._"

CHAPTER V.

LIMITS TO TESTAMENTARY DISPOSITION.

While the law has generally granted the privilege of testamentary

disposition, it has not deemed it expedient or politic to give the

absolute and unrestricted power, so that a person can make a posthumous

disposition of his property in _any_ way he thinks proper. For the public

welfare, it has seemed judicious to impose certain restrictions on the

right exercised by a person in distributing his property after his

decease. It is well known that if an uncontrolled, absolute power were

given, that individuals would sometimes disregard the claims of those who

have a natural right to their bounty, and gratify their pride, their

whims, or their vagaries in disposing of their property by will.

The possession of a large amount of property during a man's lifetime gives

him such a consciousness of power and authority, that it is difficult to

disabuse his mind of the idea that he cannot perpetuate his name, his

influence and control, after his death, by distributing and disposing of

his property according to his pleasure.

The law is full of instances where men have attempted, by schemes in

devising their property, to establish a name and an influence that would

abide long after the mind that conceived them had ceased to act or

control.

This has been the ambition, we may call it the infirmity, of some great

minds; indeed, it seems sometimes a special characteristic of such persons

to desire to live thus in the memory of posterity, by some remarkable and

striking mode of disposing of their property after their decease, so as to

leave some visible token of their influence and prestige, either in an

institution or in a family,[206] either in a charity or a monument.

When properly and judiciously exercised, this desire has led to the

foundation of those noble institutions for the relief of the indigent and

helpless, for the promotion of knowledge and education, for the

development of science and art, and for the furtherance of various

benevolent designs, which are the boast and glory of our modern

civilization, and which have done so much to foster and advance that

civilization.

But at an early period this desire or infirmity was made use of by the

clergy, who wielded such vast influence over the dying, to induce

testators to dispose of property for enriching churches and monasteries,

and various other institutions. So great did the evil become, and so many

grievous abuses sprung up, that the public welfare was threatened and

endangered, and in consequence of this, a bitter and determined struggle

ensued between the civil and spiritual powers, lasting through centuries

and giving a peculiar bias to certain legislation. As soon as some means

would be devised to check the abuses, and to limit the power of the

clergy, some new device would be contrived by their ingenuity to evade

the rules or nullify a law. The establishment of the law of Uses and

Trusts is a good example of these ingenious devices to evade a statute.

The several Statutes of Mortmain had their origin in this effort of the

civil power to curb the influence of the spiritual power, and check a

dangerous tendency to enrich corporations of a religious or eleemosynary

character. These several acts occupy a prominent place in English history,

and characterize a very important epoch of that history. Their influence

has extended to us, who have gathered experience from the past, and this

is plainly evinced in our Statutes of Wills in the different States, which

disqualify corporations from taking by devise unless expressly

authorized.[207]

It was found, however, that an indiscriminate prohibition would prevent

the foundation of many worthy and useful institutions, which, instead of

being a menace, would be a safeguard to the welfare of the State; and

hence a distinction arose between such bequests as were for charitable

uses, and those for superstitious uses, the latter of which were so

obnoxious to the law, and forbidden by it. A superstitious use is thus

defined in Bacon's Abridgement.[208] It is, "where lands, tenements,

rents, goods, or chattels are given secured, or appointed for and towards

the maintenance of a priest and chaplain to say mass; for the maintenance

of a priest or other man, to pray for the soul of any dead man, in such a

church, or elsewhere; to have and maintain perpetual obits, lamps,

torches, etc.,[209] to be used at certain times, to help to save the souls

of men out of purgatory; these and such like uses are declared to be

superstitious."

Devises to charitable uses were supported in England at an early period in

the common law, which is supposed to have derived its maxims on this head

from the civil law. Lord Nottingham says, in the case of the

Attorney-General v. Tancred,[210] that devises to corporations, though

void under the Statute of Wills, were good in equity _if given_ to

charitable uses.[211]

The Statute of the 43d of Elizabeth enumerates what charitable uses were.

They were, according to this statute, gifts for the relief of aged,

impotent, and poor people; for maintenance of sick and maimed soldiers and

mariners; for ease of poor inhabitants concerning payment of taxes; for

aid of young tradesmen, handicraftsmen, and persons decayed; for relief,

stock, and maintenance of houses of correction; for marriages of poor

maids;[212] for education and preferment of orphans; for schools of

learning, free schools, and scholars in universities; for relief or

redemption of prisoners or captives; for repair of bridges, ports, havens,

causeways, churches, sea-banks, and highways.

But as it was found that persons "dying and languishing"--_in

extremis_--were frequently unduly influenced to dispose of their property

to such charitable purposes, against the rights of their family or

kindred, it was enacted by the Statute of Mortmain, 9 George II, that no

property in land, or arising out of land, could pass to such purposes,

unless by deed indented, sealed, and delivered in the presence of two or

more credible witnesses, twelve calendar months before the death of the

donor or grantor.[213] Of course, these statutes have no operation in this

country, unless by special enactment. The statute of Elizabeth not being

in force in New York, it was therefore insisted that no devise to

charitable uses was, in consequence, valid.

The fluctuations of the law on this point present a remarkable and not a

very satisfactory example of varying judicial opinion in that State. The

earlier decisions of its highest court have lately been overruled, and the

earlier doctrines on the subject discarded. Thus, in Williams v.

Williams,[214] it was held that the law of charitable uses was not founded

on the statute of Elizabeth, but was a part of the common law, which is

still in force here, so far as conformable to our polity and adapted to

our institutions; and that a court of equity, exercising the chancery

jurisdiction of the English courts, will carry out the purpose of a

testator; and that, notwithstanding the statutory prohibition against

devises of lands to corporations, a devise of a charity, not directly to a

corporation, but in trust for a charitable corporation, would be good.

Subsequent cases followed this decision of Williams v. Williams; but later

cases have altered the law in New York. The case which effected a change,

and finally determined the law, is of historical as well as legal

importance, and deserves a detailed statement.

It is the case of Levy v. Levy,[215] most learnedly and ably argued and

examined in the various courts of the State. Commodore Uriah P. Levy, the

testator, was an eminent and wealthy officer of the United States navy, of

the Jewish religion, who became the owner of the famous farm of Jefferson,

at Monticello, in Virginia, and who died in New York in March, 1862,

leaving property valued at over half a million dollars. In his will, after

making various bequests, he provided:

"After paying the above legacies and bequests, or investing for the same,

and subject to my wife's dower and use of furniture, I give, devise, and

bequeath my farm and estate at Monticello, in Virginia, formerly belonging

to President Thomas Jefferson, together with all the rest and residue of

my estate, real, personal, or mixed, not hereby disposed of, wherever or

however situated, to the people of the United States, or such persons as

Congress shall appoint to receive it, and especially all my real estate in

the city of New York, in trust, for the sole and only purpose of

establishing and maintaining at said farm of Monticello, in Virginia, an

agricultural school, for the purpose of educating as practical farmers,

children of the warrant officers of the United States navy whose fathers

are dead. Said children are to be educated in a plain way in the ordinary

elementary branches to fit them for agricultural life, and to be supported

by this fund, from the age of twelve to sixteen, and each of them to be

brought up to do all the usual work done on a farm; the said farm to be so

cultivated by the said boys and their instructors as to raise all they may

require to feed themselves, and the schoolmaster and one other teacher,

and one superintendent of the said farm. I also give and bequeath, for the

purpose of giving such fuel and fencing for said Monticello farm-school,

two hundred acres of woodland of my Washington Farm, called the Bank Farm,

in Virginia, the said two hundred acres to be taken from said farm hereby

devised to my nephew Ashel, and to be designated by said Ashel.

"In establishing said farm-school, I especially require that no

professorships be established in said school, or professors employed in

the institution; my intention in establishing this school is charity and

usefulness, and not for the purpose of pomp. In proportion to the

smallness of number of the teachers, so will industry prevail.

"The institution must be kept within the revenue derived from this

endowment; and under no circumstances can any part of the real or personal

estate hereby devised be disposed of, but the rent and income of all said

estate, real and personal, is to be held forever inviolate, for the

purpose of sustaining this institution. The estate and lands in New York

can be leased to great advantage for that purpose.

"Should the Congress of the United States refuse to accept of this

bequest, or refuse to take the necessary steps to carry out this

intention, I then devise and bequeath all the property hereby devised to

the people of the State of Virginia, instead of the people of the United

States. Provided they, by acts of their legislature, accept and carry it

out as herein directed. And should the people of Virginia, by neglect of

their legislature, decline to accept this said bequest, I then devise and

bequeath all of my said property to the Portuguese Hebrew Congregation of

the city of New York, the Old Portuguese Hebrew Congregation in

Philadelphia, and the Portuguese Hebrew Congregation of Richmond,

Virginia: provided, they procure the necessary legislation to entitle them

to hold said estate, and to establish an agricultural school at said

Monticello for the children of said societies who are between the ages of

twelve and sixteen years, and whose fathers are dead, and also similar

children of any other denomination, Hebrew or Christian.

