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3 Pick. 375.

221.

Vol. IV. A man dies testate and solvent, and his widow waives her CH. 127. rights under his will, she cannot have a portion of bis personal Art. 2. estate. As to minors making wills see a. 4, s. 1, and 2 N. Car. Con. Law Rep. 599 : one under 18 years of age cannot make a w

of his personal estate. See the colony law, which speaks of the age for making wills and testaments being 21. I have found no

other case of a minor's making a will in the United States. ART. 4.

4 con. Same distinction as to witnesses subscribing these Con. and others. 5 Pick. 510-512, Needham v. Ide. Jackson v.

14. Ejectment by the heirs of Moses Cadwell, said to be King & King, non compos, against ihe dests. claiming the land under his 4 Cowen, 207

deed. So the question was, if he was of sane mind when he made the deed, for though the deed was voluntary, this was no objection to be made by his heirs. The introductory notes state numerous points as being law, most of which are only the opinions of the judge who delivered the opinion of the court. There was but one question in the case for the judges to decide, that was, what is legal insanity, that avoids a deed, and one for the jury to decide, that is, did the evidence prove the insanity the law required. Is it not better to have the introductory notes or marginal notes, contain only the legal points, made or moved, and decided by all or a major part of the cout, in due form? It appears to me the best English and American reporters so confine themselves. Some judges are remarkable for giving long opinions, and on numerous points of law not in the causes, and not discussed ; yet these saine judges hold decisions not binding, made, when there is no discussion, and very properly. Held, in this cause on the proper points, 1. Where an act is sought to be avoided, on the ground of mental disability, the proof lies with him who alleges it: 2. Till the contrary appears, sanity is to be presumed : 3. But after a general derangement is shown, it is then incumbent on the party which insists the act was valid, to show sanity at the very time when it was performed : 4. What shall constitute that derangement or imbecility of mind which renders a party incapable of contracting? This is the legal question : 5. Idiots and lunatics, or persons non compotes, are of this description, and the disability is confined to these. Here is some confusion, idiots and lunatics or persons non compotes, that is, we may read, idiots and lunatics, are persons non compotes, or we may transpose the words, and read thus, persons non compotes are idiots and lunatics. So the question still occurs, what constitutes the imbecility or insanity of mind, or derangement that avoids a deed? And after all that is said in this and other cases about ancient confinement to idivey and lunary, and modern departure therefrom, this ever has been and is, in

1

See insanity Scott.

practice, the question, that is, wlien has the insanity existed Vol. IV. ihat has avoided the devise, will, deed, or other contract? CH. 127. We are naturally led thus to think, from observing that after Art. 4. all the refinement we see in this case of Cadwell, the court Con. fell into the usual course of inquiry, and therefore thought him compos because he could do the business of his mill very well, &c. &c. though wit:esses proved he forgot names, &c.

§ 10. Where a testator has not been previously insane, the Art. 6. party alleging insanity must prove it; but if he has been once Con. insane, then the party alleging his sanity must prove it. This 3 Rand. 399–

409, Burton u. appears to be the true rule, many cases ciled. in the index. The same principle, 3 Har. & M'H. 513.

A testator, among other descendants, lest seven grandchil- Art. 9. dren by a deceased son, and in his will mentioned two of them Con. and their father by name. Held, the other five were not for- 2 N. H. Rep. gotten. Quere is a testator remembers one child in a numer- 49-501, Mer.

rill & wife o. ous family, hence is it to be inferred he remembers all ?

Sanborn. Ø I con. To the same purpose, see 1 Cox, 77 ; Gilmer, Art. 10. 174 ; 1 Wash. R. 56; 2 Sch. & Lef. 240.

As to the ques. Con. tion when is an estate devised, or intestate, there are numerous authorties, as already appears. The simple principle on which they all are governed is this. If the estate or thing, be entirely devised so as that the devise of it leaves not any, even contingent interest in it undevised, and this devise of it fails to take effect entirely, then this estate or thing becomes intestate; but if the devise of it is such as leaves any interest, even a contingent interest, not included in the devise of it, this undevised residue, however small, falls, of course, into the residuun, and is included in the devise of all the rest and residue of the testator's estate, this residue including every kind of devisable interest the testator has not included in the prior parts of the will.

