Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, Volume 1 (Google eBook)

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Bender-Moss Company, 1917 - Wills
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Contents

Statute of Uses its purpose
13
Statute of Uses its effect
14
Statute of Wills enacted under Henry VIII
15
Statutes of Uses and of Wills as affecting the construction of wills
17
Statute of Frauds its purpose
19
Testaments of chattels under the Statute of Frauds
20
Military tenure never recognized in the United States
21
Testamentary disposition a statutory power
22
CHAPTER IL
23
Definition of the term codicil
25
Early conception of the term testament
26
Alienation of real and personal property governed by different rules
27
Construction of the Statute of Wills enacted under Henry VIII
29
Com on Wills1
33
CHAPTER III
35
Experts may decipher illegible writing or interpret foreign wills
41
The determination of the character of an instrument affects sub
47
An instrument may be construed as a will although not so intended
53
Parol declarations may be received as part of the res gest
60
See Page 55 Distinction between a will and a declaration of trust
63
If the instrument becomes operative before the makers death it is not a will
65
The provisions of an instrument as showing its character
66
Various provisions construed
67
An instrument may in part be effective both as a deed and as a will
70
Instruments testamentary in character are invalid unless executed as required by the law of wills
71
An instrument may be void both as a deed and as a will
72
The presumption arising where a will consists of several sheets
73
Other writings may be incorporated in a will by reference
75
The writing must have been in existence and clearly referred to Proof of identity is necessary
77
Instances of sufficient reference and identifica tion
78
Instances of insufficient reference and identifi cation
80
Separate wills may be in one document
83
Mutual testaments under the civil law
84
The terms joint mutual and reciprocal defined
85
Strict construction of the term joint will
86
Early English cases distinguished
87
The present rule in England
88
Rule in England and in the United States
90
Construction of joint wills controlled by contents
91
The rule in cases where the property is to pass only after the death of both joint makers
92
Wills in their nature are revocable
93
Early English decisions regarding revocation of mutual wills
94
The case of Dufour v Peroira distinguished
95
The mere execution of mutual wills is not conclusive proof of a contract
96
Sec Page
99
Equity will not enforce unjust agreements
111
See Page 111 Effect of the Statute of Wills regarding the admission of evidence
115
Wills are not declared conditional if they can reasonably be con
121
Extrinsic evidence not admissible to show whether maker intended
127
to show intent
128
Evidence of parol declarations or conduct of the maker not admis sible to show intent
129
Courts can not qualify plain and unambiguous language
131
Wills effective at the election of a third person
132
Alternative wills
134
CHAPTER VL
135
if possible
136
One copy only admitted to probate but both should be produced
137
Revocation is presumed when a copy known to have been in the testators possession can not be found after hs death
138
Revocation of one duplicate causes presumption of intent to revoke both
139
No revocation except the intent exists
141
The facts may show a lack of intention to revoke
142
Burden of proof
143
The extent to which parol declarations may be admitted to prove or disprove revocation
144
Held inadmissible
146
CHAPTER VIL LOUISIANA TESTAMENTS OR THE LAW OF WILLS IN LOUISIANA 127 Definition of the term testament in Louisiana
149
Testaments valid if duly executed irrespective of their designation
150
Classification of testaments in Louisiana
151
Further requirements
152
Nuncupative testaments by act under private signature
153
Mystic or secret testaments
154
CHAPTER VIII
156
Relationship of wills and contracts to each other
157
Oral contracts to will property viewed with distrust
158
See Page 137 Agreement to devise may be based on a future consideration
159
The necessity of an agreement express or implied
160
Evidence necessary to prove the agreement
162
Compensation for services rendered can be recovered
164
Compensation for services what can be recovered
166
No right of action for compensation for services until after death of promisor
167
Acceptance of other gifts by promisee may waive his rights under the agreement
168
An exception to the rule that contracts should be mutual
