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 2

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Bender-Moss Company, 1918 - Wills - 2904 pages
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Contents

The same subject
878
How considered
879
Mental weakness in conjunction with other matters may raise suspicion of undue influence
880
A testator has the right to make an unequal disposition of his estate
881
An unjust will alone causes no presumption of undue influence
883
When provisions of an unjust will may be considered
884
Suspicions circumstances dehors the will are heightened by unjust provisions
885
Influence resulting from family relations
886
The same subject
888
Illicit relationship alone raises no presumption of undue influence
889
Contrary view
891
Beneficiary directing execution of will
893
Influence although combined with opportunity and motive does not render will void
895
Parent and child
897
Some decisions hold that the law presumes undue influence
898
A suspicious circumstance to be considered
900
Slight evidence only may be required
902
Fraud and undue influence distinguished
904
Either may exist without the other
905
The same subject
906
See Vane 601 Duress and undue influence distinguished
908
Forgery and mistake
909
Great latitude is allowed as to the character of evidence
910
Undue influence may be established by circumstantial evidence
911
Matters not establishing
913
Suspicious circumstances
914
Declarations of testator Conflict of authority
915
Declarations of testator not proof of facts stated
917
Undue influence
918
Declarations of testator as evidence of mental condition
920
The same subject
922
Will void in part only
923
Conspiracy
924
Not admissible in evidence
925
Presumption
927
May be shown by circumstances
928
Burden of proof on the issue of undue influence
929
Burden of proof
932
Requirements as to pleadings
934
CHAPTER XXIII
935
Limitations upon testamentary power in general
936
Limitations because of public policy
937
General or specific consent
939
Nature and effect of consent
940
Antenuptial agreements
942
Statute of Frauds
944
What property rights may be affected
945
Postnuptial agreements
947
Agreements between husband and wife as limitations on testa mentary power
948
Rights of pretermitted children generally
949
Afterborn and posthumous children defined
950
Rights of afterbor n and posthumous children 9
953
How expressed
955
Presumption that omission of children was unintentional
956
Conflict of authority
957
The same subject
958
Reason for conflicting decisions
960
Right of adopted children
963
Law of Louisiana
965
CHAPTER XXIV
967
Legacies classified
968
Specific legacies not favored
969
General legacies defined
972
Specific legacies defined
974
As of the date of the will
976
Descriptive words
977
Money may be specifically bequeathed
978
Stocks bonds and securities
979
Insurance policies
981
Real estate
982
Distinction between specific and demonstrative legacies
984
Demonstrative legacies defined
985
11lustrations
987
Sources from which they may be directed to be paid
988
Annuities defined
989
Annuity and gift of income distinguished
991
Time when annuities are payable
993
From what source delinquent installments of an annuity may be collected
994
Interest on delinquent payments of an annuity
995
When allowed
997
See Parje 670 Who are residuary devisees or legatees
998
Residuary devises and legacies usually classed as general
999
Position of the residuary clause
1001
rest residue and remainder
1002
Balance
1003
Not otherwise disposed of
1004
Construction controlled by intention Expres sions considered
1005
As to real property acquired after the execution of the will being covered by the residuary clause
1006
What passes under residuary devises and bequests
1007
Lapsed and void legacies
1008
The words cumulative and substitutional as applied to legacies
1010
Bequeathing a specific article twice
1012
When cumulative
1013
For same amount and same expressed reason not cumulative
1014
When given simplieiter are cumulative
1015
Subject to incidents of first legacies
1016
CHAPTER XXV
1019
Effect of testamentary directions
1020
Residuary legacies abatement of
1021
General legacies abatement of
1023
Specific legacies and devises abatement of
1024
Demonstrative legacies abatement of
1026
Legacies given for a valuable consideration
1027
Legacy to widow in lieu of dower
1029
The will may provide that such legacies ahnte
1031
See Page 701 Additional legacies given by codicil
1032
Order in which legacies are stated is immaterial
1033
Relationship of legatee to testator generally immaterial
1034
Devastavit by executor
1035
To make up share of a pretermitted heir
1036
CHAPTER XXVI
1038
Ademption denned
1039
Ademption and satisfaction distinguished
1041
The same subject
1043
Effect of ademption
1045
As to evidence of the testators intention
