UBRmX
KF
((ornf U Slaui ^t\\xiv\ Sltbrars
KF 753.A7M48 ""'""">"-"'""'
'^^ses on the law of succession to proper
3 1924 018 805 451
The original of tiiis book is in
tine Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924018805451
CASES
ON THE
LAW OF SUCCESSION
TO PROPERTY AFTER THE DEATH OF
THE OWNER
The following cases have been printed at the request of Professor
Mechem, of the Law Department of the University of Michigan, for
iise in connection with his lectures in that law school. They have been
chiefly selected from Reeves' Cases on Wills and Abbott's Cases on
Descent, Wills, and Administration,
ST. PAUL
WEST PUBLISHING CO.
1895
COPTBIGHT, 1895,
BY
WEST PUBLISHING COMPANY.
SEP
30
TABLE OF CONTENTS.
^^^iyli^
Part I.
CASES ON THE LAW OF GIFTS
CAUSA MORTIS.
Page
Merchant v. Jlerchant 3
Ridden v. Thrall 6
Drew V. Hagerty. 9
Jones T. Weakley 10
Part II.
CASES ON THE LAW OF WILIS.
I. Mental Capacity to Make a Will.
Waddington v. Buzby 11
Middleditch v. Williams 13
MacPhersou's Will, In re 18
Bannister v. Jackson 19
II. Undue Influence.
RoUwagen v. RoUwagen 22
Monroe v. Barclay 25
WingrOTB v. Wingrove 29
III. Errors in Wills.
Hunt, In re Goods of 30
GifCord v. Dyer 31
IV. What Constitutes a Will.
Cawley's Estate, In re 32
Sharp V. Hall 34
Kehoe, In re 36
V. Nuncupative or Oral Wills.
Hubbard v. Hubbard 38
Prince v. Hazleton 40
VI. Execution of Wills.
Gook y. Winchester 45
Adams v. Field 49
O'Neil's Will, In re 52
Mackay's Will, In re , 55
Simmons v. Leonard O"
VII. Eevocation, Bepublication, and
Revival of Wills.
Newcomb v. Webster 59
Rich V. Gilkey . 61
Eschbach v. Collins ob
Holtt V. Hoitt i.1
Swan T. Hammond 75
Baldwin v. Spriggs Jo
Brown v. Clark "•=
VIII. Mutual Wills— Joint Wills— Val-
uable Consideration for a Will.
Diez's Will, In re 81
Betts T. Harper grf
Wellington v. Apthorp So
LAW suae. (1
IX. Legacies.
Page
Roquet v. Eldrldge. • 88
Wyckoff V. Perrine's Bx'rs 90
Mullins V. Smith 91
Robertson v. Broadbent 92
Duncan v. Inhabitants of Township of
Frankhn 96
Tindall's Ex'rs v. Tindall 9T
X. Construction and Interpretation of
Wills.
Covenhoven v. Shuler 99
Peaslee v. Fletcher's Estate 102
Dickison v. Dickison 104
Ford V. Ford 107
Read v. Williams 119
Dav V. Wallace 122
Bishop V. McClelland's Ex'rs 124
Part III.
CASES ON THE LAW OF ADMIN-
ISTRATION.
I. Jurisdiction to Grant Letters.
Scott T. McNeal 126
Haddock v. Boston & M. R 132
Schluter f. Bowery Sav. Bank 134
II. Acts Done before Grant.
Read's Case 136
Hatch V. Proctor 137
Rozelle v. Harmon 138
III. Territorial Extent of Grant.
Vaughn v. Barret 139
Nelson v. Potter 141
Johnson v. Wallis 144
Fugate V. Moore 145
IV. Payment of Debts and Legacies.
Hoover v. Hoover 147
Hays V. Jackson 150
Brill V. Wright 153
Boot's Will, In re 15.)
Hiner v. Root's Heirs 155
Davidson v. Coon 157
Cooch's Ex'r v. Cooch's Adm'r 159
Welch V. Adams 164
V. Powers and Liabilities of Repre-
sentatives.
Parker v. Providence & S. Steamboat Co . 170
Barry v. Lambert 173
Carter v. Manufacturers' Nat. Bank of
Lewiston 176
Rich V. Sowles 178
Luscomb V. Ballard 180
Nanz V. Oakley 181
McKim V. Aulbach 183 '
ii)
CASES REPORTED.
Page
Adams v. Field (21 Vt. 256) 49
Baldwin v. Spriggs (5 Atl. 295, 65 Md. 373) 76
Bannister v. Jackson (17 Atl. 692, 45 N. J.
Eq. 702) 19
Barry v. Lambert (98 N. Y. 300) 173
Betts V. Harper (39 Ohio St. 639^ 83 L Monroe v. Barclay (17 Ohio St. 302)
-■■ ■ - ' '^Mullinsv. Smith (1 Drew. &S. 204)
Bishop T. McOlelland's Ex'rs (16 Atl. 1, 44
N. J. Eq. 450) 124
McKim T. Aulbach (130 Mass. 481)
MacPherson's Will, In re (4 N. Y. Supp.
181)
Merchant v. Merchant (2 Bradf. Sur. 432)
Middleditch v. Williams (17 Atl. 826, 45 N.'
J. Eq. 726).
Nanz V. Oakley (24 N. E. 306, 120 N. Y.
84)
Brill V. Wright (19 N. B. 628, 112 N. Y.
129) 153
Brown v. Clark (77 N. Y. 369) 78 Nelson v. Potter (15 Atl. 375, 50 N. J,
Law, 324)
Carter v. Manufacturers' Nat Bank of
Lewiston (71 Me. 448) 176
Oawley's Estate, In re (20 Atl. 567, 136
Pa. St. 628) 32
Cooch's Ex'r v. Cooch's Adm'r (5 Houst.
54(^...- 159
Cook f. Winchester (46 N. W. 106, 81 Mich.
581) 45
Covenhoven v. Shuler (2 Paige, 122) 99
Davidson v. Coon (25 N. E. 601, 125 Ind.
497) 157
Day V. Wallace (33 N. B. 185, 144 111. 256) 122
Dickison v. Dickison (28 N. E. 792, 138 111.
541) 104
Diez's Will, In re (50 N. Y. 88) 81
Drew V. Hagerty (17 Atl. 63, 81 Me. 231).. 9
Duncan t. Inhabitants of Township of
Franklin (10 Atl. 546, 43 N. J. Eq. 143). . 96
Eschbach v. Collins (61 Md. 478) 66
Ford V. Ford (33 N. W. 188, 70 Wis. 19). . 107
Fugate T. Moore (11 S. E. 1063, 86 Va.
1045) 145
GifEord v. Dyer (2 R. I. 99) 31
Haddock v. Boston & M. R. (15 N. B. 495,
146 Mass. 155) 132
Hatch V. Proctor (102 Mass. 351) 137
Hays V. Jackson (6 Mass. 149) 150
Hiner v. Root's Heirs (51 N. W. 435, 81
Wis. 263) 155
Hoitt V. Hoitt (3 Atl. 604, 63 N. H. 475). . 71
Hoover v. Hoover (5 Pa. St. 351 » 147
Hubbard v. Hubbard (8 N. Y. 196) 38
Hunt, In re Goods of, (L. R. 3 Prob. &
Div. iioO) 30
Johnson v. Wallis (19 N. E. 653, 112 N. Y.
230) 144
Jones V. Weakley (12 South. 420, 99 Ala.
441) •. 10
Kehoe, In re (L. R. 13 Ir. 13) 36
Luscomb V. Ballard (5 Gray, 403) 180
Mackay's Will, In re (18 N. E. 433, 110 N.
Y. 611) 55
Newcomb v. Webster (21 N. E. 77, 113 N.
Y. 191)
O'Neil's Will, In re (91 N. Y. 516)
Parker v. Providence & S. Steamboat Co.
(23 Atl. 102, 17 R. I. 376)
Peaslee v. Fletcher's Estate (14 Atl. 1,
60 Vt. 188)
Prince v. Hazleton (20 Johns. 502)
Read v. Williams (26 N. E. 730, 125 N. Y.
560)
Read's Case (5 Coke. 67)
Rich v. Gilkey (73 Me. 595)
Rich V. Sowles (23 Atl. 723, 64 Vt. 408) . .
Ridden v. Thrall (26 N. B. 627, 125 N. Y.
572)
Robertson v. Broadbent (L. R. 8 App. Cas.
812)
RoUwagen v. Rollwagen (63 N. Y. 504). ..
Root's Will, In re (51 N. W. 435, 81 Wis.
263)
Roquet v. Bldridge (20 N. E. 733, 118 Ind.
147)
Rozelle v. Harmon (15 S. W. 432, 103 Mo.
339)
Schluter v. Bowery Sav. Bank (22 N. E.
572, 117 N. Y. 125)
Scott V. McNeal (14 Sup. Ct. 1108, 154 U.
S. 34)
Sharp V. Hall (5 South. 497, 86 Ala. 110) . .
Simmons v. Leonard (18 S. W. 280, 91
Tenn. 183)
Swan V. Hammond (138 Mass. 45)
Tindall's Ex'rs v. Tindall (24 N. J. Eq.
512) „
Vanghn v. Barret (5 Vt. 333) ;
Waddlngton v. Buzby (16 Atl. 690, 45 N. J.
Eq. 173)
Welch V. Adams (25 N. E. 34, 152 Mass.
74)
Wellington v. Apthorp (13 N. E. 10, 145
Mass. 69)
Wingrove v. Wingrove (11 Prob. Div. 81)
WyckofE v. Perrine's Ex'rs (37 N. J. Eq.
118)
(iv)t
CASES
LAW OF SUCCESSION
TO PROPERTY AFTER THE DEATH
OF THE OWNER.
(1)*
GIFTS CAUSA MOETIS.
MERCHANT v. MERCHANT.
(2 Bradf. Sur. 432.)
Surrogate's Court New York. Nov., 1853.
Thos. W. Higgins, for W. H. Merchant.
Horace Holden and Robert Dodge, for lega-
tees.
THE SURROGATE. On the final account-
ing of the executor William H. Merchant, the
legatees seek to chai-ge him with three thou-
sand dollars, the amount of three Erie Rail-
road income bonds, which they aUege were
the pvopevty of the deceased.
To prove this, the claimants produced the
inventory^ but, the entry thereon showing
that the executor claimed the bonds as a gift
from the testator, the proof was insufiicient.
Mr. Dodge then testified that the executor,
after the testator's death, called at his office
and stated that he had taken the bonds in
question out of the box containing the se-
curities of the estate, on the morning after
the decease of his father— the executor al-
leging as a reason, that he claimed them as
his own, as a gift from his parent.
It was then proved on the part of the ex-
ecutor, Tjy the evidence of his co-executor,
Mr. Reading, that two of the legatees had
stated that the testator gave to his son, Wil-
liam, the bonds in question, some short time
previous to the making of his last will—
within a month before; that it was a fuU
and free gift, and William had handed the
bonds to his mother; that subsequently and
after the testator made his last wiU, his wife
took the bonds, conversed with him about
the wiU as it then stood, and, holding the
bonds in her hand, said, "I^ow, that the will
gives each child alike, shall I hand over to
each' child a thousand-dollar bond?" The tes-
tator said, "No, put them back in my tin
box." It also appears that, the day before
the testator's death, he directed one of his
daughters to bring the box, open it, and see
if the bonds were there. She opened it and
shewed him the bonds; and he said it was
all right, and told her to put them back in
the box, keep the key, and at his decease de-
liver it to Mr. Reading, one of his executors
—that she kept the key till after her father's
death, when she gave the key, at her moth-
er's request, to her brother William, -the other
executor.
It is certain that the bonds in question once
belonged tp the testator, and they were en-
tered by him on a schedule of his assets.
The testator having made a wUl by which
his son had not been placed on an equal foot-
ing with his daughters, and having subse-
quently become reconciled to his son, made
the gift of these bonds, when his will remain-
ed in that condition. He afterwards revoked
that will and executed another, In which his
children were treated alike, except that the
daughters were given the use of his dwelling-
house and furnitiu-e in common with their
mother. After the new will had been made,
Mrs. Merchant brought the bonds to the tes-
tator, and the conversations and circum-
stances occurred which I have before stated.
1. Was the gift to the son a donation inter
vivos or mortis causa? It is proved, that the
testator was at the time in his last sickness,
and that during the whole course of his ill-
ness, he did not expect to recover. In such
a case, the presumption of law is that the
gift was intended as a donatio mortis cau^a.
1 Rop. Leg. 22.
2. It having been shown, that after the
gift the testator resumed possession, it is
urged on one side, that the gift was re-
voked; and on the other, that possession hav-
ing been obtained by the donor without the
consent or privity of the donee, the gift was
not legally revoked. The last point involves
the proposition that the donor cannot re-
voke the gift without the consent of the
donee.
I would remark, in the first place, that if
this be so, it is a solitary exception to dis-
positions of property made in view of death,
by the voluntary bounty of the donor.
It is true that a will does not reyoke a
donatio mortis causa; but the reason is that
the win does not speak till the testator's
death— till the very moment the donation by
its terms has become absolute— when of
course it is too late to revoke it. On the
donor's death, the donee's title becomes
absolute, and therefore irrevocable by a will,
which from its nature is inoperative during
the donor's lifetime, the only period during
which the donation could be revoked. "
It is insisted, however, that, inasmuch as
the entire dominion of the donor over the
property is transferred to the donee, no right
of revocation exists. But this rule, as I
understand it, does not mean that the donor
reserves no right of revocation— but only
that he parts with the control and posses-
sion of the property (W^illiams, Ex'rs, 654)—
that there is not a partial but absolute de-
livery and change of possession. If such an
absolute delivery is inconsistent with a pow-
er of revocation by simple reclamation, it is
just as inconsistent with a revocation in case
of the donor's recovery. Such an argument
would destroy the peculiar character of this
class of donations, and transform them into
pure irrevocable gifts inter vivos.
The truth is, that the whole of this doc-
trine of revocation is a rule of law. The law
declares that a donation mortis causa, is
revocable in case the donor recover — and
that, too, notwithstanding ■ the gift was in
express terms absolute, and the delivery was
absolute. I do not see In any case that the
power of revocation is inconsistent with ab-
solute dominion in the donee, existing under
a condition annexed by the law to the gift,
that the donor may resume the property. An
attorney in fact, for the time being has full
authority and absolute dominion within the
GIFTS CAUSA MORTIS.
scope of his power; and yet the power may
be revoked at any instant In the sense
contended for by the coimsel of the executor,
a donee has not absolute dominion over the
subject of the gift: though his possession
for the time Is absolute, his title does not
become perfect till the donor's death. Be-
fore that period, he cannot dispose of the
property. If that event should not happen,
the donor may resume his gift.
it is conceded on all hands, that if the
donor recover the gift will be defeated. This
is a condition the law Implies; and if the
law hkewise implies that the gift may be re-
claimed at the pleasure of the donor — the
latter condition is no more incongruous with
the possession and dominion of the donee
than the former.
It is admitted that the gift may be re-
voked in the donor's lifetime, by resumption
of possession; but if that means, that the
subject of the gift must come back into the
possession of the donor by the consent of
the donee, it amounts only to the simple
truism, that both parties can by mutual
agreement annul the transaction. But if by
resumption of possession, a reclamation of
possession is intended, then the gift can be
revoked at the option of the donor. This
seems to be the view taken in Bunn v. Mark-
ham, 7 Taunt. 224, where Gibbs, C. J., says:
"It is in the power of the donor at any time
to revoke the donation before his death." In
Ward V. Turner, 2 Ves. Sr. 433, Lord Hard-
wicke does not declare that an actual re-
sumption of possession is necessary to con-
stitute a valid revocation; but on the con-
trary he cites the Commentary of Vinius to
the efCect, that the donor where the gift was
defeated by "recovery or revocation," had
his action against the donee. Id. 439.
Suppose the donee dies before the donor,
does the gift stand? In the case of a wiU,
the prior decease of the legatee causes the
legacy to lapse. This was the rule of the
civil law in respect to donations mortis causa;
and in the same breath this was declared,
the power of the donor to revoke was like-
wise expressed. The terms or conditions on
which the donor can recover the subject of
the gift are thus stated In the Institutes:
"Sin autem supervixisset Is qui donavit, re-
ciperet; vel si eum donationis poenituisset,
aut prior decesserit is cul donatum sit."
Inst. lib. 2, tit. 7, § 1. Again, In the Digest
it is laid dovra: "Mortis causa donatio, etiam
dum pendet an convalescere possit donator,
revocari potest." Dig. 1. 39, tit. 6, § 16, item
§ 30.
The three conditions annexed to the gift
by the civil law, which on happening defeat
the donation, are: 1st, The recovery of the
donor; 2d, His repentance of the gift; 3d,
The death of the donee before the donor's
decease. These are separate and independ-
ent conditions. AylifCe says, the gift "may
be revoked by the donor's repenting thereof."
Parergon, 331; Bracton, lib. 2, cap. 26, § 1.
In Jones v. Selby, Finch Prec. 300, the chan-
cellor said: "You agree that a donatio causa
mortis is a gift in presenti, to take efCect in
futuro after the party's death, as a will; and
that it is revocable during his life, as a will
is." Chancellor Kent speaks of these gifts
as "conditional and revocable and of a tes-
tamentary character." 2 Comm. 445. In
Wells V. Tucker, 3 Bin. 370, Justice Tilgh-
man says: "It is contended on the part of
the plaintiff, that a gift of this kind passes
the property Immediately, and is not subject
to revocation by the donor. Without ab-
solutely committing myself, I incline to the
opinion, that in this as in several other par-
ticulars, It partakes of the nature of a legacy,
and is revocable." In the same case. Jus-
tice Yeates describes the donation as "sub-
ject to countermand and revocation." In
Nicholas v. Adams, 2 Whart. 22, Justice
Gibson states accurately the thi-ee modes of
defeasance acknowledged by the civil law.
His language Is, that it is "defeasible by
reclamation— the contingency of survivor-
ship—or deliverance from the peril."
I find nothing against this doctrine— un-
less it be the language of the vice chancellor,
in Reddel v. Dobree, 10 Sim. 244, who,
speaking of an alleged donation, character
ized it as a gift which "was always Uable
during the lifetime of the testator to be re-
called by him;" and "therefore the very
essence of a donatio mortis causa," was want-
ing. The gift in that case, was of money
that might happen to be in a certain box at
the testator's death, and on condition that
up to the time of his death, he should re-
tain "the complete dominion over whatever
might be placed In the box." The opinion of
the vice chancellor is, substantially, that the
reservation of this dominion Is Inconsistent
with the essence of a donatio mortis causa.
If no more than that was Intended, the doc-
trine is but another form of stating that there
must be a complete delivery. If it was de-
signed to declare that when there had been
a complete delivery, the donor could not re-
voke the gift, such an opinion was not caUed
for by the case in hand, and is not agreeable
with the authorities. There are several
cases besides that of Reddel v. Dobree,
which might be supposed to imply that the
donor had no right to revoke, (4 Dru. &
War. 159, 285; 2 Colly. 356; 8 Mees. & W.
401;) but I think they proceed on the ground
that there must be an absolute delivery, a
change of possession and dominion, so as to
vest the full possessory title In the donee,
subject only to such rules as the law ap-
plies to this class of gifts. That a donatio
mortis causa cannot be revoked at the will
of the donor, I find no where decided, or
distinctly asserted; while the rule of the
civil law, that It could be revoked If the
donor repented, even while it was uncertain
whether or not he would recover, is clearly
GIFTS CAUSA MORTIS.
laid -down in the Digest, and has been ad-
mitted to be the rule at common law, by a
number of distinguished judges, although I
am not aware the point has expressly ai-isen
as the subject of distinct decision.
Applying this rule to the facts in evidence,
I am of opinion that the testator conceived
this gift to be revoked. After making the
donation, he made a change in his will, and
substantial alterations as to the disposition
of his property, in favor of the donee.
When that act was accomplished, his wife
brought these bonds to him, and asked
whether she should distribute them among
his children. He said, "No," and directed
tliem to be placed in the depository where
lie kept his valuable papers. That direc-
tion was not only a resumption of the pos-
session, but an Indication of a change in his
views in respect to the disposition of the
property. His subsequent conduct, in call-
ing for the box, inquiring whether the bonds
were there, and directing his daughter to
lock the box, and give the key not to his
son, but to the other executor, after his
death, confirms the Idea of revocation, and
shows he intended the bonds to come into
the possession of his executor, after his de-
cease, as a part of his estate. I think,
therefore, that the revocation has been sus-
tained.
The jurisdiction of the surrogate to try
this question, has been questioned by the
counsel of the donee. The surrogate has
jurisdiction to try every question necessary
to the settlement of the accounts of the ex-
ecutor. It is competent for the legatees, on
the accounting of the executor, to produce
evidence to charge him with more assets
than he acknowledges in his accounts to
have received. They may prove the testa-
tor had assets which the executor should
have collected, or which he has received
and not brought into his accounts. In the
present case, the legatees assumed the last
position. They sought to charge the execu-
tor with the amount of these bonds, and
shewed the bonds had belonged to the testa-
tor in his lifetime, and that the executor
had admitted they were in the possession of
the testator at the time of his death. Had
the ease stopped there, it would have been
my duty to have charged the executor with
the amount of the bonds. But he sets up a
gift by the testator; and in order to decide
whether he is liable or not for the bonds,
the question of gift must be determined.
The executor himself raised this point, to
exonerate himself from liability; and it Is
necessary to decide it in order to settle his
accounts, and make a final decree for the
distribution of the estate. If an executor
can retain assets on the plea of a gift causa
mortis, and then successfully impeach the
surrogate's jurisdiction to inquire into the
validity of this plea, the power of this court
in respect to the settlement of accounts and
the adjustment of estates is at an end.
I am very clear that this objection is not
tenable — ^and must therefore decree distribu-
tion, in accordance with the conclusion to
which I have arrived, respecting the revoca-
tion of the donation by the testator before
his decease.
NOTE. See Jones v. Selby, Finch Prec. 300;
Jayne v. Murphy, 31 111. App. 28.
GIFTS CAUSA MORTIS.
RIDDEN V. THRALL et al.
(26 N. E. 627, 125 N. Y. 572.)
Court ol Appeals of New York. Feb. 24, 1891.
Appeal from supreme court, general
term, second department.
Action by James N. Ridden against
James H. Thrall, as administrator, etc., of
Charles H. Edwards, deceased, and an-
other, to determine the validity of an al-
legred gift causa mortismadetoplain tiff by
defendant's decedent. From a judgment
affirming a judgment in plaintiff's favor,
defendant appeals.
Carlisle Norwood, Jr., for appellants.
John H. Corwin and Wm. D. Veeder, for
respondent.
EARL, J. On the 1st day of October,
1888, Charles H. Edwards had money on
deposit in savings banks, and kept the
savings banks books in a tin box, and on
that day he delivered the tin box to the
plaintiff, informing him that he was about
to go to St. Luke's hospital in the city of
New York to have an operation performed
for hernia, and that he was apprehensive
he might die from the results of the opera-
tion, and said to him that if he did not
return he gave him the box and its con-
tents. He went to the hospital on the
next day, and on the 5th day of October
an operation was there performed for in-
guinal hernia. The operation was not
dangerous, and was apparently success-
ful. But on the 16th day of October he
suddenly died from heart disease, with
which he was afflicted when he went to
the hospital. He had not returned from
the hospital, and had not recovered from
the disease for wliicli the operation was
performed, nor from the results of the
operation. The defendants claim that
tite circumstances were such that a valid
gift was not made, mainly because Ed-
wards did not die from the disease on ac-
count of which he went to the hospital,
and from which he apprehended death
miglit ensue. The case is novel in some
of its features, and interesting. I have
carefully considered the able argument
submitted on behalf of the appellants, and
am satisfied that the judgments of the
courts below upholding the gift are right.
The gift was sufficiently proved. The
facts which took place at the time of the
gift on the 1st day of October were testi-
fied to by the plaintiff's wife. There were
16 bank-books, and they represented about
|!40,000 of deposits. Such a gift should be
proved by very plain and satisfactory evi-
dence, and, if the case depended upon the
evidence of the wife alone, any court
might well hesitate to uphold the gift.
But on the previous day (September 30th)
Edwards wrote the following letter ad-
dressed to the plaintiff: "Friend Jim:
Should I not survive from the effects of
the operation about to be performed on
me at St. Luke's Hospital, this is my last
will and request, that you will take
charge of my body, and have it placed in
my family plot in Greenwood Cemetery;
and also that you will take full charge of
all my personal effects of every kind, and
to have and hold the same unto yourself,
your heirs and assigns, forever. Yoa will
find my papers and all my accounts in the
box. C.H.Edwards." This was inclosed
in an unsealed envelope, addressed to the
plaintiff, Jind placed by Edwards in the bu-
reau in the room occupied by him in plain-
tiff's house, where it was found about a
week after Ills burial by plaintiff's wife and
his aunt, both of whom proved the hand-
writing to be thatofthe donor. Thegenu-
ineness of this letter was not disputed upon
the trial. While, standing alone, it would
not have been sufficient to establish the
gift, it furnishes strong confirmation of
the evidence of plaintiff's wife as to the
g'ifc, and leaves no reason to doubt that
It was made as she testified. Ic was com-
petent as corroborating evidence, just as
the oral or written declarations of the
donor previously made would have been,
showing the intention to give, and thus
corroborating the evidence as to the act-
ual gift subsequently made. I have found
no authority condemning such evidence.
In all cases where probate of a will is con-
tested on the ground of undue influence,
fraud, incompetency, or forgery, the pre-
vious declarations or statements, in au.v
form, of the testator, showing an intention
in harmony with the instrument offered
.for probate, have always been held com-
petent, not as sufhcient, stauJing alone,
but as corroborating the other evidence
offered by the proponent.
The gift was-consummated by the deliv-
ery of the books, and no other formality
was needed to constitute the actual deliv-
ery of the bank deposits needful to vest
the possession and title in the donee. In
savings banks in this state euch deposit
books are issued as evidence of the indebt-
edness of the banks. Withdrawals of de-
posits are entered in the same books, so
that the deposit book always, with the
addition of any interest, shows the actual
state of the accounts between the depos-
itor and the bank, and the whole indebt-
edness of the bank. It answers the same
purpose in the case of a savings bank that
is answered by a certificate of deposit in
the case of other banks. The decisions
are not entii'ely harmonious as to the
sufficiency of the mere delivery of such de-
posit books to constitute a valid gift,
either inter vivos or causa mortis. But
the general rule in England and in this
country, and particularly in this state, is
that any delivery of property which trans-
fers to the donee ei ther the legal orequitable
title is sufficient to effectuate a gift; and
hence it has been held that the mere deliv-
ery of non-negotiable notes, bonds, mort-
gages, or certificates of stock is sufficient
to effectuate a gift. 2 Kedf. Wills, 312;
Westerto V. De Witt, 36 N. Y. 340; Champ-
ney v. Blanchard, 39 N. Y. Ill ; Penfield v.
Thayer, 2 E. D. Smith, 305; Walsh v. Sex-
ton, 55 Barb. 251; Johnson v. Spies, 5
Hun, 468; Allerton v. Lang, 10 Bosw. 362;
Camp's Appeal, 36 Conn. 88; Bates v.
Kempton, 7 Gray, 382; Chase v. Redding,
Vi Gray, 418; Pierce v. Bank, 129 Ma.ss.
425; Tillingliast v. Wheaton, 8 E. I. .^36;
In' re Mead, 15 Ch. Div. 651; Moore v.
Moore, L. R. '18 Eq. 474.
But the learned counsel for the appel-
lants calls our attention to one of the by
laws of the bank printed in the deposit
GIFTS CAUSA MOETIS.
book tn' question In this action, and claims
that the delivery was not effectual with-
out the written order of the donor. The
by-law is as follows: "Drafts may be
made personally or by the order, in writ-
ing, of the depositor, if the bank have the
signature of the party on their signature
book, or by letters of attorney duly au-
thenticated; but no person shall have the
right to demand any part of the principal
or interest without producing the pass-
book, that such payments may be entered
therein. If the person giving the order or
power of attorney cannot write, he or she
must make his or her mark, in the pres-
ence of a subscribing magistrate or some
one whose signature is known at the
bank, and any person presenting said or-
der or power of attorney must be known
ormadfe known to the bank as the one
authorized to receive the money." This
by-law requires an order or power of at-
torney when some one seeks to draw mon-
ey for the depositor or the depositor's
money. But the depositor can draw the
money without making an order, simply
by the presentation of the deposit book,
and so can any owner of the book. Sup-
pose the plaintiff had purchased the book,
and had thus become the absolute owner
thereof. He could have drawn the money
as owner on presentation of the book, and
the bank could not have required, as a
condition of payment, that he should pro-
cure a power of attorney or an order from
one having no interest, legal or equitable,
in the deposit. The owner in such a case
should produce satisfactory evidence of
his ownership of the book, and if the bank
refused to pay he would be obliged to es-
tablish such ownership by any competent
evidence, and nothing more; and his
rights as purchaser would be no greater
than his rights as donee. He has the same
right to enforce a payment that he would
have had if he had been the donee of any
non -negotiable chose in action, or a certifi-
cate of deposit or unindorsed note. He
could establish his right -to payment in
such a case by any proof showing that he
was the absolute legal orequitable owner.
The claim is also made that the donor
could not make the gift in the apprehen-
sion of death from a surgical operation to
be performed in the future, to which he
intended voluntarily to expose himself.
But, without taking a broader view, death
from a surgical operation, made necessary
by a present disease. Is, in a proper sense,
death from the disease, and the gift may
In such case be upheld as made in the ap-
prehension of death from the disease.
We now come to the question, was the
gift invalid because the donor did not die
of the same disease from which he appre-
hended death ? Gifts causa mortis, as well
as gifts inter vivos, are based upon the
fundamental right every one has of dis-
posing of his property iis he wills. The
law leaves the power of disposition com-
plete, but, to guard against fraud and im-
position, regulates the methods by which
it is accomplished. To consummate a
gift, whether inter vivos or causa mortis,
the property must be actually delivered,
and the donor must surrender the posses-
sion and dominion thereof to the donee.
In the case of gifts Inter vivos, the mo-
ment the gift is thus consummated it be-
comes absolute and irrevocable. But in
the case of gifts causa mortis more is
needed. The gift must be made under
the apprehension of death from some pres-
ent disease, or some other impending peril,
and it becomes void by recovery from the
disease or escape from the peril. It is also
revocable at any time by the donor, and
becomes Toid by the death of the donee
in the life-time of the donor. It is not
needful that the gift be made in extremis
when there is no time or opportunity to
make a will. In many of the reported
cases the gift was made weeks, and even
months, before the death of the donor,
when there was abundant time and op-
portunity for him to have made a will.
These are the main features of a valid gift
causa mortis as-they are set forth in many
text-books and reported cases. Just. Inst,
lib. 2, tit. 7, § 1; Mack. Eom. Law, § 793;
CivilCodeCal. §§1149,1151 ;lEop,T.eg.26; 2
Schouler, Pers, Prop. §1.57; 2 Kent, t.(,«i:r;.
444; 1 Story, Eq. Jur. §§ 606, 607; 3 Pom.
Eq. Jur. § 1146; Grymes v. Hone, 49 N. Y.
17; Williams v. Guile, 117 N. Y. 343. 22 N.
E. Rep. 1071; Basket v. Hassell, 107 U. S.
602, 2 Sup. Ct. Rep. 415.
Counsel for the appellants would add
one more prerequisite to an effectual gift,
and that is that the donor, when the gift
has been made in the apprehension of
death from disease, must have died of the
same disease, and he calls our attention
to expressions of judges to that effect. I
have examined all the cases to which he
refers, and many more, and find that these
expressions were all made in cases where
the donor died from the same disease from
which he apprehended death when he
made the gift, and that none of them
were needful to the decisions made. The
doctrine meant to be laid down was that
the donor must not recover from the dis-
ease from which he apprehended death.
I am quite sure that no case can be found
in which it was decided that death must
ensue from the same disease, and not from
some other disease existing at the same
time, but not known. There is no reason
for this additional prerequisite. The rule
is that the donor must not recover from
the disease from which he then appre-
hended death. If he recovers, the gift is
void; it he does not recover, and the gift
is not revoked, it becomes effectual. In
this case the condition was that if he did
not recover from the consequences of the
operation and return from the hospital,
the gift should take effect. That was a
perfectly lawful condition for him as the
owner of the property to impose, and no
reason can be perceived for refusing to up-
hold a gift made under such circumstances.
A donor may have several diseases, and
may in making a gift apprehend death
from one and not from the others, and
shall the gift be invalid if, before he re-
covers from the disease feared, he dies
from one of the other diseases? In such a
case it might be, and generally would be,
difficult, if not impossible, to tell what
share any of the diseases had in causing
the death. No medical skill could ordi-
narily tell that thedonor would have sue.
8
GIFTS CAUSA MOETIS.
cumbed to the disease feared, il the other
diseases had not been present. Here the
immediate cause of death appeared to be
heart disease, and the autopsy did not dis-
close that there was any connection be-
tween the hernia or the operation and the
heart disease. But who could tell that
the death would have ensued from the
heart disease at that particular time but
for the operation? No medical skill can
tell that the shock from the operation, and
the debility and disturbance caused there-
by, did not hasten death; and the death,
therefore, in a proper sense, may have en-
sued, and probably did ensue, from both
causes. Sound policy requires that the
laws regulating gifts causa mortis should
not be extended, and that the range of
such gifts should not be enlarged. We
therefore confine our decision to the pre-
cise facts of this case, and we go no
further than to hold that when a gift is
made in the apprehension of death from
some disease from which the donor did
not recover, and the apparent immediate
cause (if death was some other disease
with which he was afflicted at the same
time, the gift becomes effectual. The judg-
ment should be affirmed, with costs. All
concur.
GIFTS CAUSA MORTIS.
9
DREW V. HAGERTY.
(17 Atl. 63, 81 Me. 231.)
Supreme Judicial Court of Maine. Jan. 18, 1889.
Exceptions from supreme judicial court,
Androscoggin county.
Action for money had and received,
brought by Franlslin M. Drew, administra-
tor, etc., of Daniel Hagerty, deceased, against
Mary Hagerty. Defendant claimed the prop-
erty, which was money deposited in a sav-
ings bank, un ler an alleged gift causa mor-
tis of the savings bank book made by the in-
testate on the day of his death. Verdict for
plaintiff which defendant moved to set aside,
and also excepted to the charge of the court.
Newell & Judkins, for plaintiff. Frank
L. Noble, for defendant.
WALTON,J. Themostiraportant queB-
,tion is whether the gift of a savings bank
book from husband to wife, causa mortis,
is valid without delivery, provided the book
is at the time of the alleged gift already in the
possession of the wife. The action was tried
before the chief justice, and he ruled that, to
constitute a valid gift causa mortis, there
must be a delivery; that, if the property "be
at the time already in the possession of the
donee, the donor's saving to the donee, • You
may have it,' or 'You may keep it; it shall
be yours,' — does not pass the property in
the case of a gift cnusa mortis."
We think this ruling was correct. If the
act of delivery was for no other purpose than
to invest the donee with possession, no rea-
son is perceived wliy it might not ba dis-
pensed with when the donee already had pos-
session. But such is not its only purpose.
It is essential, in order to distinguish a gift
causa mortis from a legacy. Without an act
of delivery, an oral disposition of property,
in contemplation of death, could be sustained
only as a nuncupative will, and in the man-
ner and with the limitations provided for
such wills. Delivery is also important as evi-
dence of deliberation and intention. It is a
test of sincerity, and distinguishes idle talk
from serious purposes; and it makes fraud
and perjury more difficult. Mere words are
easily misrepresented. Even the change of
an emphasis may make them convey a mean-
ing different from what the speaker intended.
Not so of an act of delivery. Like the de-
livery of a turf, or the delivery of a twig, in
the ancient mode of conveying estates, or
the delivery of a kernel of corn, or the pay-
ment of one cent of the purchase money, to
make valid a contract for the sale of a cargo
of grain, an act of delivery accomplishes that
which words alone cannot accomplish. Gifts
causa mortis ought not to be encouraged.
They are often sustained by fraud and per-
jury. It was an attempt to sustain such a
gift by fraud and perjury that led to the enact-
ment of the statute for the prevention of fraud
and perjury. See Mathews v. Warner, 4 Ves.
187, 196, note; Leatliers v. Greenacre, 53
Me. 561, 569. As said in Hatch v. Atkinson,
56 Me. 326, it is far better that occasionally a
gift of this kind should fail than that the
rules of law be so relaxed as to encourage
fraud and pijrjury.
We are aware that some text writers have
assumed that, when the property is already
in the possession of the donee, a delivery is
not necessary. But the cases cited in sup-
port of the doctrine nearly all relate to gifts
inter vivos, and not to gifts causa mortis.
A gift inter vivos may be sustained without
a distinct act of delivery at the time of the
gilt, if the property is then in the possession
of the donee, and the gift is supported by
long acquiescence of the donor, or other en-
tirely satisfactory evidence. This rourt so
held in Wing v. Merchant, 57 Me. 383, and
the jury were so instructed in this case, and
the defendant had the benefit of the instruc-
tion. But the question we are now consid-
ering is not whether a gift inter vivos can be
sustained without a distinct act of delivery,
but whether such a relaxation of the law can
be allowed in the case of a gift causa mortis.
We think not. Reason and the weight of au-
thority are opposed to such a relaxation.
Hatch V. Atkinson, 56 Me. 326; Lane v.
Lane, 76 Me. 521 ; Parcher v. Savings Inst.,
78 Me. 470, 7 Atl. Rep. 266; Dunbar v. Dun-
bir, 80 Me. 152, 18 Atl. Rep. 578; Miller v.
Jelfress, 4 Grat. 472; French v. Ravmond,
39 Vt.623; Culting v. Gilinan,41 N.H. 147;
Delmotte V. Taylor, 1 ReUf. Sur. 417; Eger-
ton V. Egerton, 17 N. J. Eq. 419; Kenney v.
Public Adm'r, 2 Biadf. Sur. 319; 2 Kent,
Coram. (10th Ed.) 602, and note; Dickeschied
V. Bank, 28 W. Va. 340; Walsh's Appeal,
(Pa.) 15 Atl. Rep. 470, and note.
It is the opinion of the court that the gift
of a savings bank book causa mortis, to be
valid, must be accompanied by an actual de-
livery of the book from the donor to the
donee, or to some one for the donee, and that
the delivery must be made for the express
purpose of consummating the gift, and that
a previous and continuing possession by the
donee is not sufficient; and that in this and
in all particulars the rulings in the court be-
low were correct and that no cause exists for
granting a new trial. Motion and exceptions
overruled.
PETERS, C. J., and DANFORTH, VIR-
GIN, EMERY, and HASKELL, JJ., con-
curred.
10
GIFTS CAUSA MORTIS.
JONES V. WEAKLEY.
(12 South. 420, 99 Ala. 441.)
Supreme Court of Alabama. Feb. 6, 1893.
Appeal from circuit court, Jefferson coun-
ty ; James B. Head, Judge.
Action by John H. Jones against S. D.
Wealiley, as administrator of the estate of
>rat Jenkins, deceased, to recover money had
and received. From a judgment for defend-
ant, plaintiff appeals. Affirmed.
White & Howze, for appellant. Cabaniss
& Weakley, for appellee.
STONE, C. J. This case was tried by the
court, without a jury, and presents a single
question: Does the testimony prove that
the deceased, Nat Jenkins, made a valid, ex-
ecuted gift causa mortis to John H. Jones,
the plaintiff, of the money he had on deposit
with the First National Bank of Birming-
ham? There is no material conflict in the
testimony. The firat National Bank of Bir-
mingham was a bank of issue, discount, and
deposit, and was not a savings bank. Nat
Jenkins was a colored man, was l.ying se-
riously wounded from a railroad disaster, be-
lieved he would die of his wounds, and did
in fact die therefrom two days afterwards.
He had a deposit account with the First Na-
tional Bank. He had in his possession a
pass book, in which was an account with
the caption, "Dr. The First National Bank,
in acc't with Nat Jenkins, Ur." In this
pass book were items of debit and credit,
but the account was not balanced. There
was in fact a balance due the depositor of
near $900. Jones was a nephew of Jenkins,
and was visiting the latter' as he lay in the
hospital, the effect of his injuries. He gave
Jones the key to his box, and requested
him to go and bring to him his pass book
and other articles. On the next day, and in
the presence of witnesses, Jenkins, after
stating he was going to die, handed to plain-
tiff, Jones, the bank book, keys, and papers,
and said to him: "Take this book. I give
you this money, and all I have got. Go and
get it. I don't want the old man or any of
his folks to have anything that I have got.
All I want is for you to see that I am de-
cently buried." Jones took possession of the
tendered pass book, keys, and papers, and
retained them. After Weakley was appoint-
ed administrator, he checked the money out
of the bank, and this action was brought by
Jones to recover the same as so much mon-
ey had and received for his use.
The general rule is that to constitute a
valid gift, whether inter viv s or causa
mortis, the donor must part with dominion
over the thing attempted to be given; must
do the act or acts which are, or appear to
be, the most pronounced and decisive of the
Intention to part with possession and con-
trol; and the acts must of themselves
amount to a parting with the possession and
control. Authorities on this question are
very abundant, and they cover almost every
conceivable phase of the question. McHugh
v. O'Connor, 91 Ala. 243, 9 South. Rep. 165;
Dacus V. Streety, 59 Ala. 183, 8 Amer. &
Eng. Enc. Law, p 1341 et seq., and the nu-
merous authorities cited by counsel.
The direct question presented by this rec-
ord has been many times considered. A
pass book issued by a savmgs bank, it is
held, rests on a peculiar footing. Such book
is the record of the customer's account, and
its production authorizes control of the de-
posit. I>ike the key of a locked box, its de-
livery is treated as a delivery of all it con-
tains. It follows that the delivery in this
case, accompanied by the declared intention
to give, if the deposit had been in a savings
bank, would have been a valid gift causa
mortis of the money on deposit, of which it
was the evidence. It would furnish the key
to the locked contents. 8 Amer. & Eng. Enc.
Law, 1324. 1325; Pierce v. Bank, J29 Mass.
425; Curtis v. Bank, 77 Me. 151; Hill v.
Stevenson, 63 Me. 364; Camp's Appeal, 36
Conn. 88. Not so, however, with the present
book. The First National Bank, as we have
seen, was a bank of issue, discount, and de-
posit. The money could be withflrawn from
the bank, not by the production of the pass
book, but on the check of the depositor. It
was not the best delivery available un-
der the circumstances. It did not give domin-
ion and control of the money, — ^the thing
claimed to have been given,— for the money
was as subject to check without the pro-
duction of the book as with it. Thomas'
Adm'r v. Lewis (Va.) 15 S. E. Rep. 389;
Dole v. Lincoln, 31 Me. 422; Hillebrant v.
Brewer, 6 Tex. 45; Noble v. Smith, 2 Johns.
52; Jones v. Brown, 34 N. H. 445; Beak v.
Beak, L. R. 13 Eq. 489; 8 Amer. & Eng. Enc.
Law, p. 1345, note 2. There is no error in
the record. Affirmed.
MENTAL CAPACITY TO MAKE A WILL.
11
WADDINGTON v. BUZBY.
(45 N. J. Eq. 173, 16 Atl. Eep. 690.)
Court of Errors and Appeals of New Jersey.
Feb. 1, 1889.
Appeal from prerogative court; McGill, Or-
dinaiT. 43 N. J. Eq. 154, 10 Atl. Rep. 862.
A written Instrument alleged to be the
last will and testament of Rutl\ W. Buzby
was offered to the orphans' court of Salem
county for probate, by George G. Waddlng-
ton, executor therein named, and probate
was refused on objections raised by Nathan
W. Buzby. On appeal the order refusing
probate was affirmed by the ordinai'y, and
the proponent appealed to this court.
W. T. Hilliard and W. E. Potter, for ap-
pellant. O. H. Sinnickson, for appellee.
SCTJDDER, J. A careful consideration of
the facts in this case has changed my first
impression, and led me to a different result
■ from that reached in the courts which have
made the prior examinations of the questions
presented. It appears, in my judgment, that
sufficient weight has not been given to the
extent of the right which the law gives to
the owners of property to dispose of it by
will, the moderate capacity required for the
exercise of this right, and the aid they may
invoke from others in giving order and legal
form to their wishes without subjecting
them to the charge of fraud and undue in-
fluence. At the date of this writing and its
execution, April 20, 1882, Ruth W. Buzby
was about 83 years old, and she died in 1886.
She was feeble and forgetful to the extent
that persons ordinarily are at such an ad-
vanced age, and she was nearly blind, so
that she could not read, or did so with diffi-
culty. But she could at that time go about
the house, knew the members of the family,
talked about her business affairs, remem-
bered the amount of her property and where
it was invested, objected to the reduction of
the percentage of interest, took a part in the
routine of the house and the payment of
bills, and conversed with visitors whom she
knew. She had been an intelligent woman,
but not of very strong will, rather reticent
than talkative, and became more silent and
absent-minded as she grew old. She was in-
jured by a fall, and failed in physical and
mental strength from that time gradually im-
til her death. The opinions of witnesses as
to her mental capacity are of no weight un-
less sustained by facts on which such opin-
ions are founded; and those who saw her
seldom, or but once, and say she was silent,
and appeared absent-minded, give little aid
in determining this question. Lowe v. Wil-
liamson, 2 N. J. Bq. 82; Sloan v. Maxwell,
3 N. J. Eq. 581; Whitenack v. Stryker, 2 N.
J. Eq. 8; Andress v. Weller, 3 N. J. Eq. 605;
Stackhouse v. Horton, 15 N. J. Eq. 202; Pan-
coast V. Graham, Id. 294; Stevens v. Van-
cleve, 4 Wash. O. 0. 262; Den v. Vancleve, 5
N. .T. Law, 589; Harrison v. Rowan, 3 Wash.
C. O. 580; Turner v. Oheesman, 15 N. J. Eq.
243; Eddy's Case, 32 N. J. Eq. 701, 33 N. J.
Eq. 574; Collins v. Osborn, 34 N. J. Eq. 511;
and others that might be cited, — are cases in
our state where persons who were aged, dis-
eased, blind, and infirm have executed wills,
and the rule of capacity by which they may
be sustained has been enunciated.
It is shown to my satisfaction that the tes-
tatrix, at the time she executed this writ-
ing, was capable of recollecting the property
she was about to dispose of, understanding
the manner of distributing it therein set
forth, the objects of her bounty, and the na-
ture of the business in which she was enga-
ged. If so, she had the requisite testamen-
tary capacity. The paper was in fact exe-
cuted by her as her last will and testament,
in the presence of two witnesses present at
her house at the same time. The attesting
clause does not say that they signed In the
presence of the testatrix. One of these sub-
scribing witnesses is dead; the other is liv-
ing, but does not remember the circumstan-
ces. He is certain as to his signature, and
that of the other witness is proved by his
son. It is shown by the testimony of the oth-
er two persons who were present at the sign-
ing of the paper that they were all together
in the dining-room when she signed and re-
quested them to sign as witnesses to her will.
This completes the attestation. It also ap-
pears that the will was read to her before
signing. She took the will after execution,
herself, up stairs, put it in a box with her
other papers in a drawer of her room where
she slept, and it' remained in her possession
until her death, about five years after its date.
Of the fact of its due execution, and her
capacity to make it, there seems to me to be
satisfactory proof offered.
The more serious question in the case is
whether Ruth W. Buzby executed this writ-
ing, purporting to be her last will and tes-
tament, through the undue influence of
George G. Waddington, the proponent. The
influence that will vitiate a will must be such
as in some degree destroys the free agency
of the testator, and constrains him to do
what is against his will, but what he is un-
able to refuse, or too weak to resist. 1 Jarm.
Wills, § 37; Lynch v. Clements, 24 N. J. Eq.
431; Moore v. Blauvelt, 15 N. J. Bq. 367.
It is claimed that this appears in several
particulars. The proponent wrote the will,
in which he was made sole executor, and his
son and wife were favored legatees. In Rus-
ling V. Rusling, 35 N. J. Eq. 120, 36 N. J. Eq.
603, it was said that the fact that the will
was drawn by a favored legatee, while it
calls for suspicious scrutiny of the circum-
stances, does not, of itself, invalidate the
will. The same rule would apply where the
legacies were given, not to himself, but to
those who stand in such near relationship to
him as a son and wife. We must therefore
look for other circumstances. Each case
12
MENTAL CAPACITY TO MAKE A WILL.
must be judged by its own circumstances,
and no general rale can be made applicable
to all cases. The testatrix had three chil-
dren —Maiy Buzby, Beulah Gaskill, and Na-
than Buzby. The son had died some years
before her death, leaving a son of the same
name, -who is the caveator against the pro-
bate of this will. Mary Buzby lived with
her mother until she died, on March 29, 1882.
She cared for her in their home, aided her in
the management of her property, but there is
no evidence that she exercised undue influence
over her. Her entire property was the sum
of $5,200 invested in bonds and mortgages,
and some household furniture of no great
value. Some years before her death she
made a will by which she bequeathed $1,200
to Beulah Gaskill, and the residue to Mary
Buzby. That will w^s drawn by Aaron
Fogg, a neighbor. On the evening before
Mary died, a codicil was written by Aaron
Fogg to this will. He went to the testatrix's
house, at the request of the proponent, and
it was there executed by Ruth W. Buzby and
witnessed by him and his daughter, who
went with him for that puiipose. The exact
form of the codicil is not given, but it was
for the benefit of Jlary B. Waddington, the
proponent's wife, who is the daughter of Beu-
lah Gaskill, and granddaughter of Ruth W.
Buzby. She was taken by the testatrix when
an infant, named after her daughter Mary,
brought up by them with care and affection,
and remained with them until her marriage.
By the will in controversy $1,500 is given to
Beulah Gaskill, and some furniture; $100 to
Ann B. Gaskill, and some silver-ware; $100
to Isabella P. Gaskill, and some silver-ware;
$600 to Asher B. Waddington, her great-
grandson; $600 to Martha Hancock, in lieu of
any charge for services or otheiT%'ise she
might make against her estate; and the resi-
due to Mary B. Waddington, her granddaugh-
ter. Her reason for giving no legacy to her
grandson Nathan W. Buzby, the caveator, is
stated in her will in these words: "My grand-
son Nathan W. Buzby heired a legacy for one
thousand dollars by the will of his grandfa-
ther, Asher Buzby. By the failure of my co-
executor, George W. Ward, I have been
compelled to pay the greater part of said
legacy out of my own resources, and this is
the reason my said grandson Nathan W. Buz-
l)y Is not mentioned as a legatee in this In-
strument." This payment was demanded of
her by her grandson when it was said that
she had but $10 left in the house for their
present support; and there is evidence that,
although she was patient at the time, and
afterwards treated him with kindness and
affection, she was displeased with his de-
mand for the money, and his extravagance
in spending it after he had received It.
Beulah Gaskill went to live with her moth-
er after Mary's death, and remained with her
until her death, with the promise that she
would be provided for. She also received
$1,500 by the will of her sister Mary. From
this disposition of the property it will appear
that all, excepting $600 given to Martha Han-
cock for seiTices in the family from the time
she was a child, was bequeathed to Beulah
Gaskill and her children; Mary B. Wadding-
ton and hgr son, Asher, namesake of his
grandfather, receiving the greater iwrtlon of
the estate. The exclusion of Nathan W.
Buzby was in the former will drawn by
Aaron Fogg, with which Waddington had
no connection, and Beulah Gaskill's individ-
ual portion was largely increased after the
death of her sister, Mary, by her will and
by the terms of this will, though in these
proceedings she Is hostile to the proponent.
These dispositions appear more like the nat-
ural operation of the mind and affection of
the testatrix than results of the fraudulent
contrivance or undue influence of Wadding-
ton, who wrote this will. His conduct, his
character, and relationship to her do not war- '
rant such chai-ges against him without more
direct and certain evidence. Until about the
time of Mary's death it does not appear that
he took any interest in her business. He
lived at Blsinboro, two and a half miles from
the testatrix's home in Salem. After Mary's
death, he attended to her money mattei-s, col-
lected her interest, and deposited it for her,
advised the investment of her money when
the security was changed, and with her con-
sent reinvested it for the best rate of interest
she could obtain. He was the husband of
her granddaughter, and apparently the near-
est connection with whom she could advise,
and on whose judgment she could rely, as
the infirmities of age increased. While it
would have been more delicate and prudent
for him, under the circumstances, to secure
the services of a stranger to prepare a wiU
for the testatrix, yet, if she had suflScient
capacity to make it, and this Is the volun-
tary expression of her wishes in disposing of
her property, his mistake or even' offlcious-
ness in tendering his services should not be
allowed to defeat her purpose, long entertain-
ed and expressed in a former will, to ex-
clude the caveator from any portion in her
property. The decree should be reversed,
and the will admitted to probate.
