to ascertain the intention of a testator; all construction is subordinate
to that single purpose; and analogy and precedent should have no further
influence when they lead one side of the intention. They should only be
used as our assistants to this end.
It will be found useful and appropriate, at the conclusion of this
chapter, to give the seven propositions of Sir James Wigram, in his
approved and reliable work respecting the admission of extrinsic evidence
in aid of the interpretation of wills. He divided the subject into seven
propositions, as follows:
Proposition I.--A testator is always presumed to use the words in which he
expresses himself according to their strict and primary acceptation,
unless from the context of the will it appears that he has used them in a
different sense, in which case the sense in which he thus appears to have
used them will be the sense in which they are to be construed.
Proposition II.--Where there is nothing in the context of a will from
which it is apparent that a testator has used the words in which he has
expressed himself in any other than their strict and primary sense, and
where his words, so interpreted, are _sensible with reference to extrinsic
circumstances_, it is an inflexible rule of construction, that the words
of the will shall be interpreted in their strict and primary sense, and in
no other, although they maybe capable of some popular or secondary
interpretation, and although the most conclusive evidence of intention to
use them in such popular or secondary sense be tendered.
Proposition III.--Where there is nothing in the context of a will from
which it is apparent that a testator has used the words in which he has
expressed himself in any other than their strict and primary sense, but
his words, so interpreted, are _insensible with reference to extrinsic
circumstances_, a court of law may look into the extrinsic circumstances
of the case, to see whether the meaning of the words be sensible in any
popular or secondary sense, of which, _with reference to these
circumstances_, they are capable.
Proposition IV.--Where the characters in which a will is written are
difficult to be deciphered, or the language of the will is not understood
by the court, the evidence of persons skilled in deciphering writing, or
who understand the language in which the will is written, is admissible to
_declare_ what the characters are, or to inform the court of the proper
meaning of the words.
Proposition V.--For the purpose of determining the object of a testator's
bounty, or the subject of disposition, or the quantity of interest
intended to be given by his will, a court may inquire into every
_material_ fact relating to the person who claims to be interested under
the will, and to the property which is claimed as the subject of
disposition, and to the circumstances of the testator, and of his family
and affairs, for the purpose of enabling the court to identify the person
or thing intended by the testator, or to determine the quantity of
interest he has given by his will. The same (it is conceived) is true of
every other disputed point, respecting which it can be shown that a
knowledge of extrinsic facts can, in any way, be made ancillary to the
right interpretation of a testator's words.
Proposition VI.--Where the words of a will, aided by evidence of the
material facts of the case, are insufficient to determine the testator's
meaning, no evidence will be admissible to prove what the testator
intended, and the will (_except in certain special cases in Proposition
VII_) will be void for uncertainty.
Proposition VII.--Notwithstanding the rule of law which makes a will void
for uncertainty where the words, aided by evidence of the material facts
of the case, are insufficient to determine the testator's meaning, courts
of law, in certain special cases, admit extrinsic evidence of _intention_,
to make certain the _person_ or _thing_ intended, where the description in
the will is insufficient for the purpose. These cases may be thus defined:
Where the object of a testator's bounty, or the subject of disposition,
(_i. e._, the _person_ or _thing_ intended) is described in terms which
are applicable indifferently to more than one _person_ or _thing_,
evidence is admissible to prove which of the persons or things so
described was intended by the testator.
INDEX.
A.
=Abatement=--of legacies, p. 96.
=Accumulation=--how far allowed in common law, p. 143.
extraordinary case of, p. 143.
limits to, p. 145.
=Acknowledgment=--of signature to will, p. 55.
=Ademption=--of legacy, p. 97.
=Age=--of person making will, pp. 68, 69.
manner of reckoning, p. 69.
extreme, not an incapacity, pp. 86, 87.
=Alienation=--suspension of power in will, how limited, p. 146.
utmost period permitted, p. 147.
=Alfred, King=--will of, pp. 32, 33.
=Ambiguity=--latent, definition of, p. 188.
latent, parol evidence admitted to explain, p. 188.
patent, what it is, p. 188.
=Animals=--singular regard for in wills, pp. 77, 78.
regard of Louis Bonard for, p. 82.
=Annuity in will=--when to commence, p. 117.
=Attestation=--of will, p. 64.
forms of, p. 67.
B.
=Bacon, Lord=--maxim of, in regard to parol evidence, p. 129.
=Bastard=--not classed in law as a child, p. 124.
=Bequest=--meaning of, p. 93.
=Blind persons=--their capacity to make will, p. 70.
=Bonard, Louis=--will of, p. 82.
singular life and belief of, pp. 81-83.
=Bradford, Surrogate=--his principles in admitting will of aged persons,
p. 88.
=Brinckerhoff, Dorothea=--will of, p. 62.
=Burial=--directions for, in will, pp. 10, 16, 21, 77.
=Burning will=--a mode of revocation, p. 163.
C.
=Cancelation of will=--a mode of revocation, p. 163.
what shall amount to, p. 169.
=Canute=--will of, p. 32.
=Capacity=--to make will, as to age, pp. 68, 85.
physical and mental, pp. 69-71.
=Charitable uses=--devises to, formerly allowed, pp. 132, 133.
doctrine of, derived from civil law, p. 133.
doctrine of, existed in common law, pp. 135, 141.
this denied in Levy v. Levy, p. 139.
law of, has varied in New York, p. 135.
researches of Prof. Dwight on, p. 151.
what are, p. 133.
="Chattels and effects"=--what shall pass by in will, p. 198.
=Child=--does not include step-child, p. 195.
illegitimate, when a bequest to is good, p. 124.
in _ventre sa mere_ can take interest in will, p. 121.
=Children=--meaning of term in will, pp. 121, 122, 195.
imports legitimate only, p. 195.
=Clergy=--early connection of with wills, p. 33.
exclusive jurisdiction over wills, p. 35.
intervention in probate matters, p. 34.
their influence over the dying, pp. 36, 131.
=Codicil=--how far will control provision in will, p. 161.
when it will cancel a will, p. 162.
how several are to be construed, p. 160.
=Concanen, Edward=--will of, p. 111.
=Conditions=--in will, how far legal, p. 107.
illegal, p. 113.
precedent and subsequent, what are, pp. 103, 104.
=Construction=--of will, purpose of, pp. 185, 191.
=Constantinople=--bequest to poor of, p. 86.
=Corporations=--prohibited from taking by devise, p. 132.
what are allowed to take by devise in New York, p. 142.
=Coverture=--formerly incapacitated woman making will, p. 90.
not now generally an incapacity, p. 91.
=Cromwell=--singular bequest to, p. 18.
=Cruger, Harriet Douglas=--will of, p. 84.
her history and singular delusion, p. 85.
=Curtesy=--married woman cannot defeat right in will in some States,
p. 92.
married women may defeat in New York, p. 92.
=Cutting=--a will equivalent to tearing, p. 164.
D.
=Deaf and dumb=--their capacity to make will, pp. 69, 70.
=Declarations=--of testator, not admitted to show intention in a will,
p. 190.
=Delusion=--what it is, pp. 72, 75.
of Harriet Douglas Cruger, p. 85.
=Denbigh, Earl of=--singular bequest to, p. 17.
=Devise=--meaning of term, distinguished from legacy, p. 93.
=Domicile=--how determined, p. 175.
law of relating to wills part of leges gentium, p. 173.
law of governs in interpretation of wills, p. 175.
law of at time of decease governs, p. 176.
=Drunken men=--when incapable of making will, p. 71.
E.
=Eccentricity=--difference between and monomania, p. 76.
remarkable case of, p. 76.
