A Concise Treatise on the Law of Wills

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W. H. Anderson & Company, 1901 - Wills - 1172 pages
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Contents

29 Law controlling in construction of will
28
30 Statutory rule as to law controlling
29
32 Effect of change of domicile
31
35 Law controlling in trusts
32
36 Law controlling as to capacity of beneficiary to take
33
37 Law controlling as to lapse
34
38 Law controlling as to election
35
CHAPTER V
36
43 Origin and classes of inherent elements
37
44 Aiiinmx testandi not dependent on use of word will
38
45 Animus testandi What wishes are testamentary
39
46 Animus testandi What disposition is not testamentary
40
47 Animus testandi Realty of intention
41
48 Animus testandi Expression of intention in definite terms
44
49 Animus testandi Intention that instrument shall take effect only at death of testator
45
J50 Revocability
48
51 Instruments lacking some inherent elements
49
53 Confusion between deeds and wils Instruments held wills
51
54 Confusion between wills and contracts Instruments held con tracts
55
55 Confusion between wills and contracts Instruments held wills
56
56 Confusion between wills and orders
57
Will in form of power of attorney
59
59 Precatory words
62
60 Contingent wills What wills are included
64
Examples of contingent wills
66
63 Examples oi wills held not contingent
67
CHAPTER VL
69
66 Wills included under this chapter Classification
70
67 Validity of joint and mutual wills
72
63 When admissible to probate
74
69 Revocability of joint and mutual wills
75
THE CONTRACT TO MAKE A WILL
76
70 Validity of contracts to bequeath or devise and revocability of wills made thereunder
78
71 Necessity of all the elements of a valid contract
80
73 Certainty
83
74 The Statute of Frauds
85
75 Part performance
86
76 What is a breach of such contract
88
77 Construction and performance
89
78 Remedies for breach of contract at law
90
79 Remedy for breach of contract in equity
91
80 Election of remedies
95
82 Parties
97
CAPACITY TO MAKE A WILL 84 History of the law of testamentary capacity
98
S6 Outlawry and attainder
99
87 Alienage
100
89 Coverture at common law Testaments
101
90 Coverture at common law Wills
103
91 Capacity of married woman under powers
104
92 Capacity of married woman in equity
105
93 Capacity of married woman under modern statutes
106
94 Lack of mental capacity Is perfect sanity a requisite of testa mentary capacity?
108
95 Is criminal responsibility a test of testamentary capacity?
110
96 Is contractual capacity a test of testamentary capacity?
111
97 Test of testamentary capacity now adopted
114
98 Degree of memory requisite Effect of size of estate
117
99 Classes of those mentally incapacited General discussion
118
100 Idiocy
119
101 Imbecility
120
102 Senile dementia Old age
121
103 Insanity
122
104 Insane delusion Definition
123
105 Analysis of insane delusion Mistake of fact
125
106 Analysis of insane delusion Mistake not based upon evidence
127
107 Analysis of insane delusion Mistake not removable by evidence
128
109 Lucid interval
130
110 Eccentricity
132
111 Spiritualism
133
112 Drunkenness and the effect of drugs
134
113 Delirium
135
114 Delirium tremens
136
116 Disease great weakness and approaching death
137
117 The deaf dumb and blind
138
CHAPTER DL
140
120 Mistake in inducement
141
121 Mistake Statutory rule
142
122 Fraud General discussion and classification
143
124 Fraud in inducement
144
125 Undue influence Definition
145
127 Elements of undue influence
147
128 Classes and forms of undue influence
149
129 Who may exert undue influence
151
Dower curtesy and distributive share of personalty
158
143 Classes of property devisable Realty in general
164
CHAPTER XI
170
CHAPTER XII
178
159 Writing materials which can be used
181
160 Language in which the will may be written
182
162 Incorporation of documents
183
163 Incorporation of documents Reference to document
185
165 Actual existence of document at time of execution of will
187
167 Effect of incorporation of document in will
189
168 Reference to verbal instructions
190
171 Methods of signing
191
Signature by other person
194
175 Presence of testator
195
177 Who can sign for testator
196
179 Name of testator added by other to his mark
197
180 Guiding the hand of testator as signature by testator
198
181 Place of signature upon will Early statutes
199
182 Place of signature upon will Modern statutes
201
184 Effect of blanks in body of the will