Under the peculiar circumstances of this
case the caveator will be allowed $250 in lieu
of costs, expenses, and allowances in all
courts; and the executor will be given his
costs and expenses out of the estate.
Decree reversed.
KNAPP and PATERSON, JJ., for affirm-
ance. The CHIEF JUSTICE, DEPUE, DIX-
ON, GARRISON, SCUDDER, VAN SYCK-
EL, BROWN, CLEMENT, COLE, and MC-
GREGOR, for reversal.
MENTAL CAPACITY TO MAKE A WILL.
la
MIDDLEDITCH et al. v. WILLIAMS et al.
(45 N. J. Bq. 726, 17 Atl. Rep. 826.)
Prerogative Court of New Jersey. June 17,
1889.
Appeal from orphans' court, Essex county;
Kirkpatrick, Buttner, and Ledwith, Judges.
Francis E. Marsh, for appellants. J. Frank
Fort, for respondents.
VAN FLEET, Vice Ordinary. The ques-
tion presented by the appeal in this case is
whether a deci'ee made by the orphans' court
of Essex county, on the 4th day of June, 1888,
admitting to probate a paper purporting to
be the last will of William H. Livingston, de-
ceased, is such a decree as the court should,
in view of the facts of the case and the law
applicable to them, have made. The paper
in question was executed on the 11th day of
January, 1887, in the city of New York, where
the testator then resided. It appears to have
been executed in strict conformity to the re-
quirements of our statute regulating the exe-
cution of wills. After the execution of the
paper in question, Mr. Livingston removed
to the city of Newark, in this state, where
he died, on the 4th day of February, 1888.
His wife died in August, 1880, and after
that date, up to the time of his own death,
his family consisted of himself, his daughter,
Lillian, (his only surviving child,) and his
mother-itt-law, Marie C. Williams. His daugh-
ter, at the time of her mother's death, was
five or six years of age. The testator, by the
paper in question, gives all his property, of
every kind and description, to his mother-in-
law, and at her death to her son William
P. Williams, in trust for his daughter, to be
held until his daughter has attained the age
of 25 years, when, in the language of the will,
"said property shall be handed over intact to
her: provided, however, that in consideration
of taking care of Lillian till twenty-five years
of age, or until her marriage, said Marie C.
Williams ^all be supported and maintained,
in her ordinary manner of living, out of the
income derived from said property; aud
should Marie O. Williams be living when Lil-
lian shall arrive at twenty-five years of age,
then Lillian shall give unto Marie C. Williams
a satisfactory bond or guaranty for securing
to Marie means for her support during the
balance of her life. Should my daughter,
Lillian, die before Marie 0. Williams, then my
property shall belong to the latter; ana
should both Lillian and Marie die before Wil-
liam P. Williams, then my property shall be-
long to the last named, William P. Williams."
Mrs. Williams and William P. Williams are
appointed executors. It is not shown who
drew this paper, nor where, nor under what
circumstances, it was drawn. One of the
subscribing witnesses says that he thinks the
testator wrote it himself. That is the only
information we have respecting its prepara-
tion or origin.
The validity of this paper, as the will of
William H. Livingston, is contested on two
grounds: First, it is said that it is shown to
be the product of an insane mind; and, sec-
ond, that it is shown to be the result of the
exercise of undue influence. And it is claim-
ed that the contents of the paper itself fur-
nish strong evidence of the truth of both
these objections. A will may be contrary
to the principles of justice and humanity,—
its provisions may be shockingly unnatural
and extremely unjust; nevertheless. If it
appears to have been made Dy a pei'son of
sufiiclent age to be competent to make a will,
and also to be the free and unconstrained
pi'oduct of a sound mind, the courts are
bound to uphold it. The courts must so
treat papers of this kind, in order to main-
tain that great principle which confers upon
every citizen, of full age and sound mind^
the right to do with his own as he pleases, so
long as he does not attempt to apply his prop-
erty to an immoral or unlawful purpose. But
in cases where want of testamentary capaci-
ty or undue influence is alleged, it is the duty
of the court to scan the provisions of the will
to see whether or not they furnish any evi-
dence of the truth of the charges made
against its validity.
The feature of the paper under considera-
tion which is most likely to attract attention,
as tending to show that the disposition which
tlie testator made of the property is both un-
natural and unjust, is the fact that he has,
either inconsiderately or designedly, mani-
fested an unnatural preference for his moth-
er-in-law and brother-in-law over the issue of
his daughter. On scanning the will, it will
be observed that it contains no indication
whatever that the testator intended, in case
his daughter should have issue, but did not
survive her grandmother and her uncle, that
her issue should take his property. On the
contrary, if the will be read according to its
plain words, it would seem to be entirely
clear that he intended, if his daughter died
in the life-time of either her grandmother or
her uncle, that his property should go, even
if his daughter left issue, not to her issue,
but first to her grandmother, if she was then
living, but, if not living, then to her uncle.
Such I understand to be the plain direction
of the will. It says: "Should my daughter
Lillian die before Marie C. Williams, then
my property shall belong to the latter; and,
should both Lillian and Marie die before
William P. Williams, then my property shall
belong to the last named, William P. Wil-
liams." Death is here spoken of generally,
and without restriction as to time. The tes-
tator does not say, "If my daughter Lillian
shall die without leaving lawful issue sur-
viving her, before attaining twenty-five years
of age, then my property shall go either to
her grandmother or her uncle;" but what he
says is, if Lillian shall die before her grand-
mother or before her uncle, then his property
shall go to her grandmother, if living, but, if
14
MENTAL CAPACITT TO MAKE A WILL.
not, then to her uncle. Lillian's issue is not
mentioned, nor is any provision made for it,
either expressly or consti-uctively, though the
possibility that she might have Issue be-
fore attaining 25 is a thing which, it would
seem, must have been before the testator's
mind; for in making provision for her care
he, limits the period that her grandmother
shall take care of her to the time when she
attains 25, or until her marriage. But sup-
pose we say that, according to the settled rule
of construction in such cases, the true mean-
ing of the will is that neither the grandmoth-
er nor the uncle will take unless Lillian shall
die before attaining 25 years of age,— and
that, I think, is the construction which shouid
be adopted,— still it is apparent that under
this view the will is not such a one as a fa-
ther, having an only child, and in the full
possession of his senses, and with the in-
stincts and affections common to our nature,
would, when entirely free from any sinister
influence, have been likely to make; for un-
der this view it will be seen that if Lillian
marries, has issue, and dies before attaining
25, her grandmothei* or her uncle will take
the property given by the will to the exclu-
sion of her issue. The will in this respect is,
in my judgment, both unnatural and unjust.
But this, standing alone, constitutes no rea-
son why the paper should not be given effect
as the will of the testator. It may help to
show that the testator lacked testamentary
capacity, or that his will is not the free ex-
pression of his mind and heart, but in a case
where it appears that he had the requisite
capacity, and that his will is the unfettered
expression of his wishes, it amounts to noth-
ing at all. The paper in question is, how-
ever, assailed on other grounds. It is char-
ged that it is the direct product of an in-
sane delusion. The testator was a believer
in spiritualism; that is, he believed the spir-
its of the dead can communicate with the liv-
ing, through the agency of persons called
"mediums," and who possess qualities or gifts
not possessed by mankind in general. The
proofs show that the testator stated to several
iJersons, prior to the execution of his will,
that the spirit of his dead wife had requested
him, through a medium residing in Forty-
Sixth street, in the city of New Yotk, to
make provision for his mother-in-law in his
will. To one person he said that his wife's
spirit had requested him to give all his prop-
erty to her mother, and to do it in such a way
that none of his relatives coula get it away
from her. To the same person he said, at
another time, that the spirit of his wife was
constantly urging him to make a will in fa-
vor of her mother. To another peraon he
said that the spirit of his wife had requested
him to be good to her mother, and see that
she was made comfortable during the re-
mainder of her life, and he also said that he
intended to make a will, leaving enough to
his mother-in-law to make her comfortable,
because his wife wanted him to do so. The
testator's wife, by her will, gave all her prop-
erty to the testator, subject, however, to an
annual payment of ?500 to her mother, and a
like sum to her brother, William P. Williams,
during their joint lives, and, after the death
of either, then to the payment of $1,000 an-
nually to the survivor during his or her life.
The evidence shows, I think, beyond doubt,
that the. testator believed, fully and thorough-
ly, that the messages which were delivered
to him, as communications from his wife, ac-
tually came from her spirit, aad that her
spirit knew constantly all that he was doing.
The important question which this branch
of the case presents for decision is, was such
belief an insane delusion? The prevailing
doctrine in England, up to the time the court
of queen's bench decided Banks v. Goodfel-
low, L. R. 5 Q. B. 549, was that any degree
of mental unsoundness, however slight, and
even if it exercised no influence over the tes-
tator in making his will, and was wholly
unconnected with the disposition he had
made of his property, would, nevertheless,
be fatal to the validity of his wiU. The
course of reasoning which led to the adop-
tion of this doctrine is stated as follows by
Cockbum, C. J., in Banks v. Goodfellow,
(page 559): "To constitute testamentai'y ca-
pacity, soundness of mind Is indispensably
necessary. But the mind, though it has va-
rious faculties, is one and indivisible. If it
is disordered in any one of these faculties,
if it labors under any delusion arising from
such disorder, though its other faculties and
functions may remain undisturbed, it can-
not be said to be sound. Such a mind is un-
sound, and testamentary incapacity is the
necessary consequence." A different doc-
trine was established by Banks v. Goodfel-
low. It was there held that if a testator
possesses sufficient mental power to take in-
to account all the considerations necessary to
the proper making of a will, though he is
subject to some delusion, yet if it appears
that such delusion did not influence him, and
\^as not calculated to influence lAn, in mak-
ing his will, his will is entitled to be regard-
ed as a valid testamentary act, and should
be upheld. The principle established by that
case is expressed in the following sentence
of Chief Justice Cockburn's opinion: "If it
be conceded, as we think it must be, that
the only legitimate or rational ground for de-
nying) testamentary capacity to persons of
unsound mind is the inability to take into ac-
count and give due effect to the considera-
tions which ought to be present to the mind
of a testator In making his will, and to influ-
ence his decision rfs to the disposal of his
property, it follows that a degree or form
of unsoundness which neither disturbs the
exercise of the faculties necessary for such
an act, nor is capable of influencing the re-
sult, ought not to take away the power of
making a will, or place a person so circum-
stanced" in a less advantageous position than
others with regard to this right." All sub-
MENTAL CAPACITY TO MAKE A WILL.
15
sequent cases arising in England have been
decided according to this principle, and It Is
now the established law of that country.
Boughton V. Knight, L. R. 3 Prob. & Div.
64; Jenkins v. Morris, 14 Ch. Dlv. 674; Smee
V. Smee, 5 Prob. Dlv. 84. The same principle
has, in Its substance, been recognized by the
€ourt of errors and appeals of this state.
Chief Justice Beasley, in pronouncing the
Judgment of that court in Lozear v. Shields,
23 N. J. Eq. 509, declared that pai-tlal In-
sanity was insufficient of Itself to justify
a decree settlngi aside a sale of real property
or any other act. He said: "Mania does
not, per se, vitiate any transaction; for the
question is whether such ti-ansaction has been
affected by it. Where a pure defense of men-
tal incapacity is Interposed, I think the true
test in this class of cases is whether the
party had the ability to comprehend, in a
reasonable manner, the nature of the affair
In which he participated. This is the rule,
in the absence of fraud; for fraud, when
present, Introduces other principles of deci-
sion." My own view as to the true rule on
this subject may be stated as follows: Even
if it appears that a testator was subject to
an Insane delusion when he made his will,
but it is also made to appear that his delusion
was not of a character likely to infliience
him, and did not iufluence him, in the disposi-
tion which he made of his propei'ty, his will
Should be declared valid.
But this is somewhat aside from the ques-
tion mainly in contest on this branch of the
case, namely. Is a belief in spiritualism an in-
sane delusion? Sir John Nlcholl, In the cele-
brated case of Dew v. Clark, 3 Addams, Ecc.
79, (2 Eng. Ecc. R. 441,) defined "insane de-
lusion" as follows: "Wherever the patient
once conceives something extravagant to ex-
ist, which has still no existence whatever
but In his own heated imagination, and wher-
ever, at the same time, having once so con-
ceived, he is Incapable of being, or at least of
being permanently, reasoned out of that con-
ception, such a patient Is said to be under a
delusion, in a peculiar, half-technical sense
of the term^ and the absence or presence of
delusion, so understood, forms, in my judg-
ment, the true and only test or criterion of
present or absent insanity." Dr. Haggard's
report of the opinion pronounced in Dew v.
Clark attributes somewhat different language
to Sir John NichoU. The following is the
definition, as he reports It: "When persons
believe things to exist which exist only, or
at least in that degree exist only, in their
own imagination, and of the - non-existence
of which neither argument nor proof can con-
vince them, they are of unsound mind; -or,
as one of the counsel accurately expressed it,
'it is only the belief of facts which no ration-
al person would have believed, that is insane
delusion.'" 1 Williams, Ex'rs, 35; 1 Redf.
Wills, 71. Sir James Hannen in Boughton
V. Kuig)ht, L. R. 3 Prob. & Div. 64-68, adopt-
ed the definition as reported In 3 Addams
as the true one. He said he believed it
would solve most, if not ail, the difficulties
which could arise in investigations of the
kind now under consideration. Chief Judge
Denlo, in Society v. Hopper, 33 N. Y. 619-
624, said: "If a person persistently be-
lieves supposed facts, which have no real ex-
istence except in his perverted imagination,
and against all evidence and probability, and
conducts himself, however logically, upon the
assumption of their existence, he is, so far
as they are concerned, under a morbid de-
lusion; and delusion, in that sense, is in-
sanity." And Cockbum, C. J., in Banks v.
Goodfellow, (page 560,) says: "When delu-
sions exist which have no foundation in
reality, and spring only from a diseased and
morbid condition of the mind, to that extent
the mind must necessarily be taken to be un-
sound."
According to these definitions, it is only a
delusion or conception which springs up spon-
taneously in the mind of a testator, and is
not the result of extrinsic evidence of any
kind that can be regarded as furnishing evi-
dence that his mind Is diseased or unsound;
in other words, that he is subject to an in-
sane delusion. If, without evidence of any
kind, he imagines or conceives something to
exist which does not In fact exist, and which
no rational person would, in the absence of
evidence, believe to exist, then it is manifest
that the only way in which his irrational be-
lief can be accounted for is that it is the prod-
uct of mental disorder. Delusions of this
kind can be accounted for upon no reason-
able theory except that they are the crea-
tions of some derangement of the mind in
which they originate. To illustrate: In
Smee v. Smee, 5 Prob. Dlv. 84, the testator
imagined himself to be the son of George
IV., and that when he was bom a large sum
of money had been put In his father's hands
for him, but which his father, in fraud of
his rights, had distributed to his brothers;
and in Smith v. Tebbitt, L.R. 1 Prob. & Div.
398, the testatrix imagiined herself to be one
of the persons of the Trinity, and her chief
legatee Do be another. The delusion, in both
instances, as will be noticed, was Indisputably
a wild and baseless fancy, not the product
of evidence of any kind, but obviously the off-
spring of a disordered condition of mind.
But where a testator is induced, by false evi-
dence or false statements, to believe a fact
to exist which does not exist, or where, in
consequence of his faith in evidence which is
true, but which is wholly insufficient to prove
the truth of what he believes, he believes a
fact to exist which in reality has no exist-
ence, his belief may show want of discern-
ment, that he is overcredulous and easily
duped, or that he lacks power to analyze and
weigh evidence, or to discriminate between
what is true and what is false, but it fur-
nishes no evidence whatever that his mind is
16
MENTAL CAPACITY TO MAKE A WILL,
diseased. His belief may show lack of judg-
ment or want of reasoning power, but not
tbat bis mind is unsound.
The testator's belief in spiritualism was not
a morbid fancy, rising spontaneously in bis
mind, but a conviction produced by evidence.
The proofs show that when he first commen-
ced attending wliat are called "s6ances" he
was inclined to be skeptical. Afterwards his
mind seemed to be in an unstable condition,
—he sometimes believed and at others doubt-
ed; and that it was not until the spirits gave
an extraordinary exhibition of their power,
by printing or painting on a pin, worn by his
mother-in-law on her neck, in brilliant let-
ters, which sparkled like diamonds, the word
"Dickie," a pet name of his dead wife, that
his last doubts as to the reality of the mani-
festations were removed. Believing, as I do,
that these manifestations were correctly de-
scribed by Vice-Chancellor GifCard, in Lyon
V. Home, L. R. 6 Eq. 655-081, when he called
them "mischievous nonsense, well calculated,
on the one hand, to delude the vain, the weak,
the foolish, and the superstitious, and, on the
other, to assist the projects of the needy and
of the adventurer," still it seems to me to be
entirely clear that it cannot be said that a
person who does believe in their reality is,
because of such belief, of unsound miud, or
subject to an insane delusion. No court has
as yet so held. No cases on this subject were
cited on the argument. Those which I have
examined uniformly hold that a belief in
spiritualism is not insanity. The court in
Robinson v. Adams, 62 Me. 369, said: "Be-
lief in spiritualism is not insanity, nor an in-
sane delusion. * * * The term 'delusion,'
as applied to insanity, is not a mere mistake
of fact, or the being misled by false testi-
mony or statements to believe that a fact ex-
ists which does not exist." And in Brown v.
Ward, 53 Md. 376, it was said: "The court
cannot say, as matter of law, that a peraon
is insane because he holds the belief that he
can communicate with spirits, (of the dead,)
and can be and is advised and directed by
them in his business transactions and in the
disposal of his property." Substantially the
same view was expressed in Otto v. Doty, 61
Iowa, 23, 15 N. W. Rep. 578, and also in the
matter of Smith's WiU, 52 Wis. 543, 8 N. W.
Rep. 616, and 9 N. W. Rep. 665. The utmost
length to which any court has as yet gone
on this subject is to declare that a belief in
spiritualism may justify the setting aside of
a will when it is shown that the testator,
through fear, dread, or reverence of the spirit
with which he believed himself to be in com-
munication, allowed his will and judgment to
be overpowered, and in disposing! of his prop-
erty followed implicitly the directions which
he believed the spirit gave him; but in such
case the will is set aside, not on the ground
of insanity, but of undue influence. Thomp-
son V. Hawks, 14 Fed. Rep. 002.
There is no evidence in this case which
will support a conclusion that the testator,
at the time he executed his will, was subject
to an insane delusion. Nor do I think there
is any evidence in the case which will sup-
port a judgment declaring that the will in
question is the result of undue Influence.
There is no proof tending to show what in-
fluence the spirits or the medium exercised
over the testator in making his will, except
that which proceeded from the testator's own
mouth. His declarations are competent to
show the condition of his mind, but not to
prove undue influence against either persons
or spirits. Rusling v. RusUng, 36 N. J. Eq.
603-607. For the purpose of proving undue
influence, they are without the least force.
Neither the medium, nor Mrs. Williams, (the
mother-in-law,) nor any other person who
was present at any of the stances, has been
examined as a witness. No legal evidence of
what occurred at any of them is before the
court. The charge of undue influence is main-
ly directed against Mrs. Williams. She is
said to be a believer in spiritualism, and the
proofs show that she went with the testator
frequently when he went to the medium to
consult the spirit of his dead wife. There
are some things in her conduct which are cal-
culated to create strong suspicion. Without
apparent cause she seems to have entertained
feelings of strong dislike towards all the tes-
tator's relatives. On the day of his wife's
funeral she ordered his sister out of the
house, without cause or right, and in utter,
deflance of the proprieties of the occasion,
and after his sister refused to gp she put her-
self so near to the testator and his sister
as to be able to overhear everything they said.
From that time forward, up to the time of
testator's death, Mrs. Williams continued to
reside with him, and his sister never, after
the funeral, went to his house, nor, so far
as appears, did any of his other relatives.
When the testator died Mrs. Williams not
only neglected to send notice of his death to
any of his relatives, but did what she could
to conceal his death from them. After the
testator's death she admitted that she had
persuaded or ggtten him to insert the clause
in his will which defers the turning over of
his property to his daughter until she is- 25,
stating that the reason she did so was be-
cause she thought that when the daughter
was of age some old fool might come after
her for her money, and she wanted to pro-
tect her against such pereons; and it also ap-
pears that she was present when the spirits
gave the testator such evidence of their pres-
ence as he regarded conclusive, by printing
on a pin on her neck, in brilliant letters, the
pet name of his wife. These things natural-
ly breed suspicious and create fears. They
show that it is possible that every message
the testator received, purporting to come
from the spirit of his dead wife, came, not
from the dead, but from the living, and that
everything that was done to dispel the testa-
MENTAL CAPACITY TO MAKE A WILL.
17
tor's doubts, and to induce him to believe in
the reality of the spiritual manifestations
which he witnessed, was, from beginning to
end, a prearranged scheme of deception and
fraud. But there is no proof in the case
which wiU support a judgment that such was
the fact. There is enough to raise a strong
suspicion, but not enough to produce con-
viction. Undue influeuce, like fraud, can-
not, in a case where no relation of trust ex-
ists, be presumed, but must be proved. 1
strongly suspect that the testator was duped.
LAWSUCO. — 2
It may also be true that he was unduly influ-
enced. I believe that the examination of
Mrs. Williams, or the medium, as a witness,
would, in all probability, have made many
things which now seem darli and obscure,
plain and clear. The question, however,
whether or not the paper In question is. the
will of the testator, must be decided by the
evidence before the court. Taking that as
the sole guide to the judgment to be pronoun-
ced, I thinii it is the duty of the court to af-
firm the decree made below.
18
MENTAL CAPACITY TO MAKE A WILL.
lii re MacPHERSON'S WILL,.
(4 N. Y. Supp. 181.)
Surrogate's Court, New York County. Jan. 2,
1889.
The will of Sara J. MacPherson, deceased,
was offered for probate by John MacPherson,
father of the executrix therein named, who
was an Infant. Elizabeth Hammond con-
tested it on the ground of want of testamen-
tary capacity. The letter referred to in the
opinion as having been left at the house of
Judge Angell, consisted of disconnected and
Irrelevant expressions, wholly without mean-
ing.
Blair & Rudd, for proponent. James R.
Angell, for contestant.
RANSOM, S. A perusal of the testimony
taken in this case must lead any mind to
the conclusion that the testatrix, for a con-
siderable period before her death, was an
excitable, sickly woman, who, on slight prov-
ocation, and often with no apparent cause,
flew into fits of passion, and displayed many
symptoms of a diseased mind. Conversation
upon topics connected with certain of her rel-
atives invariably excited her to some out-
l>urst. No person in the enjoyment of her
senses would have composed the letter which
appears to have been left at the house of
Judge Angell by the deceased. Nevertheless,
the unanimous testimony of the witnessess
(with, possibly, the single exception of Mrs.
Angell) is to the effect that, while these man-
ifestations of an unhealthy mind were chronic
from the date of her first illness, she was
sometimes, for continued periods of time, in
the possession of her faculties. In the light
of these facts, the law as laid down in
the case of Gombault v. Public Administra-
tor, 4 Bradf. Sur. 226, might be taken as the
text upon which to write a decision of this
cause, viz.: "A will made in a lucid Interval
may be valid, but the facts establishing Intel-
ligent action must be shown. The nature
and character of the Instrument, and of Its
dispositions, have great Influence, * * •
and it is important to ascertain whether the
contents of the will harmonize with the state
of the decedent's affections and Intentions
otherwise expressed." In the case at bar the
subscribing witnesses^ prove the due execu-
tion of the will, and that at the time the tes-
tatrix had mental capacity to make a will.
One of the subscribing witnesses was a law
clerk, and presumably familiar with the le-
gal requisites. The will was drawn by Mr.
Rudd, after an interview with testatrix, who
called at his office for the purpose of giving
instructions therefor. Thereafter he receiv-
ed a note from testatrix, containing substan-
tially similar directions, and the will was
drawn accordingly, and sent to her by a mes-
senger, who superintended Its execution at
the house of decedent. At this interview with
M. Rudd he testifies that she conversed ra-
tionally upon the subjects introduced. That
the will is In accord with her expressed in-
tentions appears by the testimony of her
brother, as well as by the evidence of Mr.
Rudd. In the case of Chambers v. Queen's
Proctor, 7 Bng. Ecc. R. 164, cited in Gom-
bault V. Public Administrator, supra, the de-
cedent died by his own hand the day after he
executed the will. Thei-e had been Indica-
tions of insanity immediately before and aft-
er Its execution. The court said: "If done
during a lucid interval, the act will be valid,
notwithstanding previous and subsequent in-
sanity," — and the will was upheld mainly on
the ground of the reasonable dispositions con-
tained In the instrument, the absence of proof
of delusion at the time of the factum, and
the rational manner In which the act was
performed. Every incident specified In that
case Is supplied here for the purpose of sup-
porting the will, and I am of opinion that the
will should be admitted to probate.
MENTAL CAPACITY TO MAKE A WILL.
19
BANNISTER et al. v. JACKSON.
(45 N. J. Eq. 702, 17 Atl. Rep. 692.)
Prerogative Court of New Jersey. May 24,
1889.
Appeal from orphans' court, Essex county;
Kirkpatrlck, Buttner, and Ledwlth, Judges.
Proceedings for the probate of the will of
George M. Bannister, offered by John Jack-
son, executor, named therein, contested by
Caroline F. Bannister and Caroline J. Marsh,
heirs at law. The orphans' court admitted
the will to probate, and contestants appealed.
C. W. Riker, for appellants. M. T. Barrett
and Henry Young, for respondent.
McGILL, Ordinary. This appeal is from
a decree of the oi-phans' court of Essex coun-
ty, which directs that a paper purporting to
be the last will and testament of George M.
Bannister be admitted to probate. The pa-
per was executed in accordance with the re-
quirements of the statute, on the 24th of
April, 1884, and on the 22d of March, 1887,
the testator died of chronic alcoholism at
the German hospital, in the city of Newark.
The appellants are his widow and only child.
By the disputed paper, $500 is bequeathed
to the widow, and declared to be in addi-
tion to her dower right, and $500 is given to
the daughter, Caroline J. Marsh, who was
then a widow, and provision is made that
that sum shall be her own • property, free
from the control of her husband, Edward
Marsh. The residue of the estate is divided
equally between the four brothers of the
testator, who reside in England; with the
pix)Viso that, in case two of the brothers,
who ^re named, should die before the tes-
tator, without leaving issue, then their share
shall be divided e'qually between the surviv-
ing brothers or their heirs. John Jackson, a
friend and former business agent of Mr. Ban-
nister, Is named as the executor of the will,
and power is given him to sell real estate.
The estate disposed of is valued at from $12,-
000 to $15,000, and consists entirely of per-
sonal property. When the will was made
the testator and Mr. Jackson were the equi-
table owners of a farm at Brookdale, in this
state, the legal title to which was in the
name of one McCartney, who held it in trust
for him, and the testator alone was the
equitable owner of a house and lot in the
city of Newark, the legal title to which was
then held in trust for him by Mr. Jackson.
The admission of the will to probate is re-
sisted upon the ground that at the time of
its execution Bannister did not possess tes-
tamentary capacity. It Is insisted that he
had become an habitual drunkard, was af-
flicted with chronic alcoholism, and at the
very moment of the paper's execution was
so far intoxicated that he did not comtire-
hend the act in which he was engaged. Ban-
nister was married to the appellant Caroline
F. Bannister, in 1855. She had been married
before, but was then a widow. By her he
had a daughter, the appellant Caroline J.
Marsh. Until 1875 he was a prosperous slip-
per manufacturer in Newark. In that year
he commenced to use intoxicating liquors
to excess, and a year later left his wife
and daughter, to live with a woman of dis-
reputable character, and from that time un-
til his death he continued in excessive indul-
gence in intoxicating drink. Witnesses de-
scrbe the quantity of liquor that he consum-
ed as "enormous." When sober he was nerv-
ous, sleepless, and imtable. His hand trem-
bled continuously. He spoke of seeing
strange figures and imps, and otherwise ex-
hibited characteristics of the habitual in-
ebriate. Yet, notwithstanding his condition,
he managed to keep his business together,
and, at about the time of making the paper
in question, to sell it at considerable advan-
tage. Sometimes he appeared to be afflicted
with dullness and loss of memory, and at
other times he exhibited a keen, shrewd ca-
pacity for business, and a strong will. In
the spring of 1884 he declared that he hn^i
determined to go to Europe for the benefit
of his health, and then made the advan-
tageous sale of his business above spoken
of, and at about the same time transferred
to his mistress, in settlement of all her
claims upon him, the furniture of the house
in which they had lived together. He then
made the will in dispute, and then, for the
benefit of his health, went for two weeks to
his Brookdale farm, and then to England.
During all the time that he was separated
from his wife and daughter, except while he
was in England, he contributed to their sup-
port, remitting to them weekly .a certain al-
lowance. While he was in England his
daughter wrote to him for assistance, and
he answered her by the following letter,
which should be inserted here because of
its value in ascertaining his condition of
mind and capacity at the time he wrote it:
"London, July 12th, 1884. Carrie: Your let-
ter just received. Glad to hear that all is
well. You will please to understand that I
am so placed that I cannot occupy but one
home. I have for over nine years gave you
and your ma a good living. Now there is a
change. If your mother wants me, I will
make arrangements to come, and I will make
her as happy as a man can make his loving
wife. Yours, G. M. B. P. S. I have sent
by mail to Mr. Jackson to carry out all ar-
rangements that you might make. Now, to
you, my D. Can you lay your head on your
pillow at night, and say to your God that
you have been a loving, faithful child? If
you can, then your God is not mine. G. M.
B." In August of the same year he re-
turned to Newark, and immediately took up
his residence with his wife and daughter,
and remained with them until some time in
the following December. He had not been
able to break his pernicious habits, and while
he thus lived with them he was seldom so-
ber. In December he returned to his mis-
20
MENTAL CAPACITY TO MAKE A WILL.
tiess, and resided with her until he died, in
the spring of 1887. For some years before
he went to England he had been the vice-
president and a director of the Mutual Build-
ing & Loan Association of Newark. When
he went to England he resigned those of-
fices, but upon his return from England was
re-elected a director of the corporation. The
, president of that association says that he
was valued as a man of excellent judgment,
and was frequently selected to act upon com-
mittees to audit accounts and appraise the
value of property upon which loans were to
be placed. He was not thought by this wit-
ness to be incompetent to transact business
until a month or two before his death. Aft-
er his return he was employed by Thomas
Phaup, a slipper manufacturer, as the man-
ager and foreman of his business, and for
fifteen months was paid $15 a week in that
capacity. During this employment he loan-
ed Phaup $1,000, taking security for the loan,
and so managed that he ultimately became
the owner of Phaup's business. Ud to the
time of his death he kept a bank account m
his own name. His money was chiefly in-
vested in mortgages placed by himself, the
interest from which he or his friend Jackson
collected. While he was in England Jack-
son managed his affairs, and rendered him
regular accounts. His securities were al-
ways kept in Jackson's safe.
The proofs satisfy me that at the time the
will was made Bannister had become ad-
dicted to the excessive use of intoxicating
liquors, and that to some extent such indul-
gence had impaired both his mental and
physical powers, and had probably contrib-
uted to the degradation of his moral char-
acter, but at the same time I am satisfied
that the impairment of his mental faculties
did not extend so far as to render him in-
competent to perform a legal act when he
was not under the immediate influence of
intoxication. The test of testamentary ca-
pacity in this state is that the testator can
comprehend the property he is about to dis-
pose of, the objects of his bounty, the mean-
ing of the business in which he is engaged,
the relation of each of these factors to the
others, and the distribution that is made by
the will. The capacity required is moderate,
and, though the testator be subject to many
Inflrmities, though he be feeble, absent-mind-
ed, forgetful, aged, diseased, blind, or other-
wise infirm, if he yet possess the powers re-
quired by this test, he will be held to have
testamentary capacity. Waddington v. Buz-
by, 43 N. J. Eq. 154, 10 Atl. Rep. 862. I am
entirely satisfied that Mr. Bannister had tes-
tamentary capacity when he made the docu-
ment in dispute. Much stress was laid by
the counsel for the appellant upon the fact
that the will provided that the money which
was left to the testator's daughter was to be
free from the control of her husband, when
in fact, at the time the will was made, that
husband had been dead two years. The
daughter's marriage, her separation from her
husband, the husband's death, and the mak-
ing of the will, all occurred while Bannister
lived apart from his wife and daughter. The
testimony that he had been informed of the
death of his son-in-law comes from the
daughter alone. Possibly she may be mis-
taken as to her statement of it, or possibly
it may have been conveyed to him at a time
when he was under the influence of strong
drink, and incapable of appreciating or re-
membering the information. His separation
from his wife and daughter, and the daugh-
ter's separation from her husband, created a
situation of affairs in which the death of
the son-in-law woidd fail to disturb existing
relations, so as to emphasize it and impress
it upon his memory. I cannot but believe
that the testator's failure to remember the
death when he made his will must be attrib-
uted to other causes than disease of mind or
incapacitating failure of memory.
The remaining inquiry is whether at the
very time of the making of the will the tes-
tator was under the influence of liquor. The
three persons present at the execution of
that paper have been sworn. John Otto, the
justice of the peace and conveyancer who
drew the will, was not directly questioned
upon the subject, but he says that Bannister
came to his office at about 10 o'clock in the
morning, and told him that he was going to
Europe, and that he desired to arrange his
affairs before he left, and then gave Otto di-
rections for the will, and, as Otto says, the
ideas to put in it. Otto then told him that
he must have another witness, and he went
out, saying that he would get Frank J. Merz.
Mr. Merz was a saloon-keeper near by. He
says that Bannister came in his saloon at
about 11 o'clock in the morning, and called
him aside, and asked him if he would be a
witness to his will, and that he (Merz) as-
sented, and went with him. He further says
that Bannister was a little excited, and that
he (the witness) thought that he had been
drinking a little, for he smelt the liquor up-
on him, and Bannister seemed to be nervous.
John Jackson, who was also present at the
execution of the will, states that Bannister
either came to him or met him that morning,
and requested him to accompany him (Ban-
nister) to Mr. Otto's office, where he pro-
posed to have his will drawn. He told Jack-
son that he was going to Europe, and that he
wished Jackson to be the executor of the
will. Jackson says that the testator was
sober, and knew what he was doing. When
the will was completed Mr. Otto read It, and
after it had been executed Bannister paid
Otto for drawing it, and handed the will to
Jackson. It may be that Bannister had
been drinking immediately before his will.
Merz says that he had been drinking a lit-
tle,— was a little excited; to use his expres-
sion, was "kind o' nervous,"— but he does
not pretend to say that Bannister did not ap-
preciate the business in which he was er.-
MENTAL CAPACITY TO MAKE A WILL.
21
gaged. To Jackson he seemed to be sober,
and that which he did and said throughout
the transaction seems to clearly indicate that
he was not intoxicated; at all events, to such
a degree as to disorder his faculties or per-
vert his judgment. In Peck v. Gary, 27 N.
T. 9, 23, Chief Justice Denio said: "It is
not the law that a dissipated man cannot
make a contract or execute a will, nor that
one who is in the habit of excessive indul-
gence in strong drink must be wholly frpo
from its influence when performing such
acts. If fixed mental disease has superven-
ed .upon intemperate habits, the man is in-
competent and irresponsible for his acta.
* * * If he is so excited by present intoxi-
cation as not to be master of himself, his
legal acts are void, though he may be re-
sponsible for his crimes." My conclusion,
after a careful examination of this case, is
that at the time the will in dispute was
made Mr. Bannister's habitually excessive
indulgence In strong drink had not produced
a fixed mental disease sufficient to destroy
his testamentary capacity, and that at the
very moment of the execution of that docu-
ment he was not so intoxicated that the act
in which he was engaged was vitiated. I
will therefore affirm the decree of the or-
phans' court.
22
UNDUE INFLUENCE.
ROLLWAGEN v. ROLLWAGEN et al.
(63 N. Y. 504.)
Court of Appeals of New York. Jan. 18, 1876.
Appeal from supreme court, general term.
First department.
Instraments purporting to be the last will
and testament of Frederick Rollwagen, de-
ceased, and a codicil thereto, were, by the
executors therein named, offered for probate
to the surrogate of New York county, and
probate was refused. On appeal to the su-
preme court, the decree of the surrogate was
affirmed, and the proponents appealed to this
court.
In 1871 testator, an uneducated man, who
could neither read nor write, worth about
$700,000 in real estate, married a niece of
his deceased wife, who for sevei-al years had
been his housekeeper. At that time he was
a confirmed invalid, having nearly lost the
power of speech, and his infirmities increased
until his death, in October, 1873. In the
yeaj 1872 it appeared from the evidence of
his intimate friend that he could not speaJi a
word nor utter an intelligible sound. In
April, 1873, he discharged his old business
agent, and employed a brother of his wife, a
man of no business capacity, to take charge
of his property, and a large and expensive
residence was purchased and furnished. In
the fall of 1872, and again in June, 1873, the
brother employed attorneys to draw wills for
testator in fa/vor of the wife, by which the
residuary estate was tied up until his young-
est grandchild should come of age, the broth-
er being made trustee. The wife gave all
the directions for making the will, claiming
to understand the sounds made by testator,
none of which were intelligible to the attor-
ney, nor did testator at such time utter any
word or intelligible sound. In September,
1873, a codicil was drawn under similar cir-
cumstances, increasing the gift to the wife.
None of testator's children or grandchildren
were present at the execution of the wills or
codicil, nor did it appear that they knew of
them.
Wm. H. Amoux and Wm. A. Beach, for
appellant Henry L. Clinton and George F.
Langbein, for respondents.
EARL, J. The decedent probably had suf-
ficient mind to make a will, and this is not
denied by contestants' counsel. His mind
was, however, undoubtedly impaired and his
will enfeebled by paralysis and disease; to
what extent we are unable to determine. If,
therefore, the only objection to the probate of
this will was mental incompetency to make
It, the objection could not prevail. A party
who offers an instrument for probate as a
will must show satisfactorily that it is the
will of the alleged testator, and upon this
question he has the burden of proof. If he
fails to satisfy the com't that the Instrument
speaks the language and contains the will of
the testator, probate must be refused. The
laws in reference to the distribution of the
estates of persons dying intestate are found-
ed upon principles of public policy and jus-
tice, and must regulate the transmission of
property, unless a. person before death h«s,
in the mode prescribed by law, himself pro-
vided how his property after death shall be
disposed of. As said by Judge Davies ia
Delafield v. Parish, 25 N. Y. 9, 35: "It is not
the duty of the court to strain after probate,
nor in any case to grant it, where grave
doubts remain unremoved and great difficul-
ties oppose themselves to so doing." And
this was substantially the language of Lord
Brougham in Panton v. Williams, 2 Curt. Bcc.
530. Ordinarily, when a testator subscribes
and executes a will in the mode required by
law, the facts of such subscription and ex-
ecution are sufficient proof that the instru-
ment speaks his language and expresses his
will; but when a testator is deaf and dumb,
or unable to read or write and speak, some-
thing more is demanded. There must then
not only be proof of the factum of the will,
but also that the mmd of the testator accom-
panied the act, and that the instrument ex-
ecuted speaks his language, and really ex-
presses his will. This will is somewhat com-
plicated in its terms, and I am satisfied that
there was no time in the year 1873 when the
decedent could utter the words or give ex-
pression to the language therein contained.
Even if, according to some of the evidence,
he could at times talk some, it was only at
intervals, and to a limited extent. However
it may have been at other times, he could not
talk or utter an intelligible sound on the days
when the will and codicil were executed, and
the attorney who drew the will could not hold
any conversation with him, and received all
his instructions from his wife. It is true
that the will and codicil were read to him,
and that he is claimed to have assented by
the nod of his head, and the nasal sound
without meaning; but it was shown that
when in health he had a habit of nodding
with his head when he did not mean assent,
and hence that furnished no certain indica-
tion of his assent to what was read. The
will disposes of a large estate in a method
by no means simple and direct; and the proof
that he understood and assented to its pro-
visions should be quite clear and satisfac-
tory -before it should be admitted to probate.
Barry v. Butlin, 1 Cm-t. Ecc. 639; Chaffee v.
Baptist Miss. Con., 10 Paige, 90; Boyd v.
Cook, 3 Leigh, 35; Van Pelt v. Van Pelt, 30
Barb. 134; Longchamp v. Pish, 2 Bos. & P.
415.
It is said in 1 Jarm. Wills, 29, "that, in pro-
portion as the infirmities of the testator ex-
pose him to deception, it becomes imperative-
ly the duty, and should be anxiously the care,
of all persons assisting in the testamentary
transaction, to be prepared with the clearest
proof that no imposition has been practiced,
but that the testator did in fact fully under-
UNDUE INFLUENCE.
2S
stand every portion of the paper which he ex-
ecuted as his will." In Weir v. Fitzgerald,
2 Bradf. Sur. 42, the learned surrogate says:
"Something more is necessary to establish
the validity of the will, in cases where, from
infirmities of the testator, his impaired ca-
pacity, or the circumstances attending the
tra/nsaction, the usual inference cannot be
drawn from the mere formal execution. Ad-
ditional evidence is therefore required that
the testator's mind accompanied the will;
that he knew what he was executing, and
was cognizant of the provisions of the will."
Satisfactory evidence of this kind has not
been produced in this case, and hence probate
was properly refused.
But if we assume that the will and codicil
were formally executed, and that the mind of
the testator accompanied the act, and that the
contents of the instruments were known to
him and assented to by him, probate would
still have to be refused on -account of undue
influence. It is impossible to define or de-
scribe with precision and exactness what is
undue influence, what the quality and the ex-
tent of the power of one mind over another
must be, to make It "undue" in the sense of
the law, when exerted in making a will. Like
the question of insanity, it is to some degree
open and vague, and must be decided by the
application of sound principles and good
sense to the facts of each given case. Lynch
V. Clements. 24 N. J. Eq. 431. But the in-
fluence exercised over a testator which the
law regards as undue or illegal must be such
as to destroy his free agency; but, no matter
how little the influence, if the free agency is
destroyed It vitiates the act which is the re-
sult of it. In 1 Jann. Wills, 36, it is said
"that the amount of undue influence which
wiU be sufficient to invalidate a will must, of
course, vary with the strength or weakness
of the mind of the testator; and the influence
which would subdue and control a mind nat-
urally weak, or one which had become impair-
ed by age, sickness, disease, intemperance, or
any other cause, might have no effect to over-
come or mislead a mind naturally strong
and unimpaired." The undue influence is not
often the subject of direct proof. It can be
shown by all the facts and circumstances
surrounding the testator, the nature of the
will, his family relations, the condition of his
health and mind, his dependency upon and
subjection to the control of the person sup-
posed to have wielded the influence, the op-
portunity and disposition of the person to
wield it, and the acts and declai-atlons of
such person. Marvin v. Marvin, 3 Abb. Dec.
192; Reynolds v. Root, 62 Barb. 250; Tyler
V. Gardiner, 35 N. Y. 559; Forman v. Smith,
7 Lans. 443; Lee v. Dill, 11 Abb. Pr. 214;
Dean v. Negley, 41 Pa. St. 312.
It is not sufficient to avoid a will that it is
obtained by the legitimate influence which
affection or gratitude gives a relative over
the testator. A competent testator may be-
stow his property upon the objects of his af-
fection, and he may, from gratitude, reward
those who have rendered him service; but if
one takes advantage of the affection or grat-
itude of another to obtain an unjust will in
his favor, using his position to subdue and
control the mind of the testator so as, sub-
stantially, to deprive him of his free agency,
then the fact that affection or gratitude was
the moving cause makes it no less a case of
undue influence. In this case, in the space
of about a year, we find the testator execut-
ing three successive instruments, in which
the share of his wife goes on increasing. We
cannot presume that his boimty to his wife
and her relatives was prompted by affection.
On his part, his marriage was a matter of
convenience, and he had lived with his wife
less than two years when the last instrument
was executed, and less than one when the
first was executed. It is not a case where
husband and wife had lived together for
years after a marriage prompted by mutual
affection, which had been Increased by years
of tender care and a thousand acts of love
and kindness, until the husband deemed no
bounty he could bestow upon his wife too
great. It is the case of a scheming woman,
marrying an eld man, her uncle, broken in
body and enfeebled in mind, and then schem-
ing to secure an undue share of his property
for herself and her relatives. We cannot
presume that the testator was Influenced by
gratitude. It is true that she rendered him
faithful and valuable service. She was dil-
igent and kind in her constant attention to
his wants; so she was before her marriage,
at $14 per month. By his marriage with her
he had elevated her to a condition of inde-
pendence, and had secured to her, by opera-
tion of law, an income by law far in excess
of her reasonable wants. A change from
$14 per month to $12,000 per year was cer-
tainly all the reward which mere gratitude
would prompt or be expected to bestow.
How, then, is this will to be accounted for?
She was the constant attendant of the testa-
tor; his only organ of communication with
others. He was entirely dependent upon her
for all his wants. She procured the ap-
pointment of her brother as his agent, and
thus had the entire control and management
of his estate. She introduced her brother and
mother into the household, and his own chil-
dren, though not formally shut out of his
house, were probably not welcome visitors,
Judging from the death-bed scene, when she
refused to send for them to see their dying
father. Upon all occasions, so far as dis-
closed in the evidence, he was submissive to
her will. She procured the will to be drawn,
instructed the scrivener, and had it executed
when he was speechless. Besides the large
bounty conferred upon her, the corpus of the
estate is tied up, and placed in the control of
her brother. She was alone with him, and
had every opportunity, in the helpless condi-
tion of his body and the enfeebled condition
of his mind and will, to impose upon him,
24
UNDUE INFLUENCE.
and subdue him entirely to her will. We
have no direct proof of what she did, because
no witnesses were present, and she was not
sworn. These and the other circumstances
above alluded to, and all the inferences to be
drawn from the Immense mass of evidence
given before the surrogate, convince us that
this will and the codicil were the result of
undue influence, imposition, or fraud of some
kind, and that they should not be admitted
to probate. It matters not that she did not
talie for herself and relatives a larger share
of his estate. She took enough to show her
grasping disposition and overpowering influ-
ence.
I freely admit that there are some difficul-
ties standing in the way of the conclusion
which we have thus reached, and that strong
arguments were urged, with great ability,
for the proponents by their learned counsel;
but the difficulties lying in the pathway of
the proponents are still greater. An immense
estate should not be disposed of by a will
more or less unjust, and tied up by compli-
cated provisions, except upon clear and satis-
factory proof that it is really the will of a
competent testator, exercising his free agen-
cy. As said by Lord Brougham In Panton
V. Williams, supra: "It is much less material
that those who seek to impeach a testament-
ary instrument should be unable to explain
certain things in their case, and should be
forced to admit that their argument Is not,
in every point, consistent with all the facts,
than that they who seek to establish the will
should give no rational, consistent, or intelli-
gible solution of those difficulties which in-
cumber their supposition and obstruct the
path towards the conclusion they would have
us arrive at."
Our attention is called to certain rulings
of the surrogate excluding questions put to
witnesses by the counsel of proponents, and
the claim is made that gross errors were
committed prejudicial to the proponents. I
have carefully considered all of them, and be-
lieve that most of the rulings were clearly
right, and if any of them were wrong they
were not of such a character as materially to
afCect the case, and hence are not grounds
for reversal upon this appeal. Olapp v. Ful-
lerton, 34 N. Y. 190; Gardiner v. Gardiner,
Id. 155, 164.
The judgment must be affirmed, with costs.
UNDUE INPLUENCE.
25
MONROE et al. v. BARCLAY et al.
(17 Ohio St. 302.)
Supreme Court of Ohio. Dec. Term, 1867.
Error to district court, Mahoning county.
Action brought by Oeorge Monroe, Cath-
erine Monroe, and Erastus Jacobs against
John McClelland and Franc:^ Barclay in the
court of common pleas to set aside the will
of Mary McClelland, deceased, on the ground
of fraud, undue influence, and want of testa-
mentary capacity. It appeared at the trial
before a jury that deceased married Erastus
Jacobs in 1838, and that they lived together
until 1852, when he went to California; that
deceased and McClelland were married by
defendant Barclay, a justice of ttie peace,
in 1856, and lived together as husband and
wife until her death. The plaintiffs gave
evidence tending to show that McClelland
married Mary for her property only; that
he combined with others to induce her to
make a will; that she was advised to marry
him, and that she had a right so to do; that
McClelland was about 35 years of age at
the time of the marriage, and that Mary
was over 57; that she was deformed, filthj',
drunken, profane, and lewd; and that they
lived together most unhappily. The defend-
ants gave evidence tending to establish her
capacity to make a will, and to show that
before and ever since her marriage with
McClelland she expressed her determination
not to give her property to the plaintiffs.
They further gave evidence tending to rebut
all fraud or undue influence upon the tes-
tatrix. Verdict and judgment for defend-
ant. On error to the district court, the
judgment was aflirmed, and plaintiffs filed
their petition in error.
Geo. M. Tuttle and John M. Stull, for
plaintiffs In error. F. E. Hutchins, for de-
fendants in error.
DAY, C. J. The original case was a pro-
ceeding In the court of common pleas, to
contest the validity of the last will of Mary
McClelland, deceased, upon three grounds:
(l).That at the time of executing the will
she was not of sound mind and memory;
(2) that she was fraudulently induced to
make the will; (3) that the will was pro-
cured by undue influence of defendants upon
the testatrix. The issues joined by the par-
ties upon these grounds were tried to a jury,
and a verdict was rendered In favor of the
defendants, sustaining the will.
The testimony is not fully set forth in the
bill of exceptions. It is therefore to be pre-
sumed that the finding of the jury was,
under the charge of the court, warranted by
the evidence.
The only errors insisted on here arise upon
exceptions taken by the plaintiffs to the
refusal of the court to charge the juiT as
requested by them and to the charge as giv-
en. The plaintiffs submitted to the court
21 propositions in writing, which they re-
quested the court to give in its charge to the
jury. It is stated in the record that "the
court refused to charge as requested, except
as stated" In the charge given to the jury;
and that the plaintlfCs excepted to the "re-
fusal to charge as requested, and to the
charge, so far as the same is contrary to
said request."
The charge and the propositions submitted
by the plaintiffs -are fully set forth in the
bill of exceptions, but no reference is made
in the charge to any one of the propositions;
so that it is not specified in the record which
one of the propositions the court refused to
give as requested. This is left to be dis-
covered, by seeing what part of the plain-
tifCs' requests were not embraced in the
charge given. It will be seen, moreover,
that the plaintiffs excepted to the charge so
far only as the court omitted to adopt the
written proposition submitted by them, and
so far as the charge was contrary thereto.
It is not deemed necessary, for the purpose
of presenting the questions made by the
exceptions, to recite here said propositions
or the charge in full. Sufiice it to say that
most of the propositions were substantially
given in the charge to the jury as requested.
This does not seem to be strenuously contro-
verted by the counsel for the plaintiffs, ex-
cept as to the propositions numbered from
16 to 20, inclusive. Indeed, the whole con-
troversy, arising out of the neglect of the
court to charge as requested, and upon tlie
charge as given, may be fairly presented by
stating these five propositions, and the
charge relating to them. The propositions
are as follows: "(16) If, previous to the will
being made, John McClelland, or any person
acting in concert with him, took advantage
of imperfect, though not absolutely unsound,
judgment on the part of the testatrix, and,
by advice known by them to be false, in-
duced her to believe that she owed to Eras-
tus Jacobs no duty as a wife, and she made
the will under the continued influence of
that persuasion, the will is void. (17) That
for this purpose It makes no difference
whether it relates to matters of fact merely,
or whether it related to matters of judg-
ment only, provided it related to matters
about which she, in her imperfect condition of
judgment, might be, and actually was, mis-
led by the advice. (18) If, at the time of
making the will in question, Mary Jacobs,
the testatrix, from false advice, knowingly
given by John McClelland, or by any other
person acting with him, believed that Eras-
tus .Jacobs was not her lawful ' husband,
when in fact he was, and that John Mc-
Clelland was her lawful husband, when in
fact he was not, the will is void. (19) It
makes no difference whether the false advice
thus given was in relation to some matter
of fact or in relation to some matter of law,
concerning her relation to Jacobs and Mc-
Clelland, provided she, being then possessed
of Impaired powers of judgment, believed
26
UNDUE INFLUENCE.
the advice to be true, and acted accordingly.