"I direct my executors hereinafter named, or such of them as shall

qualify, to invest the funds arising from said estate in some safe, paying

stocks as fast as they accumulate, and to hold the whole of the property

and estate hereby devised and bequeathed for said school, and in their

hands, until the proper steps have been taken by Congress, or the

legislature of Virginia, or the said Hebrew Benevolent Congregations, to

receive the same and discharge said executors."

The court, in its decision, extensively reviewed preceding cases, and held

that, at common law, the trust would be void for want of a certain donee

or beneficiary of the use or trust, whom the law could recognize. That it

was uncertain which class of beneficiaries would be the parties in

interest, and if the class were ascertainable, that the individuals

thereof were indeterminate and unascertainable, and there was no

ascertained beneficiary in whose favor performance might be enforced.

The court determined that the law of charitable trusts, as existing and

enforced in England, being based on the statute of Elizabeth, was

abrogated and annulled in the State by the act of 1788, which repealed the

statute of Elizabeth; and that the legislature by that act intended to

abrogate the entire system of indefinite trusts, which were understood at

the time to be supported by that statute alone, as being opposed to the

general policy of our government and to the spirit of our institutions.

The court also determined that the trustees named, viz., The People of the

United States, or the State of Virginia, were incompetent to take as

trustees, they being created for certain determinate political purposes,

and having no other function or existence.[216] Nor could the Hebrew

Congregations, it was held, so act, as the trust was not within the acts

or province of their incorporation; the one in New York could only take

property for its own use, and the foreign corporations could not take and

act as trustees of lands in this State. The court was further of opinion

that the whole of the peculiar system of English jurisprudence, for

supporting, regulating, and enforcing public or charitable uses, is not

the law of the State of New York when in conflict with statutory

prohibitions relative to uses and trusts.[217]

This case was afterwards followed by Bascom v. Albertson,[218] holding and

approving the views of Levy v. Levy, which may now be considered as

finally settling the law on this head in New York.

The statement of the law, as decided in New York, is not in harmony with

the decisions in a large majority of the States. There is unquestionably a

difference of opinion on this subject. The gist of inquiry is: Does the

law of charitable uses exist in those States where the statute of

Elizabeth is not in force, or has been repealed? Or, is the law

appertaining to this subject founded on the common law, or is it the

creation of the statute? There is no question that the weight of judicial

opinion is greatly in favor of the doctrine that the law is not a creation

of the statute, but is founded on the common law jurisdiction in the Court

of Chancery, and as such can be administered by the courts in the absence

of any special statute.[219]

The statute of Elizabeth is in force in Massachusetts, Pennsylvania, North

Carolina, and Kentucky. It is not in force in Maryland, Virginia,

California, and New York.

In some of the States, corporations are specially empowered by statute to

take a certain amount of property by devise.[220] In New York, there is a

statute, passed in 1860, which prohibits a person having a husband, wife,

child, or parent, from devising or bequeathing to any charitable or

literary corporation more than half of his or her estate, after payment of

debts.

The most frequent and dangerous propensity which law has to check and

guard against in testators is that of perpetuating in their family for

generations vast property and estates. The desire of founding a family of

vast wealth and influence to preserve one's property is not an uncommon

one; it appeals to some of the dearest and most personal feelings of a

man's nature; it is peculiarly gratifying to pride and pomp, and, if not

limited and checked, would be dangerous to the public welfare, as it

withdraws from the channels of trade and enterprise a large extent of

property. Hence, every civilized country finds it necessary to define the

extent of a man's control over his property, how long his volition can

regulate its use after death, and to what purposes it shall be put. The

common law permitted a control in this respect which would be entirely

incompatible with our republican institutions and equality of our

citizens.

Under that law, a man had the power to tie up his property and suspend the

power of alienation, as it was termed, for any number of lives in being,

and twenty-one years and a fraction afterwards. He could order the

accumulation of the rents, income, or profits for a similar period. The

case which first drew attention to the danger of such a power was one of

the most famous in English law, and one that has since been a warning and

an incentive to legislation both here and in England. Perhaps, for the

amount involved, the tediousness and length of the litigation, and the

singularity of the provisions, there has never been a more famous case

than that of Thellusson v. Woodford,[221] tried before Lord Chancellor

Loughborough, in the year 1798. The case afforded a remarkable instance of

the unnatural meanness and ostentation of the testator, in depriving his

immediate descendants of their just share of his fortune, not to found any

noble charity, but that his fortune might accumulate in the hands of

trustees, for the miserable satisfaction of enjoying in anticipation the

wealth and aggrandizement of a distant posterity who should bear his name.

Peter Thellusson was born at Paris, of Swiss parentage, his father being a

minister from Geneva to the French court. He settled in London as a

merchant at an early age, was naturalized, and, on the foundation of a

fortune of £10,000, raised the princely possessions which afterwards

became the subject of litigation. It is said that he was generally

respected, and, though a severe economist, lived in a style suitable to

his wealth. His three sons were all members of Parliament. In the

sixty-first year of his age, being at the time in perfect health and legal

sanity, he made and executed his last will, bearing date April 2d, 1796,

and thereby disposed of his property upon trust during the natural lives

of his three sons, and of the sons of each of these then in being, and of

any such issue as any of his grandsons might have as should be living at

the time of his decease. During the lives of the survivors or survivor of

these persons mentioned, the trustees were to collect and receive the

rents and invest them, and, upon the decease of the last survivor, all the

accumulated estates should be divided into three lots, of equal value, and

settled upon the eldest male lineal descendant then living of each of his

three sons; and, if there should be a failure of male descendants of two

of his said three sons, the sole male lineal descendant of the testator

should become entitled to the whole three lots, consolidated into one huge

mass of landed property. The property was thus tied up in the hands of

trustees, and kept from enjoyment for three generations. Shortly after

executing this extraordinary will, on 21st July, 1797, Mr. Thelusson died.

The money which the will sought to accumulate was estimated at £600,000.

An accountant of that time calculated the accumulation--limiting it to

seventy-five years, the shortest possible period during which the property

would be tied up--at £27,182,000, an immense sum, but which he deemed

would be considerably less than the sum it would be likely to reach when

the improvement of money at a higher rate and the lengthened duration of

the last survivor were taken into account. It was estimated, by one of the

counsel in the case, that if there were three descendants to take, each

would have an income of £650,000 a year; if only one, he would have an

income of £1,900,000 a year, more than double the revenue of the king's

civil list, and surpassing the largest territorial fortune then known in

Europe. Chancellor Kent, regarding it from his time, has said that if the

limitation should extend to upwards of one hundred years, as it might, the

property will amount to upwards of one hundred millions sterling.

The children brought an action to have the will set aside, but the court

decided against them, and gave judgment confirming the trusts. The case

attracted wide and deep attention from the magnitude of the fortune sought

to be reared, and from the important principle of public policy involved.

It was argued on both sides by the most eminent counsel at the bar, but

nevertheless the Chancellor was compelled to hold the will valid, much, it

is said, against his inclination. Next year, he was instrumental in

getting Statute 39 and 40 Geo. III passed, restraining dispositions by way

of accumulation to the life of the grantor, or twenty-one years after his

decease, or the minority of any party living at the time of his

decease.[222]

The property was accordingly left to accumulate; but the ambitious and

vain visions of the testator and the alarm of the public were destined to

disappointment. The structure which threatened even to overshadow the land

in its ascending greatness has not risen to a disproportionate size. The

operation of the trusts has proved practically a failure, as the

accumulated mass of wealth is likely to fall far short of the amount which

fanciful calculators had predicted. It has shared the inevitable fate of

all such vast estates that get into the grist-mill of the lawyers. The

litigation has been so expensive, that what with fees of lawyers, fees of

courts, commissions to trustees, and the expense of management, the

_corpus_ of the estate has been pretty well eaten up. The expenses of

management from January, 1816, to 1833, exceeded £122,700. The only

increase in respect of income was £8,356, and an accumulation of capital

of £326,364.

The extent of time to which property is allowed to accumulate is very

carefully and strictly defined in our statutes. It is generally only

during a person's minority, as in New York and California, and the same is

believed to be the rule in general.[223]

The power of suspending the alienation of property by a devise is limited

to lives in being in some States, or in others to _two_ lives in

being,[224] and no matter how short may be the duration, the suspension

will be invalid if it is not made to depend on _life_ as the condition of

the limitation.[225] On this account, some very worthy and benevolent

schemes of testators have failed.

The two lives must be designated. This may be done either by naming two

persons in _particular_, or else by describing a _class_ of persons, and

bounding the suspense of alienation by the lives of the _two first_ who

shall die out of the class. The limitation may be restricted for a shorter

period than two lives--it may be for a single life. The estate may also be

limited so as to depend on some event besides life, provided it must vest

within two lives; as an estate to A for ten years, if B and C, or either

of them, shall so long live; here, the estate may determine either by the

lapse of the ten years, or by the death of B and C; but it can in no event

exceed two designated lives. So, an estate during minority, widowhood, or

other stage of existence, through which _two_ individuals may pass, would

be good, because it could not by any possibility extend beyond two

designated lives.[226]

These technical rules have rendered many a noble scheme abortive, and

frustrated the benevolent and reformatory intentions of many a testator.

