WILLS AND LETTERS OF ADMINISTRATION.
[Sidenote: Who may make wills.]
[Sidenote: Of what property]
Any person of full age and sound mind may dispose, by will, of all his
property except what is sufficient to pay his debts, or what is allowed
as a homestead, or otherwise given by law as privileged property to his
wife and family. [§3522.] The validity of a will depends upon the mental
capacity of a testator and the fact that he was uninfluenced in making
the disposition of his property. If it appears that the testator was
incapable of exercising discretion and sound judgment and of fully
realizing the effect and consequences of the will, though he may not be
absolutely insane, he will not be in such mental condition that he can
make a legal will. If he is of weak mind and it appears that he was
imposed upon or unduly influenced, such facts will invalidate the will.
A testator having testamentary capacity may dispose of his property in
any manner, and to any person he may choose, and may deprive his heirs
of any share in his estate, without any explanation or any express
declaration of disinheritance. The fact that a will is unjust and
unreasonable, in the absence of proof of undue influence, or
insufficient capacity, will not render the will void.
[Sidenote: Subsequent property.]
Property to be subsequently acquired may be devised when the intention
is clear and explicit. [§3523.] If the intention to convey property
acquired after the execution of the will is apparent or may be inferred
from a fair construction of the language used, it will be sufficient,
although the intention may not be directly expressed.
[Sidenote: Verbal wills.]
Personal property to the value of three hundred dollars may be
bequeathed by a verbal will, if witnessed by two competent witnesses.
[§3524.]
[Sidenote: Soldier or mariner.]
A soldier in actual service, or a mariner at sea, may dispose of all his
personal estate by a will so made and witnessed. [§3525.]
[Sidenote: In writing. Witnessed. Signed.]
All other wills, to be valid, must be in writing, witnessed by two
competent witnesses and signed by the testator, or by some other person
in his presence and by his express direction. [§3526.] It is necessary
that the witnesses shall subscribe the will, but not that they shall
have any knowledge of its contents, nor that they shall see the testator
sign it. It is sufficient if the signature is adopted or acknowledged in
their presence. If a will is made with the intention of disposing of
real property it must be executed according to the requirements of the
laws of the state where the real property is situated.
[Sidenote: Interest of witness.]
No subscribing witness to any will can derive any benefit therefrom,
unless there be two disinterested and competent witnesses to the same.
[§3527.] But if, without a will, he would be entitled to any portion of
the testator's estate, he may still receive such portion to the extent
in value of the amount devised. [§3528.]
[Sidenote: Revocation.]
Wills can be revoked in whole or in part, only by being canceled or
destroyed by the act or direction of the testator with the intention of
so revoking them, or by the execution of subsequent wills. [§3529.] The
birth of a child after the execution of a will but before the death of
the testator, operates as a revocation of the will, and the birth and
recognition of an illegitimate child has the same effect. Declarations
of the testator to the effect that he intended to revoke the will, will
not be sufficient to prove a cancellation.
[Sidenote: Cancellation.]
When done by cancellation, the revocation must be witnessed in the same
manner as the making of a new will. [§3530.]
[Sidenote: Executors.]
If no executors are named in the will, one or more may be appointed to
carry it into effect. [§3532.]
[Sidenote: Posthumous children.]
Posthumous children unprovided for by the father's will, shall inherit
the same interest as though no will had been made. [§3534.]
[Sidenote: Heirs of a devisee.]
If a devisee die before the testator, his heirs shall inherit the amount
so devised to him unless from the terms of the will a contrary intent is
manifest. [§3537.] The word heir in this section does not include the
widow of the testator, and she cannot inherit from a child to whom
property has been devised by his father, but who has died before the
father.
[Sidenote: Married women.]
A married woman may act as executor independent of her husband. [§3545.]
[Sidenote: Minors.]
If a minor under eighteen years of age is appointed executor, there is a
temporary vacancy as to him until he reaches that age. [§3546.]
[Sidenote: Administration. Who entitled. Order.]
In other cases where an executor is not appointed by will,
administration shall be granted:
1. To the wife of the deceased;
2. To his next of kin;
3. To his creditors;
4. To any other person whom the court may select. [§3555.]
[Sidenote: Classes united.]
Individuals belonging to the same or different classes, may be united as
administrators whenever such course is deemed expedient. [§3556.]
[Sidenote: Time allowed.]
To each of the above classes in succession a period of twenty days,
commencing with the burial of the deceased, is allowed within which to
apply for administration upon the estate. [§3557.]