=Ecclesiastical=--jurisdiction over wills, rise of, p. 35.
courts' decisions binding in law of wills, p. 40.
="Effects"=--meaning of in will, pp. 187, 198.
meaning of in will of Kosciusko, p. 179.
=Emptor familiæ=--position of in Roman law, p. 31.
=Erasures=--and interlineations in a will, effect of, p. 169.
=Executor=--appointment of in will, p. 52.
allowed a year to settle estate, p. 114.
duty of in paying legacy to child, p. 118.
not disqualified to receive legacy, p. 120.
responsibility of in paying legacies, p. 114.
when to pay legacy, pp. 114, 115.
F.
="Family"=--construction of term in will, pp. 192, 197.
explanation of term by Roper, p. 197.
=Female=--able to make will earlier than male in some States, p. 69.
=Females=--their fondness for animals, p. 77.
=Fraud=--preventing revocation of a will, pp. 166, 168.
=Funeral expenses=--provided for in will, pp. 11, 14.
directions for payment not necessary, p. 51.
G.
=Geigley, William=--will of, p. 108.
=Grandchildren=, construction of term in will, p. 193.
=Greenwood=, singular delusion of, p. 73.
H.
=Harcourt, Mr. Granville=--will of, p. 13.
=Hæres=--of Roman law, description of, p. 30.
=Henry VIII=--will of, providing for dean and canons of Windsor, p. 24.
=Hindoos=--no will among, p. 31.
=Holographic will=, p. 50.
singular example of in California, p. 50.
=Hunt, Benjamin F.=--will of, illustrating law of domicile, p. 176.
I.
=Insanity=--definition of, p. 72.
partial not recognized in early law, p. 73.
partial, how far invalidates a will, p. 74.
=Interest=--on legacies, when to commence, p. 116.
on specific legacies, p. 117.
on legacy before payment causes legacy to vest, p. 100.
=In terrorem=--doctrine of, pp. 111, 112.
=In extremis=--persons in allowed to make nuncupative wills, p. 43.
persons in frequently unduly influenced, p. 135.
=Intention=--governs in the construction of a will, pp. 95, 101, 185.
most considered in revocation of will, p. 168.
governs so far as consistent with rules of law, p. 185.
how ascertained, p. 185.
to operate as far as possible, if not wholly, p. 193.
="Issue"=--meaning of term in a will, p. 196.
="Issue, dying without"=--former construction of, p. 196.
meaning now by statute, p. 197.
J.
=Jefferson=--farm of, at Monticello, devised by Commodore Levy, p. 106.
given charge of fund belonging to Kosciusko, p. 179.
=Justinian=--law of as to portion reserved for children, p. 32.
limited bishop's interference in probate matters, p. 34.
limited military testament to those actually on an expedition, p. 48.
K.
=Kensett, William=--singular disposition of his body, p. 77.
=Kerr, Catharine=--will of, p. 58.
=Kidd, Captain=--treasures of, superstition regarding, p. 79.
=Kosciusko=--will of before United States Supreme Court, p. 178.
interesting facts regarding his career, p. 179
L.
=Latent ambiguity=--what is, p. 188.
=Legacy=--abatement of, p. 96.
ademption of, when takes place, p. 97.
contingent, definition of, p. 97.
conditional, and variety, pp. 103-105.
conditional, what conditions are valid, p. 103.
conditional, in restraint of marriage, p. 107.
general, examples of, pp. 93-95.
general, importance of distinction, p. 96.
in lieu of dower draws interest from death of testator, p. 117.
interest on, when to begin, pp. 116, 117.
payable out of real estate, pp. 100, 102.
payment of, pp. 114, 115.
payment of, to whom, p. 118.
pecuniary sometimes held specific, p. 95.
specific, definition of, p. 93.
specific, various examples of, p. 94.
to infants, to whom paid, p. 118.
to a class, who shall take, p. 122.
vested, when becomes, pp. 99, 100.
=Legatee=--how ascertained in some cases, p. 125.
error in description of, how remedied, p. 126.
who may be, p. 119.
=Levy, Commodore=--remarkable will of, p. 136.
=Lex domicilii=--governs will of personal property, p. 174.
=Lex rei sitæ=--governs will of real property, p. 182.
M.
=Marriage=--revokes will previously made by a woman, p. 157.
of children, attempt to control, p. 113.
restraint of, how far legal, p. 111.
of poor maids, provisions of Henry Raine for, pp. 133, 134.
=Married women=--capacity to take legacy or devise, p. 119.
legacy to, formerly paid to husband, p. 119.
power of to make will of personal property, p. 91.
law of American States is giving more enlarged privileges to, p. 91.
power of, by will in New York, p. 92.
=Masses=--legacy to say, pp. 21, 25.
=May, Thomas=--singular bequest to, p. 17.
="Money"=--strict meaning of, in a will, p. 192.
may include stock in funds, p. 192.
held to include real and personal property, p. 192.
=Monticello=--devised by Commodore Levy, p. 136.
=Monomania=--what it is, recognition of in law, p. 73.
when will avoid will, p. 75.
rise of theory in Dew v. Clark, p. 74.
different from eccentricity, p. 76.
N.
=Nephews and nieces=--who are meant by, p. 192.
=Non compos mentis=--incapacity of to make will, p. 71.
who are, p. 72.
=Nuncupative will=--its nature, p. 42.
limitations of in Statute of Frauds, p. 43.
generally limited to soldiers, sailors, and persons in extremis,
p. 43.
decision on in Cole v. Mordaunt, p. 44.
cases on numerous, since civil war, p. 49.
opinion of Kent in relation to, p. 45.
was in general use before Statute of Frauds, p. 42.
how limited in New York and California, p. 48.
limitations of, by statute in England, p. 48.
O.
=Ordinary=--his privileges in early English law, p. 37.
P.
=Parol evidence=--when admissible, pp. 123, 126, 129, 160.
of contents of lost will is received, p. 160.
is not so readily in England, p. 161.
not admitted to vary, contradict, or enlarge the terms of a will,
p. 187.
in what cases is admitted, p. 188.
=Pembroke, Earl of=--curious will of, p. 15.
=Perpetuities=--statute against, p. 150.
=Personal estate=--when a bequest of may be specific, p. 97.
may include real estate sometimes, p. 87.
=Personal property=--age at which will of may be made, p. 68.
="Personalty"=--meaning of term in will, p. 120.
law of domicile governs in wills, p. 173.
="Plate"=--meaning of term in will, p. 200.
=Power=--execution of, in a will, p. 52.
=Power of appointment=--given married women to make will, pp. 52, 91.
=Publication of will=--and in what States required, pp. 60-64.
R.
=Raine, Henry=--will of, p. 132.
=Rationabiles partes=--meaning of in early English law, p. 36.
=Reading, Mrs. Kitty Jenkyn Packe=--will of, p. 11.
=Real estate=--legacy payable out of, rule as to, p. 100.
will of, pp. 38, 69.
=Restraint of marriage=--in will, p. 107.
curious case of, p. 113.
not permitted in Roman law, p. 107.
of widow allowed in our law, p. 110.
of widower not allowed, p. 111.
in general not permitted, p. 113.
=Revocation of will=--may take place in two modes, p. 152.
an implied revocation a subject of discussion, p. 153.
by marriage of feme sole, p. 153.
implied not by birth of child, p. 153.
by marriage and birth of child implied, p. 154.
by subsequent will, when, pp. 159, 162.
not effected by writing "obsolete" on will, p. 162.
by burning, canceling, tearing, etc., p. 163.
what acts amount to in New York, p. 165.
requires two things--act and intent, p. 166.