202
186 Additions after signature
203
187 Signature opposite the end or foot of the will
207
189 Distinction between attestation and subscription
208
190 Number of subscribing witnesses
209
191 What determines competency of subscribing witnesses
210
192 Time at which competency must exist
212
193 Who are competent attesting witnesses
213
195 Effect of release
215
197 Husband or wife of beneficiary Common law rule
216
198 Effect of modern statutes
217
199 Competency of heir of beneficiary Probate judge executor etc
219
200 Husband of testatrix
221
201 What subscribing witnesses are required to attest
222
204 Acknowledgment of signature by other
223
205 Form of acknowledgment
224
206 Acknowledgment of will instead of signature
226
207 Effect of failure to sign or acknowledge before witnesses
228
210 Presence Physical proximity
230
What is a reasonable effort
231
212 What testator or witness must be able to see
233
214 What is presence of one who is blind
234
215 Effect of acknowledgment by witness of his signature not made in presence of testator
235
217 Animus attestandi
236
218 Request of testator
237
Signature by witness
238
220 Signature of witness by another
239
221 Place of signature of witness
240
222 Order of signing
241
223 Necessity and value of attestation clause
244
224 Residence of witnesses
245
227 Necessity of publication
247
228 Publication not a substitute for acknowledgment of signature
249
CHAPTER XIII
250
S230 Formalities of Holographic wills
251
231 Place of deposit of Holographic will
253
PABT IINUNCUPATIVE WILLS AT COMMON LAW 1232 Definition and history of law of nuncupative will
254
Nuncupative wills made by testators of favored classes
257
When nuncupative wills can be made by testators of unfavored classes
258
235 Place where nuncupative wills can be made by member of un favored clasB
261
237 The extrinsic formalities of the nuncupative will The rogatio testium
263
Number and competency of witnesses to nuncupative wills
265
239 Reduction to writing
266
240 What can pass by nuncupative will
267
PAET IIINUNCUPATIVE TESTAMENTS AT LOUISIANA LAW 241 Nuncupative testaments by public act
268
242 Nuncupative testaments by private act
270
CHAPTER XIV
272
245 Classes of revocation
274
246 Revocation by means of acts manifest on face of the will
275
248 Tearing
276
249 Cancelling
277
250 Mutilation
280
251 Obliterating
281
253 Destruction of duplicate win
282
254 Partial revocation by act manifest on the will
283
255 Revocation prevented by fraud
285
256 Animus revocandi In general
288
257 Animus revocandi Who is capable of revoking a will
289
258 Animus revocandi Mistake of fact
290
260 Animus revocandi Attempt to alter will
291
261 Animus revocandi Destruction without testates authority
292
263 Revocation by informal instrument
293
265 Revocation by later instrument not a will
295
266 What shows testators intention to revoke will
296
268 Kevocation by later will No clause of express revocation
298
269 Revocation by later instrument Distinction between will and codicil
299
270 Effect of loss of later instrument
301
Effect of revocation of later instrument at common law
302
272 Effect of revocation of later instrument under modern statutes in England
303
273 Effect of revocation of later instrument American rule
304
274 Effect of revocation of later instrument American statutes
306
275 Conditional revocation In general
307
276 Conditional revocation by act manifest on instrument
308
Conditional revocation by later instrument
309
278 Revocation by alteration of estate At common law and equity
313
279 Revocation by alteration of estate Modern statutes
316
280 Revocation by change of circumstances In general
318
281 Effect of marriage on will of husband Common law and statute
319
282 Effect of birth of child on will of father Common law
322
284 Effect of marriage on will of wife Common law and statute
324
285 Effect of change not specified by law
327
286 Effect of alteration of circumstances after revocation is com plete
328
288 Effect of birth of child upon will of parent who has other children living
329
289 Construction of these statutes Having no child
330
Construction of these statutes Subsequent birth or having child afterward
331
Omission of children from a will
332
What shows intentional omission of a child
333
What is a provision for a child
336
Evidence How intention to omit must be shown
339
i296 Effect of omission upon other provisions of will
340
CHAPTER XV
342
300 Definition of spoliation
343