(l-'O) It a man knowingly and wrongfully
marries and coliabits in a state of adultery
witli a woman who is the lawful wife of an-
other man, and whose husband has not for-
feited his claims to her comfort and society,
and, by the influence of such marriage and
cohabitation, procures a will from her in
his favor, and disinheriting her real husband,
that will is void for illegal influence."
It is to be observed that these propositions
malie no allowance for any other facts or
circumstances which might modify the as-
sumed facts, but assert that the facts as-
sumed would, under any circumstances, in-
validate the win.
Under the sixteenth proposition, it is as-
sumed that it would make no difference
when, or for what purpose, the testatrix
was induced to believe that she owed to
Brastus Jacobs no duty, no matter if it was
for a purpose having no reference to a dispo-
sition of her property; still it is assumed
that. If the advice was ever given for any
purpose, and the false belief continued, the
will is void, although the advice had no
effect whatever in producing the will. Un-
der the seventeenth proposition it is claimed
that the will would be void if the testatrix
was misled by the false advice, without
assuming that she was thereby induced to
make the wiU, or that such advice had the
least influence on the testamentary act. In-
deed, these two propositions, taken together,
assume that, if the testatrix was, at any
time and for any purpose, misled by the
false advice of McClelland as to her duty to
Jacobs, and remained under such false im-
pression when the will was made, though it
had no relation thereto, and in no way
tended to produce it, still the will was
void.
The same may be said, substantially, as
to the eighteenth and nineteenth proposi-
tions. In the nineteenth, which is the most
explicit. It is not assumed that, in acting
upon the false advice, she did so in relation
to the will. It is undoubtedly well settled
that, to invalidate a will for fraud or undue
influence, it must appear that the fraud or
undue influence had some effect "upon the
testator in producing the very act of making
his will." Redf. Wills, 516, 524, 525, 527.
But, however this may be, the most that
can be claimed of these four propositions is
that they are based on that kind of undue
influence which amounted to fraud upon the
testatrix. This is the gist of them; and up-
on a fair construction of the charge, so far
as they tended to Induce the will, they
were substantially given to the jury. It is
difficult, therefoi-e, to see wherein the plain-
tiffs were not permitted to have all the ben-
efit of these propositions, to which they
were entitled. Upon this point the court
charged the jury "to inquire whether any
fraud or misrepresentations were resorted to
to induce the execution of this will. If
such fraud was exeo-cised, then it would,
however slight, destroy the validity of the-
will; that is, if it was suflacient to and has,
in your judgment, tended to induce the ex-
ecution." Here the court, in rtply to these-
four requests, told the jury that if "any
fraud or misrepresentations were resorted
to to induce the execution of the will,.
* • ' * however slight, * * * if it tend-
ed to induce the execution" thereof, the will
was void. If these requests are construed
as relating to the act of the testatrix in
making the will, then the plaintiffs had the-
full benefit of them In the charge. In that
case, the record does not show affirmatively
that they were refused by the court, or that
they are embraced in the exceptions taken by
the plaintiffs.
But the point that seems to be chiefly relied
on by the plaintiffs is made on the twenti-
eth proposition. Upon the facts there as-
sumed, it was claimed, as a presumption of
the law, that the will was produced by il-
legal, and therefore undue influence. The-
court did not accede to this proposition, but
left the question of undue influence to be
determined by the jury, under the follow-
ing instructions relating to this and other
propositions: "Inquire whether, through the
exercise of force, or by fear produced, or in
any manner, such an influence was ex-
erted over her as to induce her to make a
disposition of her property contrary to her
own will and inclinations; or whether such
an undue and overruling influence was ex-
ercised upon her mind as to control or over-
power her own inclinations and judgment,
or induce her, without or contrary to her
own intention and will, to execute the paper.
If either of these propositions are found in.
the affirmative, it would defeat the will."
Construing the chargei strongest against the
plaintiffs, it would seem that the court in-
tended to be understood as holding the law
to be that. In the absence of fraud, no mat-
ter by what influence a testator may be
exercised, so long as it does not overpower
his inclinations and judgment, and induce
a disposition of his property contrary to hi&
own wishes and desires, his will cannot he
invalidated for undue influence. Indeed, it
is not denied but that the charge, as ap-
plied to ordinary cases, may be sustained
by both reason and authority; but it is
claimed that a distinction is to be taken be-
tween influences that are lawful and those
that are unlawful.
The gist of the claim is that the will was
void because it was induced by influences
growing out of an unlawful relation. No
matter for what reason the testatrix may
have been abandoned by her husband, or
why she may desire to disinherit him and
her kindred, or what obligations may have
arisen from the unlawful relation; no mat-
ter if the will was made without any in-
fluence of the devisee other than that which
sprung from their association; and no mat-
UNDUE INFLUENCE.
27
ter if it was made in accordance witli her
own inclinations and judgment, — still it is
assumed that the wUl would be void. If no
otlier objection than this was urged against
a gift of property between living parties, it
would hardly be contended that it would be
void. It is difficult to see why a bequest
or devise should be subjected to a more
stringent rule. Every will, it may fairly be
presumed, is prompted by influences stmng
enough to induce its provisions, and it would
seem, therefore, that the most that ought to
be claimed from such influences in the con-
test of a will is to have them submitted to
the jury, to enable them to determine wheth-
er the testator was misled, or so influenced
thereby as to afCect his own free choice and
judgment in the disposition' of his property.
The power to make a will is granted by the
statute to "any person of full age and sound
memory"; and, under its provisions, the will
is to be admitted to record as valid when
"duly attested and executed, and the testa-
tor at the time of executing the same, was of
full age and sound mind and memory, and
hot under any restraint." Swan & O. St. p.
1615, §§ 1, 15. Restrictions are imposed up-
on none, but all are alike left to the exercise
of their own free wills and inclinations in
the disposition of their property. The pow-
er thus given to dispose of property does
not depend upon the disposition made there-
of, nor is it restricted to those who may
employ it only for just and wise purposes;
but all upon whom the right is conferred
may use it without "any restraint." Indeed,
it is contemplated by the statute that this is
the only way in which it can be exercised.
Freedom from restraint is essential to the
validity of a will. So careful is the law in
this respect, that it will not uphold a will
that has been induced by restraint upon the
testator, whether in the form of fraud prac-
ticed upon him or any other influence that
destroys the free exercise of his own will.
Redf. Wills, 524, 52T. It would be incon-
sistent with the right conferred by the stat-
ute, and with the spirit of the construction
it has hitherto received, to sanction re-
straints upon a testator, based alone on the
character of the motives or causes that may
have induced any disposition of his prop-
erty that he may make while in the free ex-
ercise of his own inclinations and judgment.
He may give his property to whomsoever he
pleases; and his motives or reasons therefor,
so long as he is "not under any restraint,"
are matters of his own conscience, for which
he is not accountable to the law. His will,
executed in conformity to the statute, if it
be his own, and not in any sense the will
of another, cannot be invalidated, however
much its provisions may be disapproved by
others.
It is claimed in the proposition under con-
sideration that the will, upon the facts there-
in assumed, would be void for "illegal in-
fluence." In the solution of the question
made by this proposition, much of the diffi-
culty disappears when we consider what
"influence," as applied to the invalidation of
wills, is "illegal." Every will, as before re-
marked, is the result of influences strong
enough to produce it. Since, then, it is the
policy of the law to secure to every one the
right to dispose of his property in accord-
ance with his individual will, that influence
alone is illegal which places the freedom of
a testator's will under some kind of re-
straint. If this be so, it follows that it
matters not what may be the origin or char-
acter of any influence operating upon a tes-
tator, if it does not place him "under any
restraint." It would seem to follow, also,
that it would be equally immaterial how an
individual may have acquired an influence
over a testator, unless such influence is ex-
erted in a manner that tends to restrain the
free exercise of his wiU in the disposition
of his property. It is claimed in this prop-
osition that the influence that produced the
will was illegal only because it sprung from
an unlawful relation. If this be so, then the
principle would be equally applicable to any
other unlawful relation, and would destroy
a will made under influences springing there-
from, although the testator, without being
placed under restraint, could not be per-
suaded to make a will otherwise than as
prompted by such influences. However rep-
rehensible such' influences may be, if a tes-
tator voluntarily chooses to be actuated by
them, it is a privilege he may enjoy under
the law that secures to every one alike the
right to dispose of his property without re-
straint upon his own judgment and con-
science. It is undoubtedly well settled that
a will cannot be invalidated because it ■wna
produced by influences springing from a law-
ful marital relation, unless such influence
has been unduly exerted. The influence
arising from an unlawful marital relation
may be as strong as that of the other; but,
unless it impairs more than the other the
free exercise of the testator's will, it is dif-
flcult to see how the influence aristng from
the unlawful relation is necessarily such un-
due influence as will invalidate a will, while
that of the other will not. It would seem,
upon the principles already stated, that the
question would be essentially the same in
either case, whether the influence had been,
in fact, exerted in restraint of the testator's
will. However justly an adulterous marital
relation may be reprobated, it by no means
follows that every will produced by in-
fluences arising from that relation is tainted
with such turpitude that to uphold it would
"do violence to the morality of the law."
This is the theory upon which the claim of
the plaintiffs rests. But the moral test will
not in all cases avail. If the principle be
correct, it makes no difference which party
makes the will; whether the devise be from
the woman to the man, or the man to the
woman, it would be equally void. It would
28
UNDUE INFLUEJ^CE.
te easy to suppose cases wlnere considera-
tions of moral obligation, as well as that of
public duty, would require a man to make
suitable provision for a woman with whom
he had sustained this relation. In such cases
it would do no violence to the morality of
the law to sustain such provision, though it
be made by will, and induced solely by in-
fluences springing from the unlawful cohab-
itation.
It may, however, be admitted that the in-
fluences growing out of an unlawful marital
relation do not stand, and should not be per-
mitted to stand, upon an equal footing with
those coming from the lawful relation; but
the question recurs whether the difference
is in matter of law or of fact. If it be the
former, then every will induced by an un-
lawful relation is void, though the testator
might not have been "under any resti-aint";
but this, it has been shown, is contrary to
the general policy of the law. If it be the
latter, then the proof of the unlawful rela-
tion should go, with the other evidence, to
the Jury, to enable them to determine the
question of undue influence. We think this
would be in accordance with the law, and,
in general, best subserve the ends of justice.
We have not been furnished with author-^
ities, nor do we see any sufficient reason, to
warrant us in making this class of cases an
exception to the general principles relating
to the validity of wills. It is true that the
position of the counsel for the plaintiffs is
strongly supported obiter in the able opinion
delivered in the case of Dean v. Negley, 41
Pa. St. 312. The point there ruled, how-
ever, went to the extent only that proof of
the making a will under and in the direction
of an unlawful relation like that In this
case was such evidence of undue Influence
"that it may justify a verdict against the
validity of the will"; and it was held, there-
fore, that it was error to exclude it from the
jury. That the same court must hold the
question to be one "of fact, merely," and
not "a presumption of law," is shown in a
still more recent case, where it was declai-ed
that "undue influence, to avoid a will, must
be such as to overcome the free agency of '
the testator at the time the instrument was
made." Eckert v. Flowry, 43 Pa. St. 40;
Redf . Wills, 534. . The propositions which the
counsel for the plaintiffs requested the court
to give in its charge to the jury, although
separately numbered, were in fact, many of
them, a connected series of propositions, de-
pendent one upon another, some of which,
we have shown, the court could not properly
give. Other independent propositions were
properly refused, as has been shown, and the
remaining ones were embraced in the charge.
There was, therefore, no error in refusing
to charge as requested. For the reasons
already stated we think that there was no
error in the charge as given to the jury by
the court of common pleas. It follows that
the district court rightfully affirmed the
judgment of that court, and that the judg-
ment of the district court must therefore be
affirmed.
WHITE, WELCH, BEINKERHOFF, and
SCOTT, JJ., concurred.
UNDUE INFLUENCE.
29
WINGROVB V. WINGROVE et al.
(11 Prob. Div. 81.)
Court of Probate. Nov. 19, 1885.
Plaintiff, as a legatee, ofEered for probate
the will of Elizabeth Wingrove, dated Sep-
tember 15. 1869, and alleged that a codicil,
dated October 9. 1880, which revoked some
of the gifts to him, was procured by undue
influence of defendants. Defendants denied
that the codicil was procured by undue in-
fluence, and claimed probate of it together
with the will. The action was tried by a
common jury, who found a verdict for the
plaintiff, which was subsequently set aside,
and a new trial ordered by a special jury.
Mr. Murphy, Q. C, and Mr. Gye, for plain-
tiff. Mr. Inderwick, Q. C, and Mr. Pritch-
ard, for defendants.
Sir JAMBS HANNEN, (President,) in ad-
dressing the jury said:
Gentlemen of the jury, I must ask your
particular attention to the exposition which
I am about to give you of the law upon this
subject of undue influence, for I find, from
now a long experience in this court, that
there is no subject upon which there is a
greater misapprehension. The misapprehen-
sion to which I have referred arises from
the particular form of the expression. We
are all familiar with the use of the word "in-
fluence." We say that one person has an
unbounded influence over another, and we
speak of evil influences and good influences;
but it is not because one person has un-
bounded influence over another that, there-
fore, when exercised, even though it may be
very bad indeed, it is undue influence in the
legal sense of the word.
To give you some illustrations of what I
mean: A young man may be caught in the
toils of a harlot, who makes use of her in-
fluence to induce him to make a will in
her favor, to the exclusion of his relatives.
It is unfortunately quite natural that a man
so entangled should yield to that influence,
and confer large bounties on the person with
whom he has been brought into such rela-
tion; yet the law does not attempt to guard
against those contingencies. A man may be
the companion of another, and may encour-
age him in evil courses, and so obtain what
is called an "undue influence" over him, and
the consequence may be a will made in his
favor. But that, again, shocking as it Is,
perhaps even worse than the other, will not
amount to undue influence. To be undue
influence in the eye of the law there must
be— to sum it up in a word— coercion. It
must not be a case in which a person has
been induced by means such as 1 have sug-
gested to you to come to a conclusion that
he or she will make a will in a particular
person's favor, because, if the testator has
only been persuaded or induced, by con-
siderations which you may condemn, really
and truly to intend to give his property to
another, though you may disapprove of the
act, yet it is strictly legitimate, in the sens(»
of its being legal. It is only when the will
of the person who becomes a testator Is co-
erced into doing that which he or she does
not desire to do that it is undue influence.
The coercion may, of course, be of different
kinds. It may be in the grossest form, such
as actual confinement or violence; or a per-^
son in the last days or hours of life may
have become so weak and feeble that a very
little pressure wiU be suflicient to bring
about the desired result; and it may even
be that the mere talking to him at that stage
of illness, and pressing something upon him,
may so fatigue the brain that the sick per-
son may be induced, for quietness' sake, to
do anything. This would equally be coer-
cion, though not actual violence.
These illustrations will sufficiently bring
home to your minds that even very im-
moral considerations, either on the part of
the testator or of some one else offering
them, do not amount to undue influence un-
less the testator is in such a condition that,
if he could speak his wishes to the last, he
would say : "This is not my wish, but I must do
it." If, therefore, the act is shown to be the
result of the wish and will of the testator
at the time, then, however it has been
brought about,— for we are not dealing with
a case of fraud, — though you may condemn
the testator for having such a wish, though
you may condemn any person who has en-
deavored to persuade and has succeeded in
persuading the testator to adopt that view,
still it is not undue influence. There re-
mains another general observation that I
must make, and it is this: That it is not
sufficient to establish that a person has the
power unduly to overbear the will of the
testator. It is necessary also to prove that
in the particular case that power was exer-
cised, and that it was by means of the ex-
ercise of that power that the will, such as it
is, has been produced.
30
ERRORS IN WILLS.
In re GOODS OF HUNT.
(L. R. 3 Prob. & Div. 250.)
Court of Probate. May 4, 1875.
Application to probate will.
Sarah Hunt and Anu Hunt, spinsters and
sisters, residing together, in 1873 agreed to
make their respective wills, the object being
that, in the event of the death of either of
them, the survivor should enjoy the joint
property for life. Two wills were prepared
iu the handwriting of Sarah. The legacies
in each were identical, save that where one
gave a legacy to a certain charitable insti-
tution the other gave a similar legacy to an-
other charitable institution; and in each case
a life-interest was given to the survivor in
the bulk of her sister's property. After the
death of Sarah Hunt the two wills were
found together, indorsed, "The wills of Sarah
and Ann Hunt;" but on opening them it was
discovered that each sister had executed the
will prepared for the other. Most of the per-
sons interested in an intestacy consented that
the document executed by the deceased
should be recognized as her will, and probate
thereof be granted to the executors named in
it; but some of the persons were abroad, and
could not be communicated with.
Mr. Bay ford, for the motion.
Sir J. HAXNEN. I should be glad to give
effect to the intentions of the testatrix, by
granting probate of this instrument, if I
could, but I must not allow myself to be led
away from what appears to me to be very
plain ground by such a desire. No doubt
there has been an unfortimate blunder. The
lady signed as her will something which in
fact was not her will. If I were to attempt
to read it as her will. It would lead to a va-
riety of absurdities. She leaves to her sis-
ter, Sarah, that is, to herself, a life-interest
in a portion of her property, and all the fur-
niture, plate, etc., which she holds in part
with herself. I am asked to treat this as a
misdescription. If by accident a wrong name
had been introduced, and it was clear what
person was intended, the court would give ef-
fect to the instrument, providing the mistake
could be corrected. But it would be con-
trary to truth in this case if I acted on such
an assumption. If I were to put such a con-
struction upon this will, I should be assum-
ing, in order to do substantial justice, what
every one who hears me would know is con-
trary to the fact. And no court ought to
base its judgment on something wholly arti-
ficial, and contrary to what every one must
see is the real state of the circumstances. It
is enough to say that there has been an un-
fortunate blunder. A paper has been signed as
the lady's will which, as it happens, it treat-
ed as her will, would to a great extent, al-
though not entirely, carry out her wishes.
But in one respect it does not, for by it a
legacy is bequeathed to one charity which she
intended to leave to another. As regards this
legacy, it is suggested that it might be treat-
ed as if the deceased did not know and ap-
prove of that part of the will. But she did
not in fact know and approve of any part of
the contents of the pai)er as her will; for it
is quite clear that If she had known of the
contents she would not have signed it. I re-
gret the blunder, but I cannot repair It. I
reject the motion, but I allow the executors
costs out of the estate.
ERKORS IN WILLS.
31
GIFFORD V. DYER.
(2 R. I. 99.)
Supreme Court of Rhode Island. March Term,
1852.
Appeal from court of probate, Little Comp-
ton county.
Abigail Irish, who died December 6, 1850,
made a will two days prior to her death,
by which, after making small bequests to
the children of Robin GifEord and to others,
she gave the residue of lier property to her
brother-in-law, John Dyer, and her two neph-
ews, Jesse and Alexander Dyer. Robin Gif-
ford, her only child, was not mentioned in
the will. The will was offered for probate by
John Dyer, executor therein named, and was
contestcid by Robin Gifford. It appeared in
€vidence that at the date of the will he had
been absent from home, leaving a family,
for 10 years, unheard from, and was gener-
ally considered dead, bis estate having been
administered upon. Testatrix had resided
with John Dyer for some time previous to
her death. The scrivener who drew the will
testified as follows: "After I had read the
will to her, she asked if it made any differ-
ence if she did not mention her son. I ask-
ed if she considered him living. She said
she supposed he had been dead for years.
She said, if it would make any difference,
she would put his name in, 'for they will
break the will if they can.' I think that was
the expression she used. I think she said
what she had given to her grandchildren
was in lieu of what he would have, but am
not positive. I think her son left in 1841,
and was not heard of, to my knowledge.
She was speaking of a home at Mr. Dyer's
and said what she had given him would pay
him well. She said her gj'andchildren had
not been to see her while she was sick.'"
The court of probate admitted the will, and
Robin GifEord appealed.
Mr. ShelHeld, for appellant. A. C. Greene,
for appellee.
GREENE, 0. J. It is very apparent in the
present case that the testatrix would have
made the same will had she known her son
was living. She did not intend to give him
anything if living. But if this were not ap-
parent, and she had made the will under a
mistake aa to the supposed death of her
son, this could not be shown dehors the will.
The mistake must appear on the face of the
will, and it must also appear what would
have been the will of the testatrix but for
the mistake. Thus, where the testator re-
vokes a legacy, upon the mistaken suppo-
sition that the legatee is dead, and this ap-
pears on the face of the instrument of revo-
cation, such revocation was held void.
Campbell v. French. 3 Ves. 321.
82
WHAT CONSTITUTES A WILL.
In re OAWLEY'S ESTATE.
(136 Pa. St. 628, 20 Atl. 567.)
Supreme Court of Pennsylvania. Oct. 6, 1890.
Certiorari sur appeal to orphans' court,
Union county.
The facts are thus stated in the opinion of
the court below: "This case arises In the
following manlier: On the 16th of March,
1886, Benjamin Cawley and his sister, Mary
Cawley, both unmarried, made what may be
termed a 'joint will and testament,' duly exe-
cuted, and by which it is directed that, 'upon
the death of either, the survivor shall pay all
the debts of the decedent if the estate will
reach, and bury decedent properly, and pro-
vide tombstones. Secondly. If Benjamin
should be the first to die, or if Mary should
be the first to die, each gives to the survivor
all the rest and residue of his or her estate
for life, and, if needed, the body of the es-
tate so far as is necessary, and at the death
of the survivor, after brnial, tombstones, and
so forth are paid for, the residue is divided
into nine parts, and given to relatives and
parties named; and Horace C. Cawley named
executor. Benjamin Cawley died the 12th of
August, 1887, and on the 22d August, 1887,
the joint wUl was duly proved as the will of
Benjamin, and its provision as to his estate
carried into effect; Mary, the survivor, re-
ceiving Benjamin's estate for life, as provid-
ed in his will. Mary Cawley, however, on
the oth of September, 1887, made a separate
wUl, and revoked the joint wiU, and died on
the 29th January, 1888; and the joint will
was offered as Mary's will, and admitted to
probate by the register, on the 1st of Febru-
ary, 1888, and letters testamentary issued to
Horace B. Cawley, the executor therein named.
But, on the same day, Mary's second will,
of the 5th of September, A. D. 1887, was also
offered for probate; but the register refused
to consider it, and treated the joint wUl as
irrevocable, and that it must stand as Mary's
last will and testament. From this decision,
and admission of the joint wUl as Mary Caw-
ley's will, and the refusal to allow the prov-
ing of her second will, this appeal has been
taken to the orphans' court."
J. Merrill Linn and S. H. Orwig, for appel-
lants. Charles S. Wolfe, P. L. Hackenburg.
and Andrew A. Leiser, for appellees.
WILLIAMS, J. The question presented by
this appeal is one that has not arisen in
Pennsj'lvania until now. It is important to
a correct understanding of the real ground of
controversy to bear in mind the peculiar char-
acteristics of a contract, and those of a will.
A contract is an agreement between parties
for the doing or not doing of some particular
thing. The undertaking of one party is made
in consideration of something to be paid or
done by or on behalf of the other party, so
that the obligation to do and the right to re-
quire performance are reciprocal. A will, on
the other band, is simply a statement of a
purpose or wish of the maker as it exists at
the time. As often as his purpose or wish
changes, he may change the expression of it.
When and why a change shall be made de-
pends on himself alone. He is answerable
to no one for his determination to make one
rather than another disposition of his proper-
ty. After he has written out his will, and
executed it in accordance with the forms of
the law, it does not bind him; but, so long
as he lives, he may change his own purpose,
with or without a reason, and his last pur-
pose properly written out and executed is his
"last will and testament," because death
makes any further change impossible. The
binding force of a contract comes from the
aggregatio mentium of the parties. The bind-
ing force of a will comes from the fact that
it is the last expressed purpose of the testa-
tor In regard to the disposition of his proper-
ty after his own death. WhUe he lives. It is
without force or value, but it begins to speak
when he ceases to do so, and thereafter is
heard in his stead. Although these instru-
ments are so unlike, they may be, and some-
times are, combined so as to give a testamen-
tary character to what purports to be a con-
tract, or to convert a will into an irrevocable
agreement Whether any given writing Is
a will or a contract must be determined by
the character of Its contents, rather than
from its title, or any formal words with which
It may begin or conclude. The familiar form
of a wiU is that by which the testator directs
how his property shall be disposed of after
his death, and may be distinguished or de-
scribed as the simple will of the maker. If
two or more persons own property in com-
mon, they may convey It by joining in a deed,
or by executing separate conveyances at their
convenience. They may transmit the title,
each for himself, by a separate will; and
there is no objection, on principle, to their
joining In a testamentary disposition of it.
Such a will might be properly called a "joint
wUl," because executed jointly by several
owners, as a means of transferring thar
several titles to one devisee. The validity of
a joint will was at one time denied In Eng-
land, and has been denied in some of the
United States, but the reasons for such de-
nial relate rather to questions of probate than
to the power of the several testators, and do
not seem to have been regarded as settling
the question In the countries where the deci-
sions were rendered. 1 Williams, Ex'rs, 10.
Whether after the death of one or more of
the makers of such a will the surviving mak-
er may make a valid revocation as to his own
title or share of the property devised Is an
unsettled question, and Is not Involved In the
case before us, for the property to which this
will relates was not held in common by the
testators. Another class of questions is pre-
sented when two or more persons make re-
ciprocal testamentary provisions In favor of
each other, whether they unite in one will or
each executes a separate one. Such wills
WHAT CONSTITUTES A WILL.
33
may be described as "mutual" or "recipro-
cal." Their validity does not seem to be
doubted after the death of the respective tes-
tators; but the extent of the power of revo-
cation in the survivor after the death of one
or more of the testators is a question still In
controversy, and upon vchich different con-
clusions have been reached. In Evans v.
Smith, 28 Ga. 98, the will was signed by two,
and presented by the survivor for probate.
No revocation was attempted, and the only
question really before the court was the
validity of the paper as the will of the de-
ceased signer. The court held it valid, char-
acterizing it as a "double will." In Lewis
V. Scofleld, 26 Conn. 452, a similar will was
presented, and its validity upheld by the
court. In Betts v. Harper, 39 Ohio St. 639,
the tesfators were tenants in common. Aft-
er the death of both, it was probated as the
separate will of each, and the earlier case of
Walker v. Walker, 14 Ohio St. 157, which
had denied the validity of such a will, was
distinguished and qualified. The will of a
husband and wife making reciprocal provi-
sions for each other, and executed by both,
was sustained in Diez's Will, 50 N. Y. 88.
In Schumaker v. Schmidt, 44 Ala. 454, two
persons, who describe themselves as "friends
of many years standing," joined in a will oy
which the survivor was to take the property
of the one dying first. Auerback, one of the
joint makers, made a later will, with a dif-
ferent disposition of his property, and died.
The survivor insisted on the irrevocability of
the first will, and claimed the estate, but the
court upheld the last one. The point in con-
troversy was stated in the opening sentence
of the opinion of the court as follows: "Was
the writing between Schumaker and Auer-
back a compact, and not a will, or a will con-
taining a compact, and therefore irrevoca-
ble?" The conclusion of the court was that
the writing was not a compact, but a will,
and therefore revocable at pleasure. It is
worthy of note that the only consideration
expressed for the mutual provisions made by
the first will was the "mutual esteem" which
each entertained for the other. This might
change in degree, or cease altogether, at any
time. While it existed, it explained the mu-
tual or reciprocal provisions contained in the
will. It afforded not a consideration, but a
reason, for them.
The will now before us was executed by a
brother and sister. They were single, had
lived many years together, and were feeling
the infirmities of age. One owned a house
and lot worth about $3,000. The other owned
bank-stock of about the same value. Their
household goods seem not to have been the
exclusive property of either. They appear to
have lived together in the house, and used
the income from the bank-stock without keep-
ing an account with each other. By their
will they provided that the survivor should
have the property of the one first to die dur-
ing life, and that it should then go over to re-
LAW succ. — 3
mainder-men named. The learned gentleman
by whom it was drawn seems to have had
Walker. V. Walker, 14 Ohio St. 157, in his
mind, and to have drawn the paper with the
purpose of steering clear of the difficulty sug-
gested by it. To this end the will Is made
to speak for each devisor separately, thus:
"I, Benjamin Cawley, should I be the first
to die, and I, Mary Cawley, should I be the
first to die, give, devise, and bequeath and to
the survivor of either of us, all the rest and
residue of the decedent's estate, both real
and personal, to have and to hold and enjoy
the same during the life of the survivor, with-
out Impeachment for waste, and with leave
to use the body of the estate for necessity."
After the payment of debts and expenses, and
the expiration of the life-estate, the will di-
rects that the residue be divided Into nine
parts, and then proceeds: "Three of which
parts I give and bequeath to John Cawley-
two parts to Hepburn Cawley; one part to
Horace Cawley; one part to Mary Henson;
* * * one part to Ada Gllmore; * * *
and one part to Emma Barter." H. C. Caw-
ley was made a trustee for Ada, and her
share was devised to him thus: "I give and
bequeath to H. C. Cawley, in trust," etc.;
and the will then defines the nature of the
trust, and uses the words, "I distinctly de-
clare that the above trust Is an active one."
The singular number is invariably used
throughout the will, each testator speaking
for himself or herself only, and neither at-
tempting to speak for the other or of the oth-
er's property. Each seems to have desired
to make the same disposition of what he or
she owned. Both adopted the same written
expression of that desire, and executed it.
The will so made must be regarded, there-
fore, as the separate will of each testator, as
fully as though the will of each had been
separately drawn up and signed. There was
no joint property or joint devise. It is not,
therefore, a joint will. It is not a contract
between the makers in form or in effect. No
consideration passed from one to the other,
and none Is suggested, except the affectionate
interest which this aged brother and sister
felt for each other. This moved them to
provide for each other's comfort by a life-
estate in the survivor, but beyond that each
gave to the remainder-men only what each
owned. Such a will is properly described by
the phrase In Evans v. Smith, supra, as a
"double wIU." It must be construed and
treated as the separate will of each testator
who signed it, in the same manner as though
a separate copy had been executed by each.
It was therefore revocable by both. Benja-
min Cawley did not revoke, and his will is
to be executed In aiccordance with its terms.
Mary Cawley has exercised the power of
revocation, and changed the ultimate destina-
tion of her property. Her last will must pe
followed, therefore, in the distribution of her
estate. The decree of the court below is af-
firmed, at the cost of the appellant.
84
WHAT CONSTITUTES A WILL.
SHARP et al. v. HALL.
" (86 Ala. 110, 5 South. 497.)
Supreme Court of Alabama. Feb. 26, 1889.
Appeal from probate court, Colbert county;
John A. Steele, Judge.
Proceedings to probate an alleged will of
Ann E. Hornsby, deceased. The in.strument
in question was signed by Mrs. Homsby, un-
der seal, attested by two witnesses on an ac-
knowledgment of her signature, February 23,
1886, and was in the following words: "The
state of Alabama, Colbert county. These
presents show that, in consideration of the
love and affection I have to Julia M. Hall, T
do here now give and deliver to her the fol-
lowing property, to wit, a certain lot, or part
of lot, situated in the city of Tuscumbia,
known as part of lot No. 317, according to the
plat of said city, [describing it by metes
and bounds], together with all the tene-
ments and hereditaments thereunto apper-
taining, all of which I now hold and possess.
But I do hereby reserve the use, control, and
consumption of the same to myself, for and
during my natural life; and this is done in
part to do away with the necessity of tak-
ing out letters of administration after my
death. Teste my hand and seal, this
day of February, l&Stj." Mrs. Homsby died
in July, ISS". Letters of administration on
her estate as an intestate were granted soon
after her death, to Robert B. Lindsay, who,
while searching among her papers, found the
above instrument in a locked drawer, inclosed
in an envelope on which were written the
words "Xot to be opened until after my
death." Mrs. Hornsby's name was not sign-
ed to the memorandum, nor was it in her
handwriting. The administrator delivered the
paper to Julia 51. Hall, August 2, ISSS. and
it was propounded for probate by her. G.
A. and U. M. Sharp, who claimed as next of
kin, contested the probate on the following
grounds: "(1) Because said written instru-
ment is not in fact the will and testament of
said Ann E. Hornsby; (2) because said In-
strument was not duly executed, so as to
pass title to said real estate under the laws
of Alabama; (3) because said instrument was
not executed by said Ann E. Hornsby; (-1)
because said insU'ument is not testamentary
in its character; (.">) because said instrument
was not executed as required by law of a
last will and testament.'' An issue was duly
formed. On the trial of the cause the con-
testants objected, and excepted to the ad-
mission in evidence of the circumstances of
the making of the instrument contested; of
the relation the petitioner bore the deceased,
Ann E. Hornsby; of the non-delivery of the
Instrument; and of the othfer facts as shown
by the opinion. There were also separate ex-
ceptions reserved to the admission of the tes-
timony of the witness Davis to the effect
that ho c( nsldered the instrument a will, and
1li.it he iutenili'd to draft a will. The de-
f<;ndants requested the following charge in
writing, and excepted to the court's refusal
to give the same: "(0) The fact, if it be a
fact, that Mrs. Hornsby did not dispose of all
the property, must be considered with the
other evidence by the jury to ascertain
whether or not the instrument was intended
to be a will." There was a trial by jury,
and a Verdict for the proponent, followed by
a judgment admitting the will to probate.
Contestants appeal.
Kirk & Almon, for appellants. J. B.
Moore, for appellee.
STONE, C. J. There are few, if any, ques-
tions less clearly defined in the law-books
than an intelligible, ^uniform test by which
to determine when a given paper is a deed,
and when it is a will. Deeds, once lexecut-
ed, are irrevocable, unless such power is re-
served in the instrument. Wills are always
, revocable so long as the testator lives and re-
i tains testamentary capacity. Deeds take ef-
fect by delivery, and are operative and bind-
ing during the life of the grantor. Wills are
ambulatory during the life of the testator,
I and have no effect until his death. Out of
this has grown one of the tests of testamen-
. tary purpose, namely, that its operation shall
be posthumous. 11 this distinction were car-
ried into imiform, complete effect, and if it
, were invariably ruled that instruments which
I confer no actual use, possesion, enjoyment,
, or usufruct on the donee or grantee during
\ the life of the maker are always wiUs, and
never deeds, this would seem to be a simple
j rule, and easy of application. The corollary
, would also appear to result naturally and
'. necessarily that if the instrument, during the
lifetime of the maker, secured to the gran-
I tee any actual use, possession, enjoyment, or
! usufruct of the property, this would stamp it
I irrefutably as a deed. The authorities, how-
ever, will not permit us to declare such inflex-
iible rule. A declaration of trust by which
the grantor stipulates to hold in trust for
I himself during life, with remainder to a do-
nee, or succession of donees, certainly secures
no use, enjoyment, or usufruct to the remain-
der-man during the grantor's life. Yet it is
a deed, and not a will. 1 Bigelow, Jarm.
Wills, 17, and notes; Gillham v. Mustin, 42
Ala. 365. Can a tangible distinction he
drawn between such case and a direct con-
veyance, in form a deed, by which A. con-
veys to B., to take effect at the death of A.?
The human mind is not content with a dis-
tinction that rests on no substantial differ-
ence. Conveyances reserving a life-estate to
the grantor have been upheld as deeds. 2
Devlin, Deeds, § 983; Robinson v. Schly, 6
Ga. 515; Elmore v. Mustin, 28 Ala. 309;
Hall V. Burkham, 59 Ala. 349. In Daniel v.
Hill, 52 Ala. 430, 436, this court said: "A
deed may be so framed that the grantor re-
serves to himself the use and possession dur-
ing his life, and on his death creates a re-
mainder in fee in a stranger." Almost every
WHAT CONSTITUTES A WILL.
35
conceivable form of conveyance, obligation,
or writing, by ■which men attempt to convey,
bind, or declare the legal status of property
have, even in courts of the highest charac-
ter, been adjudged to be wills. The form of
the instrument stands for but little. When-
ever the paper contemplates posthumous op-
eration, the inquiry is, what was intended?
1 Bigelow, Jarm. Wills, 20, 25; Habergham
V. Vincent, 2 Ves. Jr. 204; .Tordan v. .Tor-
dan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430;
Shepherd v. Nabors, 6 Ala. 631; Kinnebrew
V. Kinnebrew, 35 Ala. 638. The intention of
the maker is the controlling inquiry, and
that intention is to be gathered primarily
from the language of the instrument itself.
Dunn V. Bank, 2 Ala. 152. The Intention
cannot be proved by a witness speaking di-
rectly thereto. But this does not, in cases of
inapt phraseology, — such as the present in-
strument discloses,— preclude proof of instruc-
tions given to the draughtsman, in reference
to the nature of the paper he was expected
to prepare. In Green v. Proude, 1 Mod. 117,
3 Keb. 310, the paper had striking character-
istics of a deed; but the court said: "Here
being directions given to make a will, and a
person sent for to that end and purpose, this
is a good will." Speaking of this case, Jar-
man (1 Bigelow's Ed. p. 19) says: "The
court seems to have been influenced by the
circumstance that the person who prepared it
was instructed to make a will." In Ware-
ham V. Sellers, 9 Gill & J. 98, the court de-
cided that testimony should have been re-
ceived of "conversations of the deceased,
made at the time of executing the said paper,
and from the other circumstances, that the
said P. S. made and executed the said paper
as and for his last will and testament, and in-
tended it as sucB." In this case the contro-
versy was whether the paper was a deed or
a will. To the same efEect is Witherspoon v.
Witherspoon, 2 McCord, 520. So all the at-
tending circumstances may be put in, proof
as aids in determining whether the maker in-
tended the paper should operate as a deed or
a will, whenever It is so framed as to post-
pone actual enjoyment under it until the
death of the maker. Gillham v. Mustin, 42
Ala. 365; Daniel v. Hill, 52 Ala. 430; Camp-
bell V. Gilbert, 57 Ala. 569; Jordan v. Jor-
dan, 65 Ala. 301; Rice v. Rice, 68 Ala. 216;
Lee V. Shivers, 70 Ala. 288; 1 Bigelow,
Jarm. Wills, 25; Gage v. Gage, 12 N. H.
371; Mealing v. Pace, 14 Ga. 596, 630; Sym
mes V. Arnold, 10 Ga. 506; Jackson v. Jack-
son, 6 Dana, 257. Another pertinent inquiry:
If a paper cannot have operation as a deed,
but may as a will, then in doubtful cases
we should pronounce it a will, ut res magis
valeat Bigelow, Jarm. Wills, 21, 22, 24, 25;
Attorney General v. Jones, 3 Price, 379;
Gage V. Gage, 12 N. H. 371; Symmes v. Ar-
nold, 10 Ga. 506.
The instrument sought to be established as
a will is in form a nondescript. It clearly
shows on its face that the donee or grantee
was to have no actual enjoyment of the
property— no usufruct- during the life of the
maker. Its language is: "I do hereby re-
serve the use, control, and consumption of the
same to myself for and during my natural
life." We hold that the paper, on its face,
falls within the indeterminate class, which,
according to circumstances, may be pronoun-
ced a deed or a will. We also hold that, on
the trial of the issue, it was competent to
prove that the maker was without lineal or
other very near relatives; that she was at-
tached to the donee, who was a member of
her household; that she sent for the draughts-
man of the paper, and employed him to
write her will, and that, in pursuance of such
employment, he wrote the paper in contro-
versy; that she signed it with a knowledge
of its contents, and had it attested; that she
did not deliver it, but had It placed in an en-
velope, and indorsed, "Not to be opened till
after my death;" and that she carefully pre-
served it in such envelope until her death.
Now, all these facts and circumstances, if
proved and believed, were competent and
proper for the consideration of the jury in de-
termining the issue of devisavit vel non. And
the fact, if believed, that the paper had never
been delivered, and therefore could not take
efEect as a deed, should also be considered in
arriving at the maker's intention.
In excluding. from contestants' exceptive al-
legation the averment that the paper is a deed,
the probate court committed a technical er-
ror. That was the real issue in the case.
This ruling, however, did the contestants no
injury, as they had the beneflt of the de-
fense it sought to interpose. 3 Btick. Dig. p.
405. § 20.
The paper over which the present conten-
tion arose contains the following clause:
"And this [the execution of the paper] is
done in part to do away with all need or ne-
cessity of taking out letters of administration
after my death." This clause is a circum-
stance which the jury may look at and con-
sider in determining whether Mrs. Homsby
intended that Julia M. Hall should take or
enjoy any interest during the former's life.
It is not conclusive, but must be weighed
with the other evidence. It would probably
be more weighty if it made provision for
Mrs. Hornsby's entire estate. Attempts-
fruitless, of course— are sometimes made to
dispense with administration, even in docu-
ments that are unmistakably testamentary.
Charge No. 6, asked by contestants, should
have been given. The remaining charges
asked by them were, in the light of the evi-
dence, calculated to confuse or mislead, and
were rightly refused on that account.
We have now considered all the questions
we deem necessary. In a very few of the
many rulings the probate court erred.
Reversed and remanded.
36
WHAT CONSTITUTES A WILL.
In re KBHOB.
(L. R. 13 Jr. 13.)
Court of Probate. Jan. 28, 1884.
Motion for probate, and that certain di-
rections be ordered to be incorporated In the
will of the testator, the Eev. J. Kehoe. An
affidavit of the Rev. Simon McWry was filed,
as follows: "That, to the best of my knowl-
edge and belief, the paper writing marked
'A,' now produced and shown to me, en-
titled 'Directions to the executors of my. last
will and testament, executed this 13th day of
February, 1879— How they are to manage
my affairs,' signed John Kehoe, P. P., and
dated February 13, 1879, which is all in the
handwriting of the said Rev. John Kehoe,
was written out by him previous to the ex-
ecution of his will; and immediately after
such execution copies of said will and said
direction, previously made by the said tes-
tator, and by one Maurice Kealy, were
placed by testator in an envelope, and hand-
ed to me for safe custody." The Rev. Pat-
rick P. Nolan, who was appointed executor
of the will by the codicil of the 20th of July,
1883, made the following affidavit: "The tes-
tator, by his will having bequeathed all his
property in trust to be disposed of in such
manner as he might direct, did give a direc-
tion in writing as to "the disposal of the
same, as of same date as of the will, viz.,
the 13th of February, 1879, and upon which
direction, marked with the letter 'A,' I have
indorsed my name."
William P. Ball, for executor.
WARREN, J. The Rev. John Kehoe, the
testator, made a will dated the 13th of Feb-
ruary, 1879, which contained this clause: "I
hereby bequeath to the Right Rev. James
Walsh and the Rev. Michael Conroy all
property I die possessed of," "in trust to be
disposed of in charity in such manner as I
may direct them; and, in case I may not
leave directions or Instructions, then they
may dispose of it in charity in such manner
as they may think fit;" and the same per-
sons are named executors. One of these ex-
ecutors — Mr. Conroy — having died, the testa-
tor made a codicil, dated the 20th of July,
1883, by which he nominated the Rev. Pat-
rick Nolan an executor of this will. The
testator signed a paper bearing the same
date as the will, containing directions for
the management of his affairs for charitable
purposes. This paper is in the handwriting
of the testator, and is headed, "Directions
to the executors of my last will, executed
on the 13th day of February, 1879— How they
are to manage my affairs." The court has
been moved for probate of the will and
codicil of the testator, with the paper of di-
rections incorporated.
The law of the subject of the incorporation
of papers, so far as it is necessary to con-
sider it on the present application, is thus [
stated in Jarman on Wills, (volume 1, p.
90:) "Three things are necessary: (1) That
the will should refer to some document as
then in existence; (2) proof that the docu-
ment propounded was in fact written before
the will was made; and (3) proof of the iden-
tity of such document with that referred to
in the will." The affidavit of the Rev. Simon
McWry is slightly ambiguous, (In re Ash, 11
Ir. R. Bq. 60, note,) in consequence of the
introductory words, "to the best of my
knowledge and belief;" but still. If that
affidavit be admissible in evidence, I think
it sufficient to prove that the paper of direc-
tions was in existence when the will was ex-
ecuted. It is certainly sufficient proof that
it was in existence before the executim of
the codicil; and the cases, including that
of Lady Truro, L. R. 1 Prob. & Div. 201,
to which I was referred by Mr. Ball, have es-
tablished that, in considering this question
of incorporation, the words of the will which
refer to directions must be taken as if
brought down to the date of the codicil,—
as if repeated in the codicil. It does appear
to me that, if the affidavit of Mr. McWry be
admissible, the evidence is sufficient to iden-
tify the paper of directions signed by the
testator as the directions to which he re-
ferred in his will. Therefore, if this affida-
vit is admissible, two of the requisites for
incorporation are found in the case before
the court, viz., proof of the fact of the ex-
istence of the paper when the will was
made, and proof of the identity of the paper
with that referred to in the will. As to the
necessity of these two of the elements men-
tioned in Jarman there can be no doubt I
may refer to Singleton v. Tomlinson, L. R.
3 App. Cas. 404, in the house of lords.
It remains to consider the third circum-
stance mentioned in the passage I have
quoted from Jarman. Does the will refer
to or describe this paper of directions as then
existing? If it does not, can the court re-
ceive any parol evidence on the subject of
these directions? As a matter of construc-
tion, it is clear that the will does not refer
to any document as then in existence. The
words are, "as I may direct," "in case I may
not have directed." But "may" and "may
not" imply that at the time the will was
written any directions had not been given or
written, and certainly do not suggest that
any existed at the time of execution. In
Sunderland's Case, L. R. 1 Prob. & Div. 198,
the words, "as shall be ticketed in papers
in my own handwriting," were held in
point of construction not to describe as then
existing certain papers which did then exist
as a matter of fact. If, then, this will does
not refer to any papers as then existing, can
the court receive parol evidence,— that is t»
say, as Sir C. Cresswell puts it, (3 Swab. &
T 12.) "to aid in the construction of what
the testator has written?" In my opinion,
the cases of Allen v. Maddock, 11 Moore, P.
0. 427; Van Straubenzee v. Monck, 3 Swab.
WHAT CONSTITUTES A WILL.
37
& T 12; and The Goods of Sunderland, L.
R. 1 Prob. & Div. 198,— establish the law
as laid down by Lord Penzance at the conclu-
sion of his judgment in the last-mentioned
case: "In order to let in parol evidence to as-
certain the truth, so far as it can be as-
certained by such evidence, with regard to
an unexpected testamentary document, the
passage in the will by which reference Is
made to it must describe it as a written doc-
ument then existing." The paper of direc-
tions in the present case is not so described,
and it must be excluded from probate.
It is ordered by the court that the said
Rev. Patrick F. Nolan, one of the executors
in said codicil named, be at liberty to apply
for probate of the said will and codicil, dat-
ed, respectively, the 13th day of February,
1870, and 20th of July, 1883, without incor-
porating in such probate the said paper writ-
ing dated the 13th of February, 1879, and
marked "A."
38
NUNCUPATIVE OR ORAL WILLS.
HUBBAKD V. HUBBARD.
(8 N. Y. 196.)
Court of Appeals of New Yoa-k. March, 1853.
Appeal from supreme court, second judi-
cial district.
Proceedings before the surrogate of SufEolli
county by Maria J. Hubbard to establish an
alleged nuncupative will of her deceased hus-
band, William L. Hubbard. William L.
Hubbard was master and owner of a coast-
ing schooner of Greenport, Long Island.
While on a return trip from Philadelphia
with a load of coal, and lying at anchor in-
side the Delaware breakwater on account of
headwinds, he was taken sick with Asiatic
cholera, and died the same day. The ves-
sel was anchored in tide-water about a mile
from the main-land, the same distance from
the open sea, and three miles from the near-
est place of settlement on shore. While de-
ceased was suffering from his disease, and
about an hour before he died, being of sound
mind and memory, he was asked if he had
a will, and replied that he had not. He was
then asked as to the disposition of his prop-
erty, and in reply stated, in the presence of
the surrounding seamen, that he wished his
wife to have all his personal property. Beck-
with, his mate, asked him if he wished her
to have his real property too, and he replied,
"Yes, all." Beckwith then asked him what
he should tell his wife, and he replied, "Toll
her I loved her to the end." Beckwith again
asked him whom he wanted to settle his af-
fairs, and he replied, "I want you to do it."
He did not ask any one to bear witness that
what he stated was his will. These conver-
sations being proved by four witnesses, the
surrogate adjudged them a good nuncupa-
tive wiU. Elias Hubbard, father of the de-
ceased and his heir at law, appealed to the
special term, where the decree of the surro-
gate admitting the will to probate was re-
versed. On a further appeal the judgment
of the special term was reversed, and Elias
Hubbard appealed to this court
S. D. Craig, for appellant. G. Miller, for
respondent.
MASON, J. It is provided in this state by
statute that no nuncupative or unwritten
will, befc[ueathing personal estate, shall be
valid, unless made by a soldier while in ac-
tual service, or by a mariner while at sea.
2 Rev. St. p. 60, § 22. As to the wills of sol-
diers in actual service and mariners at sea,
they are left entirely untrammeled by our
statutes, and are governed by the principles
of the common law. The exception in our
statute of wills in favor of soldiers and mar-
iners was taken from the 29 Car. II. c. 3,
and is precisely the same, and the same ex-
ception is retained in England by their new
statute of wills. 1 Vict. c. 26, § 11. The
testator was a mariner, within the meaning
of the statute. The courts have given a
very liberal construction to this exception in
behalf of mariners, and have held it to in-
clude the whole service, applying equally to
superior officers, up to the commander in
chief, as to common seamen. In re Goods
of Hayes, 2 Curt. Ecc. 338; 1 Williams,
Ex'rs, 97. It has been held to apply to the
purser of a man of war, and embraces all
seamen in the merchant service. Morrell v.
Morrell, 1 Hagg. Ecc. 51; In re Goods of
Hayes, 2 Curt. Ecc. 338; 1 Williams, Ex'rs,
97. This will was made at sea. In legal
parlance, waters within the ebb and flow of
the tide are considered the sea. Bouv. Law
Diet. tit. "Sea;" Ang. Tide-Waters, 44^49;
Thackarey v. The Farmer, Gilp. 528; The
Thomas Jefferson, 10 Wheat 428; Baker v.
Hoag, 7 N. Y. 561. Lord Hale Bays the sea
is either that which lies within the body of
the county or without it; that an arm or
branch of the sea within the "fauces terrae,"
where a man may reasonably discern be-
tween shore and shore, is, or at least may
be, within the body of a county, but that
part of the sea which lies not within the
body of a county is called the main sea, or
ocean. Harg. Law Tracts, c. 4, p. 10; Smith,
Const. § 588. He adds, "That is called an
arm of the sea where the sea flows and re-
flows, and so far only as the sea flows and
reflows;" and in this he follows the exact
deflnltion given by the Book of Assizes, 22
Id. 93; and this is the doctrine recognized
by the courts of this country. Thackarey
V. The Farmer, Gilp. 524; U. S. v. Grush, 5
Mason, 290; U. S. v. Wiltberger, 5 Wheat.
76-94; U. S. v. Robinson, 4 Mason, 307; U.
S. V. Ross, 1 Gall. 626.
The courts in England have gone to the
utmost verge of construction in extending
this exception in behalf of seamen. In a
case which came before the prerogative
court of Canterbury in 1840, when the de-
ceased was mate of her majesty's ship Cal-
liope, and while the vessel was in the har-
bor of Buenos Ayres, he obtained leave to
go on shore, when he met with a serious fall,
and was so severely injured that he died on
shore a few days after. Immediately after
the accident he wrote on a watch bill with
a pencil his will, and which was unattested,
but which was cut out and certified to by the
officers on board the ship, and the court held
it a good will of a seaman at sea, and or-
dered it to probate. In re Goods of Lay, 2
Curt. Ecc. 375. The common-law doctrine
in regard to nuncupative wills was borrowed
from the civil law. Drummond v. Parish, 3
Curt Ecc. 522, 531, et seq. By the civil law,
the strict formalities, both in the execution
and construction of nuncupative wills of sol-
diers, were dispensed with; and although
they should neither call the legal number of
witnesses, nor observe any other solemnity,
yet their testament was held good if they
were in actual service. Just. Inst. lib. 2, tit.