=Ridley, Hon. Araminta Monck=--will of, p. 106.
=Robbins, James=--will of, p. 110.
=Roman will=--nature, and manner of making, p. 32.
=Roman Catholic=--not to marry a, a condition in will, pp. 106, 111.
=Roosevelt=--will of, founding hospital in New York, p. 149.
=Rose=--will of declared void, founding "Rose Benevolent Institution,"
p. 150.
S.
=Salisbury, Earl of=--singular bequest to, p. 17.
=Sandwich, Countess Dowager=--will of, p. 11.
=Scotchman=--not to marry a, a condition in a will, p. 106.
=Seal=--not required in will, except in New Hampshire, p. 52
=Seastedt, Eliza=--will of, p. 63.
=Senile dementia=--what it is, p. 86.
when an incapacity to make will, p. 87.
="Servants"=--meaning of term in a will, p. 125.
=Shakspeare=--will of, p. 21.
his singular provision for his wife, p. 22.
=Signature=--to will, effect of tearing off by a testator, p. 170.
=Society for Prevention of Cruelty to Animals=--bequest to, p. 82.
=Solon=--laws of relating to wills, p. 31.
=Specific legacy=--defined, p. 93.
interest on begins from testator's death, p. 116.
=Starkey, John=--will of, p. 14.
=Statute=--of Distributions, p. 37.
of Frauds, pp. 38, 44, 53.
of Frauds, influence of in jurisprudence, p. 38.
of Mortmain, pp. 132, 135.
of Wills, p. 38.
of 43 Elizabeth in regard to charitable uses, p. 133.
of 43 Elizabeth not in force in New York, p. 135.
of 43 Elizabeth, where in force, p. 141.
=Subscription=--to will, p. 55.
=Succession, universal=--among Romans, p. 30.
=Superstitious use=--definition of, pp. 132, 133.
=Surrogate=--derivation of term, p. 40.
T.
=Testament=--meaning of term, p. 41.
=Testamentary capacity=--generally exists, p. 68.
as to age, p. 68.
=Testamentary disposition=--law places limits on, pp. 130, 142.
limits to, in early English law, p. 36.
=Thelusson, Peter=--extraordinary will of, p. 143.
=Thompson, Mr.=--singular habits of, p. 78.
=Tonnele, John=--will of, p. 56.
=Trusts=--what are valid in a will, p. 140.
=Turner, Sharon=--will of, p. 12.
U.
=United States=--bequests to, pp. 136, 140, 150.
=Uses and trusts=--law of, to avoid Statute of Mortmain, p. 132.
V.
=Van Hanrigh, Mrs.=--will of, p. 14.
=Virginia=--bequest to, in trust, by Commodore Levy, p. 133.
W.
=West, Lady Alice=--curious will of, p. 18.
=Wife=--who will answer for in a will, p. 124.
reproachful allusions to in a will, pp. 11, 12.
affectionate allusions to in a will, pp. 13, 14.
=Will=--acknowledgment of signature to, p. 55.
appointment of executor in, p. 52.
attestation of, p. 64.
definition and nature of, p. 41.
destroying, what it signifies, p. 164.
directions in as to burial, pp. 10, 11, 16, 77.
directions in as to debts, p. 51.
divided into two classes, verbal and written, p. 42.
duplicate, effect of destroying, p. 163.
erasures in, p. 163.
holographic, and where valid, p. 50.
importance of, p. 9.
inofficious, pp. 31, 75.
introductory clause in, p. 51.
language of, immaterial, p. 53.
making, solemnity of act, pp. 9, 51.
may consist of many instruments, pp. 52, 158.
mode of writing, p. 53.
nature of, among Romans, pp. 31, 32.
not of effect until death, pp. 121, 152.
opinions of others in, freely expressed, pp. 10, 15.
of personal property, pp. 68, 121.
of real estate, p. 69.
of real estate, must conform to law where real estate is situated,
p. 182.
power of disposition by, in early law, p. 36.
publication of, where required, pp. 60-64.
qualities of, p. 152.
references to wives in, pp. 11, 12, 110.
restraints on marriage in, pp. 14, 105-108, 111.
requisites as to execution of, p. 55.
right to make did not exist in early society, p. 30.
seal not required in, p. 52.
signing of, how under Statute of Frauds, p. 54.
signing of, illustrated in cases, pp. 56, 60.
what it is necessary to contain, pp. 50, 51.
witnesses to, number required, p. 64.
=Widow=--prohibited remarrying by will, p. 108.
recommended to marry, p. 13.
=Widower=--cannot be prohibited remarrying by will, p. 110.
=Witnesses=--manner of signing by, pp. 64-66.
number required in different States, p. 64.
cannot take interest by the will, p. 119.
cutting out names of in will, effect of, p. 164.
Z.
=Zimmerman=--will of, p. 10.
FOOTNOTES:
[1] Illustrated London News, October 18th, 1873. I have selected from this
reliable journal many of the examples of curious wills I give in this
introduction, taken from Doctors' Commons, London.
[2] Illustrated London News, February 21st, 1874.
[3] Illustrated London News, November 8th, 1873.
[4] Black. II, 21.
[5] Thirlwall: Hist. of Greece, 187.
[6] Dwight's Introd. to Maine's Ancient Law.
[7] Tac. Germ. 2.
[8] Dig. lib. 28, tit. 2.
[9] Spence: Eq. Juris. I, 188.
[10] Selden: Orig. Prob. Juris., 15.
[11] Milton, p. 318.
[12] Selden, pp. 3, 4.
[13] Code: lib. I, tit. 3, leg. 42.
[14] Idem, leg. 41.
[15] Decret. lib. 3, tit. 26, C. 19.
[16] Marriot v. Marriot, 1 Strange 667.
[17] Black. III, 95.
[18] Matt. Paris, fo. 56.
[19] Idem, fo. 161.
[20] 1 Strange 667.
[21] Black. II, ch. 32.
[22] Hale, Hist. of Com. Law, 28.
[23] Greenleaf, Evid., vol. I, §26.
[24] Lord Hardwicke, in Ross v. Ewer, 3 Atk. 156, said: "There is nothing
that requires so little solemnity as the making of a will of personal
estate. There is scarcely any paper writing that will not be admitted as
such."
[25] Moore, 177.
[26] Cro. Eliz. 100.
[27] It should be observed that the ecclesiastical jurisdiction over wills
is now abolished in England; and, since 1857, the jurisdiction is given to
the Court of Probate and Divorce.
[28] Wills--A.
[29] Swinb. Pt. I, Sec. 12.
[30] 29 Car. II, Ch. 3, Sec. 23.
[31] Dig. lib. 37, tit. 12, Sec. 1.
[32] Redfield on Wills, I, p. 184.
[33] 20 Johns. 511.
[34] Cole v. Mordaunt, 4 Ves. 196.
[35] Prince v. Hazleton, 20 Johns. 513.
[36] 1 Vict. ch. 26.
[37] 2 R. S. 60.
[38] Civil Code, 1289-90.
[39] Code, lib. 6, tit. 21.
[40] Leathers v. Greenacre, 53 Maine 561.
[41] 2 Curteis 339.
[42] 4 Bradf. 154.
[43] Such a will is valid in California, Louisiana, Tennessee, and North
Carolina. In the case of Clarke v. Ransome, decided in the Supreme Court,
California, October, 1875, the following document was on this ground held
to be testamentary in its character:
"DEAR OLD NANCE:--I wish to give you my watch, two shawls, and also
$5,000.
Your old friend, E. A. GORDON."