301 Effect of spoliation by a stranger to the will
344
303 Definition
345
305 Modern statutes
346
307 Methods of reexecution Codicil
347
308 General effect of republication
348
309 Application of the doctrine of republication Afteracquired realty
349
311 Reexecution cures a defectively executed will
350
PROBATE AND CONTEST 312 History and general nature
352
313 Necessity of probate
356
314 What must be probated
358
315 The court of probate powers
360
316 Effect of delay in probate
362
317 Who may propound a will for probate
363
318 Procedure at probatePetition
364
319 Notice
365
320 Examination of witnesses ex parte
368
321 Contest Limitations
371
322 Inconsistent wills
374
323 Nature of contest
375
324 Necessity of parties Notice
377
325 Who may contest
378
326 Estoppel
382
327 Who may defend
383
328 Pleadings
384
329 Issue in probate and contest
385
330 Procedure at trial Open and close
388
331 Right to a jury in contest
390
332 General powers of the court
392
333 Charge of court
393
334 Evidence sufficient to support a verdict
397
335 Form of verdict and judgment
399
336 Effect and operation of order of probate
401
338 Appeal and error
403
344 Costs
414
PROBATE AND CONTEST OF LOST AND SPOLIATED WILLS
420
358 Registry of foreign will
427
364 Confidential communications to one not a subscribing witness
432
365 Confidential communications to a subscribing witness
433
366 Evidence of subscribing witnesses
434
367 Record of evidence given at probate
435
368 Admissibility of will
436
369 Definition of burden of proof
437
IIEVIDENCE OF EXECUTION
439
371 Presumption where signatures of testator and subscribing wit nesses are duly proved
440
372 Presumption where subscribing witness forgets facts of exe cution
441
373 Presumption where subscribing witness is beyond jurisdiction of court
442
374 Presumption where subscribing witness denies facts of execu tion
443
376 Declarations of testator Res gestae
444
377 Declarations of testator Not res gestae
445
379 Evidence negativing execution
446
380 Evidence of animus testandi
447
381 Questions of law and fact
448
383 Presumption of sanity
451
384 Presumption of continuance of mental condition
452
385 Nature of will as evidence of capacity
454
386 Evidence of financial standing of parties
457
387 Evidence of relations between testator beneficiaries and natural objects of bounty
458
388 Opinion evidence Subscribing witnesses
459
389 Opinion evidence Witnesses other than subscribing witnesses Experts
461
390 Opinion evidence Nonexperts
464
391 Form of questions not calling for opinion
466
392 Form of questions calling for opinion
467
427 Facts explanatory of the nature of the will
508
432 Presumptions
514
440 Evidence of contents
518
441 Declarations of testator as to contents
520
442 Evidence of circumstances of destruction
521
443 Declarations of testator as to circumstances of destruction
522
444 Admissions against interest
523
447 Nuncupative wills
524
EVIDENCE OF REVOCATION 448 Burden of proof
525
450 Declarations of testator
527
451 Declarations of legatees
529
455 Proof of revoking deed
531
CHAPTER XX
532
457 Definition
533
459 Value of precedents
534
460 Intention to be deduced from words employed by testator
537
462 Intention to be deduced from whole will
539
463 General and particular intent
541
464 Unjust or absurd intention
542
465 Testamentary intention presumed to be in accordance with law
543
466 Presumption against partial intestacy
544
467 Presumptions as to disinheritance
547
468 Devise by implication
551
469 Construction of wills passing both realty and personalty
554
470 Inconsistent provisions
555
471 General rules controlling definitions
556
472 Punctuation and grammar
557
473 Modification by context
558
474 Miscellaneous examples of definitions
561
CHAPTER XXI
563
476 Estate
564
H78 Effects
565
Surplus
566
481 Property excepted from a general devise or bequest
567
Mortgages
569
Devise by metes and bounds
570
I486 Unimproved real estate
571
488 Description of realty by popular name
574
489 Afteracquired realty
576
490 Gift of realty at fixed valuation
578
492 Bequests of personaltyfurniture
580
493 Household goods
581
495 Personalty described by its use
583
549? Stacks and bonds
584
S498 Notes and other debts
586
499 Interest on investments
587
501 Release of obligations
588
502 General and particular description
589
504 Construction affected by nature of testators property interests
590
505 Residuary clauses
591
507 What passes by a residuary clause
592