1046
The same subject
1047
Delivery by testator to legatee
1049
Ademption by loss or destruction of property specifically be queathed
1050
Ademption by alienation of property bequeathed
1052
Ademption by change in form of property bequeathed
1053
Conversion after testators death or while he is of unsound mind
1054
Ademption by fulfillment of purpose for which legacy was given
1055
Satisfaction of general legacies
1056
Presumptions
1058
No presumption that debt is for given
1060
Parol evidence of intention
1062
Exceptions to general rule
1064
Gifts and debts distin guished
1066
Meaning of in loco parentis
1068
Gift by parent to spouse of child
1070
Slight differences between gift and legacy
1074
Exceptions to general rule
1075
Renson for presumption of satisfaction of legacy by advanced por tions
1076
Advancements value thereof and interest thereon
1077
Statutory regulations as to gifts and advancements
1078
Statutory regulations and pro visions of the will
1079
Parol declarations and other evidence
1080
Oral declarations By whom time when made and parties present
1083
Declarations against interest
1084
Effect of reacquiring ownership
1086
Effect of agreement to sell
1087
Effect of mortgage
1088
Realty directed to be converted into money
1089
Lapsed legacies and devises defined
1092
Distinguishing features
1093
Instances of lapsed legacies or devises
1094
Statutory regulations as to lapse
1095
Purpose of statutes
1098
Descendants rel atives and lapse
1099
Beneficiary dead when will is executed or dying before testator
1101
Conditional or contingent legacies or devises may lapse
1104
Legacy given to pay a debt owing to legatee
1105
Legacy of a debt owing testator
1106
Legacy charged upon real estate
1107
Contingent charges Exception differs from charge
1108
Legacy of proceeds of real estate
1110
Effect of failure of residuary devise or legacy
1111
Divorce will not cause a lapse
1112
See Page 768 Death of beneficiary before or after title vests
1114
Death of life tenant does not cause gift of remainder to lapse
1115
Testator may by provisions in his will prevent lapse
1117
Substituted legatees or devisees 111S
1118
Words of inheritance
1119
Gift to beneficiary and his heirs 112n
1120
Gift to beneficiary or his heirs
1122
Construing and as or and or as and
1123
To whom the benefit of lapsed legacies and devises accrues
1126
The same subject
1128
To whom the benefit of void legacies and devises accrues
1129
The same subject
1131
General rule as to lapsed or void legacies or devises
1132
Common law rule
1136
Statutory changes
1137
Order in which property is resorted to for payment of debts
1138
Personal property of estate is primarily liable for debts and lega cies
1139
Direction in will that all debts and legacies be paid
1141
Construed if possible as referring to per sonalty
1143
Doubtful expressions
1144
Direction in will that executor pay all debts and legacies
1145
Presumption where testator knows the personalty is inadequate
1147
Waste of personalty by executor
1148
Personalty specifically bequeathed
1149
Common law rule as to debts secured by mortgage 11 51
1151
Expressions of intent 11
1152
Exceptions to rule 11
1153
Modern rule
1154
Effect of blending realty with personalty 1
1156
Effect of realty and personalty being blended in the residuary clause
1157
Whether the charge is upon the devise or upon the devisee
1159
The same subject
1160
See Page 802 Limitations upon charges
1161
Charges following the land
1162
Marshaling of assets
1164
The same subject
1165
Widows right of dower
1166
Constructive or equitable conversion defined
1167
How expressed
1168
Time when conversion is considered to take place
1170
Effect of failure of purpose for which sale was directed
1172
Realty converted into personalty does not bar dower but other wise is distributed as personalty
1174
How effected
1175
CHAPTER XXIX
1177
Election defined
1178
Immaterial whether or not testator knew he did not own the prop erty disposed of
1180
Community property
1181
Where testator had only a partial interest in property devised
1182
Doctrine of election founded on equitable principles
1183
Nature of cases calling for election
1185
Manner in which intent to put widow to her election must be expressed
1186
The same subject
1188
No absolute rule
1189
Gifts in trust of life estates or of income
1192
Seasons for election immaterial
1195
Creditors can not force survivor to claim stat utory rights as against the will
1196
Court may make election for donee if he be alive but incapable of acting
1197
Acts constituting election
1198
Election made through ignorance fraud or mistake may be repudiated
1199
Election by estoppel
1200
Where the widow is executrix
1202
Effect of acceptance of benefits under will
1203
What law governs election in case of conflict
1205