§ 2 con. Where a devise of land is void in law, it goes to the heir, and not to the residuary devisee, unless it appears evidently meant for bin. The devise was to the trustees of a 3 Har. & M

H. 333–338, college, and void in law. Chancellor dismissed the bill of the

Lingan v. residuary devisees; affirmed in the court of appeals, many Carroll. cases cited. Here chancery decided a legal question on a bill to compel an account of the profits of real estate. The cases decided in other States on general principles, confirm decisions in Massachusetts, made on the saine general principles. The entire estate was devised to the college and failed. So within the principle above stated.

§ 2. Testator purporting to dispose of all his estate, devis- Art. 11. ed to his daughter, Lydia Bowers, the improvement of a farm Con. on condition she pay 10 her sister E. H. £300 in three annual 4. Pick. 198–

210. VOL. IX

60

Vou. IV. payments. The said premises to be equally divided between Ch. 127. all her legal heirs, at her decease.' Held, by force of said Art. 11. act of March 1792, Lydia Bowers took an estate for life only, Con. and that her children, living at the testator's death, took a vest

ed remainder in fee. Bowers v. Porter.

CHAPTER CXXVIII.

286.

Little.

ESTATES IN FEE. ART. 1. $ 3. Devise thus as to all my worldly estate, &c. I devise, Con. &c., "I give and bequeath to my daughter, a tract of land

called EP-is a see simple. 1 Har. & M'H. 452. But a devise to a son, and if he die before 21, or without issue of his

body, then over is a fee tail, 463. A. D. 1775. A. D. 1772. 3 Rand, -280 The words temporal goods may be borrowed from the

preamble of a will, and coupled with a devising clause, to enlarge a life estate into a fee simple. If A die without heirs, then to B, bis brother; A has a see tail. All my wordly goods

is the same as all my worldly estate. So temporal goods. ART. 2. § 3. Entry sur disseisin. Held, The devisee had a fee in

Con. this case. Where the testator devised lands to his wise for life, 3 Greenl. 239- and then to one of his sons, without expressing the nature and 242, Butler o.

duration of his estate, and bequeathed a legacy to another son as his proportion of the estate,' the first son had a fee. Cases to the same purpose, 8 D. & E. 1, Doe v. Holmes; 1

Com. R. 333; 2 B. & P. 247. 12 Wheat. 498_

$ 7. A devise, 'I give and devise to my beloved_son, 505, Potter ap- Ezekiel W. Gardner, two third parts of that my Ferry Farm, pellant o.

so called, &c., to him the said E.W.G., and to him, bis heirs, and assigns, forever, he my said son, E. W. G., paying all my just debts out of said estate. And I do hereby order, and it is my will, that my son E. W. G. shall pay all my just debts out of the estate berein given to him, as aforesaid.' Held, 1, This devise charges the estate with the payment of the testator's debts : 2. A bona fide purchaser paying the purchase money to one authorized to sell, is not bound to look to its application, whether in the case of lands charged in the hands of an heir or devisee with the payment of debts, or lands devised to a trustee for the payment of debts : 3. But if the money be misapplied by the devisee or trustee, with the cooperation of the purchaser, he remains liable to the creditors for the sum so misapplied; was in chancery.

13 con. The estate devised is charged and liable, when it appears the debts or legacies are to be paid out of it. Denn v. Miller, in the House of Lords. It is the same if lands be

Gardner.

devised to A, after paying his legacies, and his legacies being Vol. IV, paid thereout; in both cases they are to be paid out of the land Ch. 128. devised to A. See 2 Bos. & P. 247; 4 East. 496 ; See Art. 2. Doe v. Clark, ch. 125, a. 7, s. 9; Doe v. Snelling, a. 3, s. Con. 26; Roe v. Doe, 3 M. and S. 518. So debts may be a charge both on the devisee and estate devised to him. 3 Mason, 178 to 231, Gardner & al. v. Gardner al. The above and many other cases cited by tlie court, as 3 Burr. 1533–1618; 5 D. and E. 292, &c.

A, devises a farm to his son B, (no words of inheritance.) The son furnishing his mother with firewood and grain of ali sorts, for hier confortable support, and if she elected to leave the farm house, in the event of the son's marriage, then he to build a house for her. Held, this was a charge 0.3 the person of B; hence he had a fee. 19 Johns. R. 31.