508 Effect of failure of part of residuary clause
595
Pro rata distribution of residuum
596
CHAPTER XXII
598
512 Heirs Primary meaning 509
599
513 Husband or wife as heir
600
514 Heirs Extended meaning
601
515 Meaning of heirs in bequests of personalty
602
Heirs including legatees
604
518 Heirs of the body
605
519 Heir meaning grandchildren
606
521 Next of kin
607
522 Children Primary meaning
608
523 Extended meaning of children
609
524 Children including grandchildren
610
525 Children including illegitimate children
611
527 Descendants
613
528 Family
614
529 Relatives
616
530 Brothers and sisters
617
533 Representatives
619
535 Legatees
620
537 Miscellaneous Occupations
621
539 Misdescription of beneficiary Corporations
622
CHAPTER XXHL GIFTS TO A CLASS 540 Definition
625
541 Examples of gifts to a class
626
544 Exclusion from a class
627
545 Time of determining the members of a class General rule where possession is immediate
628
546 Where time for determining members of class is fixed by will
630
Effect of postponement of time of distribution Gift to heirs
632
548 Effect of postponement of time of distribution Gift to others than heirs
635
549 Time of vesting taken as time for determining members of class
636
550 Lapse in case of gift to a class Common law rule
637
551 Lapse in case of gift to a class Modern statutory rule
638
CHAPTER XXIV
641
553 Statutory distribution adopted in absence of testators manifest intention
643
5554 Intention clear Construction of specific forms of devise Per capita
644
Per stirpes Substitution specifically directed
646
557 Ambiguous gifts
647
Gift to children of two or more persons
648
559 Gift to pass as in intestacy
649
CHAPTER XXV
650
562 Modern statutory rule
653
563 Defeasible fees
655
564 The Rule in Shelleys Case Common law
656
The Rule in Shelleys Case Modern statutes
658
566 Fee tail General rule
659
567 The Rule in Wilds Case
660
568 Moden statutory rules Fee tail changed to fee simple
661
571 Estates for widowhood
663
573 Life estate created by directions to support etc
664
574 Language restricting a fee to a life estate
665
575 Effect of conferring power to dispose of property
667
576 Gift of life estate with power to dispose of remainder When held life estate
669
held fee
672
Remainders and executory devises Definition
673
579 Remainder How created
674
580 Remainder after feesimple
676
582 Remainder over on condition broken
677
f584 Waiver of remainder 67S 585 What property passes in remainder
678
588 Words creating an estate in common as distinguished from an estate in severalty
679
589 Distinction between joint tenancies and estates in common Common law rule
680
590 Modern statutory rule
681
592 Construction of dying without issue Gifts of personalty
682
594 Modern rule
683
595 Personal property Absolute ownership Rule in Shelleys case
684
596 Life interests in personalty Possibility of creation
686
597 Life interests in personalty How created
687
598 Life interests in personalty Protection of remainderman
689
CHAPTER XXVI
691
600 For what time income is payable
692
601 Time from which income is to be estimated
693
602 Rules for ascertaining income
694
603 Gift of income charged with support of others
698
604 Beneficiaries
699
605 Whether income or support passes
700
606 Apportionment of income at death of beneficiary
702
608 Duration of annuities
703
609 Apportionment of annuities
704
TESTAMENTARY TRUSTS OTHER THAN CHARITABLE 610 Elements of a trust
705
611 Precatory words not creating trust
708
612 Precatory words creating trust
710
613 Words showing the motive for the gift
711
614 Words creating an express trust
713
615 Dry trusts
715
Effect of failure of trusts 71ti
716
617 Resulting trusts
717
01 Discretionary power of trustees
719
620 Parol trusts
721
Validity of trusts
722
623 Accumulations
724
CHAPTER XXVIII
727
626 Perpetuities Definition and application
728
627 Origin of rule
729
628 Original rule and statutory modifications
730
629 Effect of violation of rule Examples
731
630 Partial violation of rule
732
631 Examples of gifts not within the rule against perpetuities
733
632 Examples of gifts within the rule against perpetuities
735
633 Statutory modifications of the rule against perpetuities
737
634 Restraints on alienation
738
636 Illustrations of violations of statutory rule
740
637 Cases not within the statutory rule
742
638 Accumulations
743
639 Charitable devises Definition
745
640 Rule against perpetuities as applied to gifts to charitable uses Time of vesting
746
Restraint on alienation
