General Principles. CHAPTER XCV. WILLS. The power to make wills and mode of executing them, vary somewhat in the different States. At common law, all persons except infants, married women and persons of insufficient mind, may make wills of real or personal property; and infants of the age of fourteen, if males, and twelve, if females, may make wills of personal property. But this rule has been generally modified by statute. In New York, the statutes are to the effect that all persons except idiots, persons of unsound mind and infants, may devise their real estate; and that males of the age of eighteen, and females of the age of sixteen, of sound mind and memory, may bequeath their personal estate, thus increasing the restriction which the common law laid upon infants, but removing the disability of married women. Unsoundness of mind does not absolutely disqualify a person. If there is a sufficient degree of mental capacity to exercise the power of legal choice, or if there are lucid intervals, in one of which the will is made, or if the insanity relates only to special subjects not within the scope of the testamentary act, the will may be sustained, if intelligent action in making it is shown. A gift of real property is termed a devise: a gift of personal property, a bequest or legacy. All persons may take personal property by bequest, and all persons capable in law of holding real property may take real property by devise. Corporations, however, cannot take real property by devise, unless they are specially authorized to do so by their charters or other laws. And by a recent act in New York, it is provided that, no person having a husband, wife, child or parent, shall devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of debts; and such devise or bequest shall be valid to the extent of one-half and no more.(a) Form.-No particular words are necessary to constitute a will. With an exception in favor of soldiers and sailors, who from necessity the law allows to make wills verbally-called nuncupative wills-there must be a written statement of the testator's wish, signed by him. Any statement, however, which makes the testamentary character apparent, is sufficient to give the instrument the character of a will. In no case does a will have any operation until the testator's death. And it may be made upon condition, so that even then it will not take effect except under the circumstances specified. Two persons may make a conjoint or mutual will. It is very common to commence wills with a formal preamble, reciting the testator's capacity to make a will, and the feelings which move him to the act. These phrases are not, however, of any legal efficacy, and may be inserted or not at pleasure. Execution. As to the manner of the execution of wills, the law is precise and stringent. The statutes enacted in the United States generally require that wills must be signed in the presence of two witnesses, and in many of the (a) Laws of 1860, 607, ch. 360. General Principles. States three witnesses are required. But in a few States an exception to this rule is made where the will is wholly in the handwriting of the testator, especially if it be found among his papers, or disposes only of personal property. A seal is usual, but is not always required by the statutes, and when not so required is not necessary to the validity of the will, except the will contain an appointment in execution cf a power requiring a seal. A mark may be a sufficient signature for the testator or for a witness; but it is preferable to have a witness who can write his name. In general, a beneficial devise or bequest to a subscribing witness is void, unless there are the requisite number of other competent subscribing witnesses, so that the will is proved without resort to the testimony of the interested witness. It is usual and proper, but not essential, to write at the end of the will, below or at one side of the testator's signature, a statement of the place, time, purpose and circumstances of the signatures and execution, and to let the witnesses sign below. This statement is called the attestation clause. The advantage of such a statement is in facilitating the probate of the will. If a witness has no recollection of his attesting the will, but recognizes his name under such a statement as written by himself, and testifies that he should not have written it there had he not known the statement to be true, the courts will generally receive this as supplying his defect of memory. The attestation must, except in a few States, be in the presence of the testator, but need not necessarily be in the same room, if he is so placed as to see the act. Against the name of every witness his residence or address should be written. In some of the States this is required by law, and in all cases it is convenient; but the absence of this, even where it is required, does not invalidate the will. The rules prescribed by statute in the various States, for the attestation of wills, are stated in alphabetic order at the end of the chapter. I. WILLS AND SPECIAL CLAUSES. 1801. Short form...... 1302. A will bequeathing several legacies, and appointing a residuary legatee. 1303. A will of real and personal estate.. 676 677 678 678 678 1807. Legacy of furniture, etc., to wife, during life or widowhood... 678 1808. Legacy of furniture to be divided amongst children..... 678 1309. Legacy of a debt... .. 678 1810. Legacy of a share under another person's' will..... ... 679 1311. Bequest of jewels, etc., to wife, and of estate in household effects for life or widowhood.. 1812. Bequest of the good-will of a business.. 679 679 1813. Legacies to children, with directions for investment.. . 679 1820. Direction that legacies shall be paid, free from duty....... 681 the others.. 681 1822. Declaration that legacies shall not be in satisfaction of debts..... 681 Wills. 1824. Declaration that money advanced by the testator during his life, to his children, shall be deducted from their portions or shares of his estate.. PAGE 681 1825. Declaration that advancement shall not be in satisfaction of portions. 