In the following instance, a testator's paternal solicitude for the reform

of a wayward son, and his disapproval of his mode of life, were

emphatically expressed; and an unfortunate oversight of this inflexible

rule hindered the restraint the parent thought to place on his son after

his decease. The father, however, with the usual confidence of a parent,

had not abandoned all hope as to his ultimate recovery, for he thought fit

to make him one of his executors, and thus placed him in the rather novel

position of being a censor of his own conduct.

In the seventh clause of his will, after certain clear devises and

bequests to other persons, was this recital and provision, viz: "Whereas,

my son P, to whom sundry bequests are made in the following will, has

unfortunately contracted habits of inebriation, and in consequence of

which, I fear he would squander or misuse the bequests to him made, I do,

therefore, annul and make void this will as to him, unless he reforms and

continues a sober, industrious, and moral man, for the space of two years

after my decease, giving to my executors satisfactory evidence and

assurance of a thorough reformation. And, therefore, it is my will, that

the property so willed to him should be held in trust for him, not to

exceed three years after my decease; and if within that time such

reformation does not take place, I desire my said executors to divide his

portion among such of my heirs as may seem to them most to need and

deserve the same."[227]

It was held that this provision of the will was void, both as a _trust_,

and as a _power in trust_; and that the son took the bequest

notwithstanding.

The court deemed it "an unusual and extraordinary provision"; and as the

period of suspension was measured by time alone, and not by _life_, this

of itself rendered the provision nugatory.

It has been decided that if a bequest be made to certain trustees, to hold

during the life of two persons designated, or until the legislature

incorporate a hospital during the lifetime of the said persons, it is

good.[228] It was in this way the will of Mr. Roosevelt was drawn, through

which the Roosevelt Hospital in New York was founded. He bequeathed the

residue of his estate, after other bequests, to nine trustees, five of

whom were presidents of certain charitable institutions, for the

establishment of an hospital for the reception and relief of sick and

diseased persons, and directed them to apply to the legislature for a

charter to incorporate the same, and in case the legislature should refuse

to grant this within two years next after his death, _provided two lives

named in his will should continue so long_, then the trustees were to pay

over the same to the United States for a similar purpose.

It was held that this provision did not violate the statute of

perpetuities, but that the corporation could take only in case the charter

was granted within the two lives named. There was no need to consider the

validity of the devise to the United States. The charter was granted in

February, 1864, and now the hospital stands conspicuous among the

charities of New York city.

An oversight in the observance of this rule against perpetuities caused

the failure of a grand and meritorious scheme conceived by the late Mr.

Rose of New York. He died in 1860, and left a large amount of

property--estimated at two millions of dollars--to found an institution

called the "Rose Beneficent Association,"[229] whose object it was to

educate and train waifs picked up on the streets, and make them useful

citizens. He gave the bequests upon the contingency of raising $300,000

from other sources within _five years_. If that sum was not so raised, the

estate was given to other charitable beneficiaries. The utmost limit of

the suspension was five years, but it was not circumscribed by lives as

the Statute of Perpetuities requires, and it was adjudged to be void. It

should be stated as a warning that this will of Mr. Rose was drawn by

himself.

The case occupied a long time in litigation, and the subject of charitable

bequests was most exhaustively examined.[230]

CHAPTER VI.

REVOCATION OF WILLS.

It is one of the well-understood qualities of a will, at the present time,

that it is revocable during the testator's lifetime. It was shown, in a

former part of this work, that this quality did not in early times attach

to a will; that a will, at first, was in the nature of an executed

contract; a conveyance, in fact, and irrevocable.[231] However, as a will

has no effect until death, it necessarily follows that a person has full

control of the subject-matter, and can change his mind as he pleases

regarding its disposition so long as he lives. This is now accepted as a

postulate in the law of wills.[232] The only inquiry, therefore, will be

as to what acts or occurrences shall be deemed sufficient to revoke a will

previously made.

There are two modes in which a will may be revoked: _First_, it may be

revoked by the happening of some events subsequent to the making as, in

the judgment of law, will amount to a revocation. We may term this an

implied revocation. _Secondly_, it may be revoked by a certain deliberate

act of the maker, intending to cancel a previous will, or with _animo

revocandi_, as the legal phrase is.

The events which would operate to produce an implied revocation of a will

were formerly a subject of wide and constant discussion. The courts in

England, and until lately in this country, occupied themselves very

frequently in discussing this subject of implied revocation, and, for a

long time, there was no general agreement on the precise events that

would, in the judgment of law, amount to a revocation. At an early period

in the English law, it was determined that the marriage of a _feme sole_

was sufficient to revoke a will made by her previous to her marriage. It

was expressed thus, in the quaint language of the time: "It was adjudged,

on great deliberation, that the taking of a husband, and the coverture at

the time of her death, was a countermand of the will."[233] This

enunciation of the law has ever since prevailed as a principle in the law

of wills. But a similar marriage in the case of a man did not have the

same effect. The courts were at first not agreed as to whether the birth

of a child after the making of a will would be sufficient to effect a

revocation. In one case, it was decided that this event alone did not

amount to a revocation;[234] but in another case, where there were _four_

children born subsequently to the making of the will, this, combined with

other circumstances, was held to be a revocation.[235] It came to pass

that the courts became finally agreed on the question that marriage,

together with the birth of issue, was sufficient to effect a revocation of

a will.[236]

In the application of this rule, cases of great hardship have sometimes

occurred; but it has been steadily adhered to, even under circumstances in

regard to real estate, at least; as where the testator left his wife

_enceinte_ without knowing it, as was the case in Doe v. Barford, above,

where Lord Ellenborough held that the birth of a child _alone_, even under

these circumstances, was not sufficient to revoke the will which was made

after marriage. He said: "Marriage, indeed, and the having of children,

where _both_ these circumstances have occurred, has been deemed a

presumptive revocation; but it has not been shown that either of them

_singly_ is sufficient. I remember a case some years ago of a sailor who

made his will in favor of a woman with whom he cohabited, and afterwards

went to the West Indies, and married a woman of considerable substance;

and it was held, notwithstanding the hardship of the case, that the will

swept away from the widow every shilling of the property, for the birth of

a child must necessarily concur to constitute an implied revocation. In

Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the

pregnancy of the wife, with the knowledge of the husband, and the

subsequent birth of a posthumous child, came within the rule, the same as

if the child had been born during the parent's life."

This subject was elaborately examined by Chancellor Kent, in the case of

Brush v. Wilkins,[237] where the authorities from the earliest times were

quoted and examined, and the same conclusion reached.

This inquiry is not of much practical importance now, either here or in

England, for statutory enactments have laid down the law precisely and

satisfactorily as to what circumstances shall be deemed sufficient to

produce the revocation of a will. And this is very desirable, since much

uncertainty and discussion is thereby avoided, and the devolution of

property exactly determined.[238] There is scarcely a State we know of

where statutes have not been passed, setting the matter at rest, and

fixing the law on the subject.

By the recent English statute, wills are held absolutely revoked by the

subsequent marriage of the testator, whether made by a man or woman,

unless such will be made in execution of certain powers; and it is further

provided that no will shall be revoked, by any presumption of intention,

on the ground of an alteration of circumstances.

In the statutes of the different States there is this difference: In some,

the birth of a child after making a will, where such child is unprovided

for, will work a revocation; while in others, it will only revoke it _pro

tanto_, that is, so as to allow the child to have the same share as if the

parent died intestate.

In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids

the will _in toto_.[239]

By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New

York, New Jersey, Pennsylvania, Delaware, and California, children born

after the making of the will inherit as if the parent died intestate,

unless the will comprises some provision for them, or they are

particularly referred to in it. The will is thus revoked _pro tanto_.[240]

In Virginia and Kentucky, the birth of a child after the will, if there

were none previously, revokes the will, unless the child dies unmarried or

an infant.[241]

The statute law of some States goes further, and entitles not only

children but their _issue_ to claim portion of testator's estate, if such

children were unprovided for, and unmentioned in the will. This is the

case in the California code,[242] and in Maine, New Hampshire,[243] Rhode

Island, and Massachusetts.

By the New York revised statutes, if a will disposes of the whole estate,

marriage and the birth of a child revoke the will, if either the wife or

child survive the testator.[244] Parol evidence is not admissible to rebut

this presumption. Wherever the question has arisen, it has generally been

held, even in the States where by statute children omitted in the will of

the parent are entitled to the same share of his estate as if he had died

intestate, that marriage and the birth of issue, after the making of a

will, do amount to an implied revocation of the will.[245]

In many of the States, marriage alone, after making the will, amounts to a

revocation. In Virginia, it is revoked by marriage;[246] also, in West

Virginia; so in California, unless a provision be made for the wife.[247]

In others, it only revokes the will _pro tanto_, as in Pennsylvania and

Delaware.[248] In the State of Illinois, where the husband and wife are

made heirs to each other, marriage by the testator after making his will,

wherein no provision in contemplation of such new relation exists, amounts

to a revocation.[249] The marriage of a woman after making her will, will

produce a revocation in general. It is so in New York and California;[250]

and in California it is not revived by death of the husband. This

provision is in harmony with the early cases in England.[251]

It must not be inferred from the previous statement that a testator has no

power to disinherit or cut off a child. The law does not withhold this

power; it only presumes, by the omission to mention the name of a child

in a will, that the claim of that child was overlooked by the testator,

and the court, exercising its equitable power, interferes on behalf of

such child to see it gets its due share of the property. But where the

intention is expressed, and much more so where a reason is given, for

cutting off a child from a participation in a testator's property, the

courts cannot interfere in behalf of such disinherited child, unless on

some imputation of insanity or undue influence.