747
642 Accumulations for charitable purposes
748
644 Charitable devises to public corporations
752
What are charitable purposes Education
753
646 Public libraries
754
647 Aid of poor and destitute
755
648 Hospitals and asylums
756
649 Support of religion
757
650 Masses
758
652 Parks
759
654 Uses not charitable
760
655 The doctrine of cy pres
761
CHAPTER XXIX
766
Importance of distinction between vested and contingent in terests
769
659 Interests in realty Effect of postponement of possession
770
660 Effect of power of sale
773
662 Vested defeasible remainders
774
663 When contingent interests become vested
776
664 Contingent remainders
779
665 Contingencies of the person
780
666 Contingent legacies
781
667 Vested and contingent legacies General rule of construction
782
668 Effect of postponing time of payment to create intermediate interests
783
669 Effect of postponing time of payment where no intermediate in terest exists
784
670 When contingent legacies become vested
787
671 Destruction of contingent legacy
788
CHAPTER XXX
789
674 Construction of conditions in general
791
675 Effect of failure of condition
793
676 Conditions concerning death of devisee
794
677 Conditions as to birth of issue
800
678 Conditions as to support for services
801
679 Conditions as to reformation and conduct of beneficiary
802
680 Conditions as to presenting claims against testators estate
803
682 Conditions as to religious belief
806
683 Conditions against contesting will
807
684 Conditions repugnant to the nature of the estate devised
808
685 Conditions against bankruptcy Spendthrift trusts
813
686 Conditions as to use of property
817
688 Miscellaneous conditions
819
689 Definition Creation of power of sale
821
i692 Who may exercise power
830
Exercise of power of sale by life tenants
836
Power of sale without discretion
842
CHAPTER XXXIH
848
714 Election between life insurance and gifts under the will
854
720 How election is effected at common law
860
721 Effect of qualifying as executor
861
722 Taking part in litigation
862
724 Receipt of money as election
864
726 Where election necessary
865
727 Full knowledge of rights necessary in common law election Right to revoke election
866
728 Statutory election When necessary
867
729 At what time statutory election must be made
868
730 What is filing under statutes
869
731 Can a written election be revoked?
870
732 Estoppel to deny written election
871
734 Effect of election upon rights to allowance
872
736 Effect of election upon rights of dower in intestate property
873
CHAPTER XXXIV
877
740 Lapse at common law by dissolution of corporation
878
742 Effect of modern statutes upon the common law doctrine of lapse
879
743 Relations or descendants under the statute
881
744 Disposition of lapsed legacies and devises
882
745 Void legacies and devises in general
884
746 Devolution of void legacies and devises
885
CHAPTER XXXV
887
749 Words which charge legacies upon realty
888
751 Direction for support and maintenance as a charge
890
752 Direction that devisee pay money to another as a charge
892
753 Valuation of property devised
893
Charging legacies upon personalty specifically bequeathed
900
764 What words charge debts upon realty
906
768 Specific legacies
912
772 Where uo direction in will Residuary legacies
919
777 Abatement of devises
925
loco parentis
930
784 Where testator not in loco parentis
932
786 Advancements General rule
933
788 How advances are to be estimated
935
789 Legacies from which advancements may be deducted
937
790 Where advances exceed legacy
938
792 Property taken for testators debts out of order of priority
939
Failure of title
940
SATISFACTION AND CUMULATIVE AND SUBSTITUTIONAL LEGACIES 794 By gift to debtor
942
795 By gift to creditor Where satisfaction presumed
943
797 Where testator directs satisfaction
944
CUMULATIVE AND SUBSTITUTIONAL LEGACIES 798 Cumulative and substitutional legacies Where testators inten tion is expressed
945
799 Presumption where testators intention is not expressed
946
800 Incidents of substitutional and cumulative legacies
949
CHAPTER XXXIX
951
803 Rule where the will does not fix the time of payment
954
804 Interest upon legacies
956
805 Right of devisees to possession of realty
958
SUITS TO CONSTRUE WILLS
959
f SOS Parties to suits to construe wills 904
966
817 Evidence admissible to show surrounding circumstances
973
fS20 Admissibility of evidence where description is not ambiguous
982
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