682 1826. Authority to executors to defer calling in a debt.. 682 1827. Bequest of an annuity to be purchased... 682 1828. Direction as to payment of annuities..... 682 1329. Bequest of fund with power of appointment... 682 1330. Devise of house and lands to son on his attaining twenty-one, with power to trustees to apply rents and profits of estate during minority of son for his benefit... 683 1831. Devise to executors in trust, with power to sell, etc.. 684 684 1888. Directions to executors as to winding up testator's partnership 1888. Attestation of will according to the laws of England............. 686 II. CODICILS. 1889. Codicil adding a new provision..... 686 1840. Codicil appointing a trustee and executor in the place of a deceased III. INSTRUCTIONS FOR EXECUTION ACCORDING TO THE LAWS OF THE VARIOUS STATES, 1. I give, devise and bequeath all my property, both real and personal, to C. D. [revoking all former wills]. 2. I appoint E. F. the executor of this will. [Date.] [Signatures of witnesses, with or without attestation clause, for which see Form 1337.] [Signature.] 1302. A Will Bequeathing Several Legacies, and Appointing a Residuary [merchant], declare this to be my last will and testa 1. I bequeath to my wife, C. B., all the fixtures, prints, books, plate, linen, china, wines, liquors, provisions, household goods, furniture, chattels and effects (other than money or securities for money), which shall at my death be in or about my dwelling-house and premises at Real and Personal Estate. 2. I bequeath to my said wife the sum of within one month after my death, without interest. dollars, to be paid to her 3. I also give and bequeath to my said wife the sum of dollars(b). 4. I also bequeath the following legacies to the several persons hereafter named: To my nephew, E. F., the sum of dollars; to my cousin, G. H., the sum of dollars; and to my friend, J. K., the sum of lars [and so on with other pecuniary legacies]. dol 5. I also bequeath to each of my domestic servants who shall be living with me at the time of my death in the capacity of [state the description of servants to whom the legacies are to be given] one year's wages, in addition to what may be due to them at that time. 6. All the rest, residue and remainder of my real and personal estate I devise and bequeath to R. S., his heirs, executors, administrators and assigns, absolutely forever. of 7. I appoint T. U. and V. W. executors of this my will. IN WITNESS [etc., as in Form 1337]. 1303. A Will of Real and Personal Estate. I, A. B., of the town of dollars, to be received [merchant], declare this to be my last will and testament: 1. I give and bequeath to my wife, C. B., by her in lieu of dower. 2. To my son, E. B., be paid within dollars [which said several legacies I direct to after my decease]. 3. I give and devise to my son, E. B. aforesaid, his heirs and assigns, all [here designate the property], together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining: to have and to hold the premises above described to the said E. B., his heirs and assigns, forever. 4. I give and devise all the rest, residue and remainder of my real property, of every name and nature whatsoever, to my said daughter, M. B. [and my daughter, O. B., to be divided equally between them, share and share alike]. • 5. I give and bequeath all the rest, residue and remainder of my personal property, of what nature or kind soever, to my said wife, C. B. 6. I hereby appoint E. B. the sole executor of this will, revoking all former wills by me made. IN WITNESS [etc., as in Form 1337]. (b) The object of leaving two legacies to the wife is, that the executor will probably be able to ascertain in a short time whether the estate be solvent, and may then have the means of paying the wife a small legacy sufficient for current expenses, although he might not be able to pay the second, which may be made sufficient for a permanent provision for the wife. I give and bequeath to [name] all the household furniture, books, works of art, and other chattels and effects, together with wines, liquors, fuel, housekeeping provisions and other consumable stores, which shall at my decease be in or about my dwelling-house at except [stating reservations, if any-e. g.:] money and securities for money, evidences of debt and of title, and accounts, vouchers and manuscripts. 1306. Legacy of Dress and Ornaments to Wife. I give and bequeath to my wife [name] absolutely all her paraphernalia, wearing apparel and linen, and the watches, rings, trinkets, jewels and personal ornaments usually worn by her, or reputed to belong to her. 1307. Legacy of Furniture, etc., to Wife During Life or Widowhood. I give and bequeath to my wife during her life, and so long as she shall remain a widow, the use of all [etc., as above]. And after her decease or remarriage, I give and bequeath the same to [name] absolutely if he [or, she] should be living at the decease or remarriage of my wife; but if he [or, she] should be dead, then to [several parties may here be named in succession; or, in case the will has directed the testator's property to be sold, and the proceeds held in trust, say: and after her decease or remarriage, I direct my executors and trustees to sell the same, and add the proceeds to the trust-fund, under this my will]. 1308. Legacy of Furniture to be Divided Amongst Children. I bequeath to my children who shall be living at the time of my death* all [etc., as above], equally to be divided between them; and if any dispute should arise with respect to the division, I authorize my executors to distribute the said effects equally amongst my said children. 1309. Legacy of a Debt. I bequeath to A. B. any debt which, at the time of my decease, shall be owing from him to me, together with any interest then due thereupon. (c) The general time for payment of legacies is not till twelve months after the testator's death. If the legacy be given for present purposes, as in the case in the text, a direction should be added as to its payment within a limited time, as above. |