Another, and a more usual mode in which a will may be revoked, is by an

express deliberate act of the testator. This may be done by a subsequent

testamentary document, or by some physical destruction or cancelation of

the will. A very common phrase used in a will is: "And I hereby revoke all

former and other wills and testamentary dispositions by me at any time

heretofore made." However, the insertion of a clause like this is not of

much importance, as a will professing to dispose of the _whole_ of a

testator's property necessarily displaces and supersedes all antecedent

testamentary instruments.[252] Such a clause might be useful in those

instances in which the intention to dispose of the entire estate was not

so clearly manifested as to preclude attempts to adopt, wholly or

partially, the contents of former wills as part of the testator's

disposition; since a will may be composed of _several_ papers of

_different_ dates, each professing to be such when they are capable of

standing together.[253]

Mere proof of the execution of a subsequent will, therefore, is not

sufficient to invalidate a prior will. There must be proof of a clause of

revocation, or there must be plainly contrary or inconsistent

provisions.[254] And where the contents of the last will cannot be

ascertained, it is not a revocation of the former will. This was decided

by the Court of King's Bench in England, more than one hundred and fifty

years ago, in the case of Hutchins v. Bassett;[255] and that decision was

subsequently affirmed upon a writ of error in the House of Lords. In the

subsequent case of Harwood v. Goodright,[256] which came before the Court

of King's Bench in 1774, it was held that a former will was not revoked by

a subsequent one, the contents of which could not be ascertained; although

it was found by a special verdict that the disposition which the testator

made of his property by the last will was different from that made by the

first will, but in what particulars the jurors could not ascertain. This

case also was carried to the House of Lords upon a writ of error, and the

judgment was affirmed. As these two decisions of the court of _dernier

resort_ in England were previous to the Revolution, they conclusively

settle the law on this subject here.[257]

Again, where there are several codicils or other testamentary papers of

different dates, it is a question of intention upon all the circumstances

of the case, which and how far either is a revocation of another, or

whether the dispositions of the latter are to be considered as additional

and cumulative to those of the prior. Parol evidence, however, is not to

be admitted in order to investigate the _animus_ with which the act was

done, unless there is such doubt and ambiguity, _on the face of the

papers_, as requires the aid of extrinsic evidence to explain it.[258]

In a late case,[259] the subject of receiving parol evidence in regard to

the fact and intent of the revocation of wills, is very carefully

examined, and the principle declared, that where the testator executed a

will, and subsequently executed another, which he took away with him, and

which on his decease could not be found, the earlier one being found, that

the solicitor who drew the will, or any other witness familiar with its

contents, might give evidence thereof; and it appearing that the

provisions of the later one were inconsistent with those of the former, it

was held to amount to a revocation. The practice, in the American courts,

of receiving parol evidence of the contents of a lost will, seems to be

universal, and without question, notwithstanding the stringent statutory

requirements in regard to the mode of executing wills.[260] The evidence

must come from witnesses who have read the will, and whose recollection of

its contents is trustworthy.[261] But in cases of fraud, more indulgence

is allowed to the proof, and in Jones v. Murphy,[262] the court said: "It

is better, surely, that a person should die intestate than that the

spoliator should be rewarded for his villainy." The English courts do not

grant the same indulgence to admit alleged lost wills to probate. In a

late case, where the contents of the will were propounded for probate

after a delay of seven years, and no sufficient explanation given of the

manner or cause of the loss, and when no draft of the will could be

produced, but only oral proof of its contents, due execution, and that it

could not have been revoked, probate was denied.[263]

The question as to what extent a codicil shall control the provisions in

the will is not always easy of solution. Each case depends almost

exclusively upon its own peculiar circumstances, and will not, therefore,

be much guide to others, unless the facts are very similar. But the

general rule of construction is that already stated, to allow all the

provisions of the will to stand which are not inconsistent with those of

the codicil, and in determining this, to seek for the intention of the

testator, as far as practicable.[264] Where a codicil refers to the former

of two inconsistent wills, by date, as the last will of the testator, it

has the effect to cancel the intermediate will, and evidence of mistake

cannot be admitted.[265] Where a codicil named the wife as "sole executrix

of this my will," it was held that the appointment of other executors in

the will was revoked.[266]

It has been held that a revocation is not valid, in most of the American

States, unless done with the same formality required in the execution of

the will itself.[267]

Thus, writing the word "obsolete" on the margin of his will by the

testator, but without signing the same in any of the modes allowed by law,

will not amount to a revocation.[268]

In a somewhat recent case in Pennsylvania, the question of revocation

arose, in regard to a bequest to charity.[269] The court held that, where

there are two wills, in some respects inconsistent, the latter revokes the

former only so far as they are inconsistent with each other, unless there

is an express clause of revocation. But where the property given

specifically in the first will is, in the second, contained in a general

devise to the same objects, and for the same purpose, and the appointment

of other executors, there is a manifest inconsistency, and it evinces an

intention that both wills should not stand.

Many times it happens that a testator, dissatisfied with an executor or

devisee named in his will, erases the name of such executor or devisee;

but this will not always effect his purpose, as it should be done by a

subsequent codicil, properly executed. Thus, where a testator (without a

republication of his will) made alterations and corrections in it, with

the intent, not to destroy it, but to enlarge and extend a devise already

made, it was held not a revocation of the devise.[270]

The physical destruction or cancelation of a will by a testator is the

most palpable and unmistakable mode of its revocation. In what manner or

in what different modes this may be done was first laid down in the

Statute of Frauds, where revocation was to be effected by "burning,

canceling, tearing, or obliterating" the will. These four phrases have

been generally adopted and inserted in our statutes, with either some

modification or enlargement.

The enumeration of these several modes for the destruction of a will by a

testator, to amount to its revocation, has not prevented controversy and

uncertainty; for law cannot define acts in words so precisely and

unmistakably as to preclude all doubt and quibbling. There are sure to be

some who will play upon words--a mental recreation to which legal minds

are somewhat given--and who will insist upon an exact literal conformity

when a revocation is sought to be maintained under this provision. It

would seem to an ordinary mind hardly possible to admit of a doubt that

_cutting_ a will was, in effect, equivalent to _tearing_; yet a legal

quibble went so far as to question this, when it became necessary to

decide that cutting was, in effect, the same as tearing.[271] Probably,

the legislature of West Virginia took into consideration a knotty question

of this kind, and took good care to save a legal luminary stumbling over a

question of this sort; for, by the statute of that State, it is provided

that a revocation in this manner may be effected by "_cutting_, tearing,

burning, obliterating, canceling, or destroying the same."

To avoid any limited construction of the words as used in the English

Statute of Frauds, it is generally provided in our statutes that a

revocation may be made as in that statute, or by _otherwise destroying_

the will.[272] This cuts off a great deal of uncertain construction, and

removes a great temptation for fine legal distinctions. In the New York

statute, a revocation is effected in this way, if the will is _burnt,

torn, obliterated, canceled, or destroyed_, with intent and for the

purpose of revoking the same.[273]

The statute very wisely requires two things to be combined before it

concludes that a will is revoked. There must be the _act_ of destruction

with the _intent_, or the _animo revocandi_, as the law terms it. Under

the English statute, it had been determined that the mere acts named will

not constitute a valid revocation unless done with the intent to

revoke.[274] Lord Mansfield here explains very graphically the acts which

might often occur, which would destroy the writing, but would not amount

to a revocation of the will; as, if a man were to throw ink upon his will

instead of sand; or, having two wills, of different dates, should direct

the former to be destroyed, and by mistake the latter is canceled. In

neither case would it amount to a revocation of the will, although the

writing were irrevocably gone.

Revocation is an act of the mind which must be demonstrated by some

outward and visible sign. The statute prescribes what those signs are. If

any of these are performed in the slightest manner, joined with a declared

intent to revoke, it will be an effectual revocation.[275]

It would be manifestly a harsh and an unjust construction to place upon

the statute, that because a will was destroyed in any one of the modes

pointed out, that a strict interpretation required a revocation. Hence,

where the destruction was done unadvisedly, or by some other casualty, it

was held, it could not amount to a revocation. Thus, where a will was

gnawed to pieces by rats, but the pieces, being collected, were afterwards

put together, the will was admitted to probate.[276]

And in Perkes v. Perkes,[277] a testator having quarreled with a person

who was a devisee in his will, in a fit of passion took the will out of

the desk, and, addressing some words to a bystander, tore it twice

through, but was prevented from proceeding further by the interference of

the other person and the submission of the devisee; and he then became

calm, put up the pieces and said: "It is a good job it is no worse"; and

after fitting the pieces together, added: "There is nothing ripped that

will be any signification to it." The jury found that the act of canceling

was incomplete at the time the testator was stopped; and the court was of

opinion that that conclusion was right, and that the will was not revoked.