11; 1 Lomax, Ex'rs, 40. The civil law was
NUNCUPATIVE OR ORAL WILLS.
39
extremely indulgent In regard to the wills
of soldiers. If a soldier wrote anything in
bloody letters upon his shield, or in the dust
of the field with his sword, it was held a
good military testament. 1 Bl. Comm. 417;
1 Lomax, Ex'rs, 40, 41. The common law,
however, has not extended this privilege so
far as the civil. 1 Bl. Comm. supra. Black-
stone says that soldiers in actual military
service may make nuncupative wills, and
dispose of their goods, wages, and other per-
sonal chattels without those forms, solem-
nity, and expenses which the law requires in
other cases.
The rules, however, which are to be ob-
served in making wills by soldiers and mar-
iners, are the same by the common law and
yet it must be confessed that the formalities
which are necessary to be observed in the
making of wills by soldiers and seamen are
not defined with any very satisfactory pre-
cision in any of the English elementary
treatises upon the subject of wills. Swin-
borne says that those solemnities only are
necessary which are juris gemtium. Swinb.
Wills, pt. 1, § 14. Before the statute the ec-
clesiastical courts to whose jurisdiction the
establishment of personal testaments belong-
ed required no ceremonies in the publication
thereof,' or the subscription of any witnesses
to attest the same. 1 Rob. Wills, 147. A
will of personal estate, if written in the tes-
tator's own hand, though it had neither his
name nor seal to it, nor witnesses present at
its publication, was held effectual, provided
the handwriting could be proved. 1 Rob.
Wills, 148. And so if written by another
person by the testator's directions, and with-
out his signing it, it was held good. Id. 148.
It is laid down in books of very high author-
ity that a nuncupative testament may be
made, not only by the proper motions of the
testator, but also at the interrogation of an-
other. Swinb. WiUs, pt. 1, § 12, p. 6; Lo-
max, Ex'rs, 38; 1 Williams, Ex'rs, 102. And
Swinbome says, "As for any precise form
of words, none is required, neither is it ma-
terial whether the testator speak properly
or improperly, so that his meaning appears,"
(2 Swinb. Wills, pt. 4, § 26, p. 643;) and he
says, concerning the solemnities of the civil
law to be observed in the making of testa-
ments, soldiers are clearly acquitted from
the observation thereof, saving that, in the
opinion of divers writers, soldiers, when
they make their testaments, ouglat to require
the witnesses to be present. 1 Swinb. Wills,
pt. 1, § 14, p. 94. It is necessary, however,
that the testamentary capacity of the de-
ceased and the animus testandi at the time
of the alleged nuncupation should be clearly
and satisfactorily proved in the case of nun-
cupative will. 1 Williams, Ex'rs, 102; Le-
mann v. Bonsall, 1 Addams, Ecc. 389, 390.
In the present case the evidence most clear-
ly shows that the deceased was of sound
mind and memory, and I think the evidence
in the case satisfactorily establishes the ani-
mus testandi at the time of the alleged nun-
cupation. He told his mate, Beckwith, to
tell his wife that he loved her till the end.
He was extremely sick, and undoubtedly ap-
prehending death; and, when asked if he
had a will, he replied that he had not; and,
on being asked what disposition he wished
to make of his property, he said he wished
his wife to have all of his personal property,
and at the same time requested Beckwith
to settle his affairs and see to his business.
It should be borne in mind tbat as well the
testator as all of the witnesses present were
seamen, and were undoubtedly acquainted
with the rights of mariners in regard to mak-
ing their wills. They evidently understood
it to be a will, and spoke of it as such; and
I think the animus testandi is satisfactorily
established. The evidence is quite as strong
in the case under consideration as it was in
the case of Parsons v. Parsons, 2 Greenl. 298^
300, where the testator was asked to whom
he wished to give his property, and replied,
"To my wife; that is agreed upon;" and the
supreme court of Maine sustained the will
in that case. I am aware that it is said in
some of the books that it is essential to a
nuncupative will that an executor be nained.
But this is no more essential than in a writ-
ten will. Rolle, Abr. 907; How v. Godfrey,
Finch, 361; Prince v. Hazleton, 20 Johns.
522. I am inclined to think, however, that
the evidence is sufficient, in the present case,
to show that the testator intended to make
Beckwith his executor, but it is not neces-
sary that he should have named one. It is
not necessary to decide whether the mariner
must make his will in his last sickness and
In extremis, as was held to be the case under
our former statute of wills, (Prince v. Hazle-
ton, 20 Johns. 503,) and as is required under
the statutes of several of our sister states,
(Boyer v. Frick, 4 Watts & S. 357; Baker v.
Dodson, 4 Humph. 342; Offutt v. OfEutt, 3 B.
Mon. 162; In re Will of Yamall, 4 Rawle,
46; Werkheiser v. Werkheiser, 6 Watts St
S. 184; Winn v. Bob, 3 Leigh, 140: Mason
V. Dunman, 1 Munf. 456; Portwood v. Hun-
ter, 6 B. Mon. 538; Tally v. Butter worth, 10
Yerg. 501; Parsons v. Parsons, 2 Greenl.
298;) for there can be no doubt, upon the
evidence in this case, but this will was made
both In extremis, and in the last sickness,
and under circumstances which precluded
the making of a written will. I think that
the factum of this nuncupative will is clear-
ly established by the evidence in the case,
and also the testamentary capacity of the
deceased, and that the animus testandi at
the time of the alleged nuncupation is suffi-
ciently apparent from the evidence in the
case, and that the judgment of the supreme
court should be affirmed.
Judgment affirmed.
40
PRINCE,
NUNCUPATIVE OR ORAL WILLS.
Public Administrator,
TON et ux.
T. HAZLE-
(20 Johns. 502.)
Court of Errors of New York. Nov. 11, 1822.
Appeal from court of probates.
Application by Benjamin Prince, pubUc afl-
miiiistrator in the city of New York, for ad-
ministration on the estate of William Jones,
who died in New York city, April 17, 1820.
Mary Hazleton appeared before the surro-
gate, with her husband, George Hazleton,
and offered for probate an alleged nuncupa-
tive will of Samuel Jones, with the deposi-
tion of four witnesses thereto, taken ex parte
before a commissioner, May 4, 1820, as fol-
lows: "The last will and testament of Wil-
liam Jones, late of the city of New York,
gentleman, by word of mouth, made and de-
clared by him, on or about the eleventh day
of April, last past, in presence of us, the un-
dersigned, Jacob S. Arden, William Lee,
George Wateres, and Ellen Taylor, who have
hereunto subscribed our names as witnesses
to such last will and testament: 'I now say,
as I have repeatedly said before, that I leave
all the property I am possessed of to Mary
Hazleton. I do this in consequence of the
good treatment and kind attentions I have
received from her during my sickness. She
is worthy of it. No other person shall in-
herit my property. I wish you all In the
room to take notice of this.' In witness
whereof we have hereunto set our hands, this
seventeenth day of May, in the year of our
Lord one thousand eight hundred and twen-
ty." The surrogate refused to sustain the
alleged nuncupative will, under Laws N. Y.
Sess. 36, c. 23, § 14, ^hich provided that a
nuncupative will shall not be good unless
"made in the time of the last sickness of the
deceased." Proponents appealed to the court
of probate, where the decree of the surrogate
was reversed, and the will admitted. Prince
appealed to this court.
Hoffman and T. A. Emmet, for appellants.
Henry & Van Buren, for respondents.
KENT, Oh. The question to be discussed
is, whether the nuncupative will of William
Jones, as stated to have been made on the
11th of April, 1820, can be admitted to pro-
bate as being valid in law. It becomes a
complicated question, under the circumstan-
ces, and involves in the inquiry matter of fact
mixed with matter of law. I shall consider
it to be my duty to speak frankly and freely
on the whole subject of the case, but, at the
same time, with a sincere respect for the char-
acter of the court whose opinion is now under
review, and from which I shall be obliged
very greatly to dissent.
William Jones was an Irishman by birth,
and a religious Catholic by profession. He
was born in the county of Dublin, in Ire-
land, and received a school education about
30 years before his death, and which cames
us back to the year 1790. He had then liv-
ing parents, brothers and sisters, and he was
the youngest of the family. He was appren-
ticed to a house-carpenter in the city of Dub-
lin, and served a regular apprenticeship of
seven years. When this service expired, he
worked as a journeyman, for nine or twelve
months, and then emigrated to the United
States. This brings us, in the histoiT of his
life, to year 179j>, and perhaps that fact may
enable us to giive some probable solution of
the only circumstance that seems (if we ex-
cept the will) to cast any shade over the mem-
ory of this man. I allude to the change of
his paternal name, O'Coimor, for that of
Jones. It does not appear, precisely, when
he changed his name, but I refer it back to
that period as the probable time, and pre-
sume that he and his family were more or
less implicated in the peril of the rebellion,
which broke out in Ireland in 1798, in conse-
quence of an Ul-fated attempt to effect a
revolution In that kingdom. It is probable
that he may have emigrated for safety; and,
for greater safety, laid down the name of
O'Connor, which was then memorable in the
Irish annals, on the side of the unfortunate.
But, be this conjecture as it may, we find him
first at New York, then for two years at
Savannah, then living, for 12 or 14 years, in
the island of Cuba, and learning the Spanish
language, and where he probably made his
fortune. He is next traced, on his return to
the United States, to the cities of Baltimore,
Philadelphia, and New York; and in all of
them he seems to have had business, pecuni-
ary concerns, and friends.
These are the few and imperfect sketches
of his biography to be selected from the case,
before we find him rich in the fruits of his
enterprise, but sick with a disease of the
liver, at the boarding-house of Mrs. Fox, in
Cherry street, in New York, the latter end of
March, 1820. Jones, while at the house of
Mrs. Fox, claimed to be worth, altogether,
$65,000, in property existing in New York,
Philadelphia, Baltimore, and the island of
Cuba; and, to show that this claim had pret-
ty fair pretensions to truth, there was actual-
ly found at his lodgings, at his death, bank-
books, showing deposits to his credit, in one
or more banks of New York, to between thir-
teen and fourteen thousand doUai-s. He had
been sick at Mrs. Fox's about five weelcs,
when he is said to have made the will now
under consideration. During that time he
had one Ellen Taylor, a colored woman, for
his hired nurse; and there was a Mrs. Hazle-
ton, who had rooms, and boarded in the
same house, who also acted as his nurse.
Whether Jones ever saw or heard of Mrs. H.
before he came to board at Mrs. Fox's does
not appear, nor have we in the case any dis-
tinct lineaments of the character which Mrs.
H. sustains, or the business or purpose of
her life. She rented the two front rooms in
the boarding-house, and yet, her brother says,
KUNCUPATIVE OR ORAL WILLS.
41
she followed no kind of business. She has
had two husbands, and her present one Is
said to be a seafaring] man by one of her
witnesses, and another of them says that he
had been voyages at sea, and had been on the
gaol limits, and was then following his trade
of a whitesmith at Savannah. Why she lives
in this detached situation, without a family
of her own, and a husband to live with and
provide for her, as is quite common with
married persons, must be left to conjecture.
She was able, aU at once, and, as it would
seem, without any adequate cause, and with-
out any remarkable display of goodness, or
even of attention, to gain a wonderful as-
cendency over the affections of this sick
man. If her story be true, and the will gen-
uine, she obliterated from Jones' breast the
sense of friendship, the charities of religion,
the deep-rooted traces of national affection,
every tender recollection of the ties of blood,
of his natal soil, of the school-fellows of his
youth, of father and mother, brother and sis-
ter, relative and friend. He was persuaded,
at one nod, to pour the accumulated treas-
ures of his varied life into the lap of this
mysterious woman, — the acquaintance of a
day.
The will, as certified by the four witnesses,
is in these words: "I now say, as I have
repeatedly said before, that I leave all the
property I am possessed of to Mary Hazle-
ton. I do this in consequence of the good
treatment and kind attentions I have received
from her during my sickness. She is worthy
of it. No other person shall inherit my prop-
erty. I wish you all in the room to take
notice of this." This will carries marks of
fraud on its very face. Let us examine It at-
tentively. This sweeping donation is made
for what? For good treatment and kind at-
tention received from her during his sick-
ness. This sickness had lasted only five
weeks, and it was not so bad but that he was
able occasionally to ride out. No person ap-
prehended any immediate danger. He had
a hired nurse, a colored woman, who was by
him totally forgotten. What could this other
woman have possibly done, in the course of
five weeks, to awaten, in any rational mind,
a sense of such enormous obligation, or to
call forth such stupendous remuneration? I
am forcibly struck with the folly and false-
hood of the motive assigned. But the will
goes on, and adds, "she is worthy of it." And
where does her great merit appear, and from
what circumstance does she entitle herself
to this extravagant eulogy? The very dec-
laration that she was worthy to possess all his
estate proves that Jones must have been in-
sane, or that the whole is a base fabrication.
The will goes on further, and says, "No other
person shaU inherit my property." And why
these words of special exclusion of the rest
of the world? They seem to imply a heart-
lessness and misanthropy, very unnatural
and very improbable for any man to express
In the contemplation of death, <ind who was in
the enjoyment of the comforts and the smiles
of fortune; and especially for a native-born
Irishman, who was in the midst of his emi-
grant countrymen, and could not but have
heard and felt the claims of religion, of chari-
ty, of the widow, and the orphan. He then
adds, "I wish you all to take notice of this,"
—a speech which looks so much like contriv-
ance that it does, of itself, throw a suspicion
over the whole piece. This man must have
been previously told that the statute required
that, in making a nuncupative will, the testa-
tor must bid the persons present to bear wit-
ness that such was his will. It was made in
the middle of the day, when he was quite
comfortable, and far from the apprehension
of death, and, in this respect, with all punc-
tilious and technical adherence to forms. It
had the requisite number of witnesses and the
address to the by-standers. Jones must have
deliberately determined on a nuncupative in-
stead of a written will, and have previously
known and studied all the circumstances that
were requisite to make it valid, or else this
will has been since got up for him, like a
puppet-show by the art and cunning of some
juggler behind the scene.'
[His honor here went minutely, and at
large, into the examination of the testimony
in the cause, and particularly of that of the
four witnesses to the will, and observed
that, from the nature, the improbabilities,
the inconsistencies, and the absurdity of the
story, and the character and conduct of the
witnesses, he drew the conclusion that the
testimony of those witnesses was uttterly
unworthy of credit, and that the will was
evidently the production of fraud and per-
jury. After having disposed of the question
of fact, his honor proceeded as follows;]
But if we were to admit, against the truth
of the fact, that the will of the 11th of
April was actually and fairly made, accord-
ing to the certificate of the four witnesses,
it would then become a question of law
whether it amounted to a valid nimcupative
will. A "nuncupative will" is defined by
Perkins, (Conv. s. § 476,) in his book which
was published under Henry VIII., to be
properly when the testator "lieth languish-
ing for fear of sudden death, dareth not to
stay the writing of his testament, and there-
fore he prayeth his curate, and others, his
neighbors, to bear witness of his last will,
and declareth by word what his last will
is." So, again, in Swinburne, (Wills, p. 32,)
whose treatise was published in the time of
King James I., it is said that this kind of
testament is commonly made when the tes-
tator is now very sick, weak, and past all
hope of recovery. I do not infer from these
passages that unwritten wills were always
bad at common law, unless made in a case
of extremity, when death was just overtak-
ing the testator. In ignorant ages, there
was no other way of making a will but by
words or signs. Reading was so rare an
accomplishment in the earliest ages of the
42
NUNCUPATIVE OR OBAL WILLS.
common law that it conferred great privi-
leges, and tjie person who possessed it was
entitled, under the name of benefit of clergy,
to an exemption from civil punishment. But
those ancient writers mean to be under-
stood that in the ages of Henry VIII., Eliz-
abeth, and James letters had become so
generally cultivated, and reading and writ-
ing so widely diffused, that nuncupative
wills were properly, according to Perkins,
and commonly, according to Swinburne, con-
fined to extreme cases, and to be justified
only upon the plea of necessity. And this
has been the uniform language of the Eng-
lish law-writers from that time down to
this day, so that it has become the ac-
knowledged doctrine that a nuncupative wUl
is only to be tolerated when made in ex-
tremis. Thus in Bacon's Abridgement,
which was first published in 1736, and com-
piled chiefly from materials left by Lord
Chancellor Baron Gilbert, a nuncupative will
is taken from Perkins, and defined to be
when a man is sick, and for fear that death,
or want of memory or speech, should sur-
prise him, that he. should be prevented, if
he stayed the writing of his testament, de-
sires his neighbors and friends to bear wit-
ness of his will, and declares the same
presently before them. 7 Bac. Abr., by
Gwillim, 305. The same definition is adopt-
ed by Wood in his laborious work on Con-
veyancing, (volume 6, p. 574;) and in Black-
stone's Commentaries, (volume 2, pp. 5(X),
501,) a nuncupative will is defined to be one
declared by the testator in extremis before
a sufficient number of witnesses. After re-
citing the substance of the provisions of the
statute of 29 Car. II., (and which we have
re-enacted,) he adds: "Thus has the legis-
lature provided against any frauds in set-
ting up nuncupative wills by so numerous
a train of requisites that the thing itself
has fallen into disuse, and hardly ever
heard of, but in the only instance where
favor ought to be shown to it,— when the
testator is surprised by sudden and violent
sickness." And, while I am citing so many
English definitions of nuncupative wills, it
cannot be thought useless, and will not be
deemed unacceptable, that I should also re-
fer to the very respectable opinion of the late
chief justice of Connecticut, who declares,
when speaking of nuncupative wUls as un-
derstood in the English law, that they are
allowed only in cases where, in extreme
and dangerous sickness, the testator has
neither time nor opportunity to make a
written will. 1 Swift, Syst. 420.
It appears to me that these various writers
must be satisfactory to every one, as to the
true sense and meaning of a nuncupative
will under the English law. It is not easy
to recur to more accui*ate sources. The pro-
bate of wills being in England a matter of
ecclesiastical cognizance, cases on that point
rarely appear in the reports of decisions in
the courts of common law. I have, how-
ever, been able to select two or three cases
of nuncupative wills, which I shall submit
to the consideration of the court.
Cole V. Mordaunt, 4 Ves. 196, note, was
the case of a nuncupative will, in the 28tli
year of Car. II., and it is well worthy of
notice that this was only one year before
the 29th Car. II., when the statute relating
to nuncupative wills was passed, and is said
to be the principal case which gave rise
to that statute. The case was this: Mr.
Cole, at a very advanced age, married a
young woman, who, during his life, did
not conduct herself with propriety. After
his death, she set up. a nuncupative will,
said to have been made in extremis, (for
those are the words used in the report of
the case,) and by which the whole estate
was given to her, in opposition to a writ-
ten will made three years before, giving
3,000 pounds to charitable uses. The nun-
cupative will was proved by nine witnesses,
but the court of probate rejected the will,
and, on appeal to the delegates, a trial was
had at the bar of the king's bench, and it
appeared that most of the witnesses for the
nuncupative will were perjured, and Mrs.
Cole herself was guilty of subornation of
perjury. It was upon the occasion of this-
shocking and foul conspiracy that Lord
Chancellor Nottingham said "he hoped to
see one day a law that no written will
should ever be revoked but by' writing."
He was gratified in seeing such a law the
succeeding year; and I will venture most
respectfully to add that, if this nuncupative
will be established, I should also hope to see
one day a law that no nuncupative will
should be valid in any case. The case I
have cited contains a monitory lesson; and
it very much resembles, ia its principal
features, the one before us.
In Philips V. Parish of St. Clements' Danes,
1 Eq. Cas. Abr. 404, pi. 2, which was cited
upon the argument, and arose in 1704, one
Doctor Shallmer, by will, in writing, gave
£200 to the parish, and Prew, a reader in
the church, coming to pray with him, he
said, he gave £200 more towards building
the church, and died on the next day. This
was a case of a nuncupative will which only
failed for want of three witnesses. But
this testator was evidently in extremis. The
particulars are not stated, except only that
an officer of the church came to pray with
him, and that he died the succeeding day;
but those two circumstances well warrant
the inference. There is a very close analogy
between these nuncupative wills and a gift
upon the death-bed or a donatio causa
mortis; and these gifts are defined by the
court of chancery in Hedges v. Hedges,
Finch, Prec. 209, Gilb. 12, in the very terms
of a proper nuncupative will. A donatio
causa mortis is where a man lies in ex-
tremity, or being surprised by sickness, and
not having an opportunity of making his
will, but lest he should die before he could
NUNCUPATIVE OE ORAL WILLS.
43
make it, gives away personal property with
his own hands. If he dies, it operates as a
legacy. If he recoveirs, the property reverts
to him.
Upon the strength of so much authority,
I feel myself warranted in concluding that
a nuncupative will is not good unless it be
made by a testator when he is in extremis,
or overtaken by sudden and violent sickness,
and has not time or opportunity to make
a written will. The statute of Car. II., so
often referred to, and which we have lit-
erally adopted, requires a nuncupative will
to be made by a testator in his last sickness,
and in his own dwelling-house, or where he
had been previously resident for 10 days,
unless surprised by sickness on a journey, or
from home. The last sickness, in the pur-
view of the statute, has been always under-
stood (for so I infer from the cases cited) to
apply to the last extremity mentioned in
the books; and it never was meant to up-
hold these wills, made when there was no
immediate apprehension of death, and no
inability to reduce the will to writing. A
case of necessity is the only case, according
to Blackstone, in which any favor ought to
be shown them. If they are alleged to
have been made in a case unaccompanied
with necessity, the presumption of fraud
attaches to the very allegation. Let us
suppose, by way of illustration, the Instance
of a person gradually declining under the
operation of some slow-paced disease, as the
affection of the liver, or the consumption of
the lungs, or the dropsy, or the cancer.
The patient is himself, we will suppose, un-
der no immediate apprehension of death,
nor is any such alarm excited in others. He
is comfortably seated in his chamber, in the
midst of a populous city, and with ample
means to command every kind of assistance.
He has had a fair common education, and
knows well how to read and write. He has
been a man of good understanding, habits
of business, and of successful enterprise, and
has accumulated a fortune. He is well
versed In the knowledge and in the affairs
of mankind. He has pen, ink, and paper
at hand, with an adroit physician at his
elbow, and a favorite friend at his side, on
whom he wishes to bestow his fortune. He
is in the middle of life, with his intellect
perfectly sound. He proposes, or it is pro-
posed to him, to make his will. Would such
a man, in such a case, ever dream of mak-
ing a nuncupative will? Would any honest
or discreet friend ever advise him to it?
If that should be his wish, or if that should
be the suggestion of others, would the law
tolerate such an indulgence, under the no-
tion that he was in his last sickness? Sure-
ly, the good sense of the law, as the books
explain that law, and the cautious and jeal-
ous provisions of the statutes of frauds,
never intended a nuncupative will for such
an occasion. The law wisely discriminates
between written and unwritten wills, and
permits the latter only in cases of urgent
necessity. To abolish that distinction would
be to abolish protection to property, to en-
courage frauds and perjuries, and to throw
us back upon the usages of the unlettered
ages.
If nuncupative wills can be permitted at
all, in the cases of chronic disorders, which
make silent and slow, but sure and fatal,
approaches, it is only in the very last stage
and extremity of them. In no other period can
such a disorder be deemed, within any rea-
sonable construction of the statute of frauds,
a man's last sickness. Such diseases con-
tinue for months, and sometimes for years.
In one of Captain Cook's voyages, he states
that he lost his first lieutenant, Mr. Hicks,
near the conclusion of the voyage of three
years, and almost within sight of the Eng-
lish coast. But he adds, that, as his disease
was the consumption, and as it existed when
he left England, it might be truly said
that he was dying during the whole voyage.
What would the law call that man's last
sickness? Not the whole voyage, surely, and,
probably, it would be narrowed down to the
last day, and to the last hour, of his ex-
istence. We must give a reasonable inter-
pretation to the statute in reference to the
mischief and to the remedy. We cannot
safely apply a man's last sickness to the
whole continuance of a proti-acted disease,
without giving to the statute an absurd con-
struction. I do, therefore, most confidently
insist that Jones was not in this last sick-
ness on the 11th of April, within the sense
or within the policy of the statute, and that
he was not then entitled to make a nuncu-
pative will.
There is one other consideration that im-
parts to this subject of nuncupative wills a
momentous character, and ought to incline
us to give to them as little countenance as
possible. As soon as a nuncupative will is
made, it becomes the interest of the legatee
that the party's sickness should prove to be
his last sickness; for, if he recovers, the wUl,
of course, falls to the ground. Not so with
a written will. That remains good until re-
voked, and it cannot be revoked but by
writing. Let us for one moment pause over
this consequence of nuncupative wills, and
observe with what a deleterious influence
they must suddenly act upon the heart, and
what a powerful appeal they at once make
to the selfish and dark passions of the hu-
man mind. The title of the legatee de-
pends altogether upon the precipitate death
of the testator. Every day that his life is
prolonged more and more impairs the char-
acter of the will, and it vanishes if he be-
comes convalescent. Suppose the testator
was understood to possess a large amount
of cash in hand, and that he gives it all,
by a nuncupative will, to a stranger to
whom the law would not have given it.
Suppose that stranger to be his physician,
or, as in the present case, his nurse, what
44
NUNCUPATIVE OR ORAL WILLS.
hold has the testator on her fidelity, her
kindness, or her Integrity? Her interest and
her wishes (if indeed her wishes procured
the will) must be to destroy, and not to heal,
her benefactor. The legacy operates as a
bounty upon his death. One cannot con-
template a nuncupative will under this as-
pect without sensations of horror. Well
might such a man exclaim, as Jones is said
to have done, repeatedly, "My life depends
upon that woman."
I am accordingly of opinion, both upon the
law and upon the fact, that the decree of
the court of probate, directing the nuncupa-
tive will of William Jones to be admitted to
probate, was erroneous, and ought to be re-
versed; and that the decree of the surro-
gate of the city and county of New York, of
the 17th October, 1820, directing the appli-
cation to admit the said nuncupative will to
probate to be dismissed, and that letters of
administration of the goods, chattels, and
credits which were of William Jones, de-
ceased, be granted and issued, according to
law, as in cases of intestates, be confirmed.
Decree of reversal.
For reversal, 23.
For aflBrmance, 7.
EXECUTION or WILLS.
45
COOK V. WINCHESTER et al.
(81 Mich. 581, 46 N. W. Rep. 106.)
Supreme Court of Michigan. July 2, 1890.
Case made from circuit court, Kent coun-
ty; Grove, Judge.
Petition by Ariston J. Coolc to admit to
probate the alleged will of Alzina Page, de-
ceased. Contested by Laaden Winchester
and Clarissa Winchester. Probate was re-
fused by the probate judge, and, on appeal
to the circuit court, this action was affirm-
ed. Proponent appealed to this court.
' Maher & Felker, for appellant Butter-
field & Keeney and Thompson & Temple, for
respondents.
MORSE, J. This controversy involves the
validity of a will, the sole question being
whether or not it was duly executed, or
rather witnessed, under the laws of this
state. There Is no question of fraud or un-
due influence in the case, nor did the tes-
tatrix lack mental capacity to execute a will.
It must be conceded from all the testimony
in the case that the will was drawn by an
honest, disinterested, and trustworthy man;
that he was the chosen instrument of Mrs.
Page to draft it; that she had frequently
consulted and advised with him before as
to the disposition of her property, and had
told him how she intended to bequeath it;
that the will as made was just as she want-
ed it, and as she had long intended to malse
it; that it was read to her before she signed
it and after she signed, at both of which
times she expressed herself as fully satis-
fied with it; that she signed it in the pres-
ence of the persons who witnessed it, and
that she requested them to witness it; that
she aslied them after it was executed if they
had witnessed it, and received an affirmative
answer, and was then shown their signa-
tures, and their names were read over to her.
If the will is not sustained, the property
will certainly go, under the law, where she
did not wish it to go. It is therefore the
duty of the courts to uphold it if possible.
It is claimed that the requirements of our
statute were not complied with in the wit-
nessing of this will. The statute provides
(How. St. § 5789) that three things are
requisite to the validity of a will: (1) That
it shall be in writing; (2)' that it shall be
signed by the testator, or by some person in
his presence, and by his express direction;
(3) that it shall be attested and subscribed,
in the presence of the testator, by two or
more competent witnesses.
The will was drawn by James Toland, su-
pervisor of the township of Byron, Kent
county, who lived only a few rods from Jlrs.
Page, and with whom she had frequently
talked about making her will, and how she
wished it drawn. On June 30, 1888, she sent
for him. Mrs. Page had been an invalid for
many yeare, and at this time was confined
to her bed, and unable to leave it without
help. Toland fotind her in a bedroom ad-
joining, and opening by a door into, the
kitchen,— a kitchen bedroom, — which com-
municated with no other room. He asked
Mrs. Page, who said that she was ready to
make her will, and wished him to draw it,
If she wanted it drawn in the same manner
as she had before told him to draw It. She
said, "Yes," and he proceeded. There was
no table in the room where Mrs. Page was,
and he drew the will on a table in the kitch-
en. This table was near the bedroom door,
but when the door was open it was impos-
sible for any one lying squarely on the bed
to see the table or any one sitting at it.
Mrs. Page could not move in bed, and was
not able to see the table. Toland drew the
will, and took it into the bedroom, and read
it to Mrs. Page. She was satisfied with the
will. Not being able to handle a pen very
well, she requested Toland to write her
name. He went to the kitchen table and
wrote it He then came in, and she made
her mark. Three ladies were present in the
room, Mrs. Weaver, Mrs. McConnell, and
Mrs. Miller. Mrs. Page requested Mrs.
Weaver and Mrs. McConnell to witness the
will. Mrs. Weaver did not wish to sign it
for some reason, and Mre. Page then signi-
fied that she wished Mrs. MlUer to witness
it. Mrs. Miller and Mrs. McConnell then
stepped into the kitchen and signed the
will as witnesses. Mr. Toland and the wit-
nesses then went into the room again, and
Toland read the will over to her again, and
asked her if It suited her. She said it was
all right,— just as she intended It should be.
Toland showed the names of the witnesses
to her, and also read them to her. He tes-
tified that previous to his showing it to her
she asked the witnesses if they had signed
It, and they told her they had. The door
was open between the kitchen and bedroom
when the witnessing was done. Mrs. Mil-
ler's testimony agrees with Toland, except
she says that she stood in the door when
the will was being read over after the wit-
nesses had signed it, and did not hear Mrs.
Page ask her or Mrs. Oonnell if they had
signed as witnesses, but heard Toland tell
her that they had witnessed the will, and
read their names to her. Mrs. McConnell
(now Mrs. Merritt) states that when they
went back Into the bedroom after witness-
ing the will, and Toland read it all over to
Mrs. Page again, she said it was all right,
and just as she wanted it; the witnesses
and everything were all right. "She asked
me if we had signed it, and I told her we
had. Mrs. Miller and Mr. Toland were
there." The room In which Mrs. Page was
lying was eight feet square. The kitchen
was about fifteen feet square. The distance
from where the witnesses sat while signing
the will to the bed of Mrs. Page was about
twelve feet The will was denied probate
46
EXECUTION OP WILLS.
by the Judge of probate of Kent county,
and on appeal to the circuit court his action
was affirmed.
It is claimed that the will was not execut-
ed—witnessed—in the presence of the testa-
trix. It is true that it was physically im-
possible for her to see the witnesses when
they were in the act of signing it without
moving herself upon the edge of the bed,
which she was unable to do. And it is ar-
gued by counsel for the contestants that
there are no cases to be found in the boolss,
except possibly two, which can be claimed
as authority for the admission of the will
to probate. That the statute has been uni-
formly held to require that "the condition
and position of the testator when his will
is attested, and La reference to the act of
signing by the witnesses, and their locality
when signing, must be such that he has
linowledge of what is going forward, and is
mentally ojjgervant of the specific act in
progress, and, unless he is blind, the signing
by the witnesses must occur where the tes-
tator, as he is circumstanced, may see them
sign if he choose to do so. If in this state of
things some change in the testator's posture
is requisite to bring the action of the wit-
nesses within the scope of his vision, and
such movement is not prevented by his phys-
ical infirmity, but is caused by an indispo-
sition or indifference on his part to take
visvial notice of the proceeding, the act of
witnessing is to be considered as done in his
presence. If, however, the testator's ability
to see the witnesses subscribe is dependent
upon his ability to make the requisite move-
ment, then if his ailment so operates upon
him as to prevent this movement, and on
this account he does not see the witnesses
subscribe, the will is not witnessed in his
presence." Aikin v. Weckerly, 19 Mich.
.")i>4, 505. A large number of cases are cited
in support of the counsel's claim, to wit:
Mandeville v. Parker, 31 N. J. Eq. 242;
Wright V. Manifold, 1 Maule & S. 294; Reyn-
olds V. Reynolds, 1 Speers, 253; Robinson
V. King, 6 Ga. 539; Brooks v. Duffell, 23 Ga.
441; Reed v. Roberts, 26 Ga. 294; Jones v.
Tuck, 3 Jones (N. C.) 202; Eccleston v.
Petty, Garth. 79; Broderick v. Broderick, 1
P. Wms. 239; Lamb v. Girtman, 33 Ga. 289;
Neil V. Neil, 1 Leigh, 6; Omdorff v. Hum-
mer, 12 B. Mon. 626; In re Downie's Will,
42 Wis. 66; Duffie v. Corridon, 40 Ga. 122;
Edelen v. Hardey's Lessee, 7 Har. & J. 61;
Russell V. Falls, 3 Har. & McH. 457; Gra-
ham V. Graham, 10 Ired. 219; In re Cox's
Will, 1 Jones (N. C.) 321; Ragland v. Hunt-
ingdon, 1 Ired. 561; Chase v. Kittredge, 11
Allen, 49; Compton v. Mitton, 12 N. J. Law,
71; Combs v. Jolly, 3 N. J. Eq. 625; Mickle
V. Matlack, 17 N. J. Law, 86; Hindmarsh v.
Carlton, 8 H. L. Cas. 160.
It must be conceded that these cases all
fully support the contention that the will
must be witnessed in the same room with
the testator, or, if out of the room, where
he can see them sign if he desires to do so;
he must be in a position where it is possible
to see them. The fact that the will, after
being witnessed out of the testator's sight,
is brought to the view of the testator, and
he looks upon the signatures of the witness-
es, and they then acknowledge the witness-
ing of it before him, will not cure this de-
fect in its execution, according to the au-
thority of some of these cases. See Chase v.
Kittredge, 11 Allen, 61; In re Cox's Will, 1
Jones (N. C.) 321; Graham v. Graham, 10
Ired. 219; Russell v. Falls, 3 Har. & McH.
457; Lamb v. Girtman, 33 Ga. 289; In re
Downie's Will, 42 Wis. 66.
The extreme rule laid down in some of
these cases cited by counsel for contestants,
notably. Graham v. Graham, supra, a North
Carolina case, was criticised, and I think
justly so, by Justice Champlin in Maynard
V. Vinton, 59 Mich., at pages 148, 149, and
26 N. W. Rep., at pages 405, 406, but for the
purposes of that case the doctrine of Aikin
V. Weckerly was adhered to. In Maynard v.
Vinton, the testatrix was in a position where
she might have seen the witnesses sign, as
they were within the range of her vision if
she saw fit to look, as was also the case
with the testator in Aikin v. Weckerly. The
precise question raised by the record in this
case has never been presented to this court,
and neither of the two cases above mention-
ed seems to stand in the way of a just and
liberal construction of the statute in this
case in favor of the validity of the execu-
tion of this will of Alzina Page. I agree
with Judge Champlin that "presence," as
used in the statute, has been too narrowly
construed by many of the courts as meaning
that the witnesses must be under the eye of
the testator. I find two cases referred to on
the argument where the facts are almost
identical with those found by the circuit
judge in this case, and in both of which the
will was sustained. In the first, (Sturdivant
V. Birchett, 10 Grat. 67,) the will was attest-
ed by the witnesses subscribing their names
as such in a different room from that in
which the testator was lying at the time of
such signing. The testator could not see
the witnesses in the act of signing, either
from the bed on which he lay or from any
other place within the room. The testator
signed the will in the presence of the wit-
nesses, and requested them to attest it
They went together into another room for
that purpose, it being inconvenient to do so
in the room where the testator was lying.
When they subscribed their names no other
pereon was in the room, and they immedi-
ately returned to the room where the testa-
tor was. They were gone from that room
not over two minutes. They took the will to
the testator, who was lying in bed, and,
both of the witnesses being together, one of
them said to him, "Mr. Sturdivant, here is
your will witnessed;" at the same time
pointing with his finger to the names of the
EXECUTION OF WILLS.
47
witnesses, and holding the will open before
him, the names of said witnesses being on
the same page, and close to that of the tes-
tator. He took the will in his hands, and
looked at it as if he was examining it. He
then closed or folded it. On being told that
he was ill, and had better give the will to
some one to keep for him, he asked whether
if he got well he could take it back from the
person to whom he might give it. Being an-
swered in the affirmative, he said: "It is
my will, and I wish it to stand, but I may
hereafter, on getting well, wish to make
some slight alteration in it." He then hand-
ed the will to a friend. In the other case,
of Riggs V. Riggs, 135 Mass. 238, (decided
June 21, 1883,) the witnesses to the will
saw the testator sign it, and were in .the
room with him at the time. They signed it
as witnesses in a room adjoining the one tes-
tator was in, and at a distance of about nine
feet from him, the door being open. The
testator was in bed, and in such a position
that if he had been able to turn his head
round he might, by so turning it, have seen
the witnesses when they signed their names,
and also the will itself, unless during a
part of the time when their bodies obstruct-
ed the view; but from the effect of an injury
which he had received he could not in point
of fact turn his head sufficiently to see them
and the will at the time when they were
signing their names as witnesses. After the
witnesses had signed the will it was hand-
ed to the testator as he was lying upon the
bed, and he read their names as signed, and
said he was glad that it was done.
These cases differ from the one at bar only
in the fact that the will was taken, after
witnessing, into the hands of the testator,
who in one case looked at it, and in the oth-
er read the names, while in Mrs. Page's case
the names were shown her while the will
was in the hands of the scrivener and read
to her, as well as the names of the witness-
es to it. The difference is unimportant. In
all three of the cases the maker of the will
knew what he or she was doing, and what
was being done, being conscious of all that
took place, and no claim of fraud is made
or entertainable in any of them. The major-
ity of the Virginia supreme court (three out
of five judges) sustained the will in the first
case, and held that the statute was substan-
tially complied with, in a very able and ex-
haustive opinion by Justice Lee. In his
opinion the learned justice shows conclusive-
ly from the authorities that the words "in
presence of" do not necessarily imply that
the testator and the witnesses must be in
the same room, nor that actual sight or in-
spection of the process of signing is peremp-
torily required, because it is well settled that
a blind man may make a will. He holds
that the recognition by the witnesses of
their signatures to the will made within
the immediate sight and presence of the tes-
tator, immediately after they have signed
it in an adjoining room, furnishes as com-
plete a security against the frauds and im-
positions sought to be guarded against by
the statute as the actual manual operation
of writing their names by the witnesses un-
der his eye. The identity of the witnesses
is also equally assured in both modes. In
the Massachusetts case the court was unani-
mous in sustaining the will. In referring to
the holding by some of the courts that an at-
testation was insufficient when the testator
did not and could not see the witnesses sub-
scribe their names, Chief Justice Morton,
speaking for the court, says: "We ai-e of
opinion that so nice and narrow a construc-
tion is not required by the letter, and would
defeat the spirit, of our statute. * * *
The statute does not make the test of the
validity of a will to be that the testator must
see the witnesses subscribe their names.
They must subscribe 'in his presence,' but in
cases where he has lost or cannot use his
sense of sight, if his mind and hearing are
not affected, if he is sensible of what is
being done, if the witnesses subscribe in the
same room, or in such close proximity as
to be within the line of vision of one in his
position who could see, and within his hear-
ing, they subscribe in his presence. * * «
In a case like the one before us, there is
much less liability to deception or imposi-
tion than there would be in the case of a
blind man, because the testator, by holding
the will before his eyes, could determine by
sight that the will subscribed by the witness-
es was the same will executed by him.
* * * The door was open, and the table
was within the line of vision of the testator,
if he had been able to look, and the wit-
nesses were within his hearing. The tes^
tator could hear all that was said, and knew
and understood all that was done; and, aft-
er the witnesses had signed it, "' ■* * it
was handed to the testator, and he read
their names as signed, and said he was glad
it was done. For the reasons before stated,
we are of opinion that this was an attesta-
tion in his presence, and was sufficient."
So, in this case, the witnesses were in the
line of the testatrix's vision if she could
have moved to one side of the bed, which
she could not do, as in the Massachusetts
case the witnesses were in the range of
the testator's vision if he could have turned
his head, but he could not. I am better sat-
isfied with the liberal construction of the
statute and the reasoning of these two
cases than I am with the authorities cited
to the opposite, and sustaining the "nice
and narrow" interpretation of the statute;
and in the case at bar, such holding, as it
will in most cases, reaches the justice and
equity of the case, which adds to my satis-
faction. No fraud was perpetrated, and none
well could have been, under the circumstan-
ces of the execution of this will. But iii
holding the will invalid, a fraud is commit-
ted upon the testatrix, as well as her chosen
48
EXECUTIOX OF WILLS.
beneneiary, by the law, and her property Is
disposed O'f contrary to her wish and inten-
tion, to those from whom she sought to keep
it away. It is not the purpose or province
of the law to do this when it can be avoid-
ed. In the definition of the phrase "in the
presence of" due regard must be had to the
circumstances of each particular case, as it
is well settled by all the authorities that the
statute does not require absolutely that the
witnessing must be done in the actual sight
of the testator, nor yet within the same
room with him. If, as before shown, they
sign within his hearing, knowledge, and un-
derstanding, and so near as not to be sub-
stantially away from him, they are consider-
ed to be In his presence. But we hold that
the execution of this will was valid express-
ly upon the ground that not only was the act
of signing by the witnesses within the hear-
ing, knowledge, and understanding of the
testatrix, but after such signing the wit-
nesses came back into the room where she
was with the will, which was on one sheet
of paper; that the will was then again all
read over to her by the scrivMier, and the
names of the witnesses read to her and their
signatures shown to her, and she informed
by the witnesses, or one of them in the pres-
ence of the other, that the will had been
signed by them; and that she then said it
was all right, "just as she wanted It; wit-
nesses and evei-ything was all right" This
seems to us to have been a substantial com-
pliance with ' the statute, and a witnessing
In the presence of the testatrix. The cir-
cuit judge returns in his findings of fact
that his decision was based entirely on the
ground that the will was not properly wit-
nessed under the statute; that, the will not
being admitted in evidence for this reason,
the case proceeded no further, the proponent
taking an exception, and resting. The con-
testants announced that they were prepared
to show that the testatrix was incomi)etent
to make a will. The judgment of the cir-
cuit court will be reversed, and a new trial
granted. The other justices concurred.
EXECUTION OF WILLS.
49
ADAMS V. FIELD.
(21 Vt. 256.)
Supreme Court of Vermont. Feb. Term, 1849.
This Is an appeal from a decree of the pro-
bate court of the district of Fairhaven, which
approved and allowed an instrument in writ-
ing presented as the last will and testament
of Samuel Adams, deceased. It was object-
ed by the appellant (1) that said instrument
was not signed by said Samuel Adams, nor
by any other person in his presence, and with
his express direction; (2) that it was not sub-
scribed by three credible witnesses in the pres-
ence of said Samuel Adams and of each oth-
er; and (3) that it was not the last will and
testament of said Samuel Adams. The in-
strument commenced: "I, Samuel Adams, of
Westhaven, * * * do hereby make this,
my last will and testament;" and concluded
as follows: "In testimony whereof I have
hereunto set my hand and seal, and publish
and declare this to be my last will and tes-
tament, this 12th day of September, in the
year of our Lord eighteen hundred and thirty-
seven. Signed, sealed, published, and de-
clared by the said Samuel Adams, as his last
will and testament, in presence of us, who
have hereunto subscribed our names as wit-
nesses thereof, at the request and in the
presence of the testator, and in the presence
of each other. [Seal.]" This last clause pur-
ported to be signed by three witnesses; but
the name of Samuel Adams did not appear
in any place upon the instrument, except in
the first clause of the will, and in the attest-
ing clause, as above shown. The case was
tried before a jury, and evidence was receiv-
ed which tended to prove that the will, though
written at dlfCerent times, was wholly in the
testator's handwriting, and that it was sub-
scribed by the three attesting witnesses in
the presence of the testator and of each oth-
er, and at his request, he declaring it at the
time to be his will. The judge instructed
the jury that the writing by Samuel Adams
of his name in the attestation clause was a
sufficient and legal signing under the statute of
the state; also that it was not necessary that
the writing of his name in the beginning of
the instrument should have been one simul-
taneous act with the writing by him of the
whole instrument, In order to constitute the
same a legal or sufficient signing, nor was it
necessary that the whole act or intended in-
strument should have been in his contempla-
tion when he so wrote his name; and that,
even If the dilferent parts of the instrument
were written at different times, yet if the
jury should find that the instrument com-
menced in his name, and was wholly written
by him, and that, after It was completed, he
produced the same to the three witnesses, and
declared it to be his will In their presence,
and requested them to witness it as his will,
and that they subscribed their names to the
instrument In his presence, and in the pres-
ence of each other, as witnesses to his last
will, the jury should also find that the insti'u-
ment was sufficiently signed and executed
by him as a will. The jury found that the
instrument was signed by Samuel Adams.
and tiaat it was attested and subscribed
agreeably to the statute, and is the last will
and testament of said Samuel Adams, de-
ceased. Exceptions by appellant.
L. C. Kellogg and E. N. Briggs, for appel-
lant. R. Pierpoint and I. T. Wright, for ap-
pellee.
BENNETT, J. * * ♦ Questions arise un-
der the charge of the court; and the first Is,
what vs^ll satisfy the statutory requirement
of signing? Was the name of this testator
in the beginning of the will a sufficient sign-
ing to satisfy the statute? In the case of
Lemayne v. Stanley, 3 Lev. 1, the will was In
the handwriting of the testator, and such a
signing was held sufficient, within the stat-
ute of 29 Car. II., which required all wills
of land to be signed. In that case, as In
this, the will commenced, "I, John Stanley,
make," etc. After that decision the law was
regarded as settled in England; and the case
of Lemayne v. Stanley has not only since
been followed In that country, but also In our
sister states which have, by legislative enact-
ment, adopted the statute of Car. II. The
rule was so effectually established that courts
of justice, though repeatedly solicited, could
not be induced to break In upon it. In Eng-
land they have found that a statute was nec-
essary to change the law in this particular;
and In the reign of the present queen one
has been passed requiring a will to be signed
at Its foot. The same has been done by some
of our neighboring states. It was said in
England, and the same has been said in the
argument of this cause, that the case of Le-
mayne V. Stanley was an evasion of the stat-
ute, and opened a door for the perpetration
of frauds, and was so nonsensical ' that it
ought not to be followed. If that decision
had the effect to open a door for the commis-
sion of frauds, this certainly is a cogent rea-
son why it should not have been made in the
first place, or since followed. But I am not
aware that such has been its effect. Where
the whole will is in the handwriting of the
testator, and is attested by, three witnesses
in the presence of the testator, and published
by him as his last will. In their presence, it
is difficult for me to see how the fact that
the signing at the top of the will is held a
sufficient signing can open a door to fraud.
It must be shown that the will possesses
finality before it can be operative; and, to
give It this quality, the testator must, at
least, at the final execution of the will, adopt
the writing of his name, at the beginning of
the will, as a signing, and so intend it. I
think in New York they have, or have had, a
statute which requires a will to be subscribed
by the testator; and this, their courts have
60
EXECUTION OF WILLS.
said, requires a will to be signed at tlie foot.
This was doubtless according to the etymol-
ogy of the word "subscribed;" though, if I
mistake not, the supreme court of that state
held that the introduction of the word "sub-
scribe" in their statute, instead of "sign,"
should not change the construction from that
which had been given to tlie statute of Car.
II.; but the court of errors thought otherwise.
The etymology of the word "sign" does not
necessarily require the signing to be at the
bottom of the instrument, and it is much a
matter of taste as to the place of signing. If
the question were res Integra, we might think
the bottom of the will was the place where
the statute intended it should be signed by
the testator; but to me it seems rather imma-
terial in which place the will is signed, pro-
vided it is shown to have the necessary au-
thenticity. The law, as established in the
Case of Stanley's Will, has become a rule of
property, and stare decisis seems wisest to
me. When our statute of wills was enacted,
the statute of Car. II. had received a long,
fixed, and well-known construction; and
when we adopt an English statute we take
it with the construction which it had receiv-
ed, and this upon the ground that such was
the implied intention of the legislature. We
think the case of Lemayne v. Stanley should
be binding upon this court. To impugn or
overthrow it would be to Impugn or over-
throw a rule of property which has long been
settled and acted upon. This should never be
done unless upon the most urgent necessity.
The case of Lemayne v. Stanley does not
stand alone. In Knight v. Crockford, 1 Esp.
190, It was held that where a writing began,
"I, A. B., agree," etc., it was a sufficient sign-
ing, within the statute of frauds; and there
are other cases to the like effect, which, in
principle, are like the case of Lemayne ^v.
Stanley. See 1 Jarm. Wills, 70.
The counsel for the appellant seem con-
strained to admit, in substance, that the sign-
ing of a will at the beglnnmg may, if so de-
signed, be a sufficient signing, within the
statute of Car. II. ; but they Insist that, in the
case before us, the testator intended to sign
this will at the foot, and that consequently
the will was incomplete and wanting in final-
ity until it was so signed. I think it is hard-
ly possible not to see that, at the time the
testator inserted his name at the beginning
of the will, a further signing of it was in
contemplation before It should have authen-
ticity; and if the jury have not, by their ver-
dict, found the will to be complete and finish-
ed at the time of its publication. It should not
have been established. In the treatise Mod-
ern Probate of Wills (page 154) the writer
says: "Although the testator may have com-
menced his will thus, 'I, A. B., make,' etc.,
with an Intent of repeating his signature at
the end of the will, yet if he subsequently
acknowledge the instrument as his will to the
attesting witnesses, without allusion to the
signature, we presume that the will was suffi-
ciently signed." In 1 Jarman on Wills (page
70) it is said: "If the testator contemplated
a further signature, which he never made,
the will must be regarded as unsigned;" and
so, doubtless, are the authorities, as well as
the reason of the thing. But he well re-
marks that the reasoning seems only to apply
where the Intention of repeating the signa-
ture remained unchanged to the last; for a
name, originally written with such design,
might afterwards be adopted by a testator
as the final signature; and such, the writer
says, "would probably be the presumed In-
tention, if the testator acknowledged the in-
strument as his will to the attesting wit-
nesses, without alluding to any further act of
signing." We think this is a sound view of
the subject. If the will, as the jury must
have found in this case, was attested by
three witnesses in the presence of the testa-
tor, and in presence of one another, and pub-
lished by the testator in their presence as his
last will and testament, it was to all intents
and purposes an adoption of such a signature
as was then affixed to the will; and if the
will then had such a signature as could be
held sufficient imder the statute, nothing fur-
ther need be done. The will then becomes
complete, and possesses all the finality which
can be required. It is the same thing, in
effect, as if the signature had been originally,
made animo signandi. The case of Hubert
V. Treherne, 42 E. C. L. 388, is regarded by
the appellant's counsel as a leading case to
show that this will was incomplete. The
names of the parties to the agreement were
stated in the beginning of the articles; and it
concluded, "as witness our hands," but no
signatures followed. The court, It is true,
held that this agreement was not signed,
within the statute of frauds, for the reason
that the words, "as witness our hands," im-
ported that a further signing was Intended.