169
The promisor is merely restricted to the reasonable use of the prop erty agreed to be willed to another
170
Probate court has no jurisdiction to enforce agreements to devise property
171
Time when it commences to run
172
Statute of Frauds does not apply to oral agreements to bequeath personalty
173
General rule is that specific performance of oral agreements to devise realty will be denied
174
Part performance may remove the bar of the Statute of Frauds
177
Possession of the property as affecting the Statute of Frauds
179
What description of the property is necessary
180
CHAPTER IX
181
Definition of a nuncupative will
182
During the ages when the art of writing was comparatively unknown oral wills of personalty were necessarily sanctioned
183
The law of nuncupative wills derived from the civil law
184
Definitions by early writers of nuncupative wills
185
testator was in extremis
186
Particular sections referred to
187
The restrictions imposed caused the practical abolition of nuncupative wills
188
The Statute of Wills A D 1837 as affecting oral testaments
189
Nuncupative wills operate only on personal property
191
Incomplete testamentary writings prior to the Statute of Wills were held effective as nuncupative wills of personalty
192
Wills of soldiers and sailors informally exe cuted may be admitted to probate
195
The terms soldiers and seamen include officers and all degrees
197
Question as to whether soldiers and seamen have an unqualified right to make nuncupative wills
198
Soldiers in actual military service are those on an expedition
200
When is a soldier on an expedition 1 Illustrations
201
The same subject
203
When does a military expedition begin or end
204
Mariners and seamen at sea
206
In some jurisdictions any qualified person may under certain restrictions make a nuncupative will
207
Meaning of the term last sicknessin extremis
208
Necessity of calling others to witness the testament
210
Intention to make a will must be clearly established by dis interested witnesses
213
There must be strict compliance with the statutory requirements
214
Number of witnesses to nuncupative wills
216
Committing the spoken words to writing
217
Evidence of witnesses to oral testaments must substantially agree
218
Nuncupative wills of soldiers and sailors have been held valid although the testators had ceased their privileged callings
219
Criticism of the rule
221
CHAPTER X
222
Origin of donations mortis causa
223
Definition by Lord Cowper
224
Definition
225
Eights of creditors
226
Not a fraud against rights of wife or children
227
Married women may make gifts mortis causa
228
Donor must intend that title shall become absolute in donee only in the event of his death
229
It is necessary that there be peril or apprehension of death with fatal result
230
Peril or apprehension of death which is sufficient to sustain the donation
232
A serious operation
233
Real property can not be the subject of a donation mortis causa
234
The presumption as to the conditions imposed by law
236
Confusion of opinion as to the exact nature of donations mortis causa
237
Witnesses
239
Burden of proof
240
Effect of declarations
242
Effect of the donors declaration that the gift is to be effective if he dies
243
Declarations of intention to give without delivery of property are testamentary in character
244
The reason given for the rule
245
Criticism
246
Enforcement of a valid gift
247
Trusts or conditions attached to donations mortis causa
249
Delivery and continued absence of control are essential
250
Delivery to a third person for the benefit of the donee
251
Delivery where the property is in the possession of the donee
252
Constructive or symbolic delivery
253
A writing without delivery of the property will not sustain a donation mortis causa
254
Changes in the rule
255
Where endorsement precludes payment until after the donors death
257
Delivery of pass book 251
259
Not subjects of gifts mortis causa 203
263
Decisions to the contrary
265
CHAPTER XL
267
See Page 227 Power of testamentary disposition is statutory
268
Rules in England prior to the Norman Conquest
269
Devises of afteracquired real property
270
Early rule in the United States
271
Intention to dispose of entire estate
273
The general rule
274
Statutory regulations
277
Common law rule
279
The statute of 1 Victoria ch 26 affects only the subject matter disposed of not the beneficiaries
281
General rule in England
282
Rule in the United States
283
Disseisin Statutory enactments
285
May be devised
286
When devisable
288
Contingent interest in real property where the party who is to take is uncertain