Where a testator, with an intent to revoke his will, endeavors to destroy

it in some of the modes pointed out, but through the fraud, imposition, or

other deception of a person; the act is prevented being completed, it

shall not prevent a revocation. The following case is a striking one, and

illustrates this principle. A testator, (who had for two months declared

himself discontented with his will) being one day in bed near the fire,

ordered M W, who attended him, to fetch his will, which she did and

delivered it to him, it being then whole, only somewhat erased. He opened

it, looked at it, then gave it something of a rip with his hands, and so

tore it as almost to tear a bit off, then rumpled it together, and threw

it upon the fire, but it fell off. It must soon have been burnt, had not M

W taken it up, which she did, and put it in her pocket. The testator did

not see her take it up, but seemed to have some suspicion of it, as he

asked her what she was about, to which she made little or no answer. The

testator, several times afterwards, said that was not and should not be

his will, and bid her destroy it. She said at first, "so I will, when you

have made another"; but afterwards, upon his repeated inquiries, she told

him that she had destroyed it, though in fact it was never destroyed, that

she believed he imagined it was destroyed. She asked him who his estate

would go to when the will was burnt; he answered, to his sister and her

children. He afterwards told a person that he had destroyed his will, and

should make no other until he had seen his brother, J M, and desired the

person to tell his brother that he wanted to see him. He afterwards wrote

to his brother, saying, "I have destroyed my will, which I made, for upon

serious consideration, I was not easy in my mind about that will," and

desired him to come down, saying, "If I die intestate, it will cause

uneasiness." The testator, however, died without making another will. The

jury, with the concurrence of the judge, thought this a sufficient

revocation of the will, and on a motion for a new trial it was so held,

and that throwing it on the fire, with an intent to burn, though it was

only very slightly singed and fell off, was sufficient within the

statute.[278]

The English courts are more strict in requiring a substantial compliance

with the statute than our courts are. In the American cases, the intention

is looked upon as the most material and controlling element: as where a

testator asked for his will on his sick bed, and was handed an old letter,

which he destroyed, supposing it to be his will, it was held to be a good

revocation.[279]

And where a testator threw his will upon the fire, _animo revocandi_, and

it was taken off and preserved, before any words were burned, and without

the testator's knowledge, it was decided, by a very able court, that it

did amount to revocation.[280] So, where a testatrix burns a paper, which

she supposes to be her will, and by mistake or the fraud of others burns a

different paper, and remains under this misapprehension during her life,

it amounts, in law, to a revocation.[281] But in a case in Vermont it was

held that the mere intention or desire to revoke one's will, until carried

into effect in the manner prescribed in the statute, can have no effect;

however, if such intention is defeated by fraud, a court of equity will

prevent a party moving from any benefit of such fraud.[282]

The two words "canceling" and "obliterating" have occasioned more

uncertainty than the others used in the statute, because it is not so

easily or exactly determined what acts shall amount to a cancelation and

what to an obliteration of the will. In one case, the will was found with

another testamentary paper, but the place in which the names of the

attesting witnesses should have appeared, upon the latter, was scratched

over with a pen and ink, so that no letter of a name could be deciphered:

it was held that this paper was thereby revoked, and the will was admitted

to probate alone.[283]

It seems to be settled, that from the fact of interlineations and erasures

appearing upon the face of a will, no such presumption arises, as in the

case of deeds and other instruments, that they were made before execution.

But in regard to a will the case is different. Hence, where the testator

makes an alteration in his will by erasure and interlineation, or in any

other mode, without authenticating such alteration by a new attestation in

the presence of witnesses, or other form required by the statute, the

will, therefore, stands in legal force the same as it did before, so far

as it is legible after the attempted alteration,[284] but if the former

reading cannot be made out by inspection of the paper, probate is

decreed, and such illegible portions are treated as blanks.

In a case in Pennsylvania,[285] where the will was found in the testator's

private desk, with the seals of the envelope broken, and a black line

drawn through the name of the testator, and there was no evidence how or

with what intent it was done, it was held a sufficient revocation.

Vice-Chancellor Wood, in a case in New York,[286] decided that where a

testator, having torn off the signature from the first four sheets of his

will, and struck his pen through the signature upon the remaining sheet,

the _animus revocandi_ being proved, it was a sufficient revocation.

The clearest statement of the law on this head was made by an eminent

judge, whose language very clearly sums up the law. Chief Justice Ruffin,

in a case in North Carolina,[287] says:

"The statute does not define what is such a cancelation or obliteration as

shall amount, conclusively, to a revocation of a will. Burning, or the

utter destruction of the instrument by any other means, are clear

indications of purpose which cannot be mistaken.

"But obliterating may be accidental, or may be partial, and therefore is

an equivocal act, in reference to the whole instrument, and particularly

to the parts that are unobliterated. So, canceling, by merely drawing

lines through the signature, leaving it legible, and leaving the body of

the instrument entire, is yet more equivocal, especially if the instrument

be preserved by the party, and placed in his depository as a valuable

paper. It may be admitted that the slightest act of cancelation, with

intent to revoke absolutely, although such intent continue but for an

instant, is a total and perpetual revocation, and the paper can only be

set up as a new will. But that is founded upon the intent. Without such

intention, no such effect can follow; for the purpose of the mind gives

the character to the act. When, therefore, there appears a cancelation, it

becomes necessary to look at the extent of it, at all the conduct of the

testator, at what he proposed doing at the time, at what he did

afterwards.... For, although every act of canceling imports, _prima

facie_, that it is done _animo revocandi_, yet it is but a presumption

which may be repelled by accompanying circumstances."

There seems to be no question, according to Jarman,[288] that, under the

Statute of Frauds and other similar statutes, as _parts_ of an entire will

may be revoked, in the same mode the whole may be so revoked. The same

rule has been adopted in this country, to some extent. The question was

ably examined by Surrogate Bradford, in a case in New York.[289] In that

case, a testator, after his will had been prepared and executed, becoming

dissatisfied with one of the devisees, his own daughter, struck out the

devise to her, which was contained in these words: "To my beloved and only

daughter, Sarah Ann McPherson, I give and bequeath," etc. In a note to the

foot of the page, he gave as a reason for striking out this devise, the

bad treatment of his daughter, and afterwards altered a phrase in his will

where "children" was used, and substituted "sons" instead, so as to

exclude the said daughter. In examining this question, the learned

Surrogate assumed that a _part_ of a will might be obliterated in the same

mode as the whole, and referred to various decisions in support of this

view. He, however, held that, as the subsequent alteration, substituting

"sons" for "children," was invalid, not having been re-witnessed, as is

required, that the obliteration of the devise was not effectual as to that

part, and could not be treated as a revocation.

In Kentucky, in the case of Brown's Will,[290] it was declared that a

cancelation of a portion of the devises, the testator's signature being

left untouched, did not affect the residue of the dispositions, which

remained unaltered, the testator's intention not to revoke them being

clearly established.

CHAPTER VII.

WILLS AS AFFECTED BY DOMICILE.

There is a certain respect paid by the laws of one nation or community to

those of another, which is termed international comity, which, for general

convenience and utility, is observed and regarded by tribunals when

certain acts done in one place are to be construed in another.

Of course, such comity is merely conventional--there is no binding

obligation to enforce it; but from long observance, and the customary

regard tribunals have given to certain rules of international comity,

these rules have been so long sanctioned by precedent and authority as now

to have the force of law. The law relating to wills as affected by

domicile is, to a great extent, founded on such rules of international

comity, or _leges gentium_.

The principles of law appertaining to this subject are well settled and

recognized, and are now invariably acted upon. The language of wills is

supposed to speak the sense of the testator according to the received laws

or usages of the country where he is domiciled, by a sort of tacit

reference to them, unless there is something in the language which repels

or controls such a conclusion.

In regard to personalty, (in an especial manner) the law of the place of

the testator's domicile governs in the distribution thereof, and will

govern in the interpretation of wills, unless it is manifest the testator

had the laws of some other country in his own view. This is usually

expressed by the legal formula, that, with regard to personal property,

the _lex domicilii_ governs.[291] The law on this subject has never been

more clearly expressed, or better summarized, than by the Lord Chancellor,

in the case of Enohin v. Wylie.[292] His lordship there says: "I hold it

to be now put beyond the possibility of a question, that the

administration of the personal estate of a deceased person belongs to the

court of the country where the deceased was domiciled at his death. All

questions of testacy or intestacy belong to the judge of the domicile. It

is the right and duty of that judge to constitute the personal

representative of the deceased. To the courts of the domicile belong the

interpretation and construction of the will of the testator. To determine

who are the next of kin, or heirs of the personal estate of the testator,

is the prerogative of the judge of the domicile. In short, the court of

the domicile is the _forum concursus_ to which the legatees under the will

of a testator,[293] or the parties entitled to the distribution of the

estate of an intestate, are required to resort."