It appeared in evidence that for some years Mrs. Gordon and Miss Ransome,
who was the person meant by "dear old Nance," had been on terms of
intimacy. Mrs. Gordon had previously executed a will, by which she had
devised to her brother the whole of the estate, with the exception of
several specific legacies, one of which was to Miss Ransome for $1,000. It
further appeared that after the will had been duly made and executed, Mrs.
Gordon desired to make a further provision for Miss Ransome, and for that
purpose drew up, wholly in her own handwriting, and delivered to Miss
Ransome, the paper above propounded as a will. The court held that this
paper should be admitted to probate as a testamentary instrument; but
against this Chief Justice Wallace gave a dissenting opinion, on the
ground that the paper was the mere expression of a wish, and was not
intended by the decedent to operate as a will.
Vide Pacific Law Rep., Nov. 9, 1875.
[44] Redfield on Wills, I, p. 675.
[45] Swimb. Pt. I, Sec. 3.
[46] Redfield on Wills, I, p. 5.
[47] N. H. Rev. Stat. Ch. 156, Sec. 6.
[48] Hight v. Wilson, 1 Dall. 94; Arndt v. Arndt, 1 S. & R. 256.
[49] Campbell v. Logan, 2 Bradf. 90.
[50] Swimb., Pt. 4, Sec. 25.
[51] The statute of Pennsylvania requires every will to "be in writing,"
and the curious question was recently presented to the Court of Common
Pleas of Chester County, whether a writing on a slate, intended by the
decedent to be her last will and testament, came within the statute. The
court thought the case not within the spirit of the statute, because a
slate was neither intended for nor adapted to writing of a permanent
character. The rule has been carried quite far enough by the admission to
probate of wills written with lead pencils, as was done in Dyer's Estate,
3 Ecc. E. 92, and in Dickson v. Dickson, 1 Id. 222. In 21 P. F. Smith,
454, it was thought that a will should not be written or signed in pencil,
on account of the facility of alteration; but the point was not decided.
In Merritt v. Clason, 12 Johns. 102, a memorandum required by the Statute
of Frauds, written with a lead pencil, was held sufficient, and in Clason
v. Bailey, 14 Johns. 484, this point was affirmed. In Rymes v. Clarkson, 1
Phillim. 22, it was ruled that a codicil written in pencil was valid. See
also Geary v. Physic, 5 Barn. and Cress. 234, and McDowell v. Chambers, 1
Strobh. Eq. 347.
[52] Jarman on Wills, 70.
[53] Civil Code, 1276.
[54] 2 Rev. Stat. 63.
[55] Doe v. Roe, 2 Barb. 200.
[56] Seguine v. Seguine, 2 Barb. 385, 395.
[57] 4 Comst. 140.
[58] McGuire v. Kerr, 2 Bradf. 244.
[59] Civil Code, 1276.
[60] Dayton on Surrog. p. 78.
[61] 1 Barb. 533. It is claimed he may subscribe in presence of one, and
acknowledge it separately to the other. 4 Kent, 516; 36 N. Y. 416.
[62] 10 Barb. 608.
[63] Den v. Mitton, 7 Halst. 70.
[64] Torrey v. Bowen, 15 Barb. 304.
[65] Lewis v. Lewis, 1 Kern. 222.
[66] 1 Denio, 33.
[67] 26 Wend. 325.
[68] Not yet reported; may be in 59 N. Y.
[69] Ruddon v. McDonald, 1 Bradf. 352; Lyon v. Smith, 11 Barb. 124.
[70] Davy v. Smith, 3 Salk. 395.
[71] Doe v. Manifold, 1 M. & S. 294.
[72] Reed v. Roberts, 26 Ga. 294.
[73] Lamb v. Girtman, 26 Ga. 625.
[74] Black. II, 497.
[75] Redfield on Wills, I, 15.
[76] 2 Rev. Stat. 60.
[77] 1 Salk. 44.
[78] Black. I, 463; 2 Kent, 233.
[79] Wills, I, 20.
[80] Com. II, 497.
[81] Wills, B.
[82] Weir v. Fitzgerald, 2 Bradf. 42.
[83] Swinb. Pt. II, Secs. 1 and 6.
[84] No better illustration of this ever took place than the case of the
will of Captain Ward, over whose will a remarkable contest is taking place
[1875] in Detroit.
[85] Sir John Nicholl, in Dew v. Clark, 3 Add. 79.
[86] White v. Wilson, 13 Vesey, 88.
[87] The case of Lucas v. Parsons, 24 Ga. 640, was very similar to this
case of Greenwood. There, the testator's delusion was in respect to his
eldest son, whom he disinherited. The will was set aside.
[88] 3 Add. 75.
[89] 33 N. Y. 619.
[90] 11 Penn. L. I. 179.
[91] Taylor, Med. Jur. p. 657.
[92] Mr. William Kensett, whose will was proved in Doctors' Commons,
London, in 1855, left his body to the Directors of the Imperial Gas
Company, London, to be placed in one of their retorts, and consumed to
ashes; if not, he directed it to be placed in the family grave in St.
John's Wood Cemetery, _to assist in poisoning the neighborhood_. Generally
the curious wills are home-made, but this of Mr. Kensett was made by a
solicitor.
[93] Taylor, p. 658.
[94] Redfield on Wills, I, p. 84.
In June, 1828, the London papers recorded the singular will of a testator
named Garland, containing the following clause: I bequeath to my monkey,
my dear and amusing Jacko, the sum of £10 sterling per annum, to be
employed for his sole use and benefit; to my faithful dog Shock, and my
well-beloved cat Tib, a pension of £5 sterling; and I desire that, in case
of the death of either of the three, the lapsed pension shall pass to the
other two, between whom it is to be equally divided. On the death of all
three, the sum appropriated to this purpose shall become the property of
my daughter Gertrude, to whom I give the preference among my children,
because of the large family she has, and the difficulty she finds in
bringing them up.--Ill. London News, March 2d, 1874.
[95] 2 Bradf. 449.
[96] I am indebted to an admirable essay by Edward Patterson, Esq., of the
New York Bar, for the full facts in this case.
[97] 29 Eng. L. and Eq. 38.
[98] Kinleside v. Harrison, 2 Phillm. 419.
[99] 1 Wms. Exrs. 36; Potts v. House, 6 Ga. 324.
[100] 5 Johns. Ch. 148.
[101] 2 Bradf. 360.
[102] 2 Kent 175.
[103] Tucker v. Inman, 4 M. & G. 1049.
[104] Gen. Stat., 1855.
[105] Black. II, 497.
[106] Redfield on Wills, I, 26.
[107] 2 Lans. (N. Y.) 21.
[108] Toucht. 433.
[109] 1 Atk. 417.
[110] Richards v. Richards, 9 Price 219.
[111] Toucht. 433.
[112] Selwood v. Mildmay, 3 Ves. 306; 1 Bro. C. C. 477.
[113] Ellis v. Walker, Amb. 310; Kirby v. Potter, 4 Ves. 748; Tifft v.
Porter, 8 N. Y. 516.
[114] 1 Atk. 508.
[115] 3 Bro. C. C. 416.
[116] Richards v. Richards, 9 Price, 226.
[117] Barton v. Cooke, 5 Ves. 461.
[118] Walton v. Walton, 7 Johns. 258.
[119] 2 Ves. Sen. 561.
[120] Wms. Exrs. 994.
[121] 1 Roper, 215.
[122] Sayer v. Sayer, 2 Vern. 688.
[123] 5 Ves. 150.
[124] Duncan v. Alt, 3 Penn. 383.
[125] Wms. Exrs. 759.
[126] Idem. 1035.
[127] Bacon's Ab. Leg. (E); 2 Vent. 342; Moore v. Smith, 9 Watts, 403.