§ 4 con. Was a writ of right. Held, 1. A devise of all Art. 3. the testator's ' estate, real, personal and mixed, goods, chattels, Con. and estates, whatsoever and wheresover they may be found, be- 17 Mass. R. longing unto me for any cause whatsoever;' gave a see simple 69–76, Brown in the real estate of the testator : 2. When a will was proved

& al. v. Wood

& wife. by two of the witnesses and no notice to the heirs stated, it was presumed good reason existed for the absence of the third, and that notice was given to the heirs after the lapse of twenty years.

A devise was- I will all my landed property in Northamp-1 N. H. Rep. ton, to Abrer Fogg, son of Jona. Fogg, he, as my executor, 163-167, Fogg paying out all my willed legacies,' devised other lands, &c., and v. Clark & al. then added thus having disposed of my real and personal estate by this my last will and testament, I do hereunto set my hand.' Held, Abner Fogg had an estate in fee simple. In the introduction, the testator spoke of disposing of his whole estate ; and the court said the word property in land meant the whole interest.

A devise directing that all the testator's children shall share i Jacob & W. equally in all his property, gives them the real estate in fee. § 10, The estate opens, &c. Writ of entry. Facts stated.

ART. 5. July 9, 1777, Joseph Whipple seized in feé, made his will, Con. proved July 2, 1781. As to his worldly estate he disposed of 3 Pick. 360– it, &c., gave his wife certain personal estate, and the improve- 364, Annable ment for her life, of certain real estate, and to his granddaughter . Patch & al. Hannah Whipple, £20, and added I give all the remainder of iny estate, both real and personal, to my daughter, Sarah Annable, and the children born of her body, including all my wise has the improvement of during her life, after her decease. Sarah had three children when the will was made; four when the testator died; two more were born aster his decease. He died 1781. Held, 1. Sarah Annable and her four children,

189.

Vol. IV. living when the testator died, took an estate together in fee simCh. 128. ple in the real estate, in the part in which the widow had a life Art. 5. estate, a vested remainder which opened to let in the two aster Con.

born children: 2. In the rest a qualified fee, so limited as to admit their claims, by way of executory devise : 3. No right by survivorship having accrued before passing the act of 1785, ch. 62, s. 4, respecting joint tenancies. From passing that act the devisees held as tenants in common : 4. The court thought the after born children were entitled to share in the personal estate by way of executory devise. The court said the words children born of her body,' were words of purchase ; cited Buffar v. Bradford, 2 Atk. 220, were the same words, and held words of purchase, though in that case the piece bad no children when the will was made. Said act“ extends to past grants and devises in express terms;' no estate had vested in any survivor previous to the passing of the act ;' the children of her body,'

meant all the children she might have.' Part of the devised estate was a remainder on a life estate, so prospective the court observed. Cited also, Dingly v. Dingly, ch. 114, a. 21, s. 5. The only doubt is if the estate vested in the four children opened to let in children born afterwards. See Sawyer v. Rogers, &c. Seems to be different.

CHAPTER CXXIX.

ESTATES IN TAIL.

ART. 3.

Con.

§ 5 con. Where A takes by devise an estate in fee deseasible on bis dying without issue in the lifetime of B. Jackson v. Chew, 12 Wheat. 153–169, was a case on the will of Medeef Eden stated in the next case of Wilkes, &c. v. Lion; also in the case of Anderson v. Jackson. In this case, Jackson v. Chew, the Supreme Court of the United States adopted the local law of real property, as ascertained by the decisions of the State courts, whether those decisions are grounded on State statutes or State common law.

The principle in Fosdick v. Cornell, fully confirmed in the much considered and examined case of Wilkes and others, plts. in error v. Lion.

Appeal from the Supreme Court to the court of errors, 2 Cowen, 333 to 400. The same had been previously decided on the same will in Anderson v. Jackson, 16 Johns. R. 332. The will was— Medeef Eden seized in fee, having two sons, Joseph and Medeef, August 29, 1798, devised to Joseph, his heirs and assigns, certain real estate in the city of N. York, &c. included the premises, &c. and certain other real estate to Medeef, his heirs and assigns, and added, “if either of

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