As a will is governed in its interpretation according to the law of the

place where the testator had his domicile, therefore, if a testator, born

and domiciled in England during his whole life, should, by his will, give

his personal estate to his heir-at-law, that the _descriptio personæ_

would have reference to, and be governed by, the import of the terms in

the sense of the laws of England.[294] The import of them might be very

different if the testator were born or domiciled in France, Pennsylvania,

or Massachusetts.

To ascertain what the testator means, we must first ascertain _what was

his domicile_, and whether he had reference to the laws of that place or

the laws of any foreign country.[295]

The law of the domicile governs as to the proper mode of execution and

attestation of wills of personal property; hence it is accepted as a rule

of universal application, that a will of personal property, duly admitted

to probate where a person has his domicile, is conclusive on all other

courts, and is sufficient to pass personal property, wherever

situated.[296]

It has been a subject of discussion, whether a will, made by a person

according to the law of his domicile at the time when made, will be

operative if he subsequently changes his domicile, and dies in his new

domicile. This is a question of grave importance, and one on which there

is a serious conflict of authority. The question is then presented, as to

what law should govern, whether the law of the domicile _at the time the

will was made_, or the law of the domicile _at the time of decease_.

This question arose in New York, in a case which passed through all the

subordinate courts, and was finally determined by its highest court, after

very thorough and learned examination. It was the case of Moultrie v.

Hunt.[297]

The testator, Benjamin F. Hunt, resided at Charleston, and there made his

will, in August, 1849, conformable to the laws of South Carolina. He

subsequently removed to New York, where he established his domicile, and

where he died. His will was attested, at his request, by three witnesses;

but Mr. Hunt did not state to the witnesses the nature of the paper which

he requested them to attest, and, therefore, omitted to comply with one of

the requisites of the statute in New York, which requires a publication of

the will, to be a valid execution thereof.

The Surrogate, when the case came before him, decided to admit the will to

probate, and made a decree accordingly. This decree was affirmed by the

Supreme Court, whence it was taken on appeal to the Court of Appeals, and

it was there reversed, a very able judge (Denio) writing the opinion of

the court. His opinion was very able and elaborate, and a thorough

examination was made of all the authorities. He holds that a will cannot

operate so as to confer rights of property until the death of the

testator, until which event it is, in its essence, ambulatory and

revocable. Therefore, it is the law in force _at the death of the

testator_ that should govern as to the due execution of a will and the

capacity of a testator. He illustrated this in the case of the legislature

making laws that would have the effect of invalidating wills already made,

and shows that where a will was witnessed by but two witnesses, three

being required at the time it was made, that it was subsequently validated

by a law in force at the decease of the testator, allowing two witnesses

to attest a will. He quotes from Story[298] to show that it is the law of

the domicile _at the time of death_ that should govern as to the proper

execution, and he approves that doctrine, and holds it applicable to this

case; which, it was held, should be governed by the law of New York, the

law of the domicile of the testator at the time of his death, and

therefore Mr. Hunt was considered as dying intestate in respect to

personal property in New York. Judge Redfield, in his work on wills,

approves of this doctrine,[299] and the same point has been decided in

Missouri.[300]

The question, however, is not free from doubt, as very able jurists differ

on it. As far as New York is concerned, it has settled the law there.

The case of the will of General Kosciusko, before the Supreme Court of the

United States, in December, 1852, was in many respects the most notable

and interesting case on this subject ever examined. In that case, it was

necessary to examine, carefully and strictly, the law of wills as affected

by domicile, and the manner of acquiring a domicile, and the mode of

proving it. This case, besides its importance in a legal point of view, is

of much public interest, as bringing up some memorable incidents connected

with our revolutionary struggle and the eminent personages who

participated in that struggle. It is found in the case of Ennis v.

Smith,[301] and we will be justified in stating the facts somewhat in

detail.

Kosciusko made four wills, one in the United States in 1798, another in

Paris in 1806, the third and fourth in Switzerland, whilst sojourning

there during the years 1816 and 1817. In his third will there was a

revocation clause, canceling the first and second wills, in these words:

"Je revoque tous les testaments et codiciles que J'ai pu faire avant le

présent auquel seul Je m'arrète comme contenant mes dernierès volantes."

The object of the suit in the Supreme Court was as to the disposition of a

fund belonging to Kosciusko in the United States, which, it was claimed,

was undisposed of by his will, and to which the descendants of his sisters

laid claim if he died intestate as to this property in the United States.

The origin of this fund is full of interest. Kosciusko came here in 1776,

entered our army as a volunteer in the Engineers, participated in all the

struggles of our revolutionary war, and retired at its close with the rank

of Brigadier General, poorer than when he came, and actually a creditor of

our government for his military pay. During his absence in Europe,

participating in the heroic struggle of his native land, he became

entitled, under a military certificate, to the sum of $12,280.54, and not

being able to receive it then, Congress passed a law in 1799 giving him

interest from the 1st of January, 1793, to 31st December, 1797. When the

money was paid it was invested in American stocks, and placed under the

care of Jefferson. By judicious care and management the fund increased to

the sum of $17,159.63, which was the subject of the suit in 1852. Before

his departure from the country, in 1798, he made his will in his own

handwriting, directing this fund to be laid out in the purchase of young

negroes, who were to be _educated and emancipated_. In regard to this, he

wrote to Jefferson, September 15th, 1817, as follows:

"We all grow old, and for that reason, my dear and respectable friend, I

ask you, as you have full power to do, to arrange it in such a manner,

that after the death of our worthy friend, Mr. Barnes, some one as honest

as himself may take his place, so that I may receive the interest of my

money punctually; of which money after my death, you know the fixed

destination. As for the present, do what you think best."

As the will of 1816 revoked the two previous wills, the disposition of the

fund became canceled.

But in the will of 1817, by the second clause, he provided: "Je léque tous

mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur

Zavier Zeltner, les hommes ce dessus." It was on this clause the dispute

arose; because it was claimed that by the words "mes effets," the property

in the United States passed, that it was a residuary devise, and that all

went to the two persons named. On the other hand, it was claimed, that as

Kosciusko, having been domiciled for fifteen years in France, and was only

temporarily sojourning in Switzerland, that the law of France should

control, and that the proper interpretation of such a phrase was that it

referred to property as belonging at the time and which was attached to

his person, and that the subsequent words restricted its meaning, and

prevented it having a general signification. It was held that as to this

property in the United States Kosciusko died intestate; and that, on the

principle that personal property, wherever it may be, is to be

distributed, in case of intestacy, according to the law of the domicile of

the intestate, that the disposition of this property should be governed by

the law of France, the proper domicile of Kosciusko. There was some

difficulty to ascertain the domicile, but it was shown that he did not

leave Poland compulsorily, which would be an important consideration in

determining his _intent_; but he left voluntarily to obtain a civil status

in France, which he conscientiously thought he could not enjoy in Poland

whilst it continued under a foreign dominion.

With regard to real estate, a different rule prevails. It would not

comport with the dignity or independence of one country to allow real

property, which by its nature is fixed and immovable, to be controlled and

affected by foreign laws. Hence it is the law of the place where the real

estate is situated that governs in its distribution, and as to the proper

execution of a will devising it. This is expressed by the formula that the

_lex locus rei sitæ_ governs. Thus, a devise of lands in England, though

made abroad, must be executed pursuant to the English statute. Thus, where

C made his will abroad, devising lands in England, but the same was

executed in the presence of _two_ witnesses, (three being necessary, at

the time of its execution, to devise lands in England) in accordance with

the law where he was domiciled, it was held that the will must be void as

to lands in England, which lands can only pass by such a will as the laws

of England require, and that the _lex rei sitæ_ should govern.[302]

And if a testator, by his will, direct personal property to be invested,

in another State, in certain trusts of real estate there lawful, but not

lawful by the law of the State where the testator is domiciled, the trusts

will be declared void.

This was the case where a testator, a resident of the State of New York at

the time of his death, who, by his will, directed his personal property

and the proceeds of his real estate there situated to be invested in real

estate in the State of Ohio, upon trusts which were invalid by the law of

New York, it was held that the devise in trust was invalid, as it was

inconsistent with the law of the testator's domicile.[303]

Jarman[304] considers that a will of realty is construed according to the

law of the country where the land is situated; but Story,[305]

Greenleaf,[306] and others are of opinion that this doctrine of the _lex

rei sitæ_ does not apply to the construction, as distinguished from the

execution, of wills. There are several American authorities on either

side, the balance, however, being in favor of the law as stated by Jarman.