[128] 11 Wend. 259.
[129] 2 Vern. 673; Van Wyck v. Bloodgood, 1 Bradf. 154.
[130] Collins v. Metcalfe, 1 Vern. 462. To avoid the lapse of a legacy by
the death of the legatee during the lifetime of the testator, the
following States have provided against it, if any issue of the legatee be
living at the death of the testator: Pennsylvania, South Carolina,
Virginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey,
Mississippi, Maine, Rhode Island. (4 Kent, 542.)
[131] 1 Roper, 216; 1 Paige, 33; Harris v. Fly, 7 Paige, 429; Sweet v.
Chase, 2 N. Y. 73.
[132] May v. Wood, 3 Bro. 471.
[133] Barlow v. Grant, 1 Vern. 255.
[134] Duke of Chandos v. Talbot, 2 P. Wms. 612; Smith v. Smith, 2 Vern.
92.
[135] 1 Roper, 645.
[136] Bacon's Ab. Leg. (F.)
[137] 37 Miss. 114.
[138] 2 Meriv. 26.
[139] Moore v. Moore, 47 Barb. 257.
[140] 2 Salk. 570.
[141] Randall v. Payne, 1 Bro. C. C. 55.
[142] A legacy was sometimes given on condition that the legatee should
not marry a Roman Catholic. As late as April, 1869, the Hon. Araminta
Monck Ridley, in London, left a clause in her will that "if any or either
of my said children, either in my lifetime, or at any time after my
decease, _shall marry a Roman Catholic_, or shall join or enter any
Ritualistic brotherhood or sisterhood, then in any of the said cases, the
several provisions, whether original, substitutive, or accruing, hereby
made for the benefit of such child or children, shall cease and determine,
and become absolutely void."
[143] Perrin v. Lyon, 9 East. 170.
[144] Scott v. Tyler, 2 Bro. C. C. 488. This is a leading case, and the
arguments of the leading counsel engaged contain much of the law on the
subject. See Amb. 209.
[145] Godolp. Leg. 45.
[146] Godolp. 46.
[147] 2 Redfield, 295.
[148] Commonwealth v. Stauffer, 10 Penn. 350.
[149] L. R. 19 Eq. 631.
[150] 2 J. and H. 356.
[151] In the following instance, a testator is not content only to have
his wife remain a widow--he must have her display the appropriate
_insignia_ of her situation. Mr. James Robbins, whose will was proved in
October, 1864, in London, declares: "That, in the event of my dear wife
not complying with my request, _to wear a widow's cap after my decease_,
and in the event of her marrying again, that then, and in both cases, the
annuity which shall be payable to her out of my estate shall be £20 per
annum and not £30." As there was no stipulation as to the time the widow's
cap was to be worn, probably Mrs. Robbins found it easy to comply with the
letter of the request in her husband's will, and yet indulge her own taste
in the matter. In contradistinction to this was the will of Mr. Edward
Concanen, proved in 1868. He says: "And I do hereby bind my said wife that
she do not, after my decease, offend artistic taste, or blazon the sacred
feelings of her sweet and gentle nature, by the exhibition of a widow's
cap."
[152] Wills, Pt. 4, Sec. 12.
[153] 1 Ch. Ca. 22.
[154] Parsons v. Winslow, 6 Mass. 169.
[155] 2 Ves. 265.
[156] Garret v. Pritty, 2 Vern. 293.
[157] The case of Bayeaux v. Bayeaux, 8 Paige, 333, is a curious example
of an attempt made by a testator to regulate and control the choice of his
children in marriage.
The testator died at the city of Troy, in March, 1839, leaving a widow and
three infant children. By his will, made a few months before his death,
and evidently without the aid or advice of counsel, he placed the
following condition on a legacy to his children:
"I charge upon my children, in every possible case, and under all
circumstances, never to make a matrimonial engagement, or bind themselves
to any individuals by promise of marriage, without full parental
approbation and consent as it regards the favored individual. And while I
consider it unjust as well as unwise for a parent to coerce, or to attempt
forcibly to induce a child to marry an object it cannot love, so do I also
deem it without any possible excuse on the part of the child to marry
without the full consent of the parents. And in the event of disobedience
on the part of my child, in this respect, my wish, desire, and intention
is to cut that child off from any participation of the benefits arising
from any property I may leave at my decease, of every kind and description
whatever."
The provisions of the will were in many respects so vague and indefinite,
that Chancellor Walworth remarked: "It is very evident that this will was
drawn by the decedent himself, or by some other person equally ignorant,
not only of legal language, but of legal principles." He held that the
children took the same shares as if their father died intestate.
[158] Lord Comyns' Rep. 728.
[159] Brown v. Peck, 1 Eden. 140.
[160] 10 Ves. 13. This was the time allowed in the civil law, 2 Salk. 415.
[161] 2 Rev. Stat. 90.
[162] Benson v. Maude, 6 Madd. 15.
[163] 2 Vern. 31. Roden v. Smith, Amb. 588.
[164] Cricket v. Dolby, 3 Ves. 13.
[165] Nevil v. Nevil, 2 Vern. 431.
[166] Joe v. Hart's Executors, 2 J. J. Marsh. 351.
[167] 1 Hawks 241.
[168] Fawkes v. Gray, 18 Ves. 131.
[169] Wms. Exrs. 1221; 2 Bradf. 77.
[170] 8 Ves. 410.
[171] Poph. 104.
[172] Marsh v. Hague, 1 Edw. Ch. 174.
[173] Ves. 10.
[174] Wms. Exrs. 1222.
[175] Williamson v. Williamson, 6 Paige, 298.
[176] 5 Binney 475.
[177] 1 Vern. 251.
[178] 1 Johns. Ch. 3.
[179] Wms. Exrs. 1206-7.
[180] 2 Rev. St. 450.
[181] Palmer v. Trevor, 1 Vern. 261; Toller 320.
[182] Wms. Exrs. 1213.
[183] 2 Rev. St. 65. So in California: Civil Code 1282.
[184] 1 Seld. 125.
[185] Morris v. Kent, 2 Edw. Ch. 182; Preston on Leg. 281.
[186] The word "children" includes only the immediate legitimate
descendants, and not a step-child: Cromer v. Pinckney, 3 Barb. Ch. 466;
Mowatt v. Carrow, 7 Paige, 339. Nor does it include grandchildren:
Radcliff v. Buckley, 10 Ves. 195; 4 Watts, 82.
[187] Sherer v. Bishop, 4 Bro. C. C. 55; 2 Ves. 84.
[188] Doe v. Clark, 2 H. Bl. 399; Balm v. Balm, 3 Sim. 492.
[189] 1 Barb. Ch. 637; Wms. Exrs. 934.
[190] Rawlins v. Rawlins, 2 Cox's Ca. 425; Marsellis v. Thalheimer, 2
Paige, 35.
[191] Jenkins v. Freyer, 4 Paige, 47.
[192] Collin v. Collin, 1 Barb. Ch. 630.
[193] 2 Paige, 11.
[194] Pratt v. Flamen, 5 Har. & Johns. 10.
[195] Garrett v. Niblock, 1 R. & M. 629; Lady Lincoln v. Pelham, 10 Ves.
106.
[196] Schloss v. Stiebel, 6 Sim. 1.
[197] 1 Jarman, 306.
[198] Vol. II, 96.
[199] Connolly v. Pardon, 1 Paige, 291. In Thomas v. Stevens, 4 Johns. Ch.
607, a legacy to Cornelia Thompson was held a good bequest to Caroline
Thompson, it appearing that she was the person intended.
[200] Standen v. Standen, 2 Ves. Jr. 589.