Waiver of dower includes claim of dower in lands conveyed by husband alone during coverture
1208
See Page 833 Rights of widow who elects to take under will as to intestate property
1209
Rights of widow as affected by debts of hnsband
1211
Rights of widow where property reverts to estate because of her remarriage
1212
Rights of widow
1213
Rights affected by widow electing against the will
1214
Where widow relinquishes life estate Doctrine of acceleration
1217
Effect on balance of will of election to take under the statute
1218
CHAPTER XXX
1220
Gifts to children who included
1222
The same subject
1224
Children en ventre sa mere
1226
When may take under will
1227
When may take under will
1231
Effect of marriage of parents of illegitimate child
1232
Illegitimate child as heir of the mother
1234
Adopted children how considered
1235
Strict rule 123
1237
Modern tendency
1238
Who included in the term heirs
1240
The same subject
1243
As to the date which determines who are included
1245
Who included in the term next of kin
1248
With reference to the statutes of distribution
1249
As to the date which determines who are included
1250
Who included in the term relatives or relations
1252
As to the date which determines who are included
1254
Who included in the term representatives or legal repre
1255
sentatives
1257
Who included in the term cousins
1260
Who included in the term family
1261
Neither husband nor wife is heir or next of kin of the other
1263
Effect of an illegal marriage
1265
Effect of divorce
1266
Die without issue English rule 12i7 867 The same subject American rule
1269
Where beneficiaries are designated both by individual names and as a class
1286
Where share of each is mentioned
1288
Mistake in designating number in class
1290
As of what date members of a class are determined
1291
Effect of additional words of description of beneficiaries desig nated as a class
1294
Where gift is to those of a class who attain or when they attain a certain age
1295
The same subject
1296
Where contingency which determines member ship of class occurs during testators lifetime
1298
Where right to share in benefits depends upon an indefinite future event
1299
Where right to share in benefits depends upon termination of a preceding estate
1301
The doctrine generally where enjoyment of benefits depends upon a contingency
1302
As to afterborn members of class
1303
Vested and contingent remainders
1304
When word survivor is construed to mean other
1306
Where gift to survivors depends upon a con tingency
1308
When gift is direct words of survivorship refer to testators death
1309
English rule
1310
American decisions
1311
Intention of testator
1313
Accrued interest of one survivor generally does not pass at his death to remaining survivors
1315
RULE IN SHELLEYS CASS 898 Rule in Shelleys Case defined
1317
Purpose of the rule
1319
Reasonableness of the rule
1320
A rule of law and property not of construction
1322
Circumstances under which the rule is applicable
1324
Limitation must be to heirs of first taker in their capacity as such heirs
1326
Effect of a limitation to the heirs of the heirs
1327
Estates in trust
1328
Where the remainder is vested or contingent
1329
Effect of words of limitation and of purchase
1332
Rule does not apply where the limitation is to particular heirs
1334
Heirs as meaning children 1335
1335
Children as a word of purchase
1337
Children as a word of limitation
1339
Where the limitation is to issue or issue of the body
1341
Burden of proof
1342
CHAPTER XXXII
1345
The word heirs unnecessary
1346
Context may show intent to pass the fee
1349
Effect of use of word estate
1351
Effect of use of such words as property or real effects
1352
Effect of use of such words as forever absolutely or exclusively
1353
Where devisee is charged with payment of debts
1354
Devise of life estate with no gift over
1355
The same subject
1356
Where devise is limited to a life estate or power of disposition is restricted
1357
Gift over of what remains unexpended by devisee
1358
Where fee is devised rights of devisee can not be limited
1359
As to cutting down a devise in fee by subsequent provisions in the will
1360
The same subject
1361
Where the expressions are of doubtful meaning
1363
Statutory changes regarding words of limitation
1364
Creation of estates generally Limited to those recognized by law
1366
ESTATES TAIL BY DEVISE 937 Estates tail denned 1867
1367
As to personalty
1368
Effect of the statute de donis on conditional fees
1369
Converting estates tail to fees simple by fine or common recovery
1370
Statutory regulations
1371
Words sufficient to create an estate tail
1374
The same subject
1375
Statutory requirements
1376
Adding words of inheritance
1377
Gift over if devisee die without issue
1379
At common law meant indefinite failure of issue
1380
Statutory changes
1381
Referring to death of first devisee
1382