A will has always been presumed, in England, to speak only from the death

of the testator as to personalty, but before 1838, from its date as to

realty. By 1 Vict., Ch. 26, devises and bequests were to be from _death_

of the testator, unless a contrary intention appears. The rules thus

settled by this act have long been adopted in most of our States.[307] A

will is presumed in the following States to speak only from the testator's

death, as regards the subject-matter (as distinguished from the objects)

of the testator's bounty: California, Maryland, Missouri, New York, and

Pennsylvania.

In Virginia, wills of land speak from the making of the instrument, unless

it discloses an intention to the contrary.[308] It is so in Massachusetts,

New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina,

Connecticut, and Kentucky; though a testator may, in these States, convey

by his will any after-acquired land, provided he declares his intention to

that effect. The construction, however, on these statutes virtually raises

a presumption that wills speak only from the death of the testator, if

there is nothing in the context to the contrary.[309]

It seems the better opinion, that the law of the domicile of the testator

will govern as to what shall be regarded as personal estate, and what

real. Thus, in Kentucky, shares in the capital stock of railroad companies

are considered as real property,[310] and, according to this rule, a will

made by a person domiciled there must be executed as a will of real

estate, to convey such shares.

And the law of the place of domicile must govern as to what ought to be

regarded as testamentary capacity.

Thus, in England, administration was granted upon the probate of the will

of a married woman, domiciled in Spain, she being also a native of that

country, it appearing that by the law of that country a _feme covert_ may

dispose of her property by will, with certain limitations, the same as a

_feme sole_.[311]

CHAPTER VIII.

CONSTRUCTION OF WILLS.

It is obvious that within the scope of the present work it is inexpedient

to treat of this subject extensively; it is considered only necessary to

advert to a few of the leading and generally recognized rules followed in

the construction of wills, both here and in England.

The main purpose, in this direction, is to ascertain the true intention of

the testator, from the language used in the instrument, and this intention

shall prevail above every other construction which might be placed on the

language. This is the cardinal rule of all construction, but it is to be

taken with this limitation, that the intention will govern only so far as

it is consistent with the rules of law. The general intent overrides all

mere technical and grammatical rules of construction.

This intention is to be ascertained from the whole will taken together,

from a full view of everything contained within "the four corners of the

instrument,"[312] and not from the language of any particular provision

when taken by itself; and, for the purpose of construction, a will and

codicil may be considered together, and construed as different parts of

the same instrument.[313] But where several parts are absolutely

irreconcilable, the latter must prevail.[314]

The rule as to intention, governing in all cases, is somewhat liable to

misconception, because it is susceptible of, and may be taken in, two

senses.

For by intention, it may be inferred that we are to seek for some probable

purpose as existing in the testator's mind at the time; or may seek to

extract that intention from the meaning of the language which he has used.

It is in this latter sense alone in which construction is employed. The

will must be in writing, and the only question is, what is the meaning of

the words used in that writing? And to ascertain this, every part of it

must be considered, with the help of those surrounding circumstances which

are admissible in evidence to explain the words, and to put the court as

nearly as possible in the situation of the writer.

This was well expressed in Cole v. Rawlinson,[315] by Lord Holt when he

said: "The intent of a testator will not do, unless there be sufficient

words in the will to manifest that intent; neither is the intent to be

collected from the circumstances of his estate, and other matters

collateral and foreign to the will, but from the words and tenor of the

will itself." The rule was well illustrated in the case of Doe v.

Dring,[316] where a testator, intending, no doubt, to dispose of _all_ his

property for the benefit of his family, used these words: "All and

singular my _effects_ of what nature and kind soever." Lord Ellenborough

said, that if he were asked his private opinion as to what the testator

really meant when he used these words, he would reply, that he must be

supposed to have meant that which his duty prescribed to him, to convey

_all_ his property for the maintenance of his family; but as a _judge_, he

was not at liberty to collect his meaning from matters _dehors_, but only

from expressions used on the face of the will, and that the expression

"effects" had always a meaning, in the absence of anything in the context,

which necessarily excluded real estate. However, if the context shows that

by the expression, "all my personal estates," the testator meant to

include real property, it will be so held by reason of the clear intention

manifested on the face of the will.[317]

An introductory clause expressing a testator's desire to dispose of all

the property he should "leave behind him" may be referred to, to construe

the will as passing all lands belonging to the testator at the time of his

death.[318]

It is one of the most troublesome questions in law, as to how far parol

evidence can be admitted to ascertain the intention of a testator. The

principle was early established, that parol evidence should not be

admitted to vary, contradict, or enlarge the terms of a will, and this is

still rigidly adhered to. This was well established in what is known as

Lord Cheney's Case,[319] where it is said that "otherwise it were great

inconvenience that not any may know by the written words of the will what

construction to make, if it might be controlled by collateral averment,

out of the will."

Chancellor Kent, in Mann v. Mann,[320] examined this subject with much

industry and learning, and declared the result to be: that from Cheney's

Case down to this day, it has been a well-settled rule that parol evidence

cannot be admitted to supply or contradict, enlarge or vary the words of a

will, nor to explain the intention of the testator, except in two specific

cases: 1st. Where there is a latent ambiguity arising _dehors_ the will,

as to the person or subject meant to be described; and 2d. To rebut a

resulting trust.

What is a latent ambiguity is thus described in the quaint but expressive

language of Lord Bacon: "_Latens_ is that which seemeth certain, and

without ambiguity for anything that appeareth upon the deed or instrument;

but there is some collateral matter out of the deed that breedeth the

ambiguity; as, if I grant my manor of S to J F and his heirs, here

appeareth no ambiguity at all; but if the truth be that I have the manors

both of North S and South S, this ambiguity is matter in fact, and,

therefore, it shall be holpen by averment, whether of them was that the

party intend should pass."

A patent ambiguity is one that is apparent on the face of the will, and is

only to be remedied, by construction of the language, if possible. As,

for example, if the devise is to one of the sons of J S, who has several

sons, such an uncertainty in the description of the devisee cannot be

explained by parol proof.[321]

As a general rule, courts do not admit parol evidence in cases of patent

ambiguity; but on this head there is a difference of decision in this

country. We have no uniform rule throughout the United States, either by

statute or construction, as to the extent to which parol testamentary

evidence is admissible. In some States, the English rules will be followed

in the main, which is to admit no extrinsic evidence except to explain a

latent ambiguity. But in many of the States, undoubtedly, extrinsic

evidence of the testator's circumstances, as distinguished from his

intention, will be admitted in aid of the construction of any expression

left ambiguous by the context.[322] In New York, the courts adhere to the

English rule, and admit no extrinsic evidence, except to explain a latent

ambiguity.[323] In Maryland, the strict rules of construction prevail, and

no parol evidence is admitted except as in England.[324] The same is the

rule in Ohio.[325]

It seems to be a universally received doctrine in the American courts,

that extrinsic evidence of the declarations of the testator, made at the

time, before or after the execution of the will, cannot be received to

show the intention of the testator by the use of particular words therein,

or by its general scope; as, that by the use of the word "children" he

meant to include step-children;[326] or that a bequest to the parent was

intended for the children of such parent, who was known by the testator to

have died; or that the term "children" was intended to include

illegitimate children;[327] or in any sense to vary the express provisions

of the will, or to show in what sense he used a well-settled term of

law.[328] Nor are the declarations of the testator admissible to show the

existence of a will at the time they were made.[329] But, in a case in

Michigan, it was held, where, after the death of the testator, a will

twenty-five years old was discovered in a barrel among waste papers, and

either torn or worn into several pieces, which were scattered loose among

the papers in the barrel, that the declarations of the testator, made

after the date of the will, were admissible, not as separate and

independent evidence of revocation, but as tending to explain whether the

instrument was thus torn accidentally, or with intent to revoke.[330] The

code of California has settled this question for that State; it excludes

all declarations of the testator's intention.[331]

To ascertain the intention of the testator from the language of the

instrument, certain rules of construction have been established, which

have obtained the acquiescence and authority of the courts. If technical

words are used by the testator, he will be presumed to have employed them

in their legal sense, unless the context contain a clear indication to the

contrary.[332] Courts, therefore, have no right or power to say that the

testator did not understand the meaning of the words he has used, or to

put a construction upon them different from what has been long received,

or what is affixed to them by the law.[333] There can be no place for

construction, for the discovery of the testator's intention, when he has

used words of an unequivocal, definite sense in law, and, however it may

frustrate any presumed worthy designs, the import of the terms as used

must prevail.[334]

In Hicks v. Salitt,[335] the court said: "When a testator uses a word

which has a well-known, ordinary acceptation, it must appear very certain

that he has said, on the face of the will, that he uses it in another

sense, before the ordinary sense can be interfered with.... In order to

alter the meaning of a word, it must appear, not that the testator _might_

have meant it in a different sense, but that he _must_ have meant it in a

different sense."