I fully accord with this decision; but it
should be remembered that there was noth-
ing in that case to show an adoption of the
signatures in the commencement of the ar-
ticles as the final signatures. TIndal, G. J.,
says: "There was no sufficient original sign-
ing, and no subsequent recognition." Colt-
man,' J., remarks that "there was no suffi-
cient authority to give out the copy in behalf
of the party to be charged with the agree-
ment;" and Erskine, J., says he Is "not pre-
pared to say that, if the articles had been
delivered by any proper authority, the sign-
ing would not have been sufficient." Had
the case shown a subsequent recognition of
the articles, I can have but little doubt the
decision would have been different. The
eases of Saunderson v. Jackson, 2 Bos. & P.
238, and Schneider v. Norris, 2 Maule & S.
286, rest upon the ground of a subsequent
recognition. Though the case of Johnson v.
Dodgson, 2 Mees. & W. 659, is much relied
upon by the appellant, yet It recognizes all
the principles necessary to sustain the charge
of the county court. Lord Ablnger remarks
EXECUTION OF WILLS.
51
tbat the cases have decided that, although the
signing be in the beginning or middle of the
instrument, yet it is as binding as if it were
at the foot; the question being always open
to the jury whether the party, not having
signed it regularly at the foot, meant to be
bound by it as it stood or whether it was left
so unsigned because he refused to complete
it. This principle we apply to the case be-
fore us. The jury have found that the testa-
tor produced the will in question to the wit-
nesses, and declared it to be his will, and
requested them to witness it as his will.
This shows that the testator did not then con-
template a further signing of the will, and
is, in efCect, a finding by the jury that the
testator adopted the instrument as it was
then signed as his will; and, if so, then the
signing was sufficient to satisfy the claims of
the statute. It might, perhaps, have been
urged with some propriety that, though this
will contains the usual ad testimonium
clause, yet that, upon its face, it furnishes no
evidence from, that circumstance that a fur-
ther signing was intended at the time the
testator drew up his will. This clause is
written on the original will, it appears, so
close to the seal that there is no room for his
signature opposite to the seal, or very near
to it; but, as the case was not put to the
Jury upon any such ground, it is not neces-
sary to consider it. The case is right, going
upon the ground that the ad testimonium
clause to this will furnished evidence prima
facie that at the time it was written a fur-
ther signing was in the mind of the testator.
The case of WaUer v. Waller, 1 Grat. 454, has
been pressed upon us; but we cannot accede
to the doctrine of that case. It is there said
that the finality of the testamentary intent
must be ascertained from the face of the pa-
per, and that, to constitute a sufficient sign-
ing under- their statute, it must appear from
the frame of the instrument, and upon its
face, that the signing was Intended to giv»
it authenticity as a signature, ana that it
was complete without any further signature,
and that the paper itself must show all this.
We think that unless there is something pe-
culiar in the statute of that state, this case
is unsound and stands opposed to the whole
current of decision under the statute of Car.
II. The case of Sarah Miles' Will, 4 Dana,
1, which the appellant has referred the court
to, contains the sound doctrine on this sub-
ject. • Her will was drawn by a neighbor, at
her request, and under her dictation, and
commenced thus, "In the name of God, I,
Sarah Miles," etc., and concluded with the
usual ad testimonium clause. It was read
to and approved by her, but not then signed
or attested. After this she acknowledged
the paper as her will, in the presence of the
witnesses who attested it in her presence and
at her request; she being at that time unable
to write. The principle adopted by tbe court
was that though her name in the beginning
of her will was not intended, when written,
to be her signature, yet, as it was so design-
ed at the time of the publication, and there
was then no intention on her part further to
sign her will, it was a sufficient signing with-
in their statute, which was a copy of the
English statute. This is in accordance with
the English cases.
It has been argued that the writing of the
testator's name in the beginning of the will
could not be an act recognizing the whole
substance of the instrument, unless the whole
factum was simultaneous with it, and was
also in the contemplation of the testator at
the time he wrote his name. It may be true
that when the signing of the name in the be-
ginning of the will is, in and of itself, to
be taken as a signing of the will within the
statute, without any subsequent recognition,
it must appear that the testator had the
whole object of the instrument in prospect
when he wrote his name, and that the in-
strument must be completed by one simulta-
neous act; yet, suppose it to be so, it cannot
apply to a case like this. Here the signa-
ture did not become a sufficient signature,
within the statute, until it was adopted as
such at the time of the publication of the
will; and then the whole subject-matter
of the will was in the mind of the testator,
and the will was completed by one simulta-
neous act. Since the cases of Ellis v. Smith,
1 Ves. Jr. 11, and Carleton v. Griffin, 1 Bur-
rows, 549, the law has been settled that the
testator need not in fact sign the will in the
presence of the attesting witnesses; and it
is there held, if the will be so signed that it
can in any event satisfy the statute, and the
testator declare it to be his will before three
witnesses, that this is equivalent to signing
it before them, and satisfies the statute. Tills
case has been very fully examined by the
counsel, and every consideration has been
urged that could bear upon the question be-
fore us; and we may well admire the learn-
ing and ability which have been displayed
in the argument, yet we do not feel at liber-
ty to depart from well-established landmarks.
The statute of Car. II. had received a settled
construction when our statute was passed,
and we must regard that construction as
binding upon us. If we should change a rule
of property, because we might think that the
more obvious and popular meaning of the
word "sign" might import a signing of the
instrument only at its foot, we should, in my
opinion, be far from duty.
The result is, the judgment of the county
court is affirmed.
52
EXECUTION OF WILLS.
In re O'NEIL'S WILL.
(91 N. Y. 516.)
CJourt of Appeals of New York. March 6,
1883.
Appeal from supreme court, general term,
third department.
Proceedings before the surrogate of Essex
county for the probate of an instniment pur-
porting to be the will of James O'Neil, de-
ceased. The will was drawn upon a printed
blank of four pages, with a printed heading
and formal commencement at the top of the
first page, and a printed formal termination
at the foot of the third page, where the tes-
tator and the witnesses signed. The inter-
vening blank spaces on the first, second, and
third pages were fiUed with the peculiar pro-
visions of the will, but, being insufficient for
all of the writing, about two-thirds of the
last written article was carried over to the
fourth page. Such article was as follows:
"(13) And I authorize and empower my ex-
ecutors hereinafter named to sell, convey, as-
sign, and transfer my real property for the
bequests, hereinbefore named and mentioned,
either at private — [Here followed, at the end
of the third page, the appointment of execu-
tors, the signature of the testator, the attes-
tation clause and signatures of subscribing
witnesses, and then at the top of the fourth
page appeared the following paragraph:] — Or
public sale, and in the manner which they
will deem the most profitable and advanta-
geous to my said estate; but in no case
shall my said executors be process by law or
otherwise to sell and convey and dispose of
my said real property before the lapse of five
years after my death, unless my said execu-
tors shall see fit and proper to sell and dis-
pose of the same by virtue of the power and
authority hereinbefore given them as afore-
said." The will so drawn was read to testa-
tor, the portion written at the top of the
fourth page being read as if written in the
blank space preceding the printed matter on
the third page. The surrogate admitted the
will to probate, and contestants appealed to
the general term, where the decree of the
surrogate was reversed. Proponents appeal-
ed to this court.
Matthew Hale, for appellants. Samuel
Hand, for respondents.
EUGER, 0. J. The matter in controversy
arises between some of the heirs at law and
the executors over the alleged improper exe-
cution of what purports to be the will of
James O'Neil. The instrument was drawn
upon a printed blank, consisting of four pa-
ges, the formal commencement being printed
on the first page, and the formal termination,
also printed, appearing at the foot of the
third page; and the intermediate space be-
ing originally left blank for the insertion of
such special provisions as the testator might
desire to make. When presented for pro-
bate, the entire blank space was filled In,
and, it being apparently insufiicient in ex-
tent to contain all of the provisions sought to
be introduced into the will, the thirteenth
seems to have been carried over and fin-
ished on the first eight or ten lines of the
fourth page. . That portion of the will seems
in no way to be authenticated, and leaves a
blank space of two-thirds of a page below
the written lines. The names of the testa-
tor and of the witnesses were subscribed to-
wards the bottom of the third page, below
the formal printed termination of the will,
and there only. The portion of the thirteenth
paragraph, immediately preceding the printed
termination, was manifestly incomplete, and
the lines written on the fourth page were ob-
viously a continuation of this broken para-
graph. The two portions were not, however,
sought to be connected by means of a refer-
ence, an asterisk, words, or symbol, indicat-
ing the relation to each other. Material pro-
visions are contained in the writing on the
fourth page. Upon this state of facts, the
question is raised that this is not such a sub-
scription and signing by the testator and wit-
nesses, at the "end of the will," as is re-
quired by our statute. 2 Rev. St. p. 63, § 40.
The application of some of the elemen-
tary principles governing the interpreting of
statutes would seem to furnish a safe and
certain guide for the determination of the
question presented. The words of the stat-
ute must be construed in their plain, obvi-
ous sense, according to their signification
among the people to whom they were direct-
ed. Ogden V. Saunders, 12 Wheat 312; Sto-
ry, Const. § 449. Also that construction must
be adopted which will effectuate, as far as
possible, the intent of the framers of the
statute, and obviate the anticipated evils
which were the occasion thereof. Tonnelev.
Hall, 4 N. Y. 140. The legislative intent was
doubtless to guard against frauds and uncer-
tainty in the testamentary disposition of
property, by prescribing fixed and certain
rules by which to determine the validity of
all instruments purporting to be wills of de-
ceased persons. Reviser's notes, Willis v.
Lowe, 5 Notes Cas. Adm. & Ecc. 428. The
question, then, arises whether the "end of the
will" referred to in the statute means the
actual physical termination of the instru-
ment, or that portion thereof which the tes-
tator intended to be the end of the- will.
While it is possible that in isolated cases,
the latter construction might sometimes pre-
clude the perpetration of a wrong, it certainly
would not satisfy the general object of the
statute of furnishing a certain fixed and defi-
nite rule applicable to all cases. While the
Ijrimary rule governing the interpretation of
wills, when admitted to probate, recognizes
and endeavors to carry out the intention of
the testator, that rule cannot be invoked in
the construction of the statute regulating
EXECUTION OF "WILLS.
63
their execution. In the latter case courts do
not consider the intention of the testator, but
that of the legislature.
In considering the question stated upon au-
thority, some cases are found which appar-
ently sustain the contention of appellant's
counsel. In all of them, however, there was
a failure to observe the rules of construction
which we consider controlling. We think,
however, that the weight of authority favors
tbe theory that the statute fixes an inflexible
rule by which to determine the proper execu-
tion of all testamentary instruments. The
cases cited from the English Reports, except
certain ones hereinafter referred to, do not
afford much assistance in construing our stat-
ute, from the fact that they cover a period
during which material changes were wrought
in their statutes, and the further fact that
those statutes differ in material respects from
our own.
The statutes of 15 & 16 Vict. c. 24, among
other things, provided that no signature
"shall be operative to give effect to any dis-
position or direction which is underneath, or
which follows it, nor shall it give effect to
any disposition or direction inserted after the
signature shall be made." From this alone
might be deduced arguments sufficient to dis-
pose of the question involved in this case, if
our statutes contained similar provisions.
As early as 1847, Sir Jenner Fust, in the
case of Willis v. Lowe, supra, says: "Cases
have occurred before the real purpose of the
act had been ascertained, in which the court
has given construction to the statute, as far
as possible, to fulfill the real intention of the
parties; but the court is under the necessity
- of looking at the clear Intention of the act.
The court was of the opinion, at first, that
the intention of this part of the act was to
remove the difficulty which had arisen un-
der the statute of frauds, by the construction
of which the signature at the commencement
of a will was equally good with the signa-
ture at its end. But there was another rea-
son for the provision, viz., to guard against
fraud. The act required the signature to be
at the foot or end of the will, to prevent any
addition to the will being made after its exe-
cution in presence of witnesses." In Dal-
low's Case, L. R. 1 Prob. & Div. 189, imme-
diately following the signatures of the testa-
tor and the witnesses was the clause, "My ex-
ecutors are," A., B., and C. The will con-
tained clauses in the body referring to the ex-
ecutors as "hereinafter named," but they
were named in no other place except after
the signature. It was held that the clause
naming the executors could not be admitted
to probate, Sir J. P. Wilde saying: "The
question is whether, under St. Leonard's act,
(15 & 16 Vict., ) the clause appointing execu-
tors can be admitted to probate. Although
parol evidence may show that the clause ap-
pointing executors was written before the
signature, it is not made manifest by any
words in the will of the testator so describ-
ing that clause when he referred 'to my ex-
ecutors hereinafter named.' And parol evi-
dence cannot be received for that purpose;
and it seems to me, also, that it would be
directly contrary to the statute, which re-
quires the will to be signed at the foot or
end, to permit probate of this clause." In
Sweetland-v. Sweetland, 4 Swab. & T. 6, Sir
J. P. Wilde says: "I have no doubt the tes-
tator did intend to execute in proper form
the will; the question is whether he has
done so." In Hays v. Harden, 6 Pa. St. 409,
Gibson, C. J., says: "Signing at the end of
the will was required to prevent evasion of
its provisions." In Glancy v. Glancy, 17
Ohio St. 134, Day, C. J., says: "The testa-
tor is required by this portion of the statute
to sign his will at the end thereof. The rea-
son of this requisition is obviously to pre-
vent Improper alterations of a will." The
provision is a judicious one, and care should
be taken not to break in upon it by a lax in-
terpretation.
We think this question has been substan-
tially determined in this court in the case of
Sisters of Charity v. Kelly, 67 N. Y. 409.
Folger, J., says: "Can we say that the end
of the will has been found until the last
word of all the provisions of it has been
reached? To say that where the name is,
there is the end of the will, is not to observe
the statute. That requires that where the
end of the will is, there shall be the name. It
is to make a new law to saw that where we
find the name, there is the end of the will.
The statutory provision requiring the sub-
scription of the name to be at the end is a
wholesome one, and was adopted to remedy
real or threatened evils. It should not be
frittered away by exceptions."
It will be seen, in all of the cases cited,
there was no reason to doubt the testator's
intention to make a valid disposition of his
property; and yet in each case the will was
denied probate, because in the execution
thereof the testator did not conform to the
provisions of the statute, in failing to place
his signature at the physical end of the will.
It is claimed by the counsel for appellant
that the clause in question may be regarded
as an Interlineation, and thus held to be con-
structively a part of the body of the will.
We think that this claim cannot be support-
ed without opening the door to all of the
evils which the statute was intended to pre-
vent, and substantially abrogating its whole-
some provisions. The same argument would
validate the addition of a fourteenth para-
graph to the unauthenticated lines appearing
on the fourth page, and lead, by logical de-
duction, to indefinite extension.
It is said, also, that the cases holding that
a paper or document referred to In the body
of a will may be considered as a part there-
of, afford support to the construction claimed
by appellant's counsel. It is not believed
54
EXECUTION OF WILLS.
that any paper or document containing testa-
mentary provisions not authenticated accord-
ing to the provisions of our statute of vyills
,has yet been held to be a part of a valid tes-
tamentary disposition of property, simply be-
cause it vs'as referred to in the body of the
will. It was held in Tonnele v. Hall, 4 N. Y.
140, that a map appearing after the signature
upon a will, and said to be a reduced copy
of a map made by the testator of his real
estate and filed in the county clerk's office of
New York, and which was referred to in the
body of the will, did not require the signa-
ture of the testator and witnesses to follow
it in order to make it a part of the will. It
is to be observed that the paper there in
question was referred to merely to identify
the subject devised, and contained no testa-
mentary provisions. It is further to be ob-
served that the will in the case cited was
complete without such additions, and that
the maps could probably have been used as
evidence to identify the property devised,
even if no reference had been made thereto in
the will. Independent of authority, the ar-
gument, upon principle, leads inevitably to
the conclusion that the will was improperly
executed. The signatures to it are confess-
edly between the various operative and dis-
posing parts of the instrument, and in no
sense at the literal or physical end of the
will. That the signatures are where the
testator Intended the will should end, we
have already seen, is not a material circum-
stance. A blank space covering two-thirds of
a page of foolscap paper is left immediately
after the language we are invited to insert in
the will, and no possible guard is provided
against the addition thereto of any such pro-
vision as the person In possession of this
paper may be tempted to make. There can
be no answer to the proposition that to up-
hold this will is to defeat the object of the
statute in requiring a will to be subscribed
at the end. The opportunity of adding in-
definitely to a testamentary provision will be
legalized by so holding, and the statute, in-
stead of establishing an inflexible rule by
which to determme the proper execution of a
will, will be open to as many different con-
structions as varying circumstances may in-
vite.
We thus arrive at the conclusion that the
will in question was not properly executed,
and it cannot, therefore, be admitted to pro-
bate. The claim that such parts of the will
as precede the signatures may be received,
and the remainder rejected, cannot be sup-
ported. The statute denies probate to a will
not executed in accordance with its provi-
sions. It Is either valid or invalid, as an en-
tirety, as far as its execution is concerned.
It is undeniable that the portion following
the testator's signature contains material pro-
visions, and formed part of his scheme in
making a will. At all events, we have no
way of determining the extent to which he
deemed them material, and cannot give effect
to one part, and deny force to another. This
point was decided adversely to the appel-
lant in Sisters of Charity v. Kelly and other
cases above cited. The judgment should be
affirmed.
All concur, except RAPALLO, J., not vot-
ing.
Judgment affirmed.
EXECUTION OF WILLS.
55
In re MACKAY'S WILL.
(110 N. Y. 611, 18 N. B. Rep. 433.)
Court of Appeals of New York. Oct. 26, 1888.
Appeal from supreme court, general term,
third department.
Application to surrogate's court of St. Law-
rence county to probate the will of James
Mackay, deceased. From a decree refusing
probate the executors and legatees appealed
to the general term, where the surrogate's
decree was affirmed, and they appeal to the
court of appeals. For opinion of the general
term, see 44 Hun, 571.
Louis Hasbrouck, for appellants. Wm. H.
Sawyer, for respondent.
EARL, J. The subscnbing witnesses came
to the dwelling-house of the deceased by pre-
vious appointment, and, while seated at his
writing-desk, he said to them: "Gentlemen,
what I sent for you for was to sign my last
will and testament" Thereupon he took
from his writingi-desk the instrument offered
for probate, and, laying it before the wit-
nesses, said: "It is now all ready, awaiting
your signatures." He then presented the in-
strument to the witness McCarrier for his
signature, and he signed it, saying, as he did
so, "I am glad, Father Mackay, you are mak-
ing your will at this time; I don't suppose
it will shorten your life any," to which he re-
plied, "Yes," he wanted it done, and off his
mind; and then the witness Mulligan, who
had joined in this conversation, signed the
instrument, as a witness. At the time of ex-
hibiting the instrument to the subscribing
witnesses he told them it was his will; but
he handed it to them so folded that they could
see no part of the writing, except the attesta-
tion clause, and they did not see either his
signature or seal.
There would undoubtedly have been a
formal execution of the will, in compliance
with the statutes, if the witnesses had at the
time seen the signature of the testator to the
will. Subscribing witnesses to a will are re-
quired by law, for the purpose of attesting
and identifying the signature of the testator,
and that they cannot do unless at the time
of the attestation they see it. And so it has
been held in this court. In Lewis v. Lewis,
11 N. Y. 221, where the alleged will was not
subscribed by the testator in the presence of
the witnesses, and when they signed their
names to it it was so folded that they could
not see whether it was signed by him or not,
and the only acknowledgment or declaration
made by him to them, or in their presence,
as to the Instrument, was, "I declare the
within to be my will and deed," it was held
that this was not a sufficient acknowledg-
ment of his subscription to the witnesses
within the statute. In that case Allen, J.,
writing the opinion, said: "A signature nei-
ther seen, identified, nor in any manner re-
ferred to as a separate and distinct thing,
cannot in any just sense be said to be ac-
knowledged by a reference to the entire in-
strument by name to which the signature
may or not be at the time subscribed." In
Mitchell v. Mitchell, 16 Hud, 97, affirmed in
this court in 77 N. Y. 596, the deceased came
into a store where two persons were, and
produced a paper, and said: "I have a pa-
per which I want you to sign." One of the
persons took the paper, and saw what it was
and the signature of the deceased. The tes-
tator then said: "This is my will; I want
you to witness it." Both of the persons there-
upon signed the paper as witnesses, under
the attestation clause. The deceased then
took the paper, and said, "I declare this to
be my last will and testament," and delivered
it to one of the witnesses for safe-keeping.
At the time when this took place the paper
had tlie name of the deceased at the end
thereof. It was held that the will was not
properly executed, for the reason that one of
the witnesses did not see the testator's sig-
nature, and as to that witness there was
not a sufficient acknowledgment of the signa-
ture or a proper attestation. It is true that
in Willis v. Mott, 36 N. Y. 486, 491, Davies,
C. J., writing the opinion of the court, said
that "the statute does not require that the
testator shall exhibit his subscription to tlie
will at the time he makes the acknowledg-
ment. It would therefore follow that when
the subscription is acknowledged to an at-
testing witness it is not essential that the sig-
nature be exhibited to the witness." This is
a mere dictum, unnecessary to the decision in
that case, and therefore cannot have weight
as authority. The formalities prescribed by
the statute are safeguards thrown around the
testator to prevent fraud and imposition. To
this end the witnesses should either see the
testator subscribe his name, or he should,
the signature being visible to him and to
them, acknowledge it to be his signature.
Otherwise imposition might be possible, and
sometimes the purpose of the statute might
be frustrated. We think, therefore, that pro-
bate of the will was properly refused, and
that the judgment below should be affirmed,
without costs. All concur.
56
EXECUTION OF WILLS.
SIMMONS et al. v. LEONARD et al.
(18 S. W. 280, 91 Tenn. 183.)
Supreme Court of Tennessee. Feb. 2, 1893.
Error to circuit court, Marshall county;
R(jBERT Cantkki.l, .ludse.
Bill by D. P. yiinuions and others
asHinst John M. Leonard and others, ex-
ecutors under the will ol Margaret Sim-
mons, deceased, to set aside the will and
(or an accounting. From a decree in Javor
of defendants, complainants bring error.
Reversed.
W. W. "Walker, P. C. Smithson, and W.
N. Cowdeu, tor plaintiffs la error. Jones
& Murray, J. H. Lewis, Z. W. Ewlng, W.
Leonard, and L. A. Thompson, for defend-
ants iu error.
CALDWELL, J. This is a contested will
case. Jn February, 1877, Mi.ss Margaret
Simmons, who was both old and illiter-
ate, died at her residence in Marshall coun-
ty, leaving a valuable tract of land and
some personalty. In March following a
certain paper writing, alleged to be her
last will and testament, and making dis-
porsition of her entire estate, was admitted
to pr-obate, in common form, in the coun-
ty court of that county. JDr. John M.
Leonard, the principal devisee, was quali-
fied as executor, at the same time. In
July, 1S87, D. P. Simmons, a brother of the
deceased, and other relatives, filed a bill in
the cluuicejy court, alleging that the said
instrument was not her last will and tes-
tament, and seeking an account with the
executor. In pursuance of the direction
of the chancellor in interlocutory order,
complainants sought to make up and try
an issue of devisavit vel non in the circuit
court; but the circuit judge refused to
take jurisdiction because of the pendency
of the suit in the chancery court. On ap-
peal in error this court decided (89 Tenn.
622, 15 S. W. Eep. 444) that the circuit;
court alone had jurisdiction to try an is-
sue of clevisiivit vel uon.and thereupon re-
manded the case. The honorable circuit
judge thereafter tried the issue without a
jury, and pronounced judgment in favor
of the will. Contestants have appealed in
error.
Our first inquiry shall be whether or not
Eleazar Cochran and W. F. McDaniel,
whose names appear on the propounded
instrument as those of subscribing wit-
nesses, make out a case of due and formal
execution under the statute. How that
is can be determined only by a careful con-
sideration of what they say occurred at
the time, the certificate to which their
names are attached being in proper form,
and reciting all necessary facts. McDaniel
testified that he was notified by Dr. John
M. Leonard that Margaret Sin)raons
wanted him to witness her will; that he
afterwards went by Leonard's house, and
they went together to her house, that she
brought a paper out on the porch and
told him she desired him to witness her
will, whereupon he then and there, in her
presence, and at her request, signed his
name to the paper as a subscribing wit-
ness; that he, at that time, saw the
names of Margaret Simmons, the testatrix,
and Eleazar Cochran, the other subscrib-
ing witness, upon the paper; that no one
was then present except the testatrix, Dr.
Leonard, a small negro, and witness;
and. finally, the paper in contest being
produced, the witness said it was the
same to which he subscribed his name at
the time and under the circumstances al-
ready detailed. This witness shows him-
self to have been competent, and by his
testimony makes a case of due execution,
so far as one subscribing witness can
make it. It was not at all necessary that
he should see the testatrix sign the paper,
nor that he should subscribe it in the pres-
ence of the other witness. Logiie v. Stan-
ton, 5 Sneed, 98; Rose v. Allen, 1 Cold. 24;
Bartee v. Thompson, 8 Baxt. 512; Beadles
V. Alexander, 9 Baxt. 606; 2 Greenl. Ev. S
676; 1 Jarm. Wills, (Rand. & T. Ed.) 212,
213; Dewey v. Dewey, 1 Mete. (Mass.) 349;
Jauncey v. Thorne, 2 Barb. Ch. 40; Bur-
well V. Corbin, 10 Araer. Dec. 494; Ela v.
Edwards. 16 Gray, 92; Tilden v. Tilden, 13
Gray, 110; Ellis v. Smith, 1 Ves. Jr. 16;
Eelbeck v. Granberry, 2 Amer. Dec. 624;
Johnson v. Johnson, (Ind. Sup.) 7 N. E.
Rep. 201; 4 Kent, Comm. *516; Rosser v.
Franklin, 6 Grat.l. Cochran, the other sub-
scribing witness, died before the trial, and
therefore could not be examined in the
presence of the court; but his deposition,
which had been taken in the chancery
cause, was used as evidence in this case.
He deposed that he was a neighbor of
Margaret Simmons, deceased; that Dr.
John M. Leonard called on him twice, and
told him she wanted him to witness her
will; that a negro man, living (m her
place, was subsequently sent for him, and
lie then went to her house; that he found
her alone, and when he first got there she
told him she wanted him "to sign a will"
for her, though she did not then produce
it, or say more about it; that Dr. Leon-
ard afterwards came and "got the will out
of the bureau, or off the top of it," and
then, at the request of witness, signed the
nnnieof witness to it; that this request
was made by witness because he was so
nearly blind that he could not see well
enough to sign his own name; that he
(witness) did not have the will in his own
hands, or see the testatrix have it in her
hands, at any time; that she did not sign
it in his presence, and he did not know
whether she signed it before he went to
her house or after he left, if at all; that
he did not have the will read, or learn its
contents. His name, without more, is
attached to the certificate. It is "Elea-
zar CooHEAN," simply, and not "Eiea-
bis
ZAE X Cochran," as Is usual when a per-
mark.
son, unable to write, has another sign his
name for him. There is no mark or sign
to indicate that Cochran did not sign
his own name, though the fact is, as he
states himself, that it was written by Dr.
Leonard, at his request Clearly Cochran
was not a proper subscribing witness.
He was competent in the sense of being
disinterested, but the part he took in the
execution of the alleged will did not give
him the full character and functions essen-
tial to a subscribing witness. His evi-
dence does not establish such a subscrip-
EXECUTION OF WILLS.
57
tlon as the law requires. To constitute a
valid will ot real estate the instrument
must be subscribed by two witnesses, at
least, neither of whom is interested in the
devise. Code, (Mill &V.) §3003; Maxwell
V. Hill, 89 Tenn. 588,15 S. W. Rep. 253;
Guthrie v. Owen, 2 Humph. 202; Davis v.
Davis, 6 Lea, 543. The attempted subscrip-
tion by Cochran is incomplete, because
his name, being signed by another person,
is not accompanied by some mark or sign
indicating his adoption of that other per-
son's act. This court has gone no further
in liberal construction of the word "sub-
scribe" than to hold that a person whose
name is written by another, and who
makes his mark thereto, is a good attest-
ing witness to a will. Ford v. Ford, 7
Humph. 96, 97. Though a mark so raade,
is held to be a sufficient subscription, it is
never advisable, where it can be avoided,
to employ marksmen as witnesses. 1
Jarm. Wills, 213. It seems to have been
deemed suflHcient, not only because the
name of the witness is- written by his au-
thority, but also because, in making his
mark, he has a share in the writing; as
when another person guides his hand and
he makes his own signature. Chase v.
Kittredge, 87 Amer. Dec. 694; Jesse v..
Parker, 52 Amer. Dec. 102; Montgomery
V. Perkins, 74 Amer. Dee. 419. By statute
the word "'signature 'or 'subscription' in-
cludes a mark, the name being written near
the mark, and witnessed." Code, (Mill. &
V.) § 48. There is even a greater objection,
if possible, to Cochran as a subscribing wit-
ness, though not interested in the devise
himself. Dr. Leonard, who wrotehis name
forhim, wastheprincipal devisee undei the
will. This made the subscription utterly
ineffectual. Cochran, though legally com-
petent to become a subscribing witness,
could not effectively perform the act of
subscription through another person, who
was legally incompetent to become such
witness in his own name and right. To
permit the devisee to write the name of
the subscribing witness would expose the
will to little less danger of wrongful alter-
ation and substitution than would exist if
the devisee himself were allowed to be-
come the witness. The same evil conse-
quences would follow in the one case as in
the other. If he may sign the name of one
subscribing witness, hemay signtbenames
of both, and in that way become a more
potent factor in the execution and probate
of the will than if he were allowed to be-
come a subscribing witness himself.
He may not lawfully take the matter so
largely into his own hands. A proper
construction of the statute excludes the
devisee from the doing of any act, even for
the subscribing witness, which is essen-
tial to a valid subscription. Again,
though identification has always been the
main reason for requiring subscribmg
witnesses in the execution of wills, Coch-
ran was not asked to identify the paper
propounded in this case as the one he
claims to have witnessed for Margaret
Simmons. Presumably he could not have
done so if asked. Indeed, he show's
affirmatively that he could not. He made
no inspection of the instrument, to which
he requested Dr. Leonard to sign his
name; did not have sufficient eye-sight to
inspect It, hence he could not afterwards
recognize it by its physical appearance.
No name, mark, or sign did he impress
upon it, that subsequent recognition
might be assured, or even rendered possi-
ble. Nor was he informed of its contents,
so that he might thereby preserve its iden-
tity in his memory. Of course, it was not
essential that the witness should be in-
formed of the provisions of the will, (Hig-
don's Will, 6 J. J. Marsh. 444; Jauncey v.
Thorne, 2 Barb. Ch. 40; Ela v. Edwards,
16 Gray, 92; Tilden v.Tilden, 13 Gray, 110;
1 Jarra. Wills, 231;) yet, if the information
had been imparted, it might have served
him as one means of future identification.
It was necessary, however, that some-
thing should occur, and that he should do
some act, (and that according to law,)
which, if remembered, would thereafter
enable him to swear to the identity of the
paper. If no such thing occurred, and no
such act was done, then there was no
valid subscription. We do not hold that
the fact of doe subscription can be shown
alone by the subscribing witness; on the
contrary, it is well settled that such fact
may be established by other persons,
though his recollection fail him, or he be-
come openly hostile to the will. Rose v.
Allen, 1 Cold. 23; Jones v. Arterburn, 11
Humph. 98; Alexander v. Beaaie, 7 Cold.
128: Dewey v. Dewey, 1 Mete. (Mass.) 349;
Jauncey v. Thorne, 2 Barb. Ch. 40. But
the proof of other persons will not suffice,
unless it in truth shows that all formtili-
ties requisite to a valid subscription were
observed. There is no such proof of otlitr
I)ersons in this case. Cochran states the
whole transaction, so far as he had part
in it, without lapse of memory or un-
friendliness to thecause of proponent; and
no one discloses any additional fact oc-
curring at the time he is said to have sub-
scribed the will. Whether the paper pro-
pounded is the same he attempted to sub-
scribe or a different one cannot possibly
be determined from the completest narra-
tion of all that was then said and done.
Speaking alone from the part he took in
the matter. Dr. Leonard says it is the
same. He recognizes his own handwrit-
ing in the name of the witness, and in
that way, by something he did himself,
and not by anything the witness did, is
enabled to make the statement. The ne-
cessity and use of his evidence for so im-
portant a purpose furnish a striking illns-
tration of the correctness of our conclu-
sion that Cochran's attempted subscrip-
tion was inoperative in law, because his
name was written by a devisee under the
will- , , ,.
Aside from the questions already dis-
cussed, it is by no means clear that the
paper referred to by Cochran was ready
for subscription when he was called upon
to witness it. He does not know whether
the testatrix had signed it or not. He
did not see her signature, and no one told
him it was on the paper. Since it is the
signature of the testator that subscrib
ing witnesses are to attest, there can be
no valid attestation or subscription un-
less it be a fact that the testator has act-
ually signed his name, or caused it to be
signed, before they subscribed their
names. There is no will to witness until
58
EXECUTION OF WILLS.
it has been signed by the testator. Chase
V. Kittredge, 11 Allen, 49. See, also. Reed
V. WatHon. 27 Ind. 448; 1 Jarni. Wills, 253,
2.54; Shaw v. Neville, 33 Eng. Law & Eq.
615; Lewis V.Lewis, 11 N. Y. 220; Bag-
land V. Huntingdon, 1 Ired. 565; Cox's
Will, 1 Jones, (N. C.) 324. It is not essen-
tial that the testator sign his name in
the presence of the subscribing witnesses,
nor that they actually see his signature
at all. P:ilis V. Smith, 1 Ves. Jr. 11; 1
Jarm. Wills, (Rand. & T. Ed.) 212, 213;
Dewey v. Dewey, 35 Amer. Dec. 367; Ela v.
Edwards, 16 Gray, 92; Tilden v. Tilden,
13 Gray, 110. The production of the will
with his name signed to it, and in such a
way that his signature may be seen by
the witnesses, accompanied by a request
of the testator that they witness it as his
will, is a sufficient acknowledgment of
the signature to render the will valid.
Id. ; Jauncey v. Thorne, 45 .4raer. Dec. 432;
1 Jarm. Wills, 254. In Tilden v. Tilden, 13
Gray, 110, the last of three subscribing
witnesses neither saw the testator's sig-
nature, nor heard h'm make any allusion
to it. Yet in that case it was held that
the words. "I -wish you to witness this,"
constituted a sufficient acknowledgment,
when considered in connection with the
fact that the testator, who used the ex-
pression, at the same time presented to
the witness, for attestation, a paper,
which he had already signed as his will,
and to which he had procured the names
of two other witnesses, who did see his
name before they signed their own names.
Giving the facts disclosed in this record
the most favorable construction of which
they are fairly susceptible, it may well be
gravely doubted that the name of the al-
leged testatrix had been signed to the
particular paper propounded at the time
Cochran attempted to become a witness.
It is true, she is shown to have said to
the witness that she desired him "to sign
a will" for her; but she did not say any-
thing about having already signed it
herself, nor did she produce it then or
afterwards. After she m'lde that request
she seems to have done notliing, except
acquiesce in the production of some paper
from her bureau, by another person, and
its presentment by hirn to the witness for
thelatter's name, — that other person be-
ing the principal beneficiary, and the sup-
posed testatrix being old and illiterate.
Though allowed the same weight in this
court as the verdict of a jury, (Eller v.
Richardson, 89 Tenn. 576, 15 S. W. Hep.
650,) the finding of the trial judge on the
main question in this case Is without
legal support. That the contested paper
was duly executed as the will of Margaret
Simmons is not established by sufficient
competent proof. Ordinarily the testi-
mony of one witness is entirely sufficient
to sustain the finding of the court or ver-
dict of a jury upon an issue of fact; but
that rule is not controlling in a case like
this, where the law requires two witnesses
to make out the matter in issue. Thestat-
ute requires two competent subscribing
witnesses in every devise ofland,and noth-
ing less than that will justify ajndgmentin
favor of the will. The law prescribes the
quantum of proof requisite in such a case;
and neither the jury, nor court sittingasa
jury, is allowed to find in favor of the will
on less evidence than that prescribed.
There is no dispute as to the facts with
reference to Cochran's attempted sub-
scription. Whether under those facts he
was a competent subscribing witness is a
question of law. We think he clearly was
not. Then, in legal contemplation, there
was but one subscribing witness, and the
judgment in favor of the will was neces-
sarily erroneous. Reverse and enter judg-
ment here.
EEVOCATIOK, KEPUBLICATION. AND REVIVAL OF WILLS.
59
NEWCOMB V. WEBSTER et al.
(113 N. Y. 191, 21 N. E. Rep. 77.)
Court of Appeals of New York. April 16, 1889.
Appeal from a judgment of the general
term, fifth department, of the supreme court,
affirming a judgment of Monroe county spe-
cial term, upon trial by the court without a
jury. There was no dispute about the facts.
It appeared that Angeline B. Walker died
on the 7th of June, 1884, leaving real and
personal property ib Monroe county; that by
her will, dated April 23, 1881, she, by its
first clause, gave to her sister Olive, for life,
house No. 89 Frank street; remainder to Mrs.
A. B. Johnson, Mary A. Hatch, and Milicent
J Johnson. By the second clause, to Anna
Newcomb, for life, house and lot No. 1-1
Spencer street; remainder to the surviving
children of Anna. Third. She directed house
No. 89% Frank street to be sold, and its pro-
ceeds applied in part to the erection of a
monument on "my lot in Mt. Hope;" $100 to
the Mt. Hope commissioners to keep the
same and lot in order; and the residue to
Emellne Soper, William Springstead, Huber
Hfirrick, Nelly Soper, Frances Spencely, and
Elliot Hodges, of Rochester, N. Y., sliare
and share alike, after first paying $100 each
to Mrs. Rose Chrichton, of Rochester, N. Y.,
and to Charles P. Hodges, of Cleveland, Ohio,
which "I bequeath to them." The legacy of
William Springstead to be deposited in the
Monroe County Savings Bank, and paid over,
with its accumulations, when he arrives at
21 years of age. Fourth. Directs No. 102
Jones street to be sold, and proceeds to be
divided between the six children of George
Walker. Fifth. She gives her piano to Rob-
ert P. Newcomb, son of Anna L. Newcomb;
and all her household furniture and house-
hold goods and effects to her nieces, Mrs.
Adelia Johnson, Mary Hatch, Anna New-
comb, Ida Springstead, of Rochester, and
Minerva Herrick, of Watertown, N. Y., and
also all residuary interests and estate; and
finally appoints Aaron N. Newcomb and Ed-
ward Webster executors of the will, with
power to sell and convey real estate. It fur-
ther appeared that in the year 1882 she sold
lot 14, referred to in the second clause of the
will, and also sold 102 Jones street, referred
to in the fourth clause. Afterwards, in 1884,
she executed an instrument in these words:
"I, Angelina B. Walker, of the city of Roch-
ester, county of Monroe, and state of New
York, do make, publish, and declare this first
codicil to my last will and testament, here-
by revoking so much of my said last will
and testament as is inconsistent with the pro-
visions of this codicil: Item First. I direct
one hundred dollars to be set aside and paid
over to the commissioners of Mount Hope as
a perpetual fund, the interest of which shall
be annually expended to keep the lot in said
Mount Hope belonging to my late husband,
Robert Walker, and my brother, Perry Hodg-
es. Second. I give and bequeath to the Roch-
ester Home for the Friendless one hundred
and fifty dollars. Third. I give and bequeath
to the Frank Street (otherwise Sixth) Meth-
odist Episcopal Church of Rochester, to be
expended by the trastees thereof towards
erecting a parsonage for the use of their pas-
tor, the sum of five hundred (500) dollars.
Fourth. I give and bequeath to the Roches-
ter Orphan Asylum three hundred dollars,
to be expended for the rearing and educa-
tion of an orphan, Belle Peer by name.
Fifth. I give and bequeath to Hubert Her-
rick, of Rochester, five hundred dollars, to
be placed on interest in the Monroe County
Savings Bank, paid over to him on arriving
at twenty-one years of age. If he shall die
before that date, then said legacy shall go
to his mother, Minerva Herrick. Sixth. I
give and bequeath to my sisters, Emeline
Soper and Olive J. Hatch, each the sum of
five hundred (500) dollars. Seventh. I give
and bequeath to the six (6) children of my
brother-in-law, George Walker, each the sum
of two hundred (200) dollars. Eighth. I give
and bequeath to my four nieces, Mrs. Anna
Newcomb, Frances Spencely, (of Canada,)
Adelia B. Johnson, and Mary N. Hatch, all
the rest, residue, and remainder of my estate,
both real and personal, to be divided equally
between them, and share and share alike."
The trial judge found "that no part of said
will is revoked by said codicil, except the
second and fourth clauses thereof, and the
residuary devise in the fifth clause of said
will, but that all other legacies and devises
in said will and codicil ought to be carried
into effect."
D. C. Barnum, for appellants. Roy C.
Webster, for respondents.
DANFORTH, J., (after stating the facts as
above.) Both will and codicil were admit-
ted to probate by the surrogate of Monroe
county, and administration granted to the
persons named in. the will as executors, and,
some difCerence having arisen as to the effect
of the codicil, this action was brought by
Executor Newcomb and others against Ex-
ecutor Webster and others, for the purpose
of obtaining a judicial construction of its
provisions. The plaintiffs contend that the
codicil revokes all the provisions of the will,
except those relating to the appointment of
executors, while the defendants suppose that
both instruments can stand, and the legacies
and devises in each take effect. The court at
special and general terms have substantially
sustained the view of the defendants, and
from that decision the plaintiffs appeal. It
may be taken as a well-settled general rule
that a will and codicil are to be construed to-
gether, as parts of one and the same instru-
ment, and that a codicil is no revocation of
a will, further than it is so expressed. West-
cott V. Cady, 5 Johns. Ch. 343. But if, re-
garded as one instrument, it is found to con-
60
REVOCATION. REPUBLICATION, AND REVIVAL OF WILLS.
tain repugnant bequests in separate clauses,
one or the other, or both, must fail; and there-
fore the rule is that of the two the bequest
contained in the later clause shall stand.
The same principle applies with greater force
where there are two distinct instruments re-
lating to the same subject-matter. In such
a case an inconsistent devise or bequest in
the second or last Instrument is a complete
revocation of the former. But if part is in-
consistent, and part is consistent, the first
will is deemed to be revolted only to the ex-
tent of the discordant dispositions, and so
far as may be necessary to give effect to
the one last made. Nelson v. McGiffert, 3
Barb. Ch. 158. In the case under considera-
tion it appears that the testatrix, in her life-
time, and after the making of the will, so
dealt with the principal real estate describ-
ed in it as by sale to revoke the gifts men-
tioned in the second and fourth clauses. She
also acquired other real estate, and en-
tertained a desire that beneficiaries other
than those first selected should share in her
bounty. These circumstances would natural-
ly require a redistribution of her estate, and
in view of them we think it clear that the
testatrix intended to make new disposition
of her entire property. Such is, at any rate,
the effect of the language employed by her.
There is, moreover, an express revocation of
so much of the will as is inconsistent with
the provisions of the codicil. Tf we apply
this language literally, it is obvious that the
entire will is to be discarded, except so much
as appoints executors and defines their pow-
ers. The codicil does not deal with that sub-
ject, and to that extent the testatrix was Jus-
tified in regarding the will as a subsisting
instrument. The codicil does, however, make
a complete disposition of all the property of
the decedent, either by special legacy or re-
siduary clause. It Is capable of operation
without aid from the will, and in fact is en-
tirely independent of it. The property, di-
vided according to its terms, would leave
nothing to apply upon the legacies or be-
quests of the will. The codicil, moreover, in-
troduces new beneficiaries, and, while it pro-
vides also for persons already named in the
will, does so, not by referring to the will or
by way of increase or addition to shares giv-
en by it, but evidently by substitution; and
then by formal and explicit language the tes-
tatrix gives to her four nieces all the rest
and remainder of her estate, both real and
personal, to be divided equally among them.
The remainder here spoken of is that which
is left after satisfying the legacies provided
for in the same instrument, and it is impos-
sible for the disposition made by the will to
stand with that made by the codicil. Both
instruments were, however, properly admit-
ted to probate, for the appointment of exec-
utors by the will holds good, although the es-
tate is to be administered according to the
provisions of the codicil. The plaintiffs are,
we think, entitled to a decree to that effect,
and, so far as the judgment appealed from
is to the contrary, it should be reversed, with
costs to the appellant. But as the defend-
ants have heretofore succeeded, they also
should have one bill of costs, both to be paid
out of the estate. All concur.
KEVOCATION, REPUBLICATION, AND REVIVAL OF WILLS.
61
RICH et al. v. GILKEY.i
(73 Me. 595.)
Supreme Judicial Court of Maine. Nov. 28,
1881.
Appeal from judge of probate.
Sylvanus Rich, having made his will dated
April 9, 1872, made a codicil thereto in
March, 1879, giving to his niece, Mary A.
Gilkey, during her life, the income of certain
property of the value of ?10.000. On March
16, 1880, he destroyed this codicil, and made
another, by which he made a different dis-
position of the property, which by the for-
mer codicil was given in trust to pay the
Income to his niece. He died April 18, 1880.
In proceedings for probate of his will, the
judge of probate upheld the destroyed cod-
icil, and admitted it to probate. At the
trial of the cause on appeal from his deci-
sion, the following enti-y was made by mu-
tual agreement of the parties: "Refen-ed to
the presiding judge, who may decide all
questions upon the merits as affected by
considerations of expediency and compro-
mise, including costs, and enter all and any
decrees necessary to carry his decision into
effect."
A. W. Paine and John Vamey, for plain-
tiffs. Barker, Vose & Barker, for defendant.
PETERS, J. When this cause was .re-
ferred to me for decision, in view of the fact
that the jury trial might be broken off by
the sickness of a juror, I hardly comprehend-
ed the extent of the duties which have been
cast upon me. I had supposed my office
would be performed by the recommendation
of some sum which the estate had better
pay, and the other party had better receive,
in a spirit of compromise, than to pursue the
case to an end upon the strict application of
legal principles and a close sifting of all the
facts that might be produced in evidence.
Had I anticipated that the respective parties
would adhere so closely as they have to sup-
posed legal rights, I should not have so read-
ily taken upon myself a self -imposed respon-
sibility. Having, however, examined and
considered all the issues of law and fact suf-
ficiently to form as satisfactory conclusions
as it is probable I ever could arrive at, I file
in the case the following opinion:
There is no doubt that Capt. Rich, the tes-
tator, destroyed the codicil in favor of Mary
Gilkey in his life-time. The questions of
fact are these: First. Was the testator at
the date of the destniction of the codicil pos-
1 Foot-note in 73 Me. 595: "This case was
heard at nisi prius, and the reportof it is here in-
serted because of lie great learning employed in
the preparation of the opinion, its literary merit,
and the importance of the question discussed,
together with the fact that other members of the
court were consulted upon these questions, and,
having carefully considered them, they con-
curred in the views expressed by Judge Peters
in all particulars."
sessed of testamentary capacity? Second.
If he had testamentary capacity, was he in-
duced to do the act by undue influence? It
would not be inconsistent to find that a tes-
tator was not possessed of sufficient mental
capacity to make a will, and also that he
was operated upon by undue influence. The
questions of law are: First, whether, if the
codicil was destroyed by the testator, while
lacking the possession of testamentary ca-
pacity, it can be legally upheld and probated
by means of oral evidence; and, secondly,
whether the same result follows, if the de-
struction was induced by undue influence
alone.
An examination of the questions of law
comes first in the natural order. I feel clear
in the- belief that a person who has not tes-
tamemtary capacity cannot revoke a will in
any manner whatever. He can neither make
nor unmake a will. A codicil stands upon
the same footing as a will. A will, legally
made, stands until legally revoked. It can-
not be revoked by any act of destruction, un-
less the act is done with an intention to re-
voke; and a person not having testamentary
capacity cannot have an intention to revoke
a will; he is legally incapable of it. In such
case the burning of the will can have no ef-
fect whatever, provided the contents can be
clearly and certainly proved by other evi-
dence. The written instrument may be
burnt, the surest and best evidence of the
will may be thus destroyed, but the will it-
self, if a draft of it can be proved, outlives
the act of destruction, and the testamentary
dispositions stand. This is a common prin-
ciple in the law, applicable to the loss or
destruction of papers and records generally.
For instance, A. gives B. a deed of land.
The deed is lost or accidentally destroyed;
but the conveyance stands, if the contents of
the deed can be proved by satisfactory evi-
dence. It is said that this opens a wide
field for error and fraud, to establish wills
upon oral evidence. To my mind, many
more frauds would be committed if the con-
trary rule were admitted. It is upon proof
complete and undoubted, and not upon less
than proof, that wills may be orally estab-
lished, it is to be noticed.
The counsel for the executors contend that,
if a will destroyed after a testator's death
can be upheld and established by oral evi-
dence, one destroyed before his death cannot
be. I do not concur in this view of the
learned counsel. I do not find the distinc-
tion admitted by the authorities, excepting,
possibly, where the law is so enacted in one
or two of the states. Nor do I see the force
of any such attempted distinction. I cannot
well perceive that the act of wrongfully de-
stroying a will five minutes before death
would be valid, and the same act be not
valid, if done by the same hand and in the
same way five minutes afterwards.
It is said that a wrongful or accidental de-
struction of a will might take place many
62
KEVOCATION, REPUBLICATION, AND REVIVAL Or WILLS.
years before a testator's death, and in tbe
mean time tbe testator migbt become satis-
fied with tbe fact of destruction, and In bis
mind ratify tbe act, and still tbe instrument
be establisbed as bis will after bis deatb, if
tbis doctrine be tenable. But tbe answer to
this apprehension of danger consists in the
requirement of tbe law that any person pro-
I)ounding for probate a will destroyed in the
testator's life-time has upon himself the bur-
den to prove that, notwithstanding destruc-
tion, the will continued to be tbe will of the
testator, unrevoked, up to tbe testator's
death. The presumption would be that the
will was destroyed animo revocandi, and the
burden would be upon the proponent to
show, by circumstances or otherwise, that
the will was not revoked by tbe destruction,
or by a ratification of the destruction, while
the testator lived.
I think these views are sustained by the
great current of authority. The English
cases, earlier and later, are that way. The
old work on Wills by Swinburne, who com-
piled his book as long ago as during the
reign of Queen Elizabeth, gives this excep-
tion to the eases where a will becomes void
by canceling or defacing: "Where the tes-
tament was canceled by the testator himself
unadvisedly, or by some other person with-
out the testator's consent, or by some other
casualty." Jarman, the best authority on
A\'ills, English or American, (volume 1, p.
130,) says: "The mere physical act of de-
struction is itself equivocal, and may be de-
prived of all revoking efficacy by explana-
Toi-y evidence, indicating the animus revocan-
di to be wanting." He further says: "Thus
if a testator inadvertently throws ink upon
his will, instead of sand, or obliterates or at-
tempts to destroy it in a fit of insanity, or
ti'ars it up under the mistaken impression
that it is invalid, it will remain in full force,
notwithstanding such accidental or involun-
tary or mistaken act." Mr. Bigelow, the
American editor of Jarman's work, in his
notes fully approves the doctrine quoted, cit-
ing many American cases in its support.
The same doctrine is maintained by Prof.
Oreenleaf in his work on Evidence, (section
(J81, vol. 2,) and notes. Redfield, in his trea-
tise on Wills, in many places restates the same
rule; and upon page 323, vol. 1, (1st Ed.,)
says: "The soundness of the mind and
memory is requisite to the valid revocation
of a will as to its execution. It follows, of
course, that the performance of the mere
act of tearing, canceling, obliterating, burn-
ing, etc., without the animo revocandi, and
which could not exist unless the testator
were in his sane mind, could have no legal
operation upon the Instrument." In Bacon's
Abridgment (vol. 10, p. 546) it is laid down
"that the destruction of a will, even by tbe
testator himself, does not amount to a revo-
cation, if the testator had not capacity.
Though the instrument is not in being, if its
contents are known it can be proved." Mr.
Wharton expresses it this way: "Revoca-
tion will not be complete unless the act of
spoliation be deliberately eflEected on the
document animo revocandi. This is express-
ly rendered necessary by the will act, and is
impliedly required by the statute of frauds."