[201] See Chap. VIII.
[202] 4 Ves. 680.
[203] 2 Cha. Ca. 51.
[204] 3 Bro. C. C. 311.
[205] 3 Ves. 148.
[206] Vide the case of Shakspeare, Introduction, p. 23.
[207] 2 N. Y. Rev. St. 57; Civil Code Cal. 1275. In Indiana,
Massachusetts, and Pennsylvania, there is no Mortmain act.
[208] Charitable Uses (D). The doctrine of Superstitious Uses cannot be to
much extent applicable here, as we have no religion recognized and
established by the State.
[209] Vide Will of Lady Alice West, p. 18.
[210] Ch. Prec. 272. Eyre v. Countess of Salisbury, 2 P. Wms. 119.
[211] Lord Hardwicke, in Jones v. Williams, Amb. 651, defines a charitable
use as "a gift to a general public use, which extends to the poor as well
as the rich."
[212] It may be thought a singular purpose of charity to provide for the
"marriages of poor maids," and one that would accomplish but little in a
field where the objects would be so numerous; nevertheless, the benevolent
designs of men have been turned in that channel, as well as in other
various directions mentioned in the statute.
By the will of Mr. Henry Raine, a wealthy London brewer, a fund was
established for just such a purpose. Among the notable charitable
institutions of London, there is none more novel in inception or more
unique in management than Raine's Asylum, established by him in 1736, for
clothing, educating, and properly training for domestic service forty
young girls, taken from a lower school previously established by him. On
arriving at the age of twenty-two, any girl who has been educated in the
asylum, and who can produce satisfactory testimonials of her conduct while
in service, may become a candidate for a marriage portion of one hundred
pounds, for which six girls are allowed to draw twice in each year, on the
first of May and the fifth of November. The drawing is in this manner: The
treasurer, in compliance with the explicit directions of Mr. Raine, takes
a half sheet of white paper and writes thereon the words, "one hundred
pounds." Next, he takes as many blank sheets as, with the one written on,
will correspond with the number of candidates present. Each of these half
sheets is wrapped tightly round a little roller of wood, tied with a
narrow green ribbon, the knot of which is firmly sealed. The rolls are
then formally deposited in a large canister placed upon a small table in
the middle of the room. This being done, the candidates, one at a time,
advance towards the canister, each drawing therefrom one of the small
rolls. When all have drawn, they proceed to the chairwoman, who cuts the
ribbon which secures each roll, and bids the candidates unfold the various
papers. There is no need to ask which of them has gained the prize--the
sparkling eyes of the fortunate "hundred-pound girl" reveal the secret
more quickly than it could be spoken by the lips. The scene seems to be
one in which Mr. Raine took deep interest, for in his will, after
appointing his nephews to purchase £4,000 stock in order to make a
permanent provision for these marriage portions, he says: "I doubt not but
my nephews would cheerfully purchase the said stock if they had seen, as I
have, six poor innocent maidens come trembling to draw the prize, and the
fortunate maid that got it, burst out in tears with excess of joy." The
portion drawn in May is given after a wedding on the fifth of November;
the November portion being given in like manner on May day. The author
witnessed one of these marriage ceremonies in the church of St.
George's-in-the-East.
The number of marriage portions given since the opening of the asylum is
said to exceed three hundred.
[213] This statute has been adopted in Massachusetts, North Carolina,
Kentucky, Indiana, Pennsylvania, and several other States. 2 Kent 285. In
Pennsylvania, the will, to make a valid devise to charitable uses, must be
made a month before the testator's decease. Price v. Maxwell, 28 Penn. 23.
[214] 8 N. Y. 525.
[215] 33 N. Y. 97, reversing 40 Barb. 585.
[216] The case of the Smithsonian Institute was adduced as an argument to
show that the United States could take by devise. In that case Mr.
Smithson, an Englishman by birth, and a citizen of that country,
bequeathed to the United States all, or nearly all, of his property, to be
applied to the establishment of an institution for the increase and
diffusion of useful knowledge. But Wright, J., said that this furnished no
evidence of capacity, simply as a political organization, to take and hold
property for charitable purposes. That was an English charity, and the
case was determined by the law of the domicile. It was a charity under the
statute of Elizabeth, and administered as such, and took effect only on a
law of Congress organizing the institution in the District of Columbia.
[217] In New York, as in many if not all the States, the law relating to
trusts as it formerly existed in England in its intricate details, has
been abolished, and only express, active trusts are permitted, where the
trustee has some active duty to perform in the management of the estate.
These express trusts are of four kinds: 1. To sell land for the benefit of
creditors; 2. To sell, mortgage, or lease lands, to pay legacies or other
charges; 3. Where the trustee is authorized to receive the rents and
profits, and apply them to the use of some person during his life, or for
a shorter period; 4. To receive rents and income to accumulate for the
benefit of minors, to cease at majority. The same trusts only are allowed
in California: Civil Code 857. It is therefore held that all trusts, for
any purpose whatever, not coming under one of these four classes, are
void, as it was apparent in the enumeration of these the legislature
intended to exclude all others. Hence, in the drawing of wills, attention
is most particularly needed to see that no trusts are created other than
those above.
[218] 34 N. Y. 584. It is not uncommon for persons to devise property to
the United States Government. The last case in New York was somewhat
singular. It is in the case of United States v. Fox, in 52 N. Y. 530. The
testator there devised "to the Government of the United States at
Washington, District of Columbia, for the purpose of assisting to
discharge the debt contracted by the war for the subjugation of the
rebellious Confederate States." It was held that the government had no
capacity to take. This case is now appealed to the Federal Courts, but
with little prospect of reversal.
[219] Burbank v. Whitney, 24 Pick. 146; Beall v. Fox, 4 Ga. 404; Griffin
v. Graham, 1 Hawks, 96; 7 Vt. 249; Vidal v. Gerard, 2 How. 127. The
doctrine was elaborately argued and examined in the Gerard Will Case, 28
Penn. 54, and it was maintained that it was founded on the common law.
[220] There are many institutions permitted by statute in New York to take
property by devise or bequest. By Laws 1848, ch. 319, benevolent,
charitable, literary, scientific, missionary, or Sabbath-school societies
can take a devise or bequest, the clear annual income of which shall not
exceed $10,000; but, to be valid, the will must be executed two months
before testator's death. By Laws 1841, ch. 261, colleges and literary
incorporated institutions are allowed to take for certain purposes. And,
by Laws 1864, the State can take a devise for benefit and support of
common schools. For these reasons, it is held the law of charitable uses
is not so much required in New York; and, by special enactment, the
legislature will incorporate societies to take a devise for pious,
benevolent, or charitable purposes.
[221] 4 Ves. 227.
[222] In case the trust exceeds this term, it is void _in toto_, and not
merely _pro tanto_; Griffiths v. Vere, 1 Ves. 136, 10 Penn. St. 326.
[223] A direction to accumulate all the testator's estate for fifteen
years by investment and reinvestment in bonds is valid in Illinois. Rhoads
v. Rhoads, 43 Ill. 239.
But in New York an accumulation for three years, and also ten years, was
held invalid: 4 Sandf. 442; 7 Barb. 590.
[224] In New York it is _two_ lives; in California, _any_ lives in being:
Civil Code, 715.
[225] Schettler v. Smith, 41 N. Y. 328.