289
Interests in lands founded on contracts of sale and purchase
292
Interests in trust
294
Not devisable L7
297
Not devisable
299
Estates in coparcenary and tenancies in common may be devse 1 i
300
Neither husband nor wife can be deprived of their statutory rights
301
Effect of consent or election to take under the will
302
Consent when once given can not be revoked 311
304
How considered
305
Choses in action and other personal property
307
Distinguishing features
309
When payable to the estate of the insured for the benefit of his wife and children
311
When payable to a specified boneficary
312
When they may be bequeathed
314
Limitations upon devises for charitable purposes
315
Eight of burial
316
THE LAW WHICH GOVERNS IN CASES OF CONFLICT
318
Scope of chapter
319
The term domicile defined
320
Domicile is a question of fact
322
Domicile of married women
325
Rights in real property are governed by the law of the situs
326
Succession to personal property is governed by the law of the domicile of the decedent
327
Devises of real property are controlled by the law of the situs
330
By which law governed
334
General rule is that law of tes tators last domicile controls
335
Decisions to the contrary
342
Effect of a change of domicile by the testator subsequent to execut ing his will
345
Law governing the rights of a wife or child
346
Statutory regulations as to foreign wills
347
Difference between English and American rule
349
Statutory regulations
350
Power of appointment exercised by will
351
Recording certified record of the probate of a foreign will
353
Ancillary administration
355
Perpetuities By which law gov erned
359
Blustration of the general rule
360
To the contrary
362
Purpose of statutes explained
364
Taxes upon the right to acquire property by will or under the laws of succession
366
Real property When converted into personalty
369
As to transfers under a power of appointment
371
The rule that personal property follows the owner not controlling
372
Taxes as to personalty sometimes governed by law of domicile
375
Situs as applied to personal property
377
Tangible or intangible personal property
380
Bonds and certificates of stock of corporations distinguished
381
What is property within the state?
383
English rule
386
CHAPTER Xin LEGAL DISABILITIES IMPOSED UPON CERTAIN PERSONS
390
Distinction between disabilities imposed and mental incapacity
391
Testators under a fixed ago can not make valid wills English rule
392
Rule in the United 8tates
394
Manner of computing the time when minority ends
395
Exceptions to the rule
398
Disability removed by husbands death and other causes
400
Effect of subsequent marriage of a feme sole or death of husband on wills theretofore executed
401
Present rule in England Married Womens Property Act
402
The common law rule in the United States as to the disabilities of married women
404
Construction of statutes removing the disabilities of married women
406
Limitation upon the right of a husband or wife to dispose of prop erty in which the law gives the other an interest
407
The general principles prevailing in the United States as to the rights of married women
408
Civil death generally
410
Outlawry defined
411
Outlaws denied the right of making testamentary dispositions
412
Attainder and corruption of blood
413
Constitutional provision
415
Civil death because of conviction of a felony
416
English rule
418
Testamentary capacity refers to the ability to understand
436
Variations of the rule
437
The degree of testamentary capacity required varies according to conditions
440
A weak mind is not inconsistent with testamentary capacity
442
Ability to transact business not a true test of testamentary capacity
444
Chronic or tem porary
446
Effect of an adjudication of insanity
448
Effect of the testator being under guardianship
449
Effect of an adjudication of incompetency subsequent to the mak ing of the will
452
Lucid intervals
453
Description and proof
456
The law deals with the effect of the mental derangement not its cause
457
Effect of partial loss of memory
458
Infirmities of old age do not establish testamentary incapacity
459
The same subject
461
A question of fact
462
Insane delusions defined
463
Unless the provisions of the will are affected by the insane delu sion the instrument is not invalidated
465
Unusual religious beliefs spiritualism and the like in themselves do not establish incapacity
469
Effect of evidence of eccentricities
470
Deafness dumbness and blindness
472
Excessive use of drugs or intoxicants
475
Apoplectic seizures and epileptic spells
477