The right of every testator to use words in a sense different from the

technical legal sense, provided it is apparent, is well established and

acknowledged. Thus, in deference to the context, the word "money" has been

held to pass stock in the funds;[336] though its technical meaning,

according to Coke, only implies gold and silver, or the lawful circulating

medium of a country.[337]

This technical meaning of the word was applied in Mann v. Mann,[338] where

a testator bequeathed "all the rest, residue, and remainder of the

_moneys_ belonging to his estate at the time of his decease," which was

held not to comprehend promissory notes, bonds and mortgages, and other

securities, there being nothing in the will itself to show that the

testator intended to use the word in that extended sense. And the words

"nephews and nieces" have been held to include great-nephews and

great-nieces, different from the import of these terms as settled in

law;[339] and the word "family" has been held to include a husband.[340]

In the case of Hussey v. Berkeley,[341] Lord Nottingham, upon the question

whether the testatrix intended to include great-grandchildren under the

term grandchildren, considered the fact that she had, in another part of

the will, called a great-grandchild her granddaughter, as conclusive

evidence of her intention to include such great-granddaughter in the

residuary clause of the will, under the general description of her

grandchildren.

The court is bound to give effect to every word of a will without change

or rejection, provided an effect can be given to it not inconsistent with

the general intent of the whole will taken together.[342] Thus, if one

devises land to A B in fee, and afterwards in the same will devises the

same land to C D, for life, both parts of the will shall stand; and in the

construction of the law, the devise to C D shall be first.[343] But when

it is impossible to form one consistent whole, the separate parts being

_absolutely_ irreconcilable, the latter will prevail.[344] Thus, where the

testator, by one clause of his will, bequeathed a slave to his son,

remainder to his issue, remainder over; and by a subsequent clause

bequeathed the same slave to his daughter, with like limitations, it was

held that the clauses were inconsistent, and the last revoking the first,

that the daughter was entitled to the legacy.[345]

If a testator's intention cannot operate to its full extent, it shall

take effect as far as possible.[346] And where a will contains different

trusts, some of which are valid, and others void or unauthorized by law;

or where there are distinct and independent provisions as to different

portions of the testator's property, or different estates or interests in

the same portions of the property are created, some of which provisions,

estates, or interests are valid, and others are invalid, the valid trusts,

provisions, estates, or interests created by the will will be preserved,

unless those which are valid and those which are invalid are so dependent

upon each other that they cannot be separated without defeating the

general intent of the testator.[347]

Words, in general, are to be taken in the ordinary and grammatical sense,

unless a clear intention to use them in another can be collected.[348]

Thus, in Young v. Robertson,[349] it is laid down: The primary duty of a

court of construction, in the interpretation of wills, is to give to each

word employed, if it can with propriety receive it, the natural ordinary

meaning which it has in the vocabulary of ordinary life, and not to give

words employed in that vocabulary an artificial, a secondary, and a

technical meaning. Thus, a testator, in a clause of his will, provided

that the share of the estate of any of his children dying without issue

should be equally divided among the survivors of his children or

grandchildren, and it was held that a step-daughter was not a surviving

_child_ of the testator, within the intent and meaning of this clause of

the will, so as to entitle her to a portion of the shares of one of the

testator's daughters, who died without leaving issue, even though this

step-daughter was acknowledged to be of the family, and treated there as a

child.[350]

And the word "children" does not, ordinarily and properly speaking,

comprehend grandchildren or issue generally; these being included in that

term is only permitted in two cases, viz., from necessity which occurs

where the will would remain inoperative unless the sense of the word

"children" were extended beyond its natural import, and where the testator

has clearly shown by _other_ words that he did not intend to use the term

"children" in its proper, actual meaning, but in a more extensive sense.

In Osgood v. Lovering,[351] the word was held to include grandchildren, it

being apparent from the context, that this was the meaning given by the

testator.[352]

This term imports legitimate children only;[353] but if it is notorious

that a testator had no such legitimate children, but had others who went

by reputation, and were acknowledged as his children, these can take under

this term.[354]

In Lord Woodhouslee v. Dalrymple,[355] a legacy was given "to the

_children_ of the late C K, who shall be living at my decease"; C K being

dead at the date of the will leaving illegitimate children, (of whom three

were living at the testator's death) and not having had at the date of the

will, nor having ever had, any _legitimate_ children, the three

illegitimate children were held to be entitled.

The word "issue" is a term of more general signification than children; it

includes not only children, but all lineal descendants, however remote,

for successive generations. It has been called by Lord Holt a _nomen

collectivum_;[356] but this word has frequently been construed to signify

children, where it was so apparent from the context.[357]

The phrase, "dying without issue," in wills, for a long time occasioned

much obscurity, and was a fruitful source of litigation. Thus, if an

executory devise were limited to take effect on a dying without _heirs_,

or on a failure of issue, or "without leaving issue," or "without

_issue_," the limitation was held to be void, because the contingency was

_too remote_, as these phrases being interpreted to mean an _indefinite

failure of issue_, the vesting of the estate would thus be suspended

beyond the period allowed by law. But other words used in the will might

control this construction, as to show that the testator intended to limit

the vesting of the estate to issue living at the time of the death of the

first taker. This contrary intent would be inferred by the use of the

words "living," or "leaving issue behind," or "without children." Unless

such qualifying words, however, were used, the words "_dying without

issue_" were construed as meaning an indefinite failure of issue.[358]

The statute law of New York, and many of the States, has settled the

construction of this term, as it is provided under these statutes that it

shall be construed to mean _heirs_ or _issue_ living at the death of the

person named as ancestor.[359]

Gifts and devises are sometimes made to a "family," and the decisions have

given to the word the same construction as "kindred," or "relations."[360]

In Robinson v. Waddelon,[361] a testator gave all the residue of his

effects to be equally divided between his two daughters and their husbands

_and families_; the court rejected the words "husbands and families," and

held that the two daughters took the residue equally and absolutely as

tenants in common.

Roper has the following observations on devises and bequests to a

_family_: "The word _family_, when applied to personal property, is

synonymous with "kindred" or "relations." If it be asked, of what family

is A, the question will be answered by being informed from what person he

is descended, and whoever is related by blood to that stock is related to,

and of, the family of A. This being the _ordinary_ acceptation of the

word, it may nevertheless be confined to particular relations by the

context of wills; or the term may be enlarged by it, so that the

expression may in some cases mean _children_, or _next of kin_, and in

others may even include relations by marriage."[362]

Personal chattels are not unfrequently described by reference to locality,

as where a testator bequeaths the "household goods," "things," "property,"

or "effects" which are in or about a house. These words, it seems, in

general, will not pass cash, bank notes, bonds, notes, or other _choses in

action_ being in the house.[363]

In Woolcomb v. Woolcomb,[364] a testator bequeathed to his wife all his

household goods, and other goods, plate, and stock, within doors and

without, and bequeathed the residue of his estate to J S. It was held that

the ready money and bonds did not pass by the word _goods_, for then the

bequest of the residue would be void.

Bequests of "chattels and effects" are clearly adequate to pass the whole

personal estate, yet where these words are collocated with household

goods, they may be, and frequently are, restrained to articles _ejusdem

generis_.[365]

A testator, after several legacies of bank stock and other stock and

money, concluded his will as follows: "The remainder of my worldly

substance, consisting of furniture, bedding, carpets, china, kitchen

furniture, looking-glasses, crockery, etc., I give to my two daughters,

etc.; these, with all money of mine that may remain in bank at the time of

my death, with all claims or demands of whatever nature, I give to my two

daughters, etc." The testator had several shares of bank stock and other

stock, not specifically bequeathed. It was held that this bank stock and

other stock did not pass under the above bequest.[366]

The courts of equity, even in England, do not seem disposed to apply the

rule _ejusdem generis_ with so much strictness as formerly. In the late

case of Swinfen v. Swinfen,[367] it was decided that in a bequest

particularized by one word, followed by general words, the latter was not

to be restricted to things _ejusdem generis_; as where the bequest was,

"all my estate at S or thereto adjoining, also all furniture, or other

moveable goods here," it was held that the live-stock and implements of

husbandry in and about the premises passed by the bequest. It was also

held that money in the house at the time of the testator's death passed to

the legatee.

In Brown v. Cogswell,[368] where the bequest was of "all my household

furniture, wearing apparel, and all the rest and residue of personal

property, saving and excepting one feather bed," it was held to carry the

entire residuum of personal property. A bequest of furniture in a

particular house (except plate) will include plated articles in use in

the house, the word "plate" meaning solid plate only. Such a bequest

embraces only the articles permanently in use in the house.[369]

Words, however, in a will, which if allowed to stand would produce

repugnant and inconsistent results, may be rejected.[370] Others may be

supplied where there is no doubt in regard to the words intended, and

others may be transposed and changed to carry out the sense and intention

of the testator.[371]

The will must be most favorably and benignly expounded to pursue and

effectuate, if possible, the intention of the testator,[372] and of two

modes of construction, that is to be preferred which will prevent a total

intestacy.[373] The strict rules of construction adopted in England, when

strictly and unflinchingly applied, had often the effect of invalidating

wills; but there has, of late, been evinced a tendency to relax this

stringency of construction, and the proportion of wills and bequests which

have been declared void for uncertainty has been constantly diminishing;

and, at present, it is becoming more rare, unless through some fatal

accident or miscarriage in the preparation of the instrument. The same

tendency is observable in the decisions of the American courts.