[226] The maximum period during which alienation may be suspended may, in
one instance, under the New York statutes, and those of a great many other
States, be suspended for two lives in being, and twenty-one years and a
fraction afterwards, in certain cases of minority. For example, an estate
to A for life, remainder to B for life, remainder to his children in fee,
but in case such children shall die under the age of twenty-one years,
then to D in fee. Here, it will be observed, the ownership may be legally
suspended for the lives of A and B, and the actual infancy of B's
children; but in no event can such suspension exceed that length of time
before the remainder becomes vested. If one of the children reach
twenty-one, D's remainder is cut off. In the example just given, suppose
the children of B die before attaining twenty-one, and that B, at his
death, leaves his wife _enceinte_, there would then be a suspension of
alienation for a few months more than twenty-one years.
The extent to which variation from the ordinary term of gestation may take
place in women, whether the birth be premature or protracted, is one of
the difficult problems involved in medical jurisprudence. On this subject
the highest medical authorities are at issue; some adhering closely to the
regular period of forty weeks as the extreme term; while others extend
their indulgence even to the utmost verge of eleven calendar months. See
Long v. Blackall, 7 Term R. 104; Cadell v. Palmer, 1 Cl. & Finn. 372.
[227] Moore v. Moore, 47 Barb. 257.
[228] Burrill v. Boardman, 43 N. Y. 254.
[229] Rose v. Rose, 4 Abb. Ct. App., Dec., 108.
[230] The argument of Prof. Dwight, one of the counsel, in two volumes,
presents a marvelous and most scholarly amount of research upon the law of
charitable uses, from the earliest times.
[231] See page 31.
[232] Swinburne, Part 7, Sec. 14, says: "Concerning the making of a latter
testament, so large and ample is the liberty of making testaments that a
man may, as oft as he will, make a new testament, even until his last
breath; neither is there any cautel under the sun to prevent this liberty;
but no man can die with two testaments, and therefore the last and newest
is of force; so that, if there were a thousand testaments, the last of all
is the best of all, and makes void the former."
[233] 4 Co. Rep. 60.
[234] Doe v. Barford, 4 Man. & S. 16.
[235] Johnston v. Johnston, 1 Phillim. 447.
[236] Wellington v. Wellington, 4 Burr. 2165.
[237] 4 Johns. Ch. 506. Of course, this rule was only good where the issue
of the marriage were otherwise unprovided for, or had no means of
maintenance.
[238] The law respecting implied revocations was a fruitful source of
difficult and expensive litigation, and often defeated the intention of
testators, instead of carrying it into effect. Lord Mansfield has said
that some of the decisions on this head had brought "a scandal on the
law"; and, on another occasion, he remarked "that all revocations not
agreeable to the intention of the testator are founded on artificial and
absurd reasoning." 3 Burr. 491.
[239] Ash v. Ash, 9 Ohio, 383; Stat. Ohio, (1831) p. 243; Stat. Ind. 1821;
Stat. Ill. 1829; G. Laws, Conn. p. 370, last edition.
[240] 4 Kent, 525; Cal. Civ. Code, 1306.
[241] 4 Kent, 526.
[242] Sec. 1307.
[243] Gage v. Gage, 9 Foster, 533.
[244] 2 Rev. Stat. 64.
[245] Redfield, I, 298.
[246] Rev. Stat. 1849, Ch. 122.
[247] Civil Code, 1290. So in Rhode Island, Rev. Stat. Ch. 154.
[248] Tomlinson v. Tomlinson, 1 Ashm. 224.
[249] Tyler v. Tyler, 19 Ill. 151.
[250] 2 N. Y. Rev. Stat. 64; Civil Code, 1299.
[251] Cotter v. Layer, 2 P. Wms. 623.
[252] In re Fisher, 4 Wis. 254; Simmons v. Simmons, 26 Barb. 68; Smith v.
McChesney, 15 N. J. Ch. 359.
[253] Campbell v. Logan, 2 Bradf. 90.
[254] Cutto v. Gilbert, 9 Moore, P. C. C. 131.
[255] Mod. 203.
[256] 1 Cowp. 87.
[257] Nelson v. McGiffert, 3 Barb. Ch. 162. In some States this is settled
by statute. Thus, in California, an antecedent will is not revived by the
revocation of a subsequent will unless an intention appear: Civil Code,
1297. The same in New York: 2 Rev. Stat. 66.
[258] Wms. Exrs. 136 and cases cited. The general effect of a subsequent
will in revoking one of an earlier date, by reason of its inconsistent
provisions, is very extensively discussed in the late and important case
of Colvin v. Warford, 20 Md. 357.
[259] Brown v. Brown, 8 El. & Bl. 876.
[260] Howard v. Davis, 2 Binney, 406; Jackson v. Betts, 6 Cow. 483; Steele
v. Price, 5 B. Mon. 58; 8 Met. 486.
[261] 7 B. Mon. 408.
[262] 8 Watts & Serg. 275.
[263] Wharram v. Wharram, 10 Jur. N. S. 499. A will and codicil were torn
to pieces by a testator's eldest son, after the death of his father; the
pieces were saved, by which, and by oral evidence, the court arrived at
the substance of those instruments, and in effect pronounced for them.
Foster v. Foster, 1 Addams, 462.
[264] Patch v. Graves, 3 Denio, 348; 28 Vt. 274.
[265] 4 Ves. 610.
[266] 3 Sw. & Tr. 478.
[267] 14 Mass. 208; Hine v. Hine, 31 Penn. 246.
[268] Lewis v. Lewis, 2 W. & S. 455.
[269] Price v. Maxwell, 28 Penn. 23.
[270] Howard v. Halliday, 7 Johns. R. 394. If two wills, in duplicate,
were in possession of the testator, and he destroyed one, did this, in
effect, work a revocation? This was in some doubt. The California Code has
set at rest this question for that State, in Sec. 1295, where it is
provided that a destruction of one of the copies shall amount to a
revocation. See Onions v. Tyrer, 2 Vern. 742.
[271] Hobbs v. Knight, 1 Curteis, 289. And the cutting out of the
principal part, as the signature of the testator, or of the witnesses,
will be a revocation of the whole will: 1 Jarman, 161.
[272] Where the word "destroying" is used in the statute, as one mode of
revocation, it is generally held to include all modes of defacing not
specifically enumerated in the statute, and does not require an absolute
and entire destruction. Johnson v. Brailsford, 2 Nott & McCord, 272.
[273] 2 Rev. Stat. 66. It is the same in California: Civil Code, 1292.
[274] Burtenshaw v. Gilbert, 1 Cowp. 49.
[275] Dan v. Brown, 4 Cow. 490.
[276] Etheringham. v. Etheringham, Aleyn, 2.
[277] 3 B. & Ald. 489.
[278] Bibb v. Thomas, 2 W. Bl. 1043.
[279] Pryor v. Coggin, 17 Ga. 444.
[280] White v. Carter, 1 Jones (N. C.) Law, 197.
[281] Smiley v. Gambill, 2 Head, 164.
[282] Blanchard v. Blanchard, 32 Vt. 62.
[283] 7 Jur. N. S. 52.
[284] 1 Jarman, 133.
[285] Bap. Church v. Roberts, 2 Penn. 110.
[286] 1 Johns. Ch. 530.
[287] Bethell v. Moore, 2 Dev. & Batt. 311.
[288] 1 Jarman, 125.
[289] McPherson v. Clark, 3 Bradf. 92.
[290] 1 B. Mon. 57.
[291] 2 Doug. (Mich.) 515.
[292] 8 Jur. N. S. 897.
[293] Legatees are entitled to be paid in the money of the country in
which the testator is domiciled and the will is made. 2 Atk. 465; 2 Bro.
C. C. 39.
[294] Harrison v. Nixon, 9 Peters, 483.