Suicide does not of itself establish mental incompetency
478
Do not estab lish incapacity
480
How considered
481
CHAPTER XV
484
Distinction between opinions as to sanity
485
See Page 356 Evidence admitted of occurrences both prior and subsequent to the making of the will
486
Evidence of testators mental condition acts and habits before and after execution of his will admissible
487
Difference in effect
489
Declarations of the testator as affecting the issue of testamentary capacity
490
Declarations of testator admitted to show state of mind not as proof of facts stated
492
How considered
493
Proof of insanity of blood kindred
495
Manner in which testator was treated by his family
496
Effect as to declarations being admitted in evidence
497
Admissions against his interest by one of several beneficiaries
498
A middle ground
499
Inadmissible in evidence
500
The same subject
501
Declarations of subscribing witnesses
502
Declarations admissible for purpose of impeachment
503
Declarations against interest by a sole beneficiary admissible in evidence
504
Subscribing witnesses should satisfy themselves that the testator is of sound mind
505
Opinions of medical experts admissible
508
Who are medical experts
509
Medical experts should state facts to give their opinions weight
510
The same subject
512
Subscribing witnesses may state opinions as to sanity or insanity of testator
513
Subscribing witnesses should state facts so that value of opinions may be judged
514
The weight given to opinions of subscribing witnesses
515
Opinions of lay witnesses depend upon knowledge of facts
516
Lay witnesses must state opportunity for observation
517
Lay witnesses may state facts and give opinion based on them
519
Opinion must be based on facts given in evi dence by witness
521
as to insanity
522
Distinction between statements of fact and of opinion is often slight
523
Trial court must determine qualifications of witness to express an opinion
524
Waived as to subscribing witnesses
526
Who may claim or waive the privilege
528
Contest between heirs and next of kin
531
Claiming privilege is not suppression of evi dence
532
The term burden of proof as it has been applied in will con tests
533
All persons are presumed of sound mind in absence of evidence to the contrary
535
Presumptions and suspicious circumstances
536
Distinction where will is prepared by testator or under supervision of principal beneficiary
538
Conflict of authority
539
Weight of authority
541
Burden of proof after proponent has established a prima facie case
543
The better rule
547
Testamentary capacity is a question of fact
548
CHAPTER XVI
550
Statutory formalities as to execution are mandatory
551
Reasons for formalities
552
Intention alone is insufficient
553
Parol or extrinsic evidence when admissible
554
Wills must be executed with testamentary intent
555
Execution under the Statute of Wills of Henry VII
556
Execution under the Statute of Frauds
557
Rule under the Statute of Frauds
558
English rule
559
No disposing clauses should follow signature 500
560
American rule as to signature of testator based generally on the Statute of Frauds 501
561
41S Statutory regulations as to signing
563
American rule under acts similar to the Statute of Frauds
564
Necessary to sign but once although will may consist of several sheets
565
Reason for rule
566
Requirement must be complied with although no fraud be shown
568
Effect of blank spaces
569
End of the will is the logical end of the disposing portion
571
Effect of part of will following signature of testator
573
Illustrations
574
Apparent exceptions to the rule
575
Immaterial additions
576
Signing by mark
577
Signing by stamp and sealing
578
Testator must intend the mark to stand as his signature
579
Signing initials only or wrong name
580
Presumption is that testator knew contents of will although he signed by mark
581
When testator may sign by mark
582
Another may guide the hand of the testator
583
Express direction or consent
585
The same subject
586
Who may sign for the testator
588
Testator prevented from signing by act of God effect of
589
Proof required
590
Power of appointment executed by will
591
Formalities required
592
Effect of the Statute of Wills of 1 Victoria ch 26
593
Time of execution
594
CHAPTER XVII
595
Written wills must be witnessed
596
Purpose of statutes requiring witnesses
598
Witnesses identify the will
599
Signing by testator should precede signing by witnesses
600
When all part of one transaction
602
Meaning of credible or competent as applied to witnesses
604
Statute of 25 George II ch 6
608
Beneficiary may be a witness against the will
609