Referring to death of testator
1384
Children as a word of purchase
1385
Children as a word of limitation
1387
Rule in Wilds Case
1388
The same subject
1389
Will speaks as of date of testators death
1390
CHAPTER XXXIV
1392
See Page 957 Life estates defined
1393
Common law rule and statutory changes
1394
Words sufficient to create life estates
1395
Effect of the use of the word loan or lend
1396
Gift of rents issues profits income etc of land
1397
Gift of the right of use enjoyment and occupation
1399
Gift of a home on certain property
1400
Devise during widowhood or until marriage confers a life estate
1401
Creation of estates by implication
1402
Exceptions
1404
Creation of life estate by implication 14
1405
Devise to A upon death of B
1406
Gift over if first taker die without issue
1407
Where devise to first taker is a life estate
1409
Where devise to first taker is in fee
1410
Apparent devise of fee limited by additional provisions to a life estate
1411
Life estate coupled with absolute power of disposition
1413
Statutory regulations
1415
Life estate with limited power of disposition
1416
Where power of disposition is not exercised
1418
Money
1420
Gift of income of personal property
1421
Specific and general or residuary bequests distinguished
1423
Compelling security from life tenant of personalty
1425
Respective rights of life tenant and remainderman
1426
Extraordinary dividends from stock
1428
Massachusetts rule
1429
Kentucky rule
1430
CHAPTER XXXV
1431
Effect of expressions of contingency
1432
Gift upon attaining a certain age
1439
Effect of intermediate gift of income of principal which is to pass to beneficiary at a certain age
1441
Where payment is postponed for the convenience of the estate
1444
Interest contingent upon surviving termination of preceding estate
1445
The same subject
1447
CHAPTER XXXVI
1449
Estates in remainder defined
1450
The same subject
1451
Remainders in personalty
1452
Testamentary disposition of contingent and executory interests
1454
Vested and contingent remainders defined
1455
Vested and contingent remainders distinguished
1456
Postponement of enjoyment only does not make remainder con tingent 14oS
1458
Statutory regulations 140
1460
Remainder will be construed if possible as vested rather than contingent
1461
Reason for the rule 14C3
1463
Contingency with reference to termination of preceding estate 14G
1465
Power of disposition in life tenant does not make remainder con
1466
tingent 1400
1467
Intrust 1408
1468
Where two contingencies are expressed
1470
Limitations and conditional limitations defined
1471
Executory devises defined
1472
Vested and contingent executory devises
1473
Right of disposition in first taker repugnant to an executory devise
1474
Contingent remainders preferred in law to executory devises
1475
Remainders and executory devises compared 1176
1476
Effect on contingent remainder of termination of preceding estate
1477
Executory devise converted into remainder by change of circum stances
1478
Limitation over if first devisee ilie without issue
1479
The same subject
1480
Limitation over if first taker die under age or unmarried
1483
Executory interests in personalty
1484
Executory devises as affected by the rule as to perpetuities
1485
TESTAMENTARY GIFTS UPON CONDITION
1487
Conditions precedent and subsequent defined
1488
No particular language required to create a condition
1489
Examples of conditions precedent and subsequent
1490
General effect of conditions precedent
1491
General effect of conditions subsequent
1492
Construction favors conditions subsequent
1493
The same subject
1495
11legal or void conditions
1496
Civil law rule
1497
Where conditions precedent are impossible of performance
1498
Statutory regulations
1499
Where conditions subsequent are impossible of performance
1500
Effect of accepting gift burdened with a condition of payment or the like
1502
Where no time specified
1504
Conditions as to occupation study and habits
1506
Conditions requiring residence at a certain place
1507
Conditions as to change of name
1509
Conditions affecting religious freedom
1510
Conditions against making claims against testators estate
1511
Conditions against contesting will
1512
Where annexed to gifts of personalty Doe trine of in terrorem
1514
Where probable cause for contest exists
1517
What amounts to a contest
1520
The same subject
1521
Conditions in restraint of marriage
1522
A limited restraint is valid
1523
Limited restraint
1524
Condition invalid if annexed to gift of per sonalty unless there is a gift over
1525
Words of condition or of limitation
1526
Intent of testator governs whether condition or limitation
1529
Condition in restraint of remarriage of widow
1530
Condition in restraint of remarriage of widower
1532
Conditions predicated upon divorce or separation
1533
The same subject
1534