In Smith's Probate Law, a Massachusetts
work of merit, at page 51, the author says;
"It may be that the will was destroyed by
the testator in a fit of insanity, or that it
was lost, or accidentally or fraudulently de-
stroyed. Such accidental or fraudulent de-
struction will not deprive parties of their
rights under its provisions, if they can pro-
duce the evidence necessary to establish the
will." In Clark v. Wright, 3 Pick. 67, a cod-
icil fraudulently destroyed in the testator's
life-time was established upon parol proof
of its contents by the Massachusetts su-
preme court of probate. The same doctrine
was affirmed by the same court in the case
of Davis V. Sigourney, 8 Mete. (Mass.) 487,
and reaffirmed in Wallis v. Wallls, 114 Mass.
510. In Newell v. Homer, 120 Mass. 277, the
petitioner was held to prove a destruction of
the will after the death of the testator, mere-
ly because he in his petition had so alleged
the fact.
The New York cases are in accord with
the foregoing cases. In Smith v. Wait, 4
Barb. 28, it was ruled that, if a testator was
incompetent to make a will, he was incom-
petent to revoke a will made before, and
that an insane man can have no intent such
as is necessary to revoke a will. In Idley v.
Bowen, 11 Wend. 227, it was held that a rev-
ocation by burning the will by the testator
could be impeached by showing the incom-
petency of the testator at the time of the
act. Schultz v. Schultz, 35 N. Y. 653, is an
instructive case to the same effect. In Nel-
son V. McGiffert, 3 Barb. Ch. 158, Chancellor
Walworth held it was competent to show
that a will had been destroyed by a testator
when his mind had become so far impaired
that he was incompetent to perform a testa-
mentary act. The case of Johnson's Will, 40
Conn. 587, strongly supports the same view,
So does the case of Collagan v. Bums, 57 Me.
449, as far as it goes. Many other cases in
the state courts do.
Late cases in the English court of probate
are emphatical in the same direction. In
one case it is said: "The act done [burning
a will] by the testator can in no sense be his
act, for he was out of his mind." Ii) another
case the court said: "All the destroying in
the world, without intention, will not revoke
a will; nor all the intention in the world,
without destroying; there must be the
two." In another case,— the famous case in-
volving the will of Lord St Leonards,— de-
cided as late as 1876, the late Chief Justice
Cockburn said: "The consequences of a con-
trary ruling would be in the highest degree
mischievous. To disallow oral proof might
lead to the defeating of justice in many, if
not in as many, instances as might arise
REVOCATION, REPUBLICATION, AND REVIVAL OP WILLS.
63
from the court acting upon such testimony."
Much more could be profitably quoted from
late English cases, in elucidation of this le-
gal question, did these limits allow.
The English cases have gone so far as to
decide that a revocation of a will by spolia-
tion may be of a conditional character. A
testator destroyed a codicil not knowing that
it disturbed a previous will. The court said:
"Where there has been a physical destruc-
tion of a testamentary paper, the court has
often been called upon to form an opinion as
to the intention of the deceased at the time
he did the act. In this case we have come
to the conclusion that the testator destroyed
the codicil with no intention of revoking the
will, and that the court should give no more
effect to the act than it would do if the tes-
tator had destroyed the paper under a mis-
take as to the instrument he wels destroying.
It was not done animo revocandl." The fol-
lowing cases will verify the foregoing propo-
sitions: Brunt V. Brunt, L. R. 3 Prob. &
Div. 37; Cheese v. Lovejoy, 2 Prob. Div.
251; Sugden v. Lord St. Leonards, 1 Prob.
Div. 154; James v. Shrlmpton, 1 Prob. Div.
431; Brown v. Brown, 8 El. & Bl. 8T6; Pow-
ell V. Powell. L. R. 1 Prob. & Div. 209. I
therefore have no doubt that a will destroy-
ed by a person not possessing testamentary
capacity Is not a revocation of such will.
There must be animus revocandl; and such
a person does not and cannot possess an in-
tention of revocation any more than an In-
sane man can.
As to the question of law secondly stated,
namely, the effect of the exercise upon the
mind of the testator of undue influence, al-
though at fli'st having doubts about the
iwint, I am of the opinion that the same re-
sult follows where the act of destruction is
produced by undue influence as where inca-
pacity exists. There can hardly be a logi-
cal difference whether the act of destruction
be accomplished by a testator who has no
mind to exercise, or, having a mind of his
own, is prevented from exercising it. In-
sanity takes away testamentary power,
while undue influence does not allow it to
act. There must be animus revocandl. In
the one case, Providence jjrevents it; in the
other case, it is prevented by the wrongful
act of man. In each case the hand of the
testator acts, but the mind does not go with
the act The hands survive the head. If
the rule were otherwise, the law would al-
low one man to cancel another man's will
without his consent. It must be twrne in
mind that, where undue influence is prac-
ticed, the testator's will is overpowered and
subverted, and the will of another is substi-
tuted in its stead. He is not his own mas-
ter. He does not act voluntarily, for his
own volition does not play a part. Proper
influences merely persuade the will, while
undue Influences take it away. The fli-st are
an appeal; the last are a usurping and con-
quering force. The old tree, forsooth, sends
out its life, but the graft incorporated upon
it turns it into unnatural fruit.
This is the more apparent from another
view of the same facts. A man malces a le-
gal will. In a codicil he undertakes to cancel
the will. But if he has not mental capacity,
or if he is Induced by undue influences to
attempt a revocation, the codicil is of no
avail, and the will stands unrevoked. Sup-
pose, however, instead of revoking the will
by a codicil, the attempt is made to do it
by destroying the will. Must not the act In
this way be as free and unconstrained as if
done In the other way? Does not the same
principle apply? If the mind or will of the
testator be held in imprisonment by undue
influence, can it revoke a will in one way
when it cannot in another? Can a testator
accomplish by burning what, under the same
conditions, he cannot do with pen and ink?
I think not. The question in this phase has
not so often arisen as In the form first dis-
cussed, namely, a want of capacity; but no
particular distinction between the two is
found In the cases, nor does, in my judgment,
a vaUd distinction exist.
Then comes a question whether the gen-
eral or common law is changed by any
of our statutes. I think not. Section 3,
c. 74, Rev. St., our statute of wills, is this:
"A will so executed is valid until destroyed,
altered, or revoked by being intentionally
burnt, canceled, torn, or obliterated by the
maker, or by some person by his direction and
in his presence, or by a subsequent will, codi-
cil, or writing, executed as a will Is required
to be," etc. This is substantially like the
English statute of wills, and similar to stat-
utes in most, if not all, the American states,
and is in precise accordance and consistency
with the views already expressed and the
cases cited. Nothing can be much plainer.
To revoke, there must be an Intention to re-
voke. If a testator has not a sound or sane
intention, he has no intention. If his inten-
tion is supplanted by another man's intention,
then legally he has no intention.
But another statute is relied upon as up-
setting or qualifying this statute. Section
7, c. 64, Rev. St., reads thus: "When the
last will of any deceased person, who had
his domicile in this state at the time of his
death, is lost, destroyed, suppressed, or car-
ried out of the state, and cannot be obtained
after reasonable diligence, the execution and
contents thereof may be proved by a copy,
and the legal testimony of the subscribing
witnesses to the will, or by any other evi-
dence competent to prove the execution and
contents of a will; and, upon proof of the
continued existence of such will up to the
time of the decease of said testator unre-
voked, letters testamentary shall be' granted
as on the last will of the deceased, the same
as if the original had been pi-oduced and
proved." The latter statute was first enact-
ed in 1861. The former has existed ever
sinde we were a state. Even if the phrase.
61
REVOCATION, REPUBLICATION-, AND REVIVAL OF WILLS.
"<()iiUnuocl existence of such last will," means
Iiliysloiil existence, which I do not agree to,
ev('n then the two acts are not inconsistent,
II nU do not clash with each other. One
\v(iuld not repeal or limit the other, any more
tlian tlie other would the one. One would
Ko further in some respects than the other,
and the other further in other respects. Each
occupies its own ground. The 1801 act al-
lows oral or parol proof of a will not de-
stroyed, but which is merely suppressed or
carried out of the state, while the other is
silent about such a case. The act of 1861 is
declarative and cumulative only, and does
not abrogate, or undertake to abrogate, any
other act. If the act of 1861 had been passed
to alter the great body of the law of the
world upon this subject-matter. Its terms
would have been more positive and signifi-
cant. It directly admits "other evidence com-
petent to prove the execution and contents of
a will" than the wiU itself.
But my judgment inclines strongly to the
belief that the phrase, "continued existence
of such last will up to the time of the de-
cease of such testator unrevoked," does not
mean the continued physical existence of the
wlU. The word "existence" sometimes
means a physical and sometimes a legal exist-
ence. A will may have a physical and not
a legal existence, and vice versa, or it may
have both. A deed may be destroyed so as to
have no physical existence, and still have a
legal existence, if its contents can be proved.
So a will may exist although the written
instmment be destroyed, and oftentimes a
will does not exist as a will although not
destroyed. By the statute tii-st quoted, "a
will so executed Is valid until destroyed by
being intentionally burnt." If unintention-
ally burnt, it is still valid, Is still a will, and
still has a legal, but not a physical, existence.
I think the phrase, "continued existence
* ♦ * unrevoked," means no more than
that the will shall continue or remain unre-
voked. The statute in this respect merely re-
peats the requirement of the common law,
that a person setting up a destroyed will shall
show that such will had a continued legal
existence down to the testator's death; that
is, that the testator continued in the same
mind down to the day of his death. The
phrase "continued existence" is explained in
Betts V. Jackson, 6 Wend. 173, to mean that
the testator permitted it to stand as his will
till his death; and it is there said: "The ex-
ecution of the will not only must be proved,
but tliere must be also satisfactory evidence
of its existence at the death of the testator,
or of his intention that it should exist, and
stand until his death; that the mere fact of
due execution is not evidence of such exist-
ence or Intention." The deduction is that if
a will is made and adhered to by a testator
tUl his death, and he desires it to exist, or
supposes it to, then it does legally exist till
his death, unrevoked, tliough prior thereto it
has been lost or mislaid, or accidentally or
fraudulently despoiled. The writing or script
may be gone, but the will remains. But, in
either interpretation of the statute of 1861,
the conclusions reached will stand. I am
happy to add that I have consulted some of
my judicial associates upon these questions,
who have carefully considered them, and
concur in the views expressed by me in all
particulars.
So much for the law of the case; then as
to the facts. Here I possess the functions of
a jury. In deciding facts which are suitable
for the jury tribunal, I feel a disposition to be
somewhat influenced by what I think an in-
telligent and fair-minded jury, properly in-
structed, would be likely to do upon the same
testimony. Certain important facts appear to
me to be unquestionable, namely: That for
Miss Gilkey, the beneficiary under the de-
stroyed codicil, the testator had the fondest
and warmest affection. Its depth and
strength are disclosed by a continuous stream
of evidence in his letters produced, which I
think could never have been fully appreciat-
ed, had it come merely from the mouth of
witnesses. He spoke it; wrote it; acted it.
She seemed, partially at least, to fill a void
in his heart created by the loss of a dearly
loved wife, to whom she alone, of all the fam-
ily about him, was related. This affection
continued from her childhood to womanhood.
It never abated. It baffled all family oppo-
sition. He educated and supported her, and
seemed desirous to make her dependent upon
him for all her wants. His letters held up be-
fore her vision the rainbow of promise against
want in the future. In consonance with
all this, when he found the sun of his life de- _
scending, although in full health and strength,
unasked by her, uninfluenced by anybody
that I can see, with much deliberation,
against family wishes, he made this codicil.
He took his executors as trustees of the fund,
but fortified himself against doubt by adding
another trustee. He resolutely adhered to
the codicil till his last sickness, at least.
Xow, after he had lain a month on his death-
bed, a very aged man, weighed down and
weakened by disease, so far Into the sunset
of his life that the shadows of its twilight
were fast settling over his understanding,
surrounded by persons natuiully disturbed
by the existence of the codicil, with no notice
to the beneficiary, with no after mention of
it to her, the affection between her and him
lasting till his last sands of life ran out,—
he destroyed the codicil. What cause was
there for this changie which so suddenly came
over his mind? . I think the inference is iree-
sistible that the act was caused by another
or others, whether the influence exerted over
his mind was an undue influence or not
What his strength did, his weakness would
not have repudiated. How much truth in
the situation scripturally described: "Verily,
verily, I say unto thee, when thou wast
young, thou girdest thyself, and walkest
whither thou wouldst; but when thou shalt
KEVOCATION, REPUBLICATION, AND REVIVAL OE WILLS.
65
be old, thou shalt stretch forth thy hands,
and another shall gird thee, and carry thee
where thou wouldst not" Nor was it un-
natural that the heirs should have unwilling-
ly seen this bestowment upon one not an
heir, or that they should have resisted it.
Perhaps it would have been unnatural in
them if they had not resisted it. Undoubted-
ly they did no more than seemed proper to do,
looking at the matter from their stand-point.
Nor do I, possessing plenary powers, under
the terms of the reference, feel bound to de-
clare whether there was an undue influence
exercised or not, or declare an absolute con-
clusion one way or another upon the issues,
whether the testator was incapacitated from
having a reasonable or intelligent intention
of revocation, or whether the will was de-
stroyed by him through some misunderstand-
ing or mistake.
Suffice it to say that, under all the circum-
stances and conditions of the ease, I deem it
expedient to uphold the codicil in favor of
Miss Gilkey as unrevoked, and allow it to be
probated, allowing to the other side some
concessions and considerations therefor. First
of which (concessions and considerations) is
that the last codicil shall also be probated.
Logically, perhaps, if the first codicil stands,
the second should fall. But as there is no
contradiction between the two, except a re-
cital in the last which ignores the first, both
may stand. Precisely the same point occur-
red in an English case. Robinson v. Clarke,
2 Prob. Div. 269. The court there said: "In
a testamentary suit where the parties have
LAW succ. — 5
come to an arrangement, under the terms of
which the court is applied to, to grant probate
of two testamentary instruments, it will do
so, provided such documents are not entirely
inconsistent with one another." In Goods
of Honywood, L. R. 2 Prob. & Div. 251, the
court thought improper words in the recital
of a will could be corrected by an explana-
tion upon the record.
Another concession is that the taxable costs
of the appeUee, claimed to be several hun-
dred dollars, shall not be recovered from the
estate.
Another concession is that the estate shall
not pay the expense of counsel fees to the ap-
pellee, thougjh claimed, upon the ground that
the estate should be taxed to pay for the ex-
pense of sustaining a codicil which by law
should be sustained. But the bill therefor,
$500, which seems not an unreasonable
amount for entire services, shall be paid by
the executors, and charged to the earnings
of the trust-estate now on hand. Or, if both
parties should prefer it, I should award as
above, and, instead of the life annuity, order
an absolute conveyance to Miss Gilkey of the
15,000 of Boston & Albanj. stock, together
with the earnings of the $9,000 of stocks nam-
ed in the codicil, which have been due and
payable since the death of the testator to this
time. Or I would make any other commuta-
tion of the life-estate into ready money or
absolute property which the parties may
agree to. And whatever conclusion may be
accepted, suitable decrees will be entered ac-
cordingly.
C6
REVOCATION, REPUBLICATION, ANB REVIVAL OP WiLLS.
ESCHBACH V. COLLINS et al.
(61 Md. 478.)
Court of Appeals of Maryland. March 26, 1884.
Appeals from circuit court of Baltimore
city.
Action by Elizabeth H. Collins and Richard
Bernard, administrators with the will an-
nexed, and trustees under the will of John
Eschbach, late of Baltimore city, deceased,
for the purpose of obtaining a judicial con-
struction of said will. The will contained
the following provisions: "First. [I hereby
appoint my sons Leo Eschbach and John E.
Eschbach executors of this, my last will
and testameiit,] and direct them to pay my
just debts and funeral expenses; giving them
power, as executors, to sell, to such extent
as may be necessary to make such pay-
ment, such parts of my estate, real or per-
sonal, as may be necessary, and the like
power to any administrator of my estate.
Second. I give, devise, and bequeath all the
rest and residue of my estate, of every
kind and description, which I may leave at
the time of my death, to my said sons, [Leo
Eschbach and .John E. Eschbach,] and their
successors in the trust thereby reposed in
them; it being my will that there shall at
all times be at least two trustees, and that
one alone shall not be competent to act, and
that, in case of death, refusal to act, inabil-
ity from any cause, or resignation, that a
successor or successors shall be appointed by
some court having jurisdiction over trust-
estates, in trust to and for the following
uses and purposes: That the amounts which
I have advanced or may advance up to the
time of my death, to any of my sons or
daughters, or to any son-in-law, evidenced
by notes or otherwise, shall be ascertained
by the said trustees, or their successors, as
speedily after settling in the orphans' court
as possible; and that the entire amount
thereof shall be added to the rest and resi-
due of my estate bequeathed as aforesaid;
and the aggregate amount thereof shall be
divided into ten equal parts, the number of
my present living cliildren, by three disin-
terested persons, to be appointed by some
court having jurisdiction over trust-estates,
the decision of a majority of whom to be
final, and such appointments to be continued
until a division shall have been had; each
of my sons to have one share, and to be
charged with advances made or to be made
to him; and each daughter to have one
share, and to be charged with advances
made or to be made to her or her husband;
and the portion of each son and daughter
in the said rest and residue to be reduced to
tlie extent of such advance made, or to be
made, as aforesaid; the division to be so
made as aforesaid to be reduced to writing,
and to sliow the share or portion of each,
and each piece of property to be separately
valued; tbe said division to be acknowl-
edged before a justice of the peace by the
parties making the same as their act and
deed, and to be recorded in the court having
jurisdiction of trusts making the said ap-
pointments, and also recorded among the
land records of Baltimore city; the share
of my sons [Leo] and [John B. Eschbach]
to be held by each of them who may survive
me, absolutely, and the trust hereby created
to cease as respects them, or the one who
may survive me. The shares of my other
children to be held for their respective lives,
my daughters' shares to be for their and
each of their sole and separate use, freed
from the control of any husband, and in no
way liable for his debts. In case any of my
said children, exclusive of [Leo] and [John
E. Eschbach,] should die, leaving a child or
descendant, then such share shall pass to
such child, children, descendant, or descend-
ants per stirpes, and not per capita; but, in
case of the death of any such child, leaving
no child or descendant at the time of such
death, then the part or share of the one so
dying shall pass to my surviving children
and descendants of any deceased child per
stirpes, absolutely and forever. * * * In
case any of my ten children now living
should die before me, leaving no child or
descendant living at the time of my death,
then my said estate shall be so divided as
to reduce the number of shares, and to make
the number equal to the number of my chil-
dren who may survive me; and of such of
my children as may have died before me,
leaving a child or descendant surviving me,
it being my wiU that in the case now sup-
posed the descendant of a deceased child
shall take the share of the parent; it being
also my intention to pass life-estates to
all my children and descendants of a de-
ceased child, who may take at the time of
my death, with the exception that my sons
[Leo] and [John E. Eschbach] shall each,
if he survives me, take absolute fee-simple
estates in their respective shares."
When the will was found, after the death
of the testator, the words in brackets in
the foregoing extracts had been marked over
with pen strokes, as if for the purpose of
erasure, but were still legible. The testa-
tor left no widow, but he left ten children,—
seven sons and three daughters.
The court (Dobbin, J.) adjudged and de-
creed that the true construction of the will
as it stood affected by the erasures, which
it was shown by the evidence that testator
made therein, was that Leo Eschbach and
John E. Eschbach were to be omitted as
executors and trustees; and that the com-
plainants were, under the order of 27th Sep-
tember, 1881, appointing them trustees un-
der said will, in place of said Leo Eschbach
and John E. Eschbach, to hold the estate
of said testator for the trust purposes men-
tioned in said will, as affected by said
erasures; that is to say, for the use of all
the children of said John Eschbach for and
during the term of their respective lives, the
KEVOCATION. KEPUBUCATION, AND REVIVAL OF WILLS. 67
shares of the daughters to be for their sole
and separate use, freed from the control of
any husband, and in no way liable for his
debts; and in case any of the said children
of said testator die, leaving a child or de-
scendant, then such share should pass to
such child, children, or descendant or de-
scendants, per stirpes, and not per capita;
but, in case of the death of any child leaving
no child or descendant at the time of such
death, then the part or share of the one
so dying should pass to the testator's sur-
viving children, and descendants of any de-
ceased child, per stirpes, absolutely and for-
ever, freed from any further trust.
From this decree three appeals were taken,
—one by the widow of Joseph A. Bschbach,
a son; one by the executor of the said
Joseph; and a third by judgment creditors
of John E. Eschbach, another son.
A. Leo Knott, for Annie Haria Eschbach
and executor of Joseph A. Eschbach. Ber-
nard Carter and Arthur W. Machen, for
Burke and Reddington, judgment creditors
of John E. Eschbach. Richard Bernard, for
appellees.
YELLOTT, J. The bill of complaint in
this cause invokes a judicial construction of
the will of John Eschbach, the meaning of
which having been rendered ambiguous, ob-
scure, and in some places apparently in-
comprehensible, by obliterations made by
the testator a number of years subsequent
to the date of its execution. The will was
originally executed in conformity with the
requirements of the statute prescribing the
formalities to be obsei'ved in making a tes-
tamentary disposition of real estate. In the
first clause two of the testator's sons, Leo
Eschbach and John E. Eschbach, are ap-
pointed executors, with the usual directions
in regard to funeral expenses and the pay-
ment of debts. In the second clause, the
whole estate, real and personal, is devised
and bequeathed to the said Leo and John
E. Eschbach in trust. The testator then
proceeds to declare the nature and purposes
of the trust thus created, and the mode and
manner in which it shall be executed, with
a multitude of provisions not necessary to
be here recited, as they involve no questions
now presented for adjudication. The corpus
of the estate is to be divided into 10 equal
parts, corresponding to the number of the
testator's children. Leo Eschbach and John
E. Eschbach are each to take one-tenth, en-
tirely exempted from the operation of the
trust, and to be held by them absolutely
or in fee-simple. To the other sons and
the daughters' life-estates are given with
remainders as prescribed by the terms of
the will. It becomes important. In the con-
struction of this will, to observe that none
of the children of the testator are mentioned
by name except Leo and John E. Eschbach.
The others are simply designated as sons or
daughters.
After the death of the testator the will
was discovered with certain words written
below the signatures of the attesting wit-
nesses. This writing is somewhat deficient
in perspicuity, which is, perhaps, attributa-
ble less to the imperfection of human lan-
guage than to the peculiarity of- the diction
employed. It was not there when the will
was executed. It has no attestation, but is
supposed to be in the handwriting of the
testator, and was signed by him. It Is in
these words: "Febraary 3, '80. For Good
& soun Reason, I arrest John E. Eschbach
Name, and Leo Eschbach his Name, the
above date, in Good Health and Reason,
Signed the above date. John Eschbach."
In each clause of the will, wherever the
names of Leo Eschbach and John E.
Eschbach occur, a pen has been drawn
across, leaving the names legible, but the
writing partially defaced- by the attempted
obliterations. Two important changes in the
will result from these erasures. The firat
is the removal of Leo and John E. Bschbach
as executors and trustees. No question here
arises for the determination of this court;
the said Leo and John E. having declined
to act as executors, and their formal re-
nunciation being embodied in the record.
The circuit court has also, in the exercise
of its jurisdiction, and in conformity with
the provisions of the will, appointed trus-
tees, and Leo and John E. Eschbach have
admitted and averred in their answer that
said trustees have been duly appointed. But
another and more material change has been
effected by these erasures. The will, as
originally executed, gave life-estates to all
the sons except Leo and John E. Eschbach.
The erasure of the two names operates to
confer estates in fee^simple on all the sons.
The testator says in the second clause: "Tbe
shares of my sons Leo and John E. Bsch-
bach to be held by each of them who may
survive me, absolutely, and the trust here-
by created to cease as respects them, or the
one who may survive me. The shares of my
other children to be held for their respective
lives," etc. The testator had other sons be-
sides the two specially mentioned by name.
Omit the words erased, and it vnll be seen
at a glance that all the sons take absolutely,
and the words "my other children" apply
only to the daughters. Again, in the con-
cluding portion of this clause, the testator
says: "It being also my intention to pass
life-estates to all my children and descend-
ants of a deceased child who may take at
the time of my death, with the exception
that my sons Leo and John E. Eschbach
shall each, if he survives me, take absolute
fee-simple estates in their respective shares."
He has erased the names of Leo Bschbach
and John E. Eschbach, and this obliteration
manifestly creates a fee-simple estate in
each son, and renders the word "children"
applicable only to the daughters.
The first question presented for adjudica-
68
REVOCATION, REPUBLICATION, AND REVIVAL OE WILLS.
tion Is whether a testator can, by the oblit-
eration of certain words in his will, cause the
transmutation of a life-estate into a fee-sim-
ple. This is the converse of the proposition
presented by the case of Swinton v. Bailey,
1 Exch. Div. 112. There the effect of the
obliteration was to diminish an estate in
fee-simple, and convert it into an estate for
life. Chief Baron Kelly in the exchequer
held that this could not be done. The judg-
ment of the exchequer was reversed in the
court of appeals, Cockburn, 0. J., saying:
"Although it is a devise In fee-simple, I think
that is (so far as it is a matter of revoca-
tion) divisible into two parts, and that the
man who has given the larger estate may re-
voke the gift to that extent, and cut it down
to the smaller gift or devise of an estate for
life. It may be that you cannot add to the
will." The decision of the court of appeals
was affirmed in the house of lords, (48 Law
J. 57.) The only principle determined in this
case was that an estate might be diminished
by the erasure of certain words, and any gen-
eral observations made by judges, which ex-
tended beyond the scope of the question in
controversy, could hardly be recognized as
establishing a safe precedent, even within
the jurisdiction where the decisions of that
court must be received as authoritative. In
Larkins v. Larkins, 3 Bos. & P. 20, Lord Al-
vanley, C. J., said: "If the remaining de-
vises were to acquire any estate which they
had not before, something beyond a mere rev-
ocation would be. necessary."
A careful analysis of either the English or
the Maryland statute would seem to lead ir-
resistibly to the conclusion that every testa-
mentary act by which property is transmit-
ted should be authenticated in the manner
prescribed by the legislature. A man may
devise the whole of his estate in fee-simple.
This is one testamentary act. He may sub-
sequently change his intention, and, as the
fee is susceptible of subdivision, he may de-
termine to give a less estate. This would
certainly be another and a distinct testamen-
tary disposition, and, when it Is alleged that
he has so determined, the adduction of the
proper proof Is requisite. It is apparent that
this proof must be supplied by the produc-
tion of another will or a codicil properly
attested and executed. Hence it would
seem to have formerly been the settled doc-
trine in England that "any alteration that
amounts to a new devise of the land re-
quires that the will should be re-executed
according to the statute." Love. Wills, 340.
The American cases fully recognize this
doctrine, and, when an attempt has been
made by interlineation or obliteration to
make a different disposition of the estate,
the attempt has been held to be abortive,
and the will operated as originally executed.
In .lackson v. HoUoway, 7 Johns. 395, a. tes-
tator, having made his will devising his
lands then in possession to his four sons,
subsequently acquired other lands, which, by
the statutes of the state, did not pass by a
will executed antecedently to the seisin. He
attempted an alteration by erasures and inter-
lineations, so as to make the devise extend
to all the lands of which he should die seised,
and indorsed a memorandum to that effect
on the will, stating the alterations which he
had made. This memorandum was attested
by two witnesses only. It was held that the
erasures and interlineations did not destroy
the original devise, but that the alterations,
not having been attested by three witnesses,
could not operate. The court said: "The
obliterations in the will were made, not
with an intent to destroy the devise already
made, but to enlarge it, by extending it to
lands subsequently acquired. The testator,
however, failed in making interlineations
and corrections which could operate, from
not having the amendments attested accord-
ing to law. The obliterations cannot, tnere-
fore, destroy the previous devise, for that
was not the testator's intention." In Mc-
Phei-son v. Clark, 8 Bradf . Sur. 99, the testa-
tor attempted to revoke the devise to his
daughter by striking out the words "my
children," and Inserting "my two sons."
The court said: "This insertion is inopera-
tive for want of re-execution and attestation;
and, the intent failing as to the substitution
intended, it must fail likewise as to the rev-
ocation Intended. Enough remains on the
face of the will to show that the word erased
was 'children,' and the wUl must be so re-
corded." In the case of Wolf v. Bollinger, 62
111. 372, the testator, after having devised his
estate to one person, afterwards attempted
to transfer it to another. The alteration was
made by an interlineation which was not at-
tested in the presence of the testator. The
court said that, for want of a compliance
with this statutory requirement, the instru-
ment did not operate as a disposing will.
The cancellation was not made with intent
to revoke the devise to the complainant sim-
ply, but with intent to substitute in her
stead the defendant; and, the ultimate ob-
ject of substitution having failed of accom-
plishment, the canceling, which was done
only in the view of and in order to effect
that object, should be esteemed for nothing,
and be considered as not having been made
absolutely, but only conditionally, upon the
attempted substitution being made effectual.
To give it effect, under the circumstances,
would seem to be to thwart the intention of
the testator, and make him intestate when
he manifested a contraiy intent by his will.
In the case of Bigelow v. Gillott, 123 Mass.
102, there was an entire obliteration of the
sixth and thirteenth clauses of the will by
ink lines drawn through and across every
word constituting those clauses. This was
held to be a revocation of these two clauses,
leaving intact the other clauses in the will.
The court said: "He revoked the sixth and
thirteenth clauses, and purposely and intel-
ligently left the other provisions to stand as
KEVOCATION, HEPUBLICATION, AND BEYIVAL OF WILLS.
69
Ills will." "The argument that this view is
in conflict with the provisions of law which
require that a will disposing of property
should be executed in the presence of three
witnesses is not sound. It is true that the
act of revocation need not be done in the
presence of witnesses; but such act does not
dispose of the property."
If tills was simply a ease of revocation, its
determination would involve a construction
of section 302 of article 93 of the Maryland
Code of General Laws, which prescribes the
mode by which a revocation may be effected.
The language of the statute is: "No devise
in writing of lands, tenements, or heredita-
ments, or any clause thereof, shall be rev-
ocable" except in the manner designated.
An entire will can thus be revoked, or any
clause thereof. What, then, is a clause?
Does it consist of two or three words which,
disjoined from the context and transferred
to a separate sheet of paper, would be devoid
of sense or meaning? Do the mere names of
two persons constitute a clause? Is not a
clause always understood to mean one of
the subdivisions of a written or printed doc-
ument? Is the word ever used in any other
sense? Wills are frequently subdivided in-
to a number of clauses. In one, the testator
may provide for the payment of his debts;
in another, dispose of his personal property;
in a third, devise his real estate; in a fourth,
leave legacies; and then there may be a
residuary clause. Is it not apparent that
the statute has reference to one of these
subdivisions of a will when the word "clause"
is used in connection with "revocation?" It
is true that a whole will might be revoked,
or any clause thereof, by obliterating all the
words necessary to give them meaning. To
deprive a will of all meaning would be as
effectual a revocation as if it had been con-
sumed to ashes.
It is manifest that in the construction of
this will a question is encountered that in-
volves something more than mere revocation.
The will has not been revoked; it has been
altered. It cannot be supposed that when the
legislature uses the word "revocation" it is
to be construed to mean "mutation." "Rev-
ocation" is certainly not a synonym of "al-
teration." To revoke a testamentary dispo-
sition plainly means to annul it, and the
revocation of a clause implies the destruction
of that clause^ In legal contemplation, it
ceases to exist, and is as inoperative as if
it had never been written. It is not nec-
essary that the words erased should be
wholly illegible, but the act of the testator
must be such as to clearly indicate an inten-
tion to expunge the whole clause, so that it
shall no longer constitute a subdivision of
the will. But when, by the obliteration of
certain words, a different meaning is im-
parted, there is not a mere revocation.
There is something more than the destruc-
tion of that which has been antecedently
done. There is a transmutation by which
a new clause is created. There is another
and a distinct testamentary disposition,
which must be authenticated by the ob-
servance of the statutory requirements. The
statute, after designating the modes of rev-
ocation, whereby tliat which has already
been done is rendered inoperative by being
destroyed, says, in language wholly free
from ambiguity, and therefore needing no
construction: "Or unless the same be alter-
ed by some other will or codicil in writing,
signed in the presence of three or four wit-
nesses, declaring the same." There can
therefore be no alteration in a testamentary
disposition of real estate except by an ob-
servance of the formalities prescribed by the
statute. In the will now to be construed,
the obliterations, so tar from operating as a
mere revocation, by destroying the sense of
the context, impart to the clause a different
and more important significance. Not only
does this become apioarent, but it is also
evident tkat the construction which has been
contended would be productive of the very
evils^ which the legislature intended to pro-
vide against. The obliteration of two or
three words might wholly change the char-
acter of a devise. As aptly illustrated by
learned counsel in argument, if the words
were, "To my son William I give nothing,
and give all my estate to my son John," the
will could be made to read, without the in-
sertion of any additional words, "To my son
William I give all my estate." But, as al-
ready intimated, the record dges not present
a question of revocation. It is clear that
the testator did not contemplate an intes-
tacy. He evidently intended to make a testa-
mentary disposition of the whole of his prop-
erty. It was supposed by the learned judge
of the circuit court that he intended by the
obliterations to diminish the fee-simple es-
tates of Leo and John E. Eschbach to life-
estates. If such was his purpose, he has
attempted to make another and a different
devise of one-fifth of his whole property.
He transfers the legal title, vested in Leo
and John B. Eschbach, to trustees, and
carves out the fee-simple equitable life-es-
tates, with remainders to the children of the
life-tenants. This is a new will, as respects
one-fifth of his property. Let it be sup-
posed, by way of illustration, that the entire
estate had been devised to Leo in fee-simple.
How could the testator subsequently vest the
legal title in trustees, and create an equita-
ble life-estate, with remainders? Not cer-
tainly by obliterations and Interlineations,
without attestation or the observance of any
of the formalities prescribed by the statute.
And is a testamentary disposition of the
one-fifth of an estate governed by a different
principle? The intention of a testator is only
to be regarded when the law sanctions the
means he has adopted to carry it into effect
If what he has done is invalid, the Intent
cannot be respected.
In the formation of a judicial opinion, the
70
REVOCATION, REPUBLICATION, AND REVIVAL OF WILLS.
caJm investigating faculty of reason should
exercise a paramount control; but in an
effort to ascertain, by an inspection of this
mutilated will, tlie real intention of the tes-
tator, the aid of imagination seems to be-
come necessary. The aged testator declined
to seek the advice and assistance of those
whose professional learning and experience
would have afforded safe guidance, and, re-
lying solely upon his own judgment, failed
in the accomplishment of an intent which
he has left involved in obscurity. The true
construction of this will is that the attempt-
ed obliterations are inoperative, and that
the will must be read just as it was orig-
inally written and executed. The renuncia-
tion of Leo and John E. Eschbach as execu-
tors, and the appointment of the complain-
ants as trustees, by the order of September
27, 1881, from which no appeal has been
taken, render a construction of the first
clause of the will unnecessary. The trus-
tees appointed in conformity with a provi-
sion in the second clause, and by a competent
court, having jurisdiction of trusts, have the
control over the estate given to the tmstees
by the will as it was executed. The shares
of Leo and .John E. Eschbach are exempted
from the opeiations of the trust thus cre-
ated, and are to be held by them absolutely
and in fee-simple. The learned judge of the
circuit court having sought to give effect to
the supposed intention of the testator to
diminish the estates of Leo and John E.
Eschbach, his decree is, in this respect, erro-
neous. But no other error is perceptible in
said decree, which must therefore be aflirm-
ed in part and reversed in part.
Decree affirmed in part and reversed in
part, and cause remanded.
STONE and BRYAN, JJ., concurred. AI^
VEY, C. J., and MILLER and IRVING, JJ.,
concurred in the conclusion, but not the rea-
soning of YBLLOTT, J. ROBINSON, J.,
dissented.
EEVOCATIOSr. BEPUBLICATION, AND REVIVAL OF WILLS.
71
HOITT V. HOITT.
(63 N. H. 475, 3 Atl. 604.)
Supreme Court of New Hampshire. March 12,
1886.
Appeal from probate court.
Alfred Holtt ciuly executed a will, bearing
date February 12, 18C4. At that date his
family consisted of his wife and their sis
sons and seven daughters, of whom ten were
of age. His wife died April 25, 1877, and
one of his sons, who was one of four sons
named in the will as residuary legatees, died
unmarried in 1877. He married a second
wife January 6, 1879, who survived him.
There was no issue of the second marriage.
The testator died November 9, 1883. At the
time of making the will his estate amounted
to some $26,000, about two-thirds of which
was realty, and consisted of eight different
parcels. Included in the personalty were 60
shares of the Boston & Maine Railroad, and
20 shares in the Langdon Bank. These
stocks were specifically bequeathed, but,
with the exception of four shares of the rail-
road stock, were subsequently sold by the
testator, and not replaced. All of the realty
was specifically devised, but the testator aft-
erwards disposed of the greater portion of
it. He subsequently acquired by purchase
and was possessed at his decease of other
real estate of the value of about $52,000. His
entire estate, at the time of his death, was
appraised at $70,951.82. Four sons were
named by the testator as residuary lega-
tees, one of whom died unmarried in 1877.
All the other children survived the testator.
When the will was executed, the residue of
the estate was inconsiderable. After the
testator's decease the will was found in his
safe, in a bundle of papers of no pecuniary
value. Included in this bundle were several
apparently incomplete drafts or memoranda
of wills, never executed, without date, some
of which were apparently made since the
date of said will.
In the trial court the appellee offered evi-
dence of the oral declarations of the testator
to show that it was his understanding that
the will was revoked, and also to show that
it was not his intention to pass by his will
after-acquired real estate. To this the ap-
pellant objected. The court sustained the
objection, and the appellee excepted. The
decree of the probate court disallowed the
will.
Augustus Russ, Jeremiah Smith, and
Dodge & Caverly, for appellant. Marston &
Eastman and Frink & Batchelder, for appel-
lee.
BLODGETT, J. No express revocation ap-
pears in this case. The will of the testator,
executed in accordance with the statute for-
malities, has not been revoked by any sub-
sequent "will or codicil, of by some writing
executed in the same manner, or by cancel-
ing, tearing, obliterating, or otherwise de-
stroying the same by the testator, or by
some person by his consent and in his pres-
ence," as required by Gen. Laws, c. 193, § 14.
On the contrary, it was found in his safe
'^ after his decease, and in its original condi-
tion. It is true that it was in a bundle of
papers of no pecuniary value, and that "in-
cluded in this bundle were several appar-
ently incomplete drafts or memoranda of
wills never executed, without date, some of
which were apparently made since the date
of said will." But Fellows v. Allen, 60 N.
H. 439, 441, is a recent and direct authority
that the fact of a will being found among
worthless papers works no revocation of it;
and the authorities, as well as reason, dem-
onstrate that the memoranda, which, at
most, are merely evidentiary facts of an in-
choate intention to make another will, have
no legal significance as acts of revocation;
for, although the purpose of the mind al-
ways gives character to the act done, still,
the legislature having established certain
modes by which a will may be revoked. It
is not within the legitimate power of courts
to dispense with such requirements, and ac-
cept even a definite Intention to nerform the
prescribed act far the act itself.
Neither has the will become inoperative,
as a whole, from necessity, either by an en-
tire loss of the testator's estate, or its total
alienation, or by the decease of all the dev-
isees without' descendants, and so • leaving
nothing upon which it can operate. If,
therefore, there has been a valid revocation,
it must be one arising from legal presump-
tion or implication; and this in fact is the
principal contention.
The existing statute as to the revocation
of wills, which was originally adopted in
1822, after pointing out the modes by which
a will may be revoked, expressly excepts
any revocation implied by law from changes
In the circumstances of the- testator, his fam-
ily, devisees, or estate, occurring between
the time of making the will and his death.
Gen. Laws, c. 193, §§ 14, 15. But what those
changes are, section 15 does not in any man-
ner attempt to define; and the effect conse-
quently is to leave the matter of revocation
by legal implication just as it stood before
the enactment of that section. That Is to
say, section 15 (which In the act of 1822 was
a proviso to what is now section 14) is to be
taken, not as a recognition and adoption of
the common-law doctrine of implied revoca-
tion, but as a recognition and adoption of
the English decisions under sections 5, 6,
and 22 of the English statute of frauds rela-
tive to the revocation of wills, passed in
1676; for the common law as to such revo-
cations was abrogated by that statute. The
English statute was doubtless the basis and
model of our statute, directly or indirectly,
and the proviso in the latter, we think, is to
be regarded as merely explanatory of the
preceding part of the section prescribing the
manner of express revocation. Practically
72
REVOCATION, KEPUBUCATION, AND REVIVAL OF WILLS.
and in effect it was an adoption, under then
existing conditions, of sucli implied revoca-
tions as liad been introduced and established
by the English courts, contrary to the plain
meaning of the English statute, and solely
llu'ough the usurpation of legislative pow-
er. But the English courts did not go the
length of establishing a rule that revocation
might be shown by any change of circum-
stances affording satisfactory evidence of the
testator's revoking intention, but stopped far
short of it, and restricted its application to
a few exceptional cases, as to which it was
held the statute did not apply. Hence there
is no tenable ground for holding that any
causes of revocation were intended by our
legislature to be embraced in the proviso to
the act of 1822, aside from the existing ex-
ceptions established by the English courts
upon supposed equitable considerations; and
much less can it be held that any alteration
was effected or intended by the Revision of
1842, making the proviso a separate section,
and slightly changing its phraseology. And,
as strongly tending to show that the purpose
of the legislature was such as has been in-
dicated, and that such has been the univer-
sal understanding of the bar of this state, it
is a significant fact that no litigation has
arisen as to the legislative intent, or the
meaning of the language used in its expres-
sion, during the more than 60 years which
liave elapsed since the statute was first en-
acted.
No new cause of revocation being intro-
duced by the statute, the true inquiry is
whether the facts of this case bring it with-
in any of the exceptions upon the subject of
implied revocation recognized by the Eng-
lish courts after the adoption of the statute
of 1676, which were quite limited in number,
and reasonably well defined and understood
at the time our statute was enacted. The
causes assigned upon this point as ground of
revocation are subsequent changes in the cir-
cumstances of the deceased, his family and
estate. They are, substantially, the death
of his wife and his son Franklin, both of
■whom were legatees; his second marriage,
but without issue; the alienation of the lar-
ger portion of his estate; and its nearly
threefold increase in value through natural
causes and judicious investments.
But total revocation cannot be implied
from the death of the wife and the son.
"The death of a devisee is a contingency al-
ways in view." Shaw, C. J., in Warner v.
Beach, 4 Gray, 162, 164. "I know of no
cajse," said Denman, C. J., in Doe v. Edlin,
4 Adol. & E. 586, "where it has been held
that the removal of an object of affection
and bounty, by death, has been taljen to be
an implied revocation of a will, and, in my
opinion, it does, not operate so." And see
Fellows V. Allen, supra.
Nor can it be implied from the testator's
remarriage, because the indispensable com-
mon-law requisite of the subsequent birth of
a child is lacking. 1 Jarm. Wills, (5th Amer.
Ed.) 272; 1 Redf. Wills, 293; Pars. Wills,
*59; Worth. Wills, *528. "This principle of
law is incontrovertibly established." 4 Kent,
Comm. 522. And in this connection it should
also be borne in mind that the rule never
applied except in cases where the wife and
after-born children, the new objects of duty,
were wholly unprovided for in the will, and
where there was an entire disposition of the
whole estate to their exclusion and prejudice;
therefore, inasmuch as the widow and chil-
dren of a testator not provided for in a will
are, under our statute, entitled to the same
share of' the estate as if he had died intes-
tate, the sole reason upon which the rule
was grounded no longer exists, and so the
rule itself has become inoperative and obso-
lete in this jurisdiction.
The inquiry thus becomes restricted to the
effect of the changes in the testator's prop-
erty; the phrase "circumstances of the tes-
tator," etc., relating to new family ties, and
not to changes in property. 4 Kent, Comm.
521, and authorities generally. But if it
were apparent, as it certainly is not, that in
the case of a testator an entire revocation by
legal implication resulted, either before or
after the statute of 1676, from any change
whatever of condition or circumstances ex-
cept that of a subsequent marriage and
child, it is the undoubted general rule that a
partial revocation only produces what is in-
aptly and inaccurately termed a revocation
pro tanto, instead of an ademption, of the
subject of the devise, and thus necessarily
limits the operation of the will to the extent
of the alienation; not, however, by reason
of any defect in the will itself, but because
it pleased the testator to make a disposition
of such part of his estate different from
what he originally intended, which it is al-
ways competent for him to do either by a
conveyance, or a new will or codicil. See
Fellows V. Allen, supra; Carter v. Thomas,
4 Greenl. 341, 343, 344; Graves v. Sheldon,
2 D. Chip. 71, 75; Blandin v. Blandin, 9 Vt.
210, 211; Hawes v. Humphrey, 9 Pick. 350;
Terry v. Edminster, Id. 355, note; Webster
V. AVebster, 105 Mass. 538, 542; Balliet's Ap-
peal, 14 Pa. St. 451; Brush v. Brush, 11
Ohio, 287; Floyd v. Floyd, 7 B. Mon. 290; In
re Nan Mickel, 14 Johns. 324; McNaughton
V. McNaughton, 34 N. Y. 201; Warren v.
Taylor, 56 Iowa, 182, 9 N. W. Rep. 128; Wells
V. Wells, 35 Miss. 638; Brydges v. Duchess
of Chandos, 2 Ves. Jr. 417; 4 Dane, Abr.
570, 577; Love. Wills, 358; 1 Kedf. Wills,
335; Pars. Wills, 63. "Conveying a part of
the estate upon which the will would other-
wise operate, indicates a change of purpose
in the testator as to that part; but suffer-
ing the will to remain uncanceled evinces
that his intention is unchanged with respect
to other property bequeathed or devised
therein." Weston, J., in Carter v. Thomas,
supra, 344.
The remaining circumstance, that of the
REVOCATION, EEPUBLICATION, AND REYIVAL OF WILLS. 73
increase of the estate, upon obvious consider-
ations of public policy, has no weight; and
to this efCect is the great preponderance of
authority. Warner v. Beach, Webster v.
Webster, Graves v. Sheldon, Blandln v.
Blandin, and Bailie t's Appeal, supra; Brush
v. Wilkins, 4 Johns. Ch. 507, 518, 519; Wo-
gan V. Small, II Serg. & R. 141, 145; Vande-
mark v. Tandemark, 26 Barb. 416; Verdier
V. Verdier. 8 Rich. Law, 135. "A merely
geneii-al change in the testator's circumstan-
ces, as it regards the amount and relative
value of his property, will not in general, if
ever, have the effect to revoke a will, since
the testator, by suffering it to remain un-
canceled, does in effect reaffirm it, from day
to day, until the termination of his conscious
existence." 1 Redf. Wills, 298.
The conclusion, then, is that the, subse-
Viuent changes in the circumstances of the
testator, his family and estate, do not imply
a revocation of his will. To effect a vprvn.
cation both the English and New Hampshire
statutes require certain specified things,
which are lacking in this case, to be done,
and not merely contemplated or even ac-
tually intended to be done. It is true that
at an early day the English common-law
courts fell into the error of exercising legis-
lative power, and materially amending the
statute of 1676 by enlarging its specific meth-
ods of revocation so as to include revoca-
tions founded upon new family ties and ob-
ligations on the part of the testator, arising
from subsequent marriage, issue, and leav-
ing wife and child without provision; and
that, inasmuch as our statute must be re-
garded as a substantial re-enactment of that
statute in the sense in which it had been in-
terpreted by the English courts anterior to
1822, full effect must be given to their deci-
sions, although plain encroachments upon
legislative power; yet no rule was expressly
established, and none can be inferred from
the decisions, that makes it our duty to tres-
pass still further upon the legislative do-
main, and so far judicially repeal the statute
as to hold that the present case does not
come within the purview of its fourteenth
section. Even the English courts had come
to a halt prior to 1822, and refused to extend
the rule as to implied revocations beyond the
precedents, and so have the American courts
quite uniformly. See Doe v. Barford, 4
Maule & S. 10; Tilghman, C. J., in Wogan v.
Small, supra, and authorities generally.
The rule for which the appellee contends is
that a revocation may be proved or disprov-
ed by any circumstantial evidence showing
the testator's intention; but the precedents
do not support the contention. On the con-
trary, after a most thorough examination of
the cases reported before the enactment of
the New Hampshire statute, it was unani-
mously held in Marston v. Roe, 8 Adol. & E.
14, by the 14 judges sitting in the cause, that
implied revocation takes place in conse-
quence of a rule or principle of law, inde-
pendently altogether of any question of in-
tention; and there is no reason to suppose
that the legislature of 1822 took a different
view of the reported cases. If their purpose
was to make intention of itself a ground of
revocation, and thus inevitably incite litiga-
tion and "produce infinite uncertainty and
delay in the settlement of estates," the pre-
sumption is that the statute would have been
drawn accordingly. Even Johnston v. John-
ston, 1 Phillim. Bcc. 447, upon which great
stress has been laid by the appellee, while
holding the subsequent birth of a portionless
child to be an indispensable requisite which
would effect a revocation when aided by oth-
er circumstances, and a subsequent marriage
not to be an essential requisite, does not
hold that the revoking Intent may be inferred
from a general change of circumstances sim-
ply, but makes the controlling principle rest
upon new moral obligations and family ties
arising after the making of the will, and thus
limits its application to cases of subsequent
marriage or birth in which the wife or child
would otherwise be left without provision for
support. This case, however, is not rele-
vant, the will being one of personalty only,
and the decision being made by an ecclesi-
astical court, unincumbered by statute provi-
sions; and if it were relevant, its governing
principle, when applied to this case, would
be fatal to the appellees, for the reason that
no child was born to the testator subsequent-
ly to the execution of his will. This being
so, it is of no practical consequence here
whether the doctrine of implied revocation
rests upon the fact of a changed intention, as
held in Johnston v. Johnston, or takes place
in consequence of a rule or principle of law
founded on a tacit condition annexed to the
will itself when made, independently alto-
gether of any question of intention, as held
in Marston v. Roe; for the application of
either principle to the facts of this case
leaves the will unrevoked, because they fail
to bring it within any of the exceptions in-
troduced by the ecclesiastical or common-
law courts.
But in respect of intention there is another
consideration which may properly be ad-
verted to. If the circumstantial evidence
appearing in the case were competent in law
and suflicient in fact to show a change of in-
tention on the part of the testator as to his
final disposition of his property, it would
not appear that his intention would be less
defeated by disallowing this will than by al-
lowing it. The only issue is testacy or in-
testacy. To this issue the inquiry as to the
testator's intention is limited; and, what-
ever testamentary change he may have
thought of making, he had no thought of dy-
ing intestate, and leaving his property to be
disposed of by the statutory rule of descent
and distribution. There is no authorized
conjecture that, if the alternative of intes-
taoy or the unaltered will had been present-
ed to him, he would have preferred the for-
74
KEVOCATION, KEPUBLICATION, AND REVIVAL OF WILLS.
mer rather than the latter. Hence, if all the
circumstantial evidence were admissible,
and if it proved all the appellee claims, the
question it vyould present would be, not how
the testator's intent could be carried into ef-
fect, but how it should be defeated. The
choice would be restricted to two modes of
violation, one testate, and the other intes-
tate; and the former, supported by the writ-
ten and uncanceled evidence, which the law
regards as the best, would prevail over the
latter, which would be sustained by no proof,
competent or incompetent, and by no pre-
sumption of law or fact. The testator not
intending to die intestate, the decree of dis-
allowance for which the appellee contends
would be an intestate reversal of a testa-
mentary purpose. "But Gen. Hoitt intend-
ed to change his will." Suppose he did; the
change could not now be made. The intend-
ed alteration (if there was one) is not known,
and the altering power has ceased.