Heir at law as an attesting witness
610
Conflicting decisions
613
Prevailing rule
615
Creditors as attesting witnesses
616
Modifications of the rule
617
Early rule
619
Statute of 1 Victoria ch 26
620
Rule in the United States
621
Number of witnesses required
622
When witnesses not required
624
Purpose of statutes authorizing holographic wills
626
How and where signed
627
Meaning of written by the hand of the tes tator
628
CHAPTER XVIII
631
Victoria ch 26
632
American statutes regarding acknowledgment of signature by tes tator
633
When testator does not sign in presence of witnesses acknowledg ment of signature is necessary
635
Exhibiting signature necessary
636
The same subject
639
Where will is signed for testator by a third person
641
Acknowledgment and publication distinguished
642
Time of publication
643
Publication not required under the Statute of Frauds
644
Publication where required 64
645
Proof of publication
647
Surrounding facts and circum stances
648
Acquiescence or approval
651
Beading full attestation clause to witnesses
654
CHAPTER XIX
656
Statute of Frauds
657
Early rule
658
Presence of witnesses with reference to signing acknowledging and publishing
659
Illustrations
660
Witnesses present at the same time
661
Statutory regulations
662
What constitutes requesting witnesses to sign
663
When witnesses are summoned by an interested party
664
Signing wrong name
665
Desirable that witnesses can write their own signatures also to insert residences
666
Witness signing by mark or initials
667
Conflict of authority
668
Strict rule
671
Liberal rule
673
Position of signatures of witnesses
674
Witnesses must sign their names animo testandi
675
Witnesses must sign in the presence of the testator
677
What constitutes in the presence of the testator
678
Witnesses signing in a different room
683
What constitutes in his presence
684
Witnesses signing in the presence of each other
685
When demanded by statute
686
Attestation clause not essential to the validity of the will
688
Attestation clause is prima facie evidence of facts recited therein
689
Will may be established against the testimony of attesting wit nesses
690
Value of attestation clause
692
Although testator signed by mark
693
Will regular on its face presumed to have been duly executed
694
Conflicting view
695
Due execution a question of fact
696
CHAPTER XX
698
Seo Page 514 Statutory regulations
700
Statutes regarding revocation are not retroactive
702
Right and meaning of revocation
703
Surreptitious preservation of fragments
705
Lines drawn across the will
707
Intention to burn insufficient
708
Authorized under the statutes of some juris dictions
710
Evidence of intenton may be shown
711
Revocation by will or other writing
712
Revocation by later inconsistent will
713
Wills partially inconsistent construed together
716
Ambiguous expressions
717
Revocation of will does not necessarily revoke a codicil thereto
718
Revocation of codicil does not revoke will
719
Nature and execution of subsequent writing revoking will
720
The same subject
721
Implied revocation
722
Illustrations
724
Common law rule
726
Will of feme iole revoked by her marriage
728
Regulations in the United States
729
The same subject
732
Implied revocation from birth of issue
733
Implied revocation from void conveyance
735
Sale of property devised as affecting revocation
736
Agreements to convey property devised effect of
737
Implied revocation from alteration of estate generally
739
Intent to revoke without the performance of some act is insuffi cient
740
Acts alone do not work a revocation unless the intent to revoke exists
742
Evidence of intention to revoke
743
The same subject
746
Burden of proof
747
Lost wills
749
Revocation made in contemplation of a new disposition
750
The same subject
751
General effect of revocation
753
English rule
754
Rule in the United States Conflicting deci sions
755
The same subject
756
Presumed to have been made after execution
759
As to revocation
761
Alterations disregarded Original will de ciphered if possible
762
When made by a stranger or interested party
764
Meaning of the term
766
English rule
767
Republication generally accomplished only by reexecution with all formalities
768
Republication of will by codicil
769
Codicil need not be attached to will but must refer to and identify it
771
Presence of will and formal declaration unnec essary
772
Intervening codicils
773
Unexecuted codicils
774
The same subject
775
Defective execution of will cured by codicil
776
TABLE OF CA8E8 OF VOLUME ONE
781
INDEX FOR VOLUME ONE
845
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