Condition that beneficiary marry only with consent of certain persons
1537
The same subject
1539
General restraint upon alienation void
1541
English decisions
1543
American decisions
1545
Restraining alienation until donee reaches a certain age
1546
Restrictions on alienation do not follow the land
1547
CHAPTER XXXVIII
1549
of appointment
1550
Condition of forfeiture if beneficiary becomes insolvent
1552
Voluntary and involuntary assignments distinguished
1555
Inalienability of property and nonliability for debt secured through spendthrift trusts
1556
Devises in trust to defeat claims of creditors of beneficiaries
1557
English decisions
1560
American decisions
1562
Necessary incidents of spendthrift trusts r04
1564
Language sufficient to create a spendthrift trust
1566
See Pane
1570
Points to be considered in construing the effect of precatory
1576
No universal rule of construction
1582
Where words merely express motive for gift no trust is created
1588
Where trust is created
1594
The same subject
1600
Charitable trusts distinguished from private trusts
1606
Statutes of Charitable Uses of 43 Eliz ch 4
1613
See Page 1117 Restrictions on corporate holdings of land in the United States
1614
Statutory restrictions on gifts to charity as to amount and time of execution
1615
Purpose of statutes
1617
How value of estate is computed
1618
Charity in a legal sense defined
1619
Objects construed as not charitable
1622
Examples of charitable uses
1623
The same subject
1627
English rule
1628
American rule
1629
Religious and pious uses
1632
Churches
1634
Christian Science
1635
Christian associations for young men or women
1636
Home and foreign missions
1638
Hospitals
1640
Libraries
1641
Prohibition and temperance
1643
Womans suffrage
1644
Medals and prizes
1645
Rule as to perpetuities as affecting charitable gifts
1646
Where gift vests in the future
1648
Testamentary gifts to charity liberally construed
1649
Purpose of trust must not be so indefinite that chancery can not correct abuse
1651
Purpose of trust must be stated in will
1652
Uncertainty of objects of charitable trusts
1653
Corporations and voluntary associations as trustees
1656
Trustees may be vested with discretionary power of administra tion
1658
Statute of Limitations
1660
General American rule stated
1662
English rule where object or purpose of trust fails
1665
The same subject
1666
American authorities
1667
See Tape 1156 Perpetuities defined
1669
Development of the rale against perpetuities
1670
Statement of the rule against perpetuities
1671
The same subject
1673
To what interests the rule applies
1674
Contingent and vested interests distinguished
1675
Provisions construed as of date of testators death
1677
Cases illustrating application of rule
1679
Time runs from date of testators death
1681
Effect of if void
1682
Effect of provisions violating rule against perpetuities
1683
Effect on preceding estates
1685
Effect on other estates
1686
Gifts to a class
1687
Accumulations defined
1689
The Thellusson Case
1690
The Thellusson Act
1691
Statutory regulations regarding accumulations
1692
Charities
1694
Effect of trust to accumulate for longer period than allowed by rule or statute
1696
TABLE OF CASES OF VOLUME TWO
1697
JUDEX FOB VOLUME TWO
1785
Legacy or devise in exercise of a power of appointment 1031
1787
Gift with limitation over in event of death of beneficiary 1267
1796
Where the contingency occurs during lifetime of testator 14 14
1827
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Common terms and phrases

Popular passages

Page 1087 - And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.
Page 949 - When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.
Page 1455 - ... all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will...
Page 1128 - ... unless a contrary intention shall appear by the will. XXV. And be it further enacted, That, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise...
Page 1620 - Case, 41 defined a charitable or pious gift to be 'whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense, — given from these motives and to these ends, — free from the stain or taint of every consideration that is personal, private, or selfish.
Page 945 - ... liberally construed so as to give effect to the intention of the parties...
Page 1620 - ... for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.
Page 1167 - that nothing was better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted...
Page 1649 - They may, and indeed must, be for the benefit of an indefinite number of persons ; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity.
Page 1272 - The same rule applies where a devise or bequest is made to a person and the children of another person, or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, as to 'my son A and the children of my son B...

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