The proffered oral declarations of the tes-
tator to the effect that he understood the
will was revoked, were rightly rejected. The
mere understanding of a testator cannot re-
voke his will, for legal requirements cannot
be thus abrogated; nor can his oral declara-
tions, for wills cannot be revoked by parol;
nor, upon the great weight of authority, are
such declarations evidence, unless they ac-
company some act of revocation, and thei-e-
by become a part of the res gestae. Jackson
V. Kniffen, 2 Johns. 31; Dan v. Brown, i
Cow. 483; Clark v. Smith, 34 Barb. 140;
Waterman v. Whitney, 11 N. Y. 157; Ran-
dall V. Beatty, 31 N. J. Eq. C43; Lewis v.
Lewis, 2 Watts & S. 455; Hargroves v. Redd
43 Ga. 142, 160; Gay v. Gay, 60 Iowa, 415,'
14 N. W. Rep. 238; Rodgers v. Rodgers, 6
Heisk. 489; Smith v. Fenner, 1 Gall. 170;
Doe V. Palmer, 16 Adol. & E. 747; 2 Greenl'
Ev. (9th Ed.) § 600; Abb. Tr. Ev. 124; 2 Star-
kie, Ev. (3d Ed.) 1286; 1 Redf. Wills, 331.
Such declarations, also, were not compe-
tent, upon the testator's intention not to
pass by his will after-acquired real estate.
If a contrary intent Is Inferable from the
will itself, it cannot be disproved by extrin-
sic evidence. If it is not thus inferable, and
may be ascertained by the weight of com-
petent evidence, his declarations are not a
part of such evidence.
Decree of the probate court reversed. Will
allowed,
ALLEN, J., did not sit The others con-
curred.
KEVOCATION, BEPUBLICATION, AND KEVIVAL OP WILLS. 75
SWAN T. HAMMOND.
(138 Mass. 45.)
Supreme Judicial Court of Massachusetts.
Oct. 23, 18S4.
Appeal from probate court, Middlesex coun-
ty.
E. F. Dewing and G. L. Sleeper, for appel-
lant. W. B. Gale and W. N. Mason, for ex-
ecutrix.
COLBURN, J. It appears by the record
and agreed facts in this case that Susan E.
Haven, an unmarried woman, made her will
May 20, 1853; that she was then possessed
of real and personal estate, all of which by
her will she devised and bequeathed to her
sister, who was named as executrix: that on
October 3, 1861, she married Thomas F.
Hammond, and lived with him until her
death, on January 18, 1883. Her husband
had no knowledge of the existence of the will
until after her decease. No child was born
of the maiTiage. The will was presented for
probate in Middlesex by the executrix therein
named, and was approved and allowed on
April, 1883, and the husband appealed. The
only question presented Is whether the will
was revoked by the marriage. It has been
well settled by common law, at least since
Forse and Hembling's Case, 4 Coke, 60b, (de-
cided in 1589,) that the marriage of a feme
sole revokes her will. In case of a man it is
equally well settled that marriage alone does
not revoke his will, but that marriage and the
birth of a child do. 1 Jarm. Wills, 122; War-
ner V. Beach, 4 Gray, 162. The reason why
the will of a feme sole is revoked by her mar-
riage is commonly stated to be that marriage
takes away her testamentary capacity, and
destroys the ambulatory nature of her will;
and it is urged in argument that since the
statutes allowing a married woman to make
a will, with certain limitations as to the
rights of the husband, were passed, the rea-
son upon which the rule was founded, that
the will of a feme sole is revoked by mar-
riage, no longer exists; and that her will,
like that of a man, should be held to be re-
voked, not by marriage alone, but by mar-
riage and the birth of a child. This argu-
ment is not without force, but its force would
be much greater if we could see any good
reason why, in the case of a man, both mar-
riage and the birth of a child should be held
necessary for the revocation of his will. The
rule was adopted from the civil law, and is
now firmly established as part of the com-
mon law; but the reason upon which it is
founded is not obvious. Marriage alone, in
the case of a man or woman, would seem to
be a sufficient change in condition and cir-
cumstances to cause an implied revocation
of a will previously made. A will made
before marriage, and taking effect after mar-
riage, must take effect in a very different I
manner from that In the mind of the testator
when the will was made. The rights of the
husband or wife must greatly modify its pro-
visions; and it can hardly be supposed that
an unman-ied person would make the same
will he or she would make after marriage.
If we were under no restraint, we might well
hesitate to hold that, since testamentary ca-
pacity has been given to women, a will made
by a woman when sole should be revoked
only by marriage and the birth of a child, as
in case of a man, for the sake of uniformity
only, when we are inclined to think a better
rule would be that in case of a man his will
should be revoked by marriage alone. But
such a rule can only be introduced by the
legislature. In England, by St. 7 Wm. IV.
and 1 Vict. c. 26, § 18, and in many of the
states in this country, it has been provided
by statute that the wills of both men and
women shall be revoked by marriage. See
collection of statutes in 1 Jarm. Wills, (5th
Amer. Ed., by Bigelow,) 122, note.
But we are of the opinion that the question
now before us has been so far settled by stat-
ute as not to admit of change by construc-
tion. Section 8, Pub. St. c. 127, after provid-
ing that no will shall be revoked, unless by
burning, tearing, etc., or some other writing
executed in the manner required in the case
of a will, goes on as follows: "But nothing
contained in this section shall prevent the
revocation implied by law from subsequent
changes in the condition or circumstances of
the testator." It is not apparent that an en-
tire revocation, by implication of law, results
from any change of condition or circumstan-
ces except that of a subsequent marriage.
See the discussion in Warner v. Beach, ubi
supra. This clause as to implied revocations
was first introduced into Rev. St. c. 62, § 9.
The other provisions as to revocation were
substantially taken from St. 1788, c. 24, § 2.
The commissioners in their note to this sec-
tion say: "The clause as to implied revoca-
tions recognizes and adopts the existing law,
as estabhshed and understood among us."
And their further discussion of this subject
shows clearly that they had in mind the rule
of the common law, that, in case of a man,
marriage and the birth of a child, and, in
case of a woman, marriage alone, revoked a
will previously made. We are of opinion that
this provision as to implied revocations, from
its language, and the reasons given for its
introduction, has substantially the force of
an express enactment of the rules of the com-
mon law, which we are not at liberty to
change, even if the reason for the rule, in
case of a woman, no longer exists. This was
the view taken in Brown v. Clark, 77 N. Y.
369, upon a similar question, under a statute
of New York. We are therefore of opinion
that the will of Susan E. Hammond was not
properly admitted to probate.
Decree of probate court reversed.
76
KEVOCATION-. KEPUBLICATIOX, AND REVIVAL OE WILLS.
BALDWIN et al. v. SPRIGGS.
(65 Md. 373, 5 Atl. Rep. 295.)
Court of Appeals of Maryland. June 22, 1886.
Appeal from orphans' court, Anne Arundel
county.
rroceedings to probate a will claimed to
have been revoked by the testator's subse-
quent mairiage and the birth of sui"viving
issue. Decree for contestant, and proponent
appeals.
Edward C. Gantt, for appellants. James
Revell and Daniel R. Magruder, for appellees.
STONE, J. There is no dispute about the
material facts in this case. James Sprlggs,
of Anne Arundel county, on the 25th of July,
1865, duly executed his will. By that will
he disposed of all the property, real and per-
sonal, which he then owned. James Spriggs,
at the time of the execution of the said wiU,
had a wife, Ruth Spriggs, then living, and
several children by her, also living. By his
said will he devised all his property to said
wife and children. His wife, Ruth, died in
1871, and said James, soon after the death of
said Ruth, about 1874, intermarried with
Magigie E. Vane, and also had by her sev-
eral children. Said James Spriggs died in
Januarj-, 1886, leaving a widow, the said
Maggie B. Spriggs, and a child by the said
Ruth and children by the said Maggie E.
surviving him. After the execution of the
will the said James Spriggs purchased cer-
tain other real estate which was unafEected
by said will. His will, as to his real estate,
contained no residuary clause, but disposed
of all the real estate he owned at its date,
by specific description. After the death of
James Spriggs his will was offered for pro-
bate in the orphans' court of Anne Arundel
county, and a caveat was filed thereto by
his second wife, Maggie E. Spriggs, in behalf
of herself and her children, and upon such
caveat plenary proceedlngis were had, and
the orphans' court ordered and decreed that
said will was revoked by his subsequent mar-
riage and the birth of issue, and refused to
admit the paper to probate. From this de-
cree the daughter of the testator by his first
wife and two of his grandchildren have ap-
pealed to this court.
These are all the facts necessary to eluci-
date the legal proposition which we are called
upon to decide, and which is simply whether,
upon this state of the facts, the will of
James Spriggs has been revoked by opera-
tion of law. It would be a profitless task to
review all the English cases on the subject
They may be found by the curious fully dis-
cussed by Chancellor Kent with his usual
ability in the case of Brush v. Wilkins, 4
Johns. Ch. 506. It is enough for us to say
that, after a good deal of doubt and hesita-
tion, it was finally settled in England, be-
fore our Revolution, that marriage and issue
taken together did amount to an implied rev-
ocation of a will previously made, and that
such Implied revocations were not within the
statute of frauds, but that such implied rev-
ocations might be rebutted and controlled by
circumstances. The final detennination of
the matter seems to have been reached by the
cases of Christopher v. Christopher, 2 Dick.
445, (decided by the court of exchequer,
Parker, C. B., presiding, in 1771,) and in the
case of Spraage v. Stone, 1 Amb. 721, (de-
cided in 1773.) These cases appear to have
definitely settled the law that a subsequent
marriage and birth of a child, standing alone,
and unaccompanied by other circumstances,
amount to an implied revocation of a will
The whole subject, says Chancellor Kent,
has continued to receive great discussion in
the English courts since the era of our Rev-
olution, growing out of new cases constantly
arising amidst the endless variety of human
affairs. The most important of the English
cases since the Revolution is the case of
Marston v. Fox, 8 Adol. & E. 14, (decided
in 1838 by 14 out of the 15 English judges,)
where the general doctrine we have stated
was reaffirmed. We will recur to this case
again for anoiuer purpose. But we are not
without decisive authority in our own state.
The unreported case of Sedwick v. Sed-
wiek, decided at June term, 1844, was a case
similar to the one at bar. And the court of
appeals decided that the subsequent mar-
riage, and birth of a child, did revoke the
will, and they affirmed the decree of the or-
phans' court refusing it probate. No opinion
was filed in the case, although a large amount
of property was involved, and the case was
argued by some of the most eminent counsel
in Maryland. But they did flatly decide the
question by a decree declaring the will re-
voked by the subsequent marriage, and birth
of a child.
But while such is the general rule, like oth-
er gieneral rules, it has been held in England
subject to some exceptions. Among the ex-
ceptions is the one where the testator has
made provision for his children bom after
the execution of the will. As the origin of
the rule was the duty of the parent to pro-
vide for his offspring, this exception seems
right and proper. Another matter upon
which the English courts have exercised
themselves is the determination of the ground
upon which the doctrine of implied revoca-
tion ought to be rested. This is of practical
importance in this case, and will require
some examination. Lord Mansfield, in the
case of Brady v. Cubitt, 1 Doug. 31, thought
the rule should rest on the presumption that
the testator intended to revoke his will, and
that it therefore followed that such presump-
tion might be rebutted by even parol evi-
dence,— to use his own words, that such pre-
sumption might be rebutted by "every sort
of evidence." But Lord Mansfield's view
seems to us irreconcilable with the statute
of frauds. It would in effect allow the will
to be revoked by the subsequent intention of
the testator, without such intention being evi-
BEVOCATION, REPUBLICATION, AND REVIVAL OF WILLS.
77
denced by the positive acts so expressly re-
quired by that statute. That view leads to
another difficulty: that the testator may
change his first Intention, and adopt a con-
traiT one; and, if so, which of the two in-
tentions is to prevail? The conclusion, how-
ever, that Lord Mansfield reached, that ev-
ery sort of evidence was admissible, was but
the logical consequence of the ground upon
which he rested the rule, namely, that of pre-
sumed alteration of intention. This case was
decided in 1778. But the com-ts there seem
to have felt the difficulties that would result
from such a view, and Lord Kenyon, in Doe
V. Lancashire, 5 Term R. 49, (aecided in
1792,) placed the rule upon another ground,
namely, a tacit condition annexed to the will,
when made, that it should not take effect
if there should be a total change in the situ-
ation of the testator's famUy. This view of
Lord Kenyon was afterwards adopted by
Lord EUenborough in the case of Kenebel v.
Scrafton, 2 East, 534, (decided in 1802.)
Finally, the court, in Marston v. Fox, hereto-
fore cited, unanimously adopted the views of
Lord Kenyon, and it may now be considered
as settled in England that the doctrine of
implied revocation rests upon the ground of a
tacit condition annexed to the will, when
made, that it should not take effect if there
should be a total changie in the situation of
the testator's family. In this we concur.
If we adopt the English rule that the will
Is not revoked if the testator makes provi-
sion for the children of the subsequent mar-
riage, the question arises in the case at bar
whether he can be considered, to have made
such provision by the purchase of the prop-
erty acquired by him between the date of his
will and his death. This question must be
answered, both upon reason and authority,
in the negative. The testator disposed of all
the property he then owned, by his will; but
he lived 20 years after its date, and in the
mean time purchased other real estate, which
the children of the second wife would share
with those of the first. But the mere ac-
cumulation of additional property cannot, up-
on any groimd of reason, be considered a
provision made by the testator for the second
set of children, any more than for the fii-st
set, as the latter are equally benefited by it.
The injustice of considering after-acquired
property a provision for the second children
will be the more readily seen if we consider
a case— and such have frequently occurred—
where the beneficiaries under the will were
comparative strangers, or remote collaterals.
Again, if after-acquired property should be
held a provision for the after-bom children,
how much property must be so acquired? It
could hardly be said that the purchase of an
acre of poor land, or a cow or horse, could be
so considered; and, if not, by what rule
should the value of such property be estimat-
ed? But we are not without authority on
this subject. In Marston v. Fox, above cited,
the point was made that ah after-purchased
estate did not pass by the will, but descend-
ed to the son in fee, and thereby became a
provision for him, and prevented the revoca-
tion; but in answer to this oojection, the
court said: "In the first place, we answer
that no case can be found in which after-
acquired property descending upon a child
has been allowed to have that effect; and. In-
deed, such a projKJSitlon seems incompatible
with the nature of a condition annexed to the
will."
To determine that after-acquired property
was a provision for the after-bom child
would be totally inconsistent with the theory
that the rule of Implied revocation rests upon
the tacit condition annexed to the will, when
made, that it should not take effect if there
should be a total change in the situation of
the testator's family. Instead of the change
in the family, it would make a change in thfe
property,— one of the essential elements to
determine the implied revocation. The will
of the successful testator would stand; that
of the unfortunate would be revoked.
Upon the whole case presented by the rec-
ord before us, we are of opinion that, the tes-
tator having disposed of the whole of the es-
tate owned by him at the date of his will,
and having again married, and had children
by his second wife, and having made no pro-
vision for such children, his will was re-
voked by operation of law, and that the order
of the orphans' court must be affirmed; the
costs to be paid out of the estate.
78
REVOCATION, REPUBLICATION, AND KEVIVAL OE WILLS.
BROWN et al. v. CLARK et al.
(77 N. Y. 369.)
Court of Appeals of New York. May 20,
1879.
Appeal from supreme court, general term,
fourth department.
Proceedings before the surrogate of Mon-
roe county by Fortune C. Brown and others,
executors named in a codicil executed by
Mary J. Clark Proctor, deceased, for probate
of a will and codicil executed by said Mary
J. Clark Proctor. The will was executed by
the deceased, then Mary J. Clark, on Au-
gust 2.J, 1873. She subsequently manned
Truman A. Proctor, and after such marriage,
and on December 7, 1876, she executed a cod-
icil. She died October 1, 1877. The surro-
gate denied probate of the will on objection
by Warren C. Clark and others, and the ex-
ecutors appealed to the general term, where
the decree of the surrogate was reversed, and
the objectors appealed to this court.
J. C. Cochrane, for appellants. H. R. Sel-
den, for respondents.
ANDREWS, J. The evidence justifies the
conclusion of the surrogate that there was a
due execution of the will of August 2.5, 1873.
The will was drawn by Mr. Clark, who was
a lawyer by profession, and was executed
by the testatrix under his supervision. She
was his adopted daughter, and sole legatee
under his will. When her will was executed
she had little, if any, property of her own,
and her will was made to provide for the
disposition of the estate which she would re-
ceive under the will of Mr. Clark in the
event of her surviving him. In substance,
the two wills constituted a scheme for the
disposal of the property of Jlr. Clark after
his death and the death of the testat'.ix.
The attestation clause is full, and recites all
the facts constituting a due execution, and
is signed by two witnesses. The witnesses
were not lawyers, and were not, so far as
appears, conversant with the statute require-
ments for the execution of wills, and when
exammed were unable to state that they sign-
ed the will as witnesses at the request of the
testatrix, or that she at- the time declar^ it
to be her will. But it is undisputed that the
testatrix executed the will in their presence,
and that they were requested by some one
to become witnesses to a will, and that they
attended on the occasion of the execution of
the will in pursuance of such request. There
Is no evidence contradicting the recitals in
the attestation clause. Neither of the wit-
nesses deny that it contained a true account
of whut occurred when the will was execut-
ed. The proof -was taken five years after its
execution. Mr. Clark was then dead, and no
persons were living who were present at the
execution except the two witnesses. The ,
case is therefore one where the attestation [
clause recites all the essential acts to consti-
tute a due execution and publication of the
instrument as a will, and the other circum-
stances tend to corroborate the truth of the
recitals. The witnesses, after a lapse of sev-
eral years, fail to recollect affirmatively the
facts attested by them over their own signa-
tures. The mere non-recollection of witness-
es, under these circumstances, would not jus-
tify a finding that the statute requirements
were not observed. Their lack of memory
does not rebut the presumption of due publi-
cation arising from the attestation clause and
the other circumstances. Brinekerhoof v.
Remsen, 8 Paige, 499, 26 Wend. 332; In re
Kellum, 52 N. Y. 517.
We concur in the conclusion reached by the
surrogate that the will Was revoked by the
subsequent marriage of the testatrix. It was
the rule of the common law that the mar-
riage of a woman operated as an ahsolute
revocation of her prior will. Forse and Hem-
bllng's Case, 4 Coke, 61. The reason of the
rule is stated by Lord Chancellor Thurlow in
Hodsden v. Lloyd, 2 Brown, Ch. 534. He
says: "It is contrary to the nature of the
instrument, which must be ambulatory dur-
ing the life of the testatrix; and, as by the
marriage she disables herself from making
any other will, this instrument ceases to be
of that sort and must be void." The rule
that the marriage of a feme sole revoked her
will was made a part of the statute law of
this state by the Revised Statutes, (2 Rev.
St. p. 64, § 44.) The language of the statute,
that the will of an unmarried woman shall
be deemed revoked by her subsequent mar-
riage, is the declaration of an absolute rule.
The statute does not make the marriage a
presumptive revocation, which may be rebut-
ted by proof of a conti'ary intention, but
malves it operate eo instanti as a revocation.
4 Kent, Comm. 528.
It is claimed by the contestants that the
testamentary capacity conferred upon mar-
ried, women by the recent statutes in this
state takes away the reason of the rule of
the common law, and that upon the maxim,
cessante ratione legls cessat lex ipse, the rule
should be deemed to be abrogated. Upon the
same ground it might have been urged at
common law that the marriage of a feme
sole should only be deemed a revocation or
suspension of her prior wlU during the mar-
riage, and that when the woman's testamen-
tary capacity was restored by the death of
her husband, leaving her surviving, the will
should be revived; but the contrai-y was set-
tled. Forse and Hembling's Case; 1 Jarm.
Wills, 106; 4 Kent, Comm. 598. But the
courts cannot dispense with a statutory rule
because it may appear that the policy upon
which it was established has ceased. The
married women acts confer testamentary ca-
pacity upon married women, but they do not
undertake to interfere with or abrogate the
statute prescribing the effect of marriage as
KEVOCATION. REPUBLICATIOX. AND REVIVAL OF WILLS.
79
a revocation. It was quite consistent that
the legislature should have intended to leave
the statute of 1830 in force, although the new
statutes took away the reason upon which it
was based. The legislature may have deem-
■ed it proper to continue it, for the reason that
the new relation created by the marriage
would be likely to induce a change of testa-
mentary intention, and that a disposition by
a married woman of her property by will
should depend upon a new testamentary act
after the marriage.
The remaining question is as to the legal
effect of the codicil of December 7, 1876.
This was executed after the marriage of the
testatrix, and refers to the will by its date,
and the names of the attesting witnesses;
and in the body of the codicil the testati-ix
declares her Intention thereby to republish,
reaffirm, and adopt the will as modified by
the codicil as her present will, in the same
manner as if then executed by her, and fol-
lowing this declaration is this clause:
"Which, [codicil,] in connection with and
amendment of my will, I now publish and de-
clare together, as constituting my last will
and testament." The codicil was executed
with the formalities required by the statute.
It was signed by the testatrix in the pres-
ence of two witnesses, and was attested by
them in her presence, by her request; and
she, at that same time, declared the instru-
ment to be "a codicil to her last will and
testament, and a reaffirmation of the latter."
The original will was present when the codi-
cil was executed, and the attention of the
witnesses was called to it, and one of them
examined and identified it.
The evidence leaves no room for doubt that
the main purpose of the testatrix in making
the codicil was to re-establish the will,
which had been revoked by her maiTiage.
The inference from the proof is that she un-
derstood the will had been revoked by her
maiTiage. The codicil made some provision
for a brother of the testatrix not contained
in the will, but the paramount intention of
the testatrix in executing the codicil was, as
appears by the codicil and the extrinsic cir-
cumstances, to reaffirm the disposition of her
property made by the will, so that the bulk
of her estate should go according to its pro-
visions. The contestants claim that the inten-
tion of the testatrix to reaffirm the will can-
not take effect, for the reason that tliere was
no republication of that instrument after her
marriage, and that what occurred at the time
of the execution of the codicil was a publi-
cation of that instrument only, and did not
operate to revive the will, or incorporate its
provisions with those of the codicil. The
general doctrine is well settled that a codicil
executed with the formalities required by
the statute for the execution of wills operates
as a republication of a will so far as it is not
changed by the codicil. Acherly v. Vernon,
1 Comyn, 381; Barnes v. Crowe, 1 Ves. Jr. |
48G; Mooers v. White, 6 Johns. Oh. 375; Van
Cortlandt v. Kip, 1 Hill, 590, 7 Hill, 340.
In Van Cortlandt v. Kip, 1 Hill, 593, Cowen,
J., said: "It seems to me that at this day
it would be a violation of all reliable author-
ity to deny that a codicil, duly attested to
pass real estate, would per se, whether it re-
lates to real or personal property, operate as
a republication of a devise, unless the testa-
tor declares that he does not intend that it
shall have that effect." This doctrine was
attended with important consequences. By
the English law prior to the wills act, (1
Vict. c. 26), a testator must have been seised
of the lands devised at the time of making
his will, and after-acquired lands would not
pass under a residuary devise; and this was
also the rule in this state prior to the Re-
vised Statutes. 4 Kent, Comm. 601. But the
execution of a codicil was held to make the
will speak as of the time the codicil was exe-
cuted, and to extend a general devise to lahds
acquired intermediate the making of the will
and the codicil. The cases in 1 Ves. Jr. 486,
and 1 Hill, 590, supra, proceeded upon this
doctrine. In each of these cases lands ac-
quired by the testator, after making the will,
and before the execution of the codicil, were
held to pass under the will. It was not es-
sential to the application of this rule that
the codicil should be annexed to the will, or
express an intention to republish the will or
refer to the devise. It was sufficient if the
codicil was executed with the formalities re-
quired for the execution of a will of lands.
Goodtitle v. Meredith, 2 Maule & S. 5; Jack-
son V. Holloway, 7 Johns. 394; Jackson v.
Potter, 9 Johns. 312. The statute of frauds
(29 Car. II.) enacted that all devises of lands
shall be in writing, and signed by the devi-
sor, or by some person in his presence, and
by his express directions, and shall be at-
tested and subscribed in his presence by three
or four credible witnesses, or else they shall
be void. Prior to 1830 this statute had been
substantially re-enacted in this state, and gov-
erned the execution of wills here. 2 Rev.
Laws, c. 23, § 2. It will be observed from
the cases cited that the attestation of a codi-
cil by the requisite number of witnesses was
deemed a compliance with the statute, so as
to make the will operative upon after-ac-
quired lands, although they were not men-
tioned in the codicil, and there was no ex-
press republication of the will. The attesta-
tion of the codicil is, according to the deci-
sions, an attestation of the will, within the
meaning of St. Car. II. So, also, it was held
that a will, revoked by marriage or other-
wise, was revived by the execution of a codi-
cil. Lord Walpole v. Lord Orford, 3 Ves.
402; Neate v. Pickard, 2 Notes of Cas. Adm.
& Ecc. 406; 1 Jarm. Wills, 187; 1 Redf.
Wills, 367. This subject is now regulated in
England by the twenty-second section of the
wills act, (1 Vict. c. 26,) which provides, in
substance, that no will or codicil which shall
80
REVOCATION, EEPUBLICATION, AND REVIVAL OF WILLS.
In any manner be revoked shall be revived
otherwise than by the re-execution thereof, or
by a codicil executed in the manner prescrib-
ed by the act, and showing an intention to
revive the same.
Upon the authorities cited, It is clear that,
under the law in this state as it stood prior
to 1830, there was a valid republication of
the will in 'question by the execution of the
codicil of December 7, 1876. The Revised
Statutes changed, in several respects, the
ceremonies to be observed in the execution
of wills; and, among other things, it is ex-
pressly required that the testator shall, at
the time of making or acknowledging his sub-
scription to the will, declare the instrument
to be his last will and testament. 2 Rev.
St. p. 63, § 40, subd. 3. There is nothing in
the statute indicating that it was intended
to change the rule that a codicil, duly exe-
cuted, was a republication of the will. The
codicil in the case of Van Cortlandt v. Kip, 1
Hill, 590, was executed after the present
f.tatute was enacted. It referred to the will
executed in 1824, but did not in terms repub-
lish it, and made no reference to the lands
acquired by the testator after the will was
made; but the court held, in accordance
with the law which existed before the Re-
vised Statutes were passed, that the codicil
was a republication of the devise in the will,
and that the after-acquired lands passed to
the surviving devisee. The Revised Stat-
utes did not affect the construction of wills
made before the chapter relating to wills
took effect. 2 Rev. St. p. 68, § 70. This
case seems to be a direct authority that the
due execution and publication of a codicil is,
under the Revised Statutes, as it was prior
thereto, a republication of the will to which
it refers. The codicil in this case refers to
the will, and expressly adopts and reafiiiTQS
it. The testatrix, by publishing the codicil,
published the will, which was clearly iden-
tified by the reference in the codicil and the
extrinsic proof. It is established by a long
line of authorities that any written testamen-
tary document in existence at the execution
of a will may, by reference, be incorporated
into and become a part of the will, provided
the reference in the will is distinct, and
clearly identifies, or renders capable of iden-
tification by the aid of extrinsic proof, the
document to which reference is made. I
will cite a few of them: Habergham v. Vin-
cent, 2 Ves. Jr. 228; Smart v. Prujean, 6 Ves.
563; Williams v. Evans, 1 Cromp. & M. 42;
Allen V. Maddock, 11 Moore, P. C. 427; Bur-
ton V. Newbery, 1 Ch. Div. 234; Tonnell v.
Hall, 4 N. Y. 145. In Williams on Execu-
tors (page 97) It is said: "If a testator in a
will or codicil or other testamentary paper,
duly executed, refers to an existing unattest-
ed will or other paper, the instrument so re-
ferred to becomes part of the will;" and Jar-
man says, (1 Jarm. Wills, 78:) "A codicil,
duly attested; communicates the efficiency of
its attestation to an unattested will or previ-
ous codicil, so as to render effectual any de-
vise of a freehold estate which may be con-
tained in such prior unattested instrument;"
and further on, speaking of the incorpora-
tion of documents by reference in the will,
he says this is permitted "without violating
the principle of the enactment which requires
an attestation by witnesses, the testator's in-
tention to adopt the contents of such Instra-
ment being manifested by a will duly at-
tested." Page 83. In this case, if the will
of Mrs. Proctor had been an unattested in-
strument, it would, upon the authorities,
have been incorporated with and made a
part of the testamentary Instrument original-
ly executed, by reason of the reference to it
In the codicil. I am of the opinion that the
publication of the codicil was a publication
of the will, and that both papers together
are to be considered as the will of the testa-
trix. There was no proof to sustain the al-
legations of undue influence or want of tes-
tamentary capacity In the testatrix when it
was executed. The only question before us
is one of law, upon substantially uncontro-
verted facts; and the order of the general
term reversing the decree of the surrogate,
and remitting the proceedings to him with
directions to admit the will to probate,
should be affirmed. Hoysradt v. Kingman,
22 N. Y. 372; Gilbert v. Knox, 52 N. Y. 125.
All concur. Order affirmed.
MUTUAL WILLS— JOINT WILLS, ETC.
81
(Read In re Cawley'f
In re DIEZ'S WILL.
(50 N. Y. 88.)
Court of Appeals of New York. Nov. 12, 1872.
Appeal from supreme court, general term,
second department.
Proceedings by Ursula Diez before the sur-
rogate of New York county for the probate
of an alleged will of Frederick Diez. The
testator was a naturalized citizen of New
York state, domiciled in New York city. He
went to Germany in May, 1868, and died at
Southofen, Bavaria, November 1, 18B8. Pre-
vious to his death the following instrument
was executed:
"Matrimonial and also testamentary agree-
ment: G. K. N., 898. This day, Sunday, No-
vember 1st, 1868, (one thousand eight hun-
dred and sixty-eight,) at eleven a. m., ap-
peared before me, Francis Xaver Malor, roy-
al notary at Southofen, in the house No. 80
at Southofen, whither I went at once, ac-
cording to the request of the parties. (1)
The hotel proprietor, Mr. Frederick Diez,
from New York, in the United States of
America, at present being in Southofen, who,
although lying in bed in an upper room in
the above-named house, suffering from a
complaint in the stomach and very weak, is
in full possession of his mental faculties,
and therefore must be deemed fully compe-
tent to make dispositions, whereof I have
convinced myself by conversation with him.
(2) His wife, Mrs. Ursula Diez, born Trunk,
of the same place. Lastly, (3) the two im-
partial witnesses, whose presence had been
especially requested, and who, after exam-
ination, have been found free of all excep-
tions — (a) The practicing physician, Dr. Leon-
ard Stich, of Southofen; and (b) the mer-
chant, Mr. Max Mathes, of Southofen; both
of the latter I am personally acquainted
with as to name, occupation, and residence,
while the name, occupation, and residence of
the former two persons were only made
known to me by the two witnesses present.
And Mr. Frederick Diez and his wife, Mrs.
Ursula Diez, requested me to reduce to writ-
ing and certify in my official capacity the
following: 'Matrimonial and also testament-
ary agreement: (I.) We have made, as yet,
no conjoint disposition of any kind concern-
ing the hereditary succession In case of
death. (II.) Inasmuch as we have, by joint
exertions, acquired the property now in our
possession; and inasmuch as the offspring of
our maiTiage, our only child, Mary Diez,
has already, in the tenderest age, departed
this life,— we hereby determine that, upon
the decease of one or the other of us, the
surviving husband or wife shall receive the
entire property of the one having died first,
—that is to say, the existing jointly acquired
property,— to his or her unconditionally, free,
sole possession and sole ownership, and shall
not be bound to pay over anything to any
T.AW suco. — 6
Estate, p. 82. supra.)
person in case of a death. (IH.) Also all for-
mer dispositions concerning the hereditary
succession which may have been made by
us singly, or with the consent of both, how-
ever and wherever made, between the liv-
ing, or for the case of death, are hereby set
aside and declared null and void. (IV.) We
desire that a first exemplified copy of the
foregoing matrimonial and also testamentary
agreement be delivered to us, and we will
bear (V.) the expenses incurred jointly.'
Hereupon the present instrument was drawn
up by special request of the parties, and aft-
er it had been read to them in the presence
of the two above-named witnesses, and after
their attention had been called to all such
legal relations as might possibly stand In the
way of such a contract, and after being ap-
proved by them, it was ratified to the full
contents of it, and signed by them, by the
two witnesses, and by myself, the under-
signed royal notary.
"Mark of Mr. Frederick Diez, who"
is unable to write on account of
great weakness; wherefore the two
witnesses have subscribed for Mm.
"Ursula Diez.
"L. Stich, Physician.
"Max Mathes.
"Franz Xaver Malor,
[L. S.] "Royal Notary."
This instrument was offered for probate
by Ursula Diez, the widow of deceased.
Probate was contested by Christian Supp, a
residuary legatee under a former will. Con-
testant appealed from a decree admitting
the will to probate. The general term of the
first department sent the case to the second
department, where the decree of the surro-
gate was affirmed, and contestant appealed
to this court.
H. P. Townsend, for contestant and ap-
pellant. F. S. Stallknecht and Elial F. Hall,
for proponent and respondent
RAPALLO, J. * * * The two objec-
tions relied upon in the appellant's points
are — First, that, not being under seal, the in-
strament cannot be regarded as a will of
real estate; and, second, that it is in form a
contract, and not a will.
The first objection is wholly unfounded; a
seal is not required to a will of real or per-
sonal estate. The statute requires only that
it be subscribed by the testator at the end.
2 Rev. St.. p. 63, § 40; 1 Jarm. Wills, 70, note.
The second objection presents a more debat-
able question. The instrument is entitled,
and refers to itself in one place as, a matri-
monial and testamentary agreement, and in
another as a contract, and contains no ex-
pression declaratory of its testamentary
character, except the words "testamentary
agreement," or, as translated in the first
deposition, "contract of marriage and in-
heritance," and, m the third, "marriage and
82
ilUTUAL WILLS— JOINT WILLS, ETC.
inheritance contract." These designations
are not, however, conclusive as to the charac-
ter of the Instrument. That must be deter-
mined by the dispositions which it makes.
1 Jarm. Wills, p. 13; Ex parte Day, 1
Bradf. Sur. 482, and authorities there cited.
These dispositions are, in substance, that
Diez and his wife each declare that they
thereby determine that, upon the decease of
one or the other of them, the surviving hus-
band or wife shall receive, unconditionally,
the entire property of the one having died
first; and that all former dispositions con-
cerning the hereditary succession, which may
hare been made by either of the pai-ties
singly, or with the consent of both, are an-
nulled. These provisions are preceded by a
declaration of the motives leading to such a
disposition of the property, which were that
it had been acquired by the joint exertions of
the parties, and that their only offspring had
in the tenderest age departed this life. It is
claimed that the fact that the property, up-
on which- the instrument was to operate, was
the product of the joint labor of the parties,
furnished a consideration for an agreement
between them that, on the death of either, it
should belong to the survivor, and that the
instrument in question was such an agree-
ment, and not a will. The distinguishing
feature of a will is that it is not to take
effect except upon the death of the testator.
An instrument which is to operate in the
lifetime of the donor, and to pass an inter-
est in the property before his death, even
though its absolute enjoyment by the donee
be postponed till after the death of the
donor, or even though it be contingent upon
the survivorship of the donee, is a deed or
contract, and not a will. But if the instru-
ment is not to have any operation until after
death, then it is a will, notwithstanding
that it may have been executed in pursuance
of a previous promise or obligation appear-
ing upon its face.
Testing the document now before us by
this rule, we think that it was the will of
that one of the signers who should first die;
that it did not purport to convey any pres-
ent estate or interest in the property, or to
deprive either of the parties of the atraolutf
power of disposition of his or her own prop-
erty, during his or her life, but was an ar-
rangement testamentary in its character, and
not intended to operate except upon the
death of one of the parties, and then only
as expressive of the intention of the one dy-
ing as to the posthumous destination of his
or her property. It does not use words of
grant or mutual contract, but states that the
parties have determined that, upon the death
of either, the survivor shall receive the en-
tire property. The reasons given for this
determination do not necessarily make It a
contract. The fact that by the same instru-
ment the husband and wife devised recip-
rocally to each other, or, in other, words,
that it was a mutual will, does not deprive
It of validity. There Is no just objection to
such a form of testating. The instrument
operates as the separate will of whoever dies
first. Here, the husband having died first,
it can be proved as his will, and the eflBcacy
of his dispositions is in no way impaired by
those portions of the instrument which, if
the wife had died first, would have consti-
tuted her will, but which have now become
inoperative. The result is precisely the same
as if Uke reciprocal dispositions had been
made by the husband and wife by means of
two separate instruments. The combining of
such reciprocal dispositions in one instru-
ment is sanctioned by several authorities.
Ex parte Day, 1 Bradf. Sur. 470; Lewis v.
Scofleld, 26 Conn. 452; Evans v. Smith, 28
Ga. 98; 1 Redf. Wills, 182;. Rogers, Appel-
lants, 11 Me. 303; In re Stracey, Deane & S.
6; In re Lovegrove, 2 Swab. & T. 453; Du-
four V. Pereira, 1 Dick. 419; 2 Harg. State
Tr. 310, 311.
The order should be aflfirmed, with costs.
All concur. Order affirmed.
MUTUAL WILLS— JOINT WILLS, ETC.
83
BETTS V. HARPER.
(39 Ohio St. 639.)
Supreme Court of Ohio. Jan. Term, 1884.
EiTor to district court, Hocking county.
Agnes Harper and Penrose Harper, sisters
domiciled in Hocking county, each owuing
personal property, and being ownera as ten-
ants in common of real estate in that county,
signed the following instmment, dated April
17, 1862: "We, Agnes Harper and Penrose
Harper, of the county of Hocking, in the
state of Ohio, do make and publish this, our
last will and testament, in manner and form
following; that is to say: First, it Is our
will that our funeral expenses and aU our
just debts be first fully paid; second, that
all of our property, both real and personal,
go to James Betts and John Drue Betts and
their heirs forever; lastly, we hereby consti-
tute James Betts to be executor of this, our
last will and testament, revoking and annul-
ling all former wills by us made, and ratify-
ing and confirming this, and no other, to be
our last will and testament." This instru-
ment was subscribed at the time of its execu-
tion by two witnesses in due form; and Ag-
nes having died in 1872, and Penrose in 1874,
the instrument was admitted to probate in
the probate court of Hocking county, as their
will, in April, 1875. In September, 1875, the
heirs at law of Agnes Harper and Penrose
Harper filed a petition in the court of com-
mon pleas of Hocking county, against James
Betts and John D. Betts, to set the will aside.
On the trial of the issue in the district court,
to which the cause was appealed, the court
charged the jury, in effect, that the will, be-
ing joint, was void; to which charge the de-
fendants below excepted. A verdict having
been returned in accordance with the charge,
judgment was rendered setting the will aside.
James Betts and John D. Betts filed this peti-
tion in error.
M. A. Daugherty and J. R. Grogan, for
plaintiffs in error. J. H. Collins, for defend-
ant in error.
OKEY, J. The construction placed by the
majority of the court in Walker v. Walker,
14 Ohio St. 157, on the instrument there in
question, viewed in the light of the facts ex-
isting at the time of its execution, was that
the alleged will should be regarded as simply
a compact, joint in form and substance, be-
tween Walker and his wife, to treat their
several estates as one estate, and jointly dis-
pose of it as such among the objects of their
bounty; that it was a matter of negotiation
between them, and the disposition which each
made of his or her property was influenced
and modified by the disposition made of the
property of the other; that each devise and
bequest was, in fact, made -in consideration
of each and all the rest; and that it was part
of the*^ compact that neither of the parties
should revoke or cancel the instrument, or
any part of it, without the consent of the
other. Moreover, subsequently to the death
of Mrs. Walker, Walker, in violation of the
agreement, conveyed to others portions of
his lands so devised. The majority held that
the instrument was not valid as a will, and
that the remedy of the devisees and legatees,
if they had any, was in equity to enforce the
agreement.
Assuming, as we should,— more than 20
years having elapsed since the case was de-
cided,— that the instrument received the prop-
er construction, we are not disposed to ques-
tion the decision. But it is said, in the opin-
ion, that the policy of the state, as indicated
in our legislation, is opposed to joint wills;
and attention is directed to the language
of the wills act, which it is said plainly refers
to an instrument to be executed by one per-
son only. It will be seen, however, that our
statute is not peculiar in this respect. The
provisions of the English statutes and the
statutes of the various states upon the sub-
ject are precisely similar to our own; and
the conclusion that they indicate a policy
that two or more persons may not unite in
the same instrument in making their wills,
whatever the form of the instrument may be,
is only reached by a rigid, and, as we think,
altogether unwarranted, adherence to the
mere letter of the statute. The provisions
of the statute relating to the execution of
deeds are similar, and yet nobody has ever
doubted that any number of persons having
an interest in property may join in an in-
strument conveying it.
The case before us is unlike the case of
Walker v. Walker. Agnes Harper and Pen-
rose Harper were each the owner of personal
property, and they were owners as tenants
in common of real estate. Each desired to
bequeath her personal property to James
Betts and John D. Betts, and each desired to
devise to them her individual share of the
real estate. They could unquestionably have
done this by two instruments, but they could
do it as effectually by one. This instrument '
was, in effect, the separate will of each.
Either could have revoked it so far as it
was her will. On the death of Agnes, in
1872, the instrument might have been admit-
ted to probate as her will; and in 1874 it
might have been admitted to probate as the
will of Penrose; but in 1875 it was properly
admitted to probate as the will of both. The
authorities, it will be seen, are in some con-
flict; but the view we have stated is support-
ed by reason and the manifest weight of au-
thority. Ex parte Day, 1 Bradf. Sur. 481;
Diez's Will, 50 N. Y. 88; Mosser v. Mosser,
32 Ala. 551; Schumaker v. Schmidt, 44 Ala.
454; Wyche v. Clapp, 43 Tex. 544; March v.
Huyter, 50 Tex. 243; Breathitt v. Whittaker,
8 B. Mon. 530; Lewis v. Scofield, 26 Conn.
452; Evans v. Smith, 28 Ga. 98; In re Stra-
cey, 1 Doct & Stud. 6, 1 Jur. (N. S.) 1177;
84
MUTUAL WILLS— JOINT WILLS, ETC.
Be Raine, 1 Swab. & T. 144; Re Ixfve-
groTe, 2 Swab. & T. 453, 8 Jur. (N. S.) 442;
and see Denyssen v. Mostert, L. K. 4 P. C
236, 8 Moore, P. O. (N. S.) 502; Gould v.
Mansfield, 103 Mass. 408; Clayton v. Liver-
naan, 2 Dev. & B. 558; Hershy v. Clark 35
Ark. 17, 23.
Judgment reversed.
MUTUAL WILLS— JOINT WILLS, ETC.
85
WELLINGTON r. APTHORP.
(145 Mass. 69, 13 N. E. Kep. 10.)
Supreme Judicial Court of Massachusetts. Suf-
folk. Sept. 19, 1887.
On exceptions from superior court.
Action of contract by Darius Wellington
against John V. Apthorp, as administrator
with the will annexed of the estate of Mary
Chism, deceased, upon an agreement, as the
plaintiff alleged, made by her with the plain-
tiff on or about May 23, 1878, to bequeath to
him, by her last will, the sum of $5,000, and
pay his expenses of a journey to California
and Nevada in accompanying her there in the
fall of 1878; and also, upon an account an-
nexed, for services in managing her property,
in accompanying her to California and Neva-
da, and for cash paid as expenses on said
visit Hearing in the superior court for Suf-
folk county, before Bacon, J., before whom
it appeared that plaintiff, after returning
from the visit to California and Nevada, mar-
ried without the knowledge of testatrix, and
that when she heard of such marriage she re-
voked a prior will leaving plaintiff $5,000,
and made a new one leaving him nothing.
The court found for the defendant, and, up-
on the plaintiff excepting, reported tne case
for the determination of the supreme judicial
court.
J. S. Patton, for plaintiff. A. M. Howe ana
T. J. Homer, for defendant.
C. ALLEN, J. It is not contended, on De-
half of the defendant, that a contract, found-
ed on a sufficient consideration, to make a
certain provision by will for a particular per-
son, is Invalid in law. The contrary is well
settled. Jenkins v. Stetson, 9 Allen, 128, 132;
Parker v. Coburn, 10 Allen, 82; Canada v.
Canada, 6 Cush. 15; Parsell v. Stryker, 41 N.
Y. 480; Thompson v. Stevens, 71 Pa. St. 161;
Updike V. Ten Broeck, 32 N. J. Law, 105;
Caviness v. Rushton, 101 Ind. 500.
Nor is it contended that a contract to leave
a certain amount of money by will to a par-
ticular person, though oral, is open to objec-
tion under the statute of frauds. It is not a
contract for the sale of lands, or of goods:
and it may be performed within a year. Pe-
ters V. Westborough, 19 Pick. 364; Fenton
V. Emblers, 3 Burrows, 1278; Ridley v. Rid-
ley, 34 Beav. 478; Kent v. Kent, 62 N. Y.
560; Bell v. Hewitt, 24 Ind. 280; Wallace v.
Long, 105 Ind. 522, 5 N. E. Rep. 666. Such
a contract differs essentially from a contract
to devise all one's property, real and personal,
which comes within the statute of frauds.
Gould V. Mansfield, 103 Mass. 408. The ob-
ligation of such a contract Is not impaired,
though the consideration is to arise wholly
or In part in the future, and though the per-
son to whom the promise Is made Is under
no mutual, binding obligation on his part.
In Train v. Gold, 5 Pick. 380, 385, it was said
by Mr. Justice Wilde that "If A. promises to B.
to pay him a sum of money if he will do a
particular act, and B. does the act, the prom-
ise thereupon becomes binding, although B.,
at the time of the promise, does not engage
to do the act." This doctrine was quoted
with approval in Gardner v. Webber, 17 Pick.
407, 413, and In Bornstein v. Lans, 104 Mass.
214, 216; and it is also affirmed in Goward
V. Waters, 98 Mass. 596. In Cottage Street
Church V. Kendall, 121 Mass. 528, 530, it was
held that "where one promises to pay another
a certain sum of money for doing a particular
thing, which is to be done before the money
is paid, and the promisee does the thing upon
the faith of the promise, the promise, which
was before but a mere revocable offer, there-
by becomes a complete contract, upon a con-
sideration moving from the promisee to the
promisor; as in the ordinary case of the offer
of a reward." See, also, Paige v. Parker, 8
Gray, 211, 213; Hubbard v. Coolidge, 1 Mete.
(Mass.) 84; Todd v. Weber, 95 N. Y. 181, 192;
Miller v. McKenzie, Id. 575, 579. It is there-
fore in law competent for a valid oral con-
tract to be made to leave a certain sum of
money by will to a particular person, in con-
sideration of services thereafter to be render-
ed by the promisee to the promisor, provided
such services are In fact thereafter rendered
and accepted in pursuance of such contract,
although the promisee did not bind himself
in advance to render them. The performance
of the consideration renders the contract bind-
ing, and gives a right of action upon it.
The objection mostly relied on by the de-
fendant in the present case Is that the audi-
tor's report does not conclusively show such
a contract, upon such a consideration. The
auditor does not in terms, as he might prop-
erly have done, make any specific finding
upon the question whether there was such
a contract; but he states the facts in detail
upon which he considered that question to
rest, and leaves the determination of It to the
court. The detailed facts stated by the au-
ditor are not controverted, and the evidence
upon which they were found is not before us.
These facts are therefore to be taken as they
stand, with no further explanation than is
afforded by the circumstances. Looking at
them in this manner, it is to be determined
whether, on the whole, there is enough clearly
and decisively to show that there was a con-
tract, so that the judge who heard the case
could not properly find the contrary; in other
words, whether It appears there was a prom
ise by the defendant's testator sufficiently
definite to be enforced, and made with the
understanding and intention that she would
be legally bound thereby. A promise made
with an understood intention that it is not to
be legally binding, but only expressive of a
present intention, is not a contract. Thrus-
ton V. Thornton, 1 Cush. 89; Chit. Comm.
(11th Amer. Ed.) 12, 13.
Ordinarily, when there is a distinct prom-
ise for a sufficient consideration to do a par-
86
MUTUAL WJLLS— JOINT WILLS, ETC.
ticular thing, such promise is to be consider-
ed as a contract, unless there is something m
the subject of the promise, or in the circum-
stances, to repel that assumption. But each
case must be examined in the light of Its
own circumstances. In the present case it
appears that the plaintifC was the brother-in-
law of the defendant's testator, who was an
unmarried woman; that he was early in the
habit of advising with her about her business
affairs, and not at the outset, if ever, in the
expectation of being paid directly for his
services. Nevertheless, there soon came to
be a recognition on her part that the plain-
tifif's services were valuable in a money sense,
and an intention to pay him for them in some
form. By his advice, in 1866, she bought
real estate on Chauncy street, and sold it
again in 1868, at a profit of $10,000, the sale
being advised and negotiated by him. Prior
to the sale, she told him that, if such profit
should be made, he should have one-half or a
part of it. In fact, nothing was paid to him
at this time, but it appears that she already
contemplated putting the relation between
them on a business basis; and shortly after-
wards she told him that, if he would go on
and act as her agent and adviser respecting
her investments, she would make a will giv-
ing his wife $5,000; and, in the event of his
wife's dying before him, she would then, by a
new will or codicil, bequeath the legacy of
$5,000 to him. He assented to this, and she
made her will accordingly, bequeathing $5,000
to his wife. All this savored of a business ar-
rangement. The sum mentioned was not
greater than she had talked of paying to him,
as a part of the profits on the sale of the
Chauncy street real estate; indeed, not so
great, for that was to be payable in 1868,
while the bequest would not be payable till
alter her death. In 1868 another purchase
was made of real estate, which was sold at a
profit in 1869. In 1869 he admitted her to
share in a purchase of real estate on Bedford
street, which he had intended to make on his
own account; the whole of the money was
furnished by her; and in 1873 and 1874 the
estate was sold at a profit of between $4,000
and $5,000, over and above the allowance to
her of 7 per cent, interest on the purchase
money, and this profit was equally divided
between them. In 1876 a purchase was made
of real estate on Mt. Vernon street. All of
these purchases and sales were negotiated
and advised by the plaintiff, and were made
solely upon his judgment.
Such were the relations of the parties up to
1878. She had paid him nothing for his serv-
ices; but her will, bequeathing $5,000 to his
wife, had stood during all this time according
to the understanding between them in 1868.
Nothing had been said or done to vary the
effect of her promise to bequeath the legacy
of $5,000 to him, in the event of his wife's
dying before him. In 1878 a new arrange-
ment was made. The plaintiff's wife was fa-
tally ill, and died in June of that year. A
few weeks before her death, and when it had
become apparent that she was fatally ill, the
defendant's testator told the plaintiff that sbn
desired to visit California, and a brother, who
resided in Nevada, and, if he would accom-
pany her there in the fall of that year, she,
in consideration of his so accompanying her,
and of the services he had rendered and might
thereafter render her respecting the manage-
ment of her property, would make a will giv-
ing him $5,000, and pay the expenses of the
journey. The plaintiff assented thereto, and
in May or June of that year she destroyed
the will then existing, and executed a new
one, wherein she gave to him a legacy of
$5,000. According to the terms of what she
had proposed in 1868, she was, by a new
will or codicil, to bequeath to him the legacy
of $5,000, in the event of which was now at
hand, if he would go on and act as her agent
and adviser respecting her Investments. This
he had done up to that time. She now pro-
posed to him that she would make a will
giving him $5,000 in consideration of his ac-
companying her to California and Nevada,
and of the services he had rendered and
might thereafter render to her. There was
no stipulation binding him to render such
services for any particular length of time in
the future. The most that could fairly be
implied is that he should render them as re-
quested, and ae long as he should be able to
do so. Her proposition appears to have been
intended as in the nature of business. The
relations between the parties in the past had
not been merely those of kindness and volun-
tary aid. The services which he had already
rendered were substantial, and of a business
character. They did not consist merely of
advice, but he appears to have taken, to a
large extent, the responsible charge of her
business matters, and to have conducted them
successfully. In addition to continuing such
services, he was now asked to accompany
her to California, which he did, in the fall
of 1878 and the winter following,— a trip of
several months. She proceeded at once to
act upon his acceptance of her proposition,
and made a new will accordingly. This new
will remained unrevoked for two and a half
years. In view of all these circumstances,
it seems to us that, upon a just construction
of the auditor's report, there is not enough
to repel the ordinary assumption that the
promise of the defendant's testatrix was a
contract, which, when made, was intended
and understood by both parties to be binding
upon her.