[295] To determine a person's domicile is sometimes a matter of some
difficulty. It is determined on two principles: the _fact_ of one's
residence, and the _intent_ of remaining there as at one's home; or it
depends upon _habitation_ and the _animo manendi_. Residence and domicile
are not convertible terms, because they are not the same things. The Roman
definition has been admired for its expressiveness and force. It is there
defined: "It is not doubted that individuals have a home in that place
where each one has established his hearth, and the sum of his possessions
and fortunes; whence he will not depart if nothing calls him away; whence
if he has departed he seems to be a wanderer, and if he returns he ceases
to wander." (Code, lib. 10, tit. 39.) It must be assumed as a fact that
every person has a domicile, or home, and the domicile of origin remains
until another is obtained, not by merely moving or changing, but by
leaving it with no intention of returning, without _animo revertendi_. But
an intention to change is not sufficient to alter a domicile until it is
actually changed. Therefore, death _en route_ does not alter domicile.
(State v. Hallet, 8 Ala. 159.) One who goes abroad, _animo revertendi_,
does not change his domicile, because only the fact of residence is
changed, and not the intent. But if he remains very long abroad, and in
one place, the intent may be inferred from the fact. The Supreme Court of
the United States have intimated that an exercise of the right of suffrage
would be the highest evidence, and almost conclusive against the party.
(Shelton v. Tiffin, 6 How. 185.)
[296] The doctrine was well settled in a very early case in Pennsylvania,
decided by Judge Tilgham, in 1808: the case of Desasbats v. Berquier, 1
Binn. 336; and this case has ever since been quoted and approved as a good
statement of the law on this point. There, a will was executed in St.
Domingo by a person domiciled there, and sought to be enforced in
Pennsylvania, where the effects of the deceased were. It appeared not to
have been executed according to the laws of St. Domingo, though it was
conceded that it would have been a good will if executed by a citizen of
Pennsylvania. The alleged will was held to be invalid.
[297] 23 N. Y. 394.
[298] Confl. Laws, Sec. 481; Adams v. Wilbur, 2 Sumner, 266.
[299] Wills, I, 404.
[300] Nat v. Coons, 10 Mo. 543.
[301] 14 How. 400.
[302] Coppin v. Coppin, 2 P. Wms. 291. This was accepted as an
indisputable proposition, in Lynes v. Townsend, 33 N. Y. 558.
[303] Wood v. Wood, 5 Paige, 596; 9 Wheat. 565.
[304] Vol. I, 1.
[305] Conf. Laws, Sec. 479.
[306] Evid. 671.
[307] Gold v. Judson, 21 Conn. 616.
[308] 8 Cranch, 66; G. Stat. (Mass.) C. 92; 7 Met. 141; 6 N. H. 47.
[309] Cushing v. Aylwin, 12 Met. 169.
[310] Washburne, Real Prop. I, 166.
[311] Re Maraver, 1 Hagg. 498.
[312] Hoxie v. Hoxie, 7 Paige, 187.
[313] Hone v. Van Schaick, 3 Barb. Ch. 488.
[314] 2 W. Bl. 976.
[315] 1 Salk. 234.
[316] 2 Mau. and Sel. 454.
[317] Roe v. Pattison, 16 East. 221; Wheeler's Heirs v. Dunlap, 13 B. Mon.
293.
[318] Youngs v. Youngs, 45 N. Y. 254.
[319] 5 Co. 68 b.
[320] 1 Johns. Ch. 231.
[321] 2 Vern. 624.
[322] Brownfield v. Brownfield, 20 Penn. 55; Johnson v. Johnson, 32 Ala.
637. Where there is no ambiguity on the face of a will, evidence is
inadmissible to explain it: Hill v. Alford, 46 Ga. 247.
[323] Jackson v. Sill, 11 Johns. 201.
[324] Walston v. White, 5 Md. 297.
[325] Worman v. Teagarden, 2 Ohio N. S. 380.
[326] Asay v. Hoover, 5 Penn. 21.
[327] 2 Sneed, 618.
[328] Allen v. Allen, 18 How. (U. S.) 385.
[329] Betts v. Jackson, 6 Wend. 187.
[330] Lawyer v. Smith, 8 Mich. 411.
[331] Civil Code, 1340; Estate of Garraud, 35 Cal. 336.
[332] 4 Vesey, 329; 1 Salk. 238.
[333] Hodgson v. Ambrose, 1 Doug. 341.
[334] Theall v. Theall, 6 La. 220.
[335] 18 Jur. 915.
[336] Dowson v. Gaskoin, 2 Kee. 14. The word "money" used in making a
devise in a will, will be construed to include both personal and real
property, if it appears from the context, and on the face of the
instrument, that such was the intention of the testator. Estate of Miller,
48 Cal. 165.
[337] Co. Litt. 207.
[338] 1 Johns. Ch. 231.
[339] James v. Smith, 14 Sim. 214.
[340] 5 Vesey, 159.
[341] 2 Eden, 194.
[342] Thus, in a case in California, Norris v. Henley, 27 Cal. 439, a
testator devised his real estate upon a particular street, one-third to
each of three persons by name, "to have and to hold their lifetime, and
then to go to their heirs and assigns, _but never to sell_." It was held
to create a fee, and these words, "never to sell," had no effect.
[343] Cro. Eliz. 9.
[344] Sims v. Doughty, 5 Ves. 243: Parks v. Parks, 9 Paige, 107.
[345] Frazer v. Boone, 1 W. R. Hill, 367.
[346] 3 P. Wms. 259; Cal. Civ. Code, 1317.
[347] Parks v. Parks, 9 Paige, 107; Williams v. Williams, 4 Seld. 525;
Hawley v. James, 16 Wend. 61.
[348] Chrystie v. Phyfe, 19 N. Y. 344.
[349] 8 Jur. N. S. 825.
[350] Matter of Hallet, 8 Paige, 375.
[351] 33 Maine, 464.
[352] Hughes v. Hughes, 12 B. Mon. 121.
[353] Metham v. Duke of Devon, 1 P. Wms. 529.
[354] Cartwright v. Vawdry, 5 Vesey, 530; Gardner v. Heyer, 2 Paige, 12.
[355] 2 Meriv. 419.
[356] 1 Vent. 231; Moore v. Moore, 12 B. Mon. 655.
[357] Sibley v. Perry, 7 Ves. 522; Pope v. Pope, 14 Beav. 591.
[358] Hopkins v. Jones, 2 Barr, 69; Moore v. Moore, 12 B. Mon. 653.
[359] N. Y. Rev. Stat. Vol. III, p. 12.
[360] 9 Vesey, 319.
[361] 8 Sim. 134.
[362] Legacies, Ch. II, Sec. 10.
[363] Jones v. Sefton, 4 Vesey, 166.
[364] 3 P. Wms. 112.
[365] Timewell v. Perkins, 2 Atk. 103. The word "estate" in a will carries
everything, unless restrained by particular expressions: Turbett v.
Turbett, 3 Yeates, 187.
[366] Delamater's Estate, 1 Wharton, 362.
[367] 29 Beav. 207.
[368] 5 Allen, 556.
[369] Holder v. Ramsbottom, 9 Jur. N. S. 350; Nichols v. Osborn, 2 P. Wms.
419.
[370] Pond v. Bergh, 10 Paige, 140; 12 Mass. 537; Estate of Wood, 36 Cal.
75.
[371] Wootton v. Redd, 12 Gratt. 196.
[372] 3 Burr, 1634.
[373] 4 Vesey, 406.
Transcriber's Notes:
Passages in italics are indicated by _italics_.
Passages in bold are indicated by =bold=.
Superscripted characters are indicated by {superscript}.
End of Project Gutenberg's The Curiosities and Law of Wills, by John Proffatt