The present case materially differs in its
facts from Maddison v. Alderson, 8 App. Cas.
167, 5 Exch. Div. 293, and 7 Q. B. Div. 174.
In that case doubt was expressed whether
there was a contract, but the question was
not finally determined. It depended in part
upon a review of testimony, which is not
fully reported. The terms of the alleged
MUTUAL WILLS— JOINT WILLS, ETC.
87
promise and consideration differed from those
in tlie case before us in certain respects,
wliicli miglit be found to be material. But
tlie decision in ttiat case turned finally upon
the question whether, assuming a contract, it
had been shown that there had been a part
performance sufficient to take it out of the
statute of frauds, and it was held in the nega-
tive.
Upon the auditor's report in the present
case, we n:ast now assume that the whole
consideration stipulated for was performed
by the plaintiff, and that it was sufficient.
It is expressly found that his advice was val-
uable, and his management judicious, being
given and rendered whenever requested or
required; that he has received no compensa-
tion therefor, except as stated, respecting the
division of the profits arising on the sale of
the Bedford street real estate; that in the
fall of 1878 and the winter following he ac-
companied her to Nevada and California,
"and then and thereafter in all respects com-
plied with and fulfilled the aforesaid igree-
nient."
It is also suggested in behalf of the de-
fendant that, even assuming a contract, it
was not proved to be a contract to malie a
will which should not be revoked. But, look-
ing at the language used in the light of the
circumstances existing and preceding, so nar-
row a construction of the contract is not per-
missible. The substance of it was that she
would bequeath to him the sum mentioned.
An instrument effectual as a will was clearly
contemplated; otherwise the promise was but
illusory.
The result is, in the opinion of a majority
of the court, that the plaintiff is entitled to
judgment for the sum of $5,000, and interest,
in addition to the amount found at the trial.
The defendant's exceptions are overruled, and
the plaintiff's exceptions are sustained. Or-
dered accordingly.
88
LEGACIES.
ROQUET V. ELDRIDGE et al
(118 Ind. 14T, 20 N. E. Rep. 733.)
Supreme Court of Indiana. April 2, 1889.
Appeal from circuit court, Vigo county;
Josbua Jump, Special Judge.
Action by Hugh D. Roquet, administrator
c. t. a., etc., of William B. Eldridge, de-
ceased, against William G. Eldridge and
others, heirs, devisees, and legatees of said
decedent, to settle the estate. From a judg-
ment declaring certain legacies adeemed,
the legatees, William G. Eldridge and others,
appeal.
0. F. McNutt and Stimson & Stimson, for
appellants. S. C. Davis and S. B. Davis, for
appellee.
MITCHELL, J. After the issues v^ere
joined in the court below, the judgment ap-
pealed from was rendered upon an agreed
statement of facts. The questions for deci-
sion arise out of the facts agreed upon,
which, so far as they are material, are as
follows: In November, 1863, William B.
Eldridge executed his last will and testa-
ment, by the second clause of which he de-
vised to his sons Hamilton Eldridge and
Abram A. Eldridge his homestead farm, to
be held by them jointly. To his daughters,
Amanda and Cynthia, and to his sons Wil-
liam G. and Robert B., he bequeathed $500
each, to be paid in cash, which sums were
to be taken and considered as in full of each
of their respective interests in the home-
stead farm. The will contained a recital,
the effect of which was that the devises and
bequests thus made were to be considered as
the disposition of the homestead farm
among the testator's children, and were not
to affect any other interest or estate. After-
wards, and during the life-time of the testa-
tor, his sons Hamilton and Abram A. El-
dridge, devisees of the homestead farm, fur-
nished their father $2,000 in money, out of
which he paid to each of the four legatees
above named the sum of $.500, and received
from each a receipt of the following tenor,
viz.: "Received of William B. Eldridge,
$500, in consideration of my interest in his
homestead farm, corresponding with his last
will." One of the daughters was a married
woman at the time she received the money
and executed the receipt therefor, as above.
The testator died in February, 1881, having
had^ but the six children named above. He
had only about $500 in value of personal
property, which, with the farm above men-
tioned, valued at about $6,400, comprised his
whole estate.
On behalf of the administrator with the
wijl annexed, it is insisted that the sums
paid to the several legatees by the testator
in his life-time constituted a satisfaction or
ademption of the legiacies provided by the
will, while the legatees Insist that the lega-
cies are specific or demonstrative in their
character, and that since it does not appear
that the money paid them was raised out
of, or derived from, the land comprised in
the homestead farm,- the payment did not
work an ademption of the sums bequeathed
by the will. The legacies were, however,
neither specific nor demonstrative. Speak-
ing upon the subject of specific legacies, the
lord chancellor in Fielding v. Preston, 1 De
Gex & J. 438, said: "There have been at-
tempts in various cases to determine the
meaning of a specific legacy, and what is
the test whereby such legacies may be dis-
tinguished from general bequests. There
are objections to most of the definitions, but
1 think we are quite safe in treating that as
a specific bequest which the testator directs
to be enjoyed in specie." A legacy is specif-
ic when it can be satisfied only by the trans-
fer or delivery of some particular portion of
or article belonging to the estate, which the
testator intended should be transferred to
the legatee In specie. 2 Redf. Wills, 122;
2 Rap. & L. Law Diet. tit. "Legacy." Lord
Hardwicke said, In Ellis v. Walker, Amb.
309: "The court leans against considering
legacies as specific." Unless, therefore, it
appears that the money or thing to be trans-
ferred is so clearly identified and inherently
described as that the legatee can say to the
executor that all or a portion of the very
fund or property in question was transfer-
red by the will, the bequest will not be re-
garded as specific. Sidebotham v. Watson,
11 Hare, 170.
While it is true the doctrine of ademption
does not apply to specific devises or legacies,
as a general rule, (Swails v. Swails, 98 Ind.
511,) yet, even in case of a specific devise
or bequest, if the very thing devised or be-
queathed had been transferred to the dev-
isee or legatee In the life-time of the testator,
so that there would be nothing left for the
will to operate upon, an effectual ademption
would have taken place.
Accepting the foregoing as the true cri-
terion of a specific legacy, it becomes clear
that the bequest of $500 in cash to each of
the sons and daughters named, and the fur-
ther direction that this was to be considered
in full of their respective interests in the
homestead farm, and that the devises and
bequests previously made were not to af-
fect any other Interest or estate, did not con-
stitute a specific bequest of any portion of
the testator's estate to be transferred in
specie. Neither did the legacies belong to
that intermediate class which are sometimes
denominated "demonstrative," and which
are peculiar, in that they are not ordinarily
liable to be adeemed or abated by an ad-
vancement made in a general way. "A
demonstrative legacy is a bequest of a sum
of money payable out of a particular fund or
thing. It is a pecuniary legacy, 'given gen-
erally, but with a demonstration of a par-
ticular fund as the source of its payment'
LEGACIES.
89
It is therefore equivalent to, or in tlie nature
of, a devise or bequest of so mucli or sucli
a part of the fund or thing specified." Glass
V. Dunn, 17 Ohio St. 413; 5 Amer. & Eng.
Enc. Law, 541; 2 Kedf. Wills, 140, 141.
While it is quite true the will plainly in-
dicates that the sums bequeathed to tlie
sons and daughters named were to be tak-
en in' full of their respective interests in the
homestead farm, which was specifically de-
vised to the two other sons named in the
will, there is no direction that the bequests
are to be paid out of any particular fund,
or that the fund out of which payment is
to be made is to be derived from the rents,
issues, or profits of the land, or that the
legatees are to have any interest, as such,
in the land itself. The implication is that
the bequests were 'chargeable against the
devisees of the land, or, at most, that they
should be chargeable upon the farm. More-
over, since it appears by the agreed state-
ment of facts that the sons to whom the
homestead farm was devised furnished the
money with which the legacies were paid,
it is not apparent why this should not be
held to satisfy the bequests, even though it
should be conceded that they were payable
out of the land. If thus payable, it must
have been contemplated that the amount
should constitute a charge upon the farm,
to be removed by the devisees at some time,
hy paying the several amounts to the lega-
tees. We know of no authority which
would justify a holding that a general leg-
acy which is payable out of a particular
fund, or in a specified manner, may not be
satisfied, in case the legatee receives the
amount thereof from the testator in his life-
time, out of the very fund devoted to the
payment of the bequest, provided it clearly
appears that the amount was given and re-
ceived with the intention that it should work
an ademption of the legacy. If we assume
that the homestead farm was to be the
source from which the fund was to be de>-
rived, out of which the legacies were pay-
able, the conclusion follows that the dev-
isees of the farm were to take it subject to
the burden of paying the legacies after the
testator's death. Having furnished the
money to the testator during his life-time
with which to pay oS the bequests, and the
money having been paid to the legatees and
received by them for that purpose, the lega-
cies are effectually satisfied from the very
source contemplated by the will. An ademp-
tion results where a parent or other person
standing in loco parentis, after having made
"a bequest, gives a portion to the child to
whom the bequest is made, equal to or in
excess of the amount bequeathed, the por-
tion given and the legacy being ejusdem
generis. Weston v. Johnson, 48 Ind. 1.
Within the rule thus stated the legacies
were adeemed.
Whether a legacy be specific or demonstra-
tive, if it clearly appears that the particular
thing or fund bequeathed has been irrevoca-
bly delivered over to the legatee in the life-
time of the testator, the legacy Is adeemed
because the testator's title to the thing or
fund has been divested by the gift, and has
become vested in the legatee during the life-
time of the testator. Clayton v. Akin, 38
Ga. 320.
The fact that one of the legatees was a
married woman at the time she received the
money from her father and signed the re-
ceipt is of no consequence. The receipt of
the money from the source contemplated by
the will satisfied the legacy by operation of
law, and not by force of any contract Mon-
ey paid to a married woman in ademption of
a legacy produces the same legal result as if
she were unmarried.
There was no error. The judgment is af-
firmed, with costs.
90
LEGACIES.
WYCKOPF V. PERRINE'S EX'RS,
(37 N. J. Eq. 118.)
Court of Chancery of New Jersey. May Term,
1883.
On demurrer to bill.
Bill flled by Elizabeth Wyckoffi against the
executors, etc., of Matthias M. Perrlne, de-
ceased, to recover legacy.
Barker Gummere, for demurrants. Alan
H. Strong, for. complainant.
VAN FLEET, V. O. This is a suit for a
legacy. The defendants have demurred to
the complainant's bill, denying that on the
case made by it she is entitled to relief. The
complainant is a daughter of Matthias M.
Perrine, who died testate in the month of
October, 1878. She grounds her right of
action on the following clause of her father's
will: "Whereas, my son-in-law David B.
WyckofE borrowed of me the sum of twenty-
three hundred dollars, which sum I loaned
him on interest, now, it is my will, in order
to do equal justice to and between my
children, that the same shall be considered
and taken as so much of the share of his
wife, Elizabeth, of my estate; and I give
and bequeath to my said daughter Elizabeth
the further sum of five hundred dollars, which
is to be in full of her share of my estate;
and I make no further provisions for the
said Elizabeth Wyckoff in this my last will
and testament." The $500 have been paid.
The debt of David B. Wyckoff to the testa-
tor was evidenced by a promissory note,
dated April 1, 1874, and payable one year
after date. A petition in bankruptcy was
filed against Wyckoff on the 3d day of May,
1876, on which he was subsequently, in the
language of the bill, in due course of law,
adjudged a bankrupt. He was discharged
on the 2d of April, 1878. The testator
proved his debt, and received two dividends
out of the bankrupt assets, — the first June
15, 1877, of $384.50; and the second March
14, 1878, of $123.62,— making a total of
$508.12. The will bears date May 28, 1877.
It was executed, it wiU be observed, more
than a year after the commencement of the
proceedings in bankruptcy, and less than
three weeks before the testator received the
first dividend.
The complainant contends that the legacy
given by the clause under consideration is
not specific, but demonsti'ative; in other
words, properly constraed, the clause means
this: that she is, under any circumstances,
to have a legacy of $2,300, the reference to
the debt of her husband being intended sim-
ply to indicate the fund which should be
applied primarily to its payment. Such a
construction would, I think, not only do
violence to the language used by the testa-
tor, but would attribute to him a pui-pose
certainly not expressed, and probably never
entertained. No gift is made by express
words, but an intention to give is very
clearly expressed by words of direction or
command.
There can be no doubt that the thicg
which was before the testator's mind wheu
he made his will, as the subject of the gift
to the complainant, was a debt. He tells
who the debtor was,— his son-in-law David
Wyckoff; how he incurred the debt,— for
borrowed money; ttie amount of the debt,—
$2,300; the terms on which it was held,—
loaned on interest; and then he says: "Now,
it is my will, in order to do equal justice to
and between my children, that the same
[that is the debt due to me from my son-in-
law] shall be considered and taken as so
much of the share of his wife, Elizabeth, of
my estate."
In construing a will, the court must al-
ways have regard to the circumstances, sit-
uation, and surroundings of the testator. At
the time this will was made the son-in-law
had been adjudged a bankrupt. The testa-
tor knew it. He knew, also, that the great-
er part of his debt was hopelessly lost; and
for that reason, unquestionably, he thought
it was his duty, in order that justice might
be done to all his children, to treat the debt
of his son-in-law as an advancement to his
daughter, and to effect that purpose he gave
her the debt. He intended to say by the
provision under consideration, as I think
he has quite clearly said: "I want each of
my children to have an equal share of my
estate. The husband of my daughter Eliz-
abeth borrowed of me, some time ago, $2,800,
which he cannot repay. In order to be just
to my otber children, I give Elizabeth the
debt I hold against her husband, as part of
her sh3,re, and the further sum of five hun-
dred dollars, but she is to have nothing
more." In deciding whether a legacy is spe-
cific or general, the intention of the testator
must control, as it must the decision of
every other question involving the construc-
tion of wills. There is no technical, arbitra-
ry rule requiring the use of particular words
or expressions to make a bequest specific.
Such intention may be manifested either by
clear words, or by the general scope and
texture of the instrument; but in the latter
case, in the language of Lord Eldon, the in-
ference should rest upon a strong, solid, and
rational interpretation of the will.
The rule of construction to be observed in
such cases is thus stated by Roper: "A court
of equity leans to the consideration that all
bequests are general; it therefore requires
expressions actually bequeathing the identic-
al debt, or such reference to it, appearing
upon a strong, solid, and rational interpreta-
tion of the will, as to raise a plain inference
that the debt was the exclusive subject in-
tended to be given by the testator to the leg-
atee." 1 Rop. Leg. 234. In Norris v. Thomp-
son, 16 N. J. Eq. 218, Chancellor Green held
that, in order to make a legacy specific,
there must be something on the face of the
LEGACIES.
91
will to Individuate the thing given, or some
form of expression must be used which cleai--
ly indicates a purpose on the part of the
testator to give a specific thing, and nothing
else. Here just such a condition of affairs
exists. The testator has marked out, with
great clearness and precision, just what the
complainant is to tate,— she is to have the
debt of her husband and $500; and then he
declares she is to have nothing more. That
such was his intention seems to me to be so
obvious as to leave the complainant without
any substantial ground upon which to rest
the opposite contention. The words of ex-
clusion must, I think, be regarded as fur-
nishing an almost infallible test of the mean-
ing of the testator.
The case involves another question: Has
the legacy been adeemed? It is certain the
debt which was the subject of the legacy did
not exist at the time of the testator's death.
So much of it as had not been paid to the
testator out of the bankrupt's assets was
extinguished by his discharge in bankrupt-
cy, so that the subject of the gift did not
exist at the testator's death. Some of the
earlier decisions made a distinction between
the effect of a voluntary payment and a
compulsory payment of a debt, which was
the subject of a specific legacy, in adeem-
ing the legacy. They held that, where the
debtor came forward of his own volition,
and without solicitation, and paid the debt
in the testator's life-time, the testator's ac-
ceptance of the money, under such circum-
stances, did not indicate an intention to take
back the legacy; but If he, of his own will,
and in the absence of any other apparent
reason than that he wanted the debt paid,
constrained the debtor to pay, then his act
was regarded as evincing an intention to
adeem the legacy. This distinction was rec-
ognized by the supreme court in Stout v.
Hart, 7 N. J. Law, 414, 424. It was there
said: "A voluntary payment is not an
ademption, because accepting the money
when tendered does not imply any alteration
in the intentions of the testator; but when
the testator compels payment this fact may
or may not amount to an ademption, accord-
ing to circumstances." The cases adopting
this distinction as the rule of judgment will
be found coUected In 2 White & T. Lead.
Cas. Eq. (4th Amer. Ed.) 624. The distinc-
tion, however, no longer prevails. The mod-
em decisions, both of this country and Eng-
land, with almost perfect unanimity, repudi-
ate It as unsound and fallacious. The rule
now generally recognized as an accurate
statement of the law on this subject is that
laid down by Lord Thurlow In Humphreys
V. Humphreys, 2 Cox, Ch. 185. He said:
"The only rule to be adhered to is to see
whether the subject of the specific bequest
remained in specie at the time of the testa-
tor's death, for, if it did not, then there
must be an end of the bequest; and the idea
of discussing what were the particular mo-
tives and Intentions of the testator in de-
stroying the subject of the bequest would be
productive of endless uncertainty and confu-
sion." Chief Justice Black states the same
rule, as follows: "If a thing bequeathed in
a will, by such description as to distinguish
it from all other things, be disposed of, so
that It does not remain at the testatoi^'s
death, or if it be so changed that it cannot
be called the same thing, the bequest Is
gone. If such a legacy be of a debt, pay-
ment necessarily makes an end of It. The
legatee is entitled to the very thing be-
queathed, if It be possible for the executor
to give it to him, but, if not, he cannot have
money In the place of It. This results from
an Inflexible rule of law applied to the mere
fact that the thing bequeathed does not ex-
ist, and it is not founded on any presumed
intention of the testator." Hoke v. Herman,
21 Pa. St. 301, 305. The cases repudiating
the distinction alluded to are too numerous
to be cited. They will be found referred to
in 2 Williams, Ex'rs (6th Amer. Ed.) 1323;
2 White & T. Lead. Cas. Eq. (4th Amer. Ed.)
623, 0G8; Theob. Wills, 121; Redf. Wills,
423. Tbe question now Is one of Identity,
and not of intention, as gathered from mat-
ters extrinsic the will. In such cases the
test is, did the subject of the gift exist in
specie at the testator's death? If it did, the
legatee is entitled to it against all persons
except creditors; if It did not, he is not.
Trying the complainant's right to relief by
this principle, it is clear that judgment must
be awarded against her.
The demurrer must be sustained, with
costs.
In MULLINS v. SMITH, 1 Drew. & S. 204,
Kmdersley, V. C, says: "The points of dif-
ference between specific and demonstrative
legacies are these: A specific legacy Is not
liable to abatement for the payment of debts,
but a demonstrative legacy is liable to abate
when It becomes a general legacy by reason
of the failure of the fund out of which it is
payable. A specific legacy is liable to ademp-
tion, but a demonstrative legacy Is not. A
specific legacy. If of stock, carries with it
the dividends which accrue from the death
of the testator, while a demonstrative leg-
acy does not carry Interest from the testa-
tor's death."
92
LEGACIES.
EOBBRTSON et ux. v. BROADBENT et al.
(L. E. 8 App. Gas. 812.)
House of Lords. July 23, 1883.
Appeal from the court of appeals, (20 Ch.
Div. 676.)
Henry Ovey, by his will dated June 1, 1881,
appointed Jobu Barrow and John Herbert
Greenhalgh (two of the respondents) execu-
tors and trustees; and after directing Ms ex-
ecutors to pay all his just debts, and funeral
and testamentary expenses, and giving to ya-
rious individuals and charities various sums,
amounting to £48,600, proceeded thus: "I
give all my personal estate and effects of
which I shall die possessed, and which shall
not consist of money or securities for money,
unto the said Elizabeth Anne Robertson, for
her own use and benefit absolutely. I give
and devise all the rest, residue, and remain-
der of my estate, both real and personal,
whatsoever and wheresoever, to the said
John Barrow and John Herbert Greenhalgh;
upon trust thereout, in the first place, to pay
to Alfred Greenhalgh, of 30 Holborn, Lon-
don, the sum of five hundred pounds ster-
ling; and to R. L. Bloomfield, of Brighton,
aforesaid, secretary to the said Tindal Rob-
ertson, the sum of one hundred pounds ster-
ling for the use of his school in such man-
ner as he shall think fit, in his uncontrolled
discretion; and as to the residue thereof, or
such part or parts thereof as may be law-
fully appropriated to the purpose, for such
one or more or any hospital of a charitable
nature, and in such proportions as they, in
their uncontrolled discretion, shall think fit.
I direct that all the legacies given by this,
my will, shall be paid free of legacy duty;
and also that the aforesaid money legacies
for charitable purposes shall be paid exclu-
sively out of such part of my personal estate
as may lawfully be appropriated to such pur-
poses, and preferably to any other payment
thei'eout." The testator having died, this
action was brought by Broadbent and others
of the respondents against the executors for
the administration of his real and personal
estate. The pecuniary legacies amounted to
£49,200, of which £7,500 were in favor of
charitable institutions. The personal estate
was valued under £39,660, and the real estate
at about £20,000. Upon a summons for the
redelivery to the executors of certain chat-
tels which had been given up to the appel-
lant, Elizabeth Anne Robertson, Fry, J., be-
ing of opinion that the legacy to her of all
the testator's personal estate, and effects of
which he should die possessed, and which
should not consist of money or securities for
money, was a specific legacy, made no order,
except as to costs. On appeal, the court
(Jessel, M. R., and Lindley and Holker, L.
JJ., 20 Ch. Div. 676) made an order. May 3,
1882, declaring, inter alia, that the legacy
was not specific, and that all the pecuniary
legacies were payable in full before Mrs.
Robertson could be entitled to anything un-
der the bequest to her, without prejudice to
any question, as between her and the tes-
tator's heir at law, as to the liability of the
real estate to the payment of such pecuniary
legacies in priority to the property bequeath-
ed to her.
Mr. Macnaghten, Q. C, (Decimus Sturges,
with him,) for appellants. Mr. Fischer, vj.
C, (Mr. Stirling, with him,) for the pecuni-
ary legatees, respondents. Cecil Russell,
(with him. Sir H. James, A. G.,) for the At-
torney General, respondent. Borthwick, for
the executors, respondents, was not heard.
SELBORNE, L. 0. My lords, the question
on this appeal is whether the general jwrson-
al estate of the testator, Henry Ovey, given
to the appellant Mrs. Robertson, is exempt
from or subject to the payment of pecuniary
legacies. The general rule of law as to pe-
cuniary legacies (in the absence of any suffi-
cient indication of a contrary intention) is
that they are payable by the legal personal
representatives of the testator (in whom the
whole personal estate vests by law) out of
the personal estate not specifically bequeath-
ed. The presumption is that the testator in-
tends them to be so paid. Unless charged
upon it by the wUl, they are not payable out
of the real estate. The principle of the ex-
emption of personal estate specifically be-
queathed is that it is necessary to give ef-
fect to the intention apparent by the gift If
the bequest is of a particular chattel, such
as a horse or ship, it is manifest that the tes-
tator intended the thing to pass uncondition-
ally, and in statu quo, to the legatee; which
could not be if it were subject to the pay-
ment of funeral and testamentary expenses,
debts, and pecuniary legacies. As against
creditors, the testator cannot wholly release
it from liability for his debts; but, as against
all persons taking benefits under his will, he
may. The same principle applies to every-
thing which a testator, identifying it by a
sufficient description, and manifesting an in-
tention that it should be enjoyed or taken in
the state and condition indicated by that de-
scription, separates, in favor of a particular
legatee, from the general mass of his per-
sonal estate,— the fund out of which pecuni-
ary legacies are, in the ordinary course, pay-
able.
This reasoning does not apply to a gift, in
general terms, of the whole personal estate
to which a testator may be entitled at the
time of his death. 1 Rop. Leg. (4th Ed.) pp.
242, 213; Fairer v. Park, 3 Oh. Div. 312;
Ouseley v. Anstruther, 10 Beav. 453. It is,
of course, in the power of any testator, if he
so pleases, to direct that his pecuniary lega-
cies (and also his debts, etc., if he sufficiently
provides for their iDayment) shall be exclu-
sively charged on his real estate, or on any
particular property, real or personal, which
he may think fit. Lance v. Aglionby, 27
Beav. 65; Jones v. Bruce, 11 Sim. 221, 228.
LEGACIES.
93
But an intention to do so must be discover-
able from the terms of his will. In the
cases last cited, such an intention -was suffi-
ciently clear without any aid from the pre-
sumption applicable to specific legacies as
such. It is true that in Jones v. Bruce, 11
Sim. 221, 228, Sir Lancelot Shadwell said
that the gift of the whole personal estate
was as specific as if the testator "had enum-
erated every chattel, and then said, 'I give
them to my wife.' " But that dictum was
not necessary for the decision; nor can I
reconcile it (if his honor really intended to
say that this, without more, would have been
enough to exonerate the personalty, in the
absence of any other provision for the large
pecuniary legacies there in (question) with
either principle or authority. If that gift
had been to the wife for life, with remainder
over, the personal estate must have been
converted into money and invested, and she
would not have been entitled to enjoy it in
specie, under the doctrine of Howe v. Earl
of Dartmouth, 7 Ves. 137, and other cases of
that class.
In the present will there is nothing from
which an intention to exempt the general
personal estate bequeathed to ivTrs. Robert-
son from its ordinary burdens, or to give it
the quality (in that respect) of a specific be-
quest, can be inferred, unless it be one or
the other, or the combination, of these two
circumstances: (1) That the "money, and
securities for money," of which the testator
might die possessed, are excepted from the
gift; and (2) that it is followed by another
gift of "all the rest, residue, and remainder"
of the testator's estate, "both real and per-
sonal," (to the persons who are appointed
executors at the outset of the will,) upon
trust, to pay thereout two legacies, and to
dispose of the rest for charitable puiposes.
The gift in question to Mrs. Robertson is
preceded, first, by a direction to the execu-
tors to pay all the testator's debts and funer-
al and testamentary expenses as soon as con-
veniently may be after his death, and then
by a great number of pecuniary legacies,
amounting together to £48,600, of which £7,-
500 are for charitable objects, and £2,000 for
Mrs. Robertson herself. The testator has
nowhere said that his funeral and testamen-
tary expenses and debts, or his pecuniary
legacies, are to be paid in any other way
than that in which they would be payable
according to the ordinary course of law. It
is contended that this consequence results
from the residuary form of the gift which
follows, as compared with the gift to Mrs.
Robertson, which is not in form residuary;
"residue" being that which remains of the
estate after all necessary deductions, and
after satisfying all prior gifts. The court
of appeal appears to have thonght that the
excepted personalty would be primarUy lia-
ble to the funeral and testamentary expenses,
debts, and pecuniary legacies; but they de-
cided that there was no exemption from
those charges of the personalty given to Mrs>
Robertson. As to the real estate nothing
was determined. With this view I agree.
I think that the exception of something
specifically described from a gift (otherwise
general) of the personal estate cannot make
that gift more specific, in the proper sense
of the term, than it would be if there were
no such exception. It is indisputable that
this testator intended his pecuniary legacies
to be paid in full, free of legacy duty; and
he expressly directed that such of them as
were for charitable purposes should be paid
exclusively "out of such part of his personal
estate as might lawfully be appropriated to
such purposes, and preferably to any other
payment thereout." These words, in their
natural sense, extend to every part of his
personal estate which might lawfully be so
appropriated, whether included or not includ-
ed in the gift to Mrs. Robertson; and give
the charitable legacies, as against the whole
pure personalty, a preference over every oth-
er payment, and therefore over any payment:
to Mrs. Robertson. This could not have
been disputed if the whole personal estate
had been given to Mrs. Robertson. But the
fact that "money," (which might and prob-
ably would, at the time of the testator's
death, be quite insufficient,) and "securities
for money," (which might be mortgages, or
other securities savoring of realty,) are ex-
cepted, cannot reduce the right of the char-
itable legatees (in the event of Mrs. Robert-
son surviving the testator, as she did) to p
charge upon such, if any, of those exceptuil
things only as might consist of pure per-
sonalty. A gift which is subject to lega-
cies, so far as relates to the charitable lega-
tees, cannot, under the terms of this will,
have a different character as to the other
pecuniary legacies.
The order appealed from is, in my opinion,
right, and I move your lordships to dismiss
this appeal, with costs.
Lord BLACKBURN. My lords, at the
close of the argument in this case I had not
much doubt that the order appealed against
was right, and that the appeal must be dis-
missed; but I was glad to have time to look
at and consider the authorities cited, as the
course of my practice as a barrister, and aft-
erwards as a judge in a court of common
law, did not make me familiar with this
branch of law, which was principally admin-
istered in the courts of equity. A testator
cannot deprive his creditors of their right to
be paid their debts out of his assets, but,
subject to their rights, he may dispose of
the surplus as he pleases. I do not compli-
cate the question by saying anything as to
real estate. I suppose the case of a man
having personal property only, such as chat-
tels real, ships, stocks, goods, and money.
If he, by his will, leaves legacies,' the execu-
tor, who takes all the personal estate, must
first pay the debts and other charges on the
94
LEGACIES.
testator's estate, and then, as far as he has
assets, pay the legacies. If he has enough
to do so in full, no question arises. But If,
either from the testator having overestimat-
ed his pecuniary means, or having underes-
timated his liabilities, there is not enough to
pay the whole in full, all the legatees can-
not be paid as much as the testator intend-
ed; and the question arises vyhether some
of the legacies are to bear the loss, before
the others are abated at all, and then the
others, if there is still a deficiency, are to
be abated ratably. Sometimes a testator
foresees this possibility of a deficiency, and
provides for it. This was done by codicil
in Farmer v. Mills, 4 Russ. 86. When a tes-
tator does so, there can be no doubt about
it; his expressed intention governs. Some-
times, after giving legacies to a large
amount, he leaves the residue to some one.
It does not need authority to show that in
such a case the residuary legatee can take
nothing until all the other legacies are paid
in full, for till then there is no residue. But,
in the absence of something to show an in-
tention on the part of a testator to the con-
trary, he must be taken to intend all his leg-
acies to be paid In full; and, if that is im-
possible, all are to be reduced ratably, un-
less there is something to show the inten-
tion of the testator that one or more of the
legacies are to be paid in full, though the
consequence may be that the others are to
be the more reduced, or perhaps not paid at
all.
Let us suppose that a testator leaves his
library, such as it should be at the time of
his death, to A., £10,000 to B., and the resi-
due of his personal estate to C, very proba-
bly believing, perhaps even indicating on the
face of his will, that he thought his library
would be worth £10,000, and the whole of
his personal estate, including all library,
worth £50,000; and owing either to miscal-
culation on his part, or to unforeseen dis-
asters, his personal estate. Including his li-
brary, turns out, after all debts and charges
are paid, to be £19,000 only. No one can
doubt that the testator, if alive, would re-
model his will, and give something to C, per-
haps burdening the library with a payment
to C, and reducing the legacy to B., so as to
get the means of giving something to C.
But he Is dead, and the court cannot make
a will for him. C, hard as it may seem,
can get nothing under the bequest of the
residue, for there is no residue; and it is
settled by decisions, and I think, if it was
res Integra, I should hold, that, as the inten-
tion on the face of the will is that A. should
have the library, as a specific thing, such
as It should be at the testator's death, he
must have it, whether it is of more or less
value than the testator supposed, and that
B. can only get the £9,000. It is, as I think,
on this ground, and on this principle, that,
where there is a deficiency, the first to suf-
fer is the residuary legatee. Then, if there
still be a deficiency, the 'general legatees,
and then the specific legatees. I think that,
Ln considering the case below, more has been
said as to the definition of what is a specific
bequest, as if it were a technical question,
than was quite requisite for the decision of
the case. I do not know, if it were neces-
sary to give a definition of a "specific leg-
acy," that any would come nearer to my
idea than what has just been said by the
lord chancellor in this case, — "something
which a testator, identifying it by a suffi-
cient description, and manifesting an inten-
tion that it should be enjoyed in the state
and condition indicated by that description,
separates, in favor of a particular legatee,
from the general mass of his personal es-
tate." I do not, however, like to bind my-
self even to saying that this is a precise defi-
nition. I think the real question is, what is
the true construction of the will of this tes-
tator, by which, after giving large pecuniai-y
legacies, some to charities and some to in-
dividuals, among whom is Mrs. Robertson
herself, of £2,000,— though I do not think that
material, — he proceeds thus: [His lordship
read the extract from the will set out ante,
p. 71.]
I think this is really a bequest of all the
residue of his estate to Mrs. Robertson and
the two trustees, the trustees to take the
real estate, and the money, and securities
for money, and Mrs. Robertson all the rest
of the personal estate; and that there is
nothing on the face of the will to indicate
any intention that either she or the trustees
were to take that property in the state and
condition in which it should be at his death.
It was argued that the testator probably
was thinking of the furniture, farm stock,
etc., at Roy den Lodge, which formed the
bulk of his personal estate not consisting of
money or securities for money, and that he
really meant to give her those, to be enjoyed
in the same state and condition In which he
left them. It Is possible he did, but he has
not said so in his will. He has, no doubt,
left her those, and his wine In London, and
a steam-launch, and two boats, and a lease-
hold stable in London, which it is less prob-
able that he meant to be enjoyed in the same
state and condition in which he left them.
But It all comes round to the same thing.
The court cannot make a will for the tes-
tator; it must construe the will he hae
made. And I think that the bequest of the
residue of his effects which shall not con-
sist of money or securities for money to
Mrs. Robertson, and the residue of his per-
sonal estate to the two trustees, is one resid-
uary bequest to two persons.
I have spoken as if there had been no real
estate, though, in fact, there was a consid-
erable real estate. I have done so because,
the heir not being before the court, it cannot
now decide what portion of that real estate
is available to pay the legacies, and ought
to be so applied in relief of this residuary be-
LEGACIES.
95
quest It may possibly be that the solution
of the questions between Mrs. Robertson and
those entitled to the real estate, which are re-
served by the order, will render the present
decision of no practical consequence. It is
possible that it will leave it of great conse-
quence. All I now say is that I think it
rightly decided by the order appealed
against.
Lord FITZ GERALD. My lords, I concur
in the judgment of the lord chancellor, and
adopt his reasons. The gift is to be read
as & bequest to the trustees of the money
and securities for money of which the tes-
tator should die possessed, and of all the
residue of his personal estate and effects to
Mrs. Robertson for her own use and benefit,
absolutely. The gift is not specific, within
the definition so carefully expressed by the
lord chancellor, and there is nothing in the
will to indicate any intention of the testator
to exempt the subject of that bequest from
its ordinai'y liabilities. There is much in
the will leading to a contrary conclusion,
and which the lord chancellor has already
pointed out. I think the order appealed
from is correct.
Order appealed from aflirmed, and appeal
dismissed, with costs.
96
LEGACIES.
DUNCAN V. INHABITANTS OF TOWN-
SHIP OF FRANKLIN.
(43 N. J. Eq. 143, 10 Atl. 546.)
Prerogative Court of New Jersey. May Term,
1887.
Appeal from orphans' court, Essex coun-
ty; Kirkpatrick, Johnson, and Leedwitli,
Judges.
James M. 0. Morrow, for appellant. John
A. Miller, for appellees.
McGILL, Ordinary. Jane D. Poineer, by
her will, dated September 27, 1875, and duly
proved by the executors in it named, before
the surrogate of Essex county, on April 6,
]882, after providing for the payment of
her debts and funeral expenses, appointed
the appellant, Henry B. Duncan, and one
Hiram Van Winkle, executors of the will,
and bequeathed several legacies, and among
them one to the said Henry B. Duncan, in
the following language: "Eighth. I give and
bequeath to Henry Benson Duncan, for
his services, (in assisting me at different
times,) the sum of two thousand dollars."
It appeared by the executors' account, filed
with the surrogate on July 20, 1886, that
the estate was insufficient to pay all the
legacies in full, and also that the executors
asked allowance for the payment of the
legacy to Henry Benson Duncan by an item
of discharge, as follows: "Paid Henry B.
Duncan legacy under the will, for services
rendered deceased in her life-time, as stated
in the will $2,000." To this item an excep-
tion was filed. The executors did not ofCer
proof that services had been in fact ren-
dered by Mr. Duncan to the testatrix, for
which an obligation to pay existed at her
death, but relied entirely upon the will to
justify their payment The exception was
sustained by the order of the orphans' court,
and from such order this appeal is taken.
The established rule is that where gen-
eral legatees are volunteers, taking of the
testator's bounty, and there is nothing in
the will to indicate that one shall be paid
before another, their legacies must abate
proportioQately, in case of a deficiency of
assets; but where a general legacy is sus-
tained by a valuable consideration, such as
the relinquishment of a debt or of a claim
of dower, and the right to the claim, con-
stituting the consideration, subsists at the
testator's death, the legatee is entitled to
the full payment of his legacy in prefer-
ence to other general legatees, who take
merely of the testator's bounty. Williams,
Ex'rs, 1365; 1 Rop. Leg. 432; Schouler, Ex'rs,
§ 490, note; 2 Redf. Wills, 452.
The burden of proving that a general
legacy is entitled to priority is upon him
who asserts it, and the proof must be clear,
conclusive, and unequivocal. Titus' Adm'r
V. Titus, 26 N. J. Eq. 117; Shepherd v.
Guernsey, 9 Paige, 357.
There, is notl 'ag in this bequest to Mr.
Duncan, or in the will, to indicate that the
testatrix intended that this bequest should
be paid before the other legacies. The ex-
pression, "for his services, (in assisting me
at different times,)" does not, standing
alone, import an indebtedness from her to
the legatee, for which payment may be ex-
acted by process of law. For aught that
appears to the contrary, the services may
have been rendered gratuitously, and the
legacy may have been given in grateful
recognition of them. That the legacy was
given because of a sense of moral obliga-
tion, or as compensation for services, or
other favors rendered as a mere voluntary
courtesy, will not, if no legal obligation to
pay exist at the death of the testatrix, con-
stitute such a valuable consideration as to
entitle the legacy to priority in payment.
Coppin V. Coppin, 2 P. Wms. 291; Turner v.
Martin, 7 De Gex, M. & G. 429; Towle v.
Swasey, 106 Mass. 100.
More than six years elapsed between the
making of the will and the death of the
testatrix, yet no evidence was offered to
show that, if a legal indebtedness to Mr.
Duncan existed at the making of the will,
its payment was enforceable when the test-
atrix died. The burden of proof, which was
upon the executors, was not discharged by
the simple production of the will. As the
case is presented, no error in the order is
shown.
The order will therefore be affirmed, with
costs.
LEGACIES.
97
TINDALL'S EX'RS v. TINDALL.
(24 N. J. Eq. 512.)
Ooun; of Errors and Appeals of New Jersey.
June Term, IS^S.
Appeal from the court of chancery.
Bill In chancery by William Tindall against
John Manning and Edward Paxton, execu-
tors, etc., of Aaron Tindall, deceased, for one
eighth part of the sum of $5,000, a lapsed leg-
acy to testator's wife. Testator, after the
above bequest to his wife, and several other
legacies, bequeathed as follows: "I give and
bequeath whatever of my property shall re-
main after payment of the above, and due
settlement of all my business, to my two
friends, John H. Manning and Edward Pax-
ton." He appointed Manning and Paxton
executors. Testator left no issue, but had
eight brothers and sisters. Two of these (of
whom the complainant is one) survived him.
The other six died before him. All left chil-
dren living at the death of the testator.
The defendant Paxton is one of these chil-
dren. The case was argued before the chan-
cellor upon bill and answer, who found for
plaintiff, and defendants appealed.
I. W. Scudder, for appellants. J. R. Em-
ery, for respondent.
. DALRIMPLE, J. The question in.this case
is whether a certain lapsed legacy of $5,000,
given in and by the will of Aaron Tindall, de-
ceased, falls into the residuum of the estate
and goes to the residuary legatees, or re-
mains undisposed of, and is to be distribut-
ed among the next of kin of the testator.
The will, after directing the payment of deibts
and funeral expenses, and the sale and dispo-
sition of all testator's property, real and per-
sonal, which he might own at the time of
his decease, and the collection of the moneys
due him, gives to his wife, Ann, in lieu of
her right of dower at common law, the said
legacy of $5,000. After certain general lega-
cies and bequests, the residuum 'of the estate
is disposed of as follows. "I give and be-
queath whatever of my property shall remain
after payment of the above, and due settle-
ment of all my business, to my two friends,
John H. Manning, to him, his heirs and as-
signs, and to Edward Paxton, to him, his
heirs and assigns." The residuary legatees
are appointed executors. The testator hav-
ing survived his wife, the legacy of $5,000 to
her lapsed. This suit is brought by one of
the next of kin of the testator, to recover a
share of the legacy which has thus lapsed,
and his right to recover is put upon the
ground that, as to the $5,000 in question, the
testator died intestate.
The rule applicable to the question to be
solved, as stated in the text-books, as well as
in many adjudged cases, is that the residuary
legatee is entitled as well to a residue caused
by a lapsed legacy, or an invalid or Illegal
disposition, as to what remains after pay-
ment of debts and legacies. The only excep-
LAWSUCO. — 7
tion to the rule is that, where the words used
show an intention on the part of the testator
to exclude from the operation of the residu-
ary clause certain portions of the estate, such
intention, as gathered from the whole will,
must not be defeated. Or the rule embra-
cing the exception, as stated in some of the
books, is that the residuary legatee must be
a legatee of the residue generally, and not
partially so only. The rule is so firmly es-
tablished that citation of authority in its sup-
port is hardly necessary. I will, however, re-
fer to the following text-books and adjua,;ed
cases: 2 Rop. Leg. 1672; 2 Williams, Ex'rs,
1313; Easum v. Appleford, 5 Mylne & C. 56;
King V. WoodhuU, 3 Edw. Ch. 86; James v.
James, 4 Paige, 117; Banks v. Phelan, 4
Barb. 90; Cambridge v. Rous, 8 Ves. 25; 2
Redf. Wills, 442.
The learned chancellor, in the court below,
held that the case now before us came witliin
the exception to the general rule, because the
estate given was that which should remain
after payment of the legacies before given.
But I cannot see that this form of expression
in any wise limits or restricts the extent of
the gift. The clause would have had pre-
cisely the same meaning and effect if it had
been, in terms, of the residue of the estate.
All that the testator could give to his residu-
ary legatees was what remained of his estate
after payment of his particular debts and leg-
acies. The legal effect is precisely the same,
whether the one form or the other is adopt-
ed. The chancellor bases his opinion upon
what he conceives to be the rule as laid down
in 2 Williams, Ex'rs, p. 1315, and in 2 Rop.
Leg. pp. 1679, 1682. He also cites the case
of Attorney Greneral v. Johnstone, Amb. 577.
Exactly what Mr. Williams states the true
rule to be is as follows: "The testator may, by
the terms of the bequest, narrow the title of
the residuary legatee, so as to exclude him
from lapsed legacies; as when it appears to
be the intention of the testator that the re-
siduary legatee should have only what remain-
ed after the payment of the legacies." Mr.
Roper states the exception to the general rule
in the following language: "When the legatee
is not generally, but only partially, residuary
legatee, he will not, in that character, be en-
titled to any benefit from lapses, though very
special words are required to take a bequest
of the residue out of the general rule; as,
first, when it appears the testator intended
the residuary legatee should have only what
remained after the payment of legacies." If
these authors intend to say (which, to my
mind, is by no means clear) that when the
clause of the wUl giving the residuum of the
estate contains, or has annexed to it, the
words, "after payment of debts and lega-
cies," the settled rule of construction is that
lapsed legacies are not embraced, but that as
to them the testator is to be held as having
died intestate I cannot yield my assent to
the proposition. The cases cited by the au-
thors referred to do not support such a doc-
98
LEGACIES.
trine, while there are several well-considered
eases to the contrary. Vice-Chancellor Wood,
in the ease of Bernard v. Minshull, Johns.
Eng. Ch. 276, 299, says: "All you have to
consider is whether the property is excepted,
in order to talie it away, under all circum-
stances and for all purposes, from the person
to whom the rest of the property is given, or
whether it is excepted merely for the purpose
of giving it to some one else. If the latter,
and the gift to some one else fails, the donees
of all except tliis property are entitled to take
the whole." In Roberts v. Cooke, 16 Ves.
451, it was held that a general disposition of
persona.1 estate, not thereinbefore speci&cally
disposed of, comprehended specific legacies
lapsed; the word "specifically" being held to
mean "particularly." In the case of King v.
Woodhull, 3 Edw. Ch. 79, 84, the form of the
beq".est was: "The residue and remainder of
my estate, if any there shall be, after the pay-
ment of the said $1,000 to the missionary so-
ciety, I give and bequeath to the children of
my niece." And it was held broad enough to
embrace as well the legacy to the missionary
society, which it was claimed was void, as a
bequest to a mission school, which was held
to be ineffectual. Vice-Chancellor McOoun
in his opinion in that case says: "The words,
'after payment of debts and legacies,' or after
payment of legacies specified or recapitulated
in the residuary clause itself, are not re-
strictive of the bequest to any particular or
partial residue; but the bequest, after all, is
general of the remainder, and may be so un-
derstood without doing violence to the ex-
pressions of tho will. Where the residuary
clause is thus worded, the legatee is as much
a general legatee of the residuum of the es-
tate as if such words were not used." In
Shanley v. Baker, 4 Ves. 732, the words were,
all the rest and residue of my estate and
effects "not by me hereinbefore particularly
disposed of;" and they were held to embrace
a leasehold property given as a legacy, which,
by the statutes of mortmain, was void. To,
the same effect is the case of Brown v. Higgs,
4 Ves. 709. The case of Attorney General v.
Johnstone, Amb. 577, was not decided upon
the ground that the residuary bequest con-
tained words of import similar to those now
under consideration, for it did not; but the
conclusion reached in that case was that,
from the whole context of the will, it was
evident that the testator did not intend that
the void legacy should, in any event, become
a part of the residuum of his estate. The syl-
labus of the case, which very well shows the
point decided, is: "Residue, under particular
circumstances, will not talce in lapsed lega-
cies;" the residue being given as a small re-
mainder of about £100, and the lapsed lega-
cies amounting to £20,000. I have not been
able to see anything in the residuary clause,
when taken by itself, or in the context of this
will now before us, which will authorize the
result sought by the complainant. It seems
to me quite evident that the testator did not
intend to die intestate as to any part of his
propetty. He gave the legacy of $5,000 to
his wife, to be accepted at her option, in lieu
of her right of dower in his estate. If she
should decline to accept it on these terms, or
if, by reason of her death in the lifetime of
her husband, it lapsed, the will of the testa-
tor, as ascertained from the well-settled
meaning of the words he has used, was that
the lapsed or rejected legacy should go into
and form part of the residue of his estate.
For the reasons above stated, the decree
below must be reversed, and the complain-
ant's bill dismissed, but without costs in this
court or the court below.
For reversal: THE CHANCELLOR, BBAS-
LEY, C. J., and BEDLE, CLEMENT, DAL-
EIMPLE, DEPUE, GREEN, SCUDDER,
VAN SYCKEL, and WOODHULL, JJ.
For affirmance: None.
CONSTEUCTIOISr AND INTERPRETATION OF WILLS.
99
COVENHOVEN v. SHTJLER.
(2 Paige, 122.)
Court of Chancery of New York. April 6,
1830.
Suit by Peter Covenhoven and wife, Van
Vleeli Sh ler and Levi Shuler, and I awrence
Sliuler, an infant, against Lena Shuler and
B. Herrick, her tenant, and John Shuler, the
executor, and against William, Betsey, Sally,
and Abraham Shuler, children of the dece-
dent who had refused to join as complainants
in the suit, for an accounting.
Lawrence Shuler died in 1808, possessed of
a farm containing about 300 acres, In fee,
together with a considerable personal estate.
He left by his wife Lena Shuler 11 children
him surviving, to wit: Peter Shuler, Levi
Shuler, Mary, the wife of Jacob Serviss,
Jeremiah Shuler, William Shuler, Caty, the
vrife of Peter Covenhoven, Betsey Shuler, Sal-
ly Shuler, Abraham Shuler, Van Vleek Shu-
ler, and Lawrence Shuler. The young, st
was then less than one year old, and became
•of age In December, 1828. The will of Law-
rence Shuler, the elder, executed in due form
of law to pass real estate, was in the follow-
ing words: "I wUl and order that all my just
■debts and funeral expenses be paid out of
my personal estate by my executors, as soon
after my decease as they find themselves en-
abled conveniently to do it. Secondly, I give
and bequeath unto my daughter Ann, wife of
David Cady, the sum of $250, to be paid to
her or her legal representatives, within one
year after my decease, by my executors,' out
■of such of my personals as they may think
proper to dispose of for that purpose. Third-
ly, I give, devise, and bequeath unto my be-
loved wife Lena the one-third of the residue
of my personal estate, after my debts, funer-
al expenses, and the above legacy to my
daughter Ann shall be paid off and dischar-
ged, together with the use of all the residue
of the personal estate, and the occupation
and enjoyment of that part of my rfeal estate
"Whereupon I now reside, containing 300 acres,
more or less, just as the same is now pos-
sessed by me, so long as she remains my wid-
ow; and, after her marriage, I do give the
use, occupation, and enjoyment of one-third
of said real estate to her during her natural
life, at which time the income of the remain-
ing two-thirds is to be applied for the educa-
tion and maintenance of such children as she
has together by me; and, after the youngest
of the said children shall become of age, I re-
■quest and order my executors to make an
equal division of all my real and personal es-
tate to be made, equally to be divided among
said children which I had by my wife Lena,
to have and to hold them, their heirs and as-
■signs, forever. And I do hereby declare that
the devise or bequest above made to my said
wife is by me intended to be in lieu of, and
an extinguishment of, her right and title of
•dower to any part of my real estate. And,
lastly, I do hereby nominate and appoint my
son John Shuler and my brother-in-law
George Serviss executors of this my last will
and testament," etc. The bill alleged the
death of George Serviss before the testator,
and Jeremiah Shuler's death three years aft-
er his father, and that the other children had
conveyed their interest in the estate to their
mother, the widow, who still remained un-
married, and had leased the farm to Ben-
jamin and Rufus Herrick for a term of five
years, and that John Shuler, the executor,
had converted moneys of the estate to his
own use, and allowed the widow also to do
so.
D. Cady, for complainants. M. T. Reyn-
olds, for defendants.
WALWORTH, Ch. As the complainants
have not given the defendants an opportu-
nity to substantiate their answers by proof,
every matter of fact stated or Insisted upon
therein is to be taken as true. The defend-
ant W. L. Shuler disclaims all interest in the
subject-matter of this suit. He says he sold
and conveyed all his interest in the estate to
his mother long before the filing of the bill,
and that he believes that fact was known to
the complainants. They had, therefore, no
excuse for making him a party, and the bill
as against him must be dismissed, with
costs. Herrick was also unnecessarily and
improperly made a party to the suit. He was
a bona fide lessee, for a term of years which
would expire before the youngest child be-
came of age. Even upon the complainants'
construction of the will, the widow was en-
titled to the rents and profits of the farm
until that time. And if they were entitled to
a receiver of the rents and profits, to secure
and apply them in aid of any deficiency of
the personal estate, the tenant of the estate
need not be a party to the suit. If he re-
fused to attorn to the receiver, the latter
might be directed to proceed against him, in
the name of the lessor, to recover the rent
as it became due. But there was no pre-
tense for appointing a receiver of the income
of the farm in this case during the minority
of any of the children. The bill, as against
Herrick, must therefore be dismissed, with
costs.
The defendants Betsey, Sally, and Abra-
ham Shuler were necessary parties, if the
complainants are entitled to an account to
any other relief in this case. They had a
common interest with the complainants in the
estate, and in the establishment and con-
struction of the wiU. If the bill can be sus-
tained, even for the purpose of obtaining se-
curity, the complainants would be permitted
to retain it for the purpose of having the
trusts of the will carried into effect under the
direction of the court This could not be
done If all the parties interested in the estate
were not before the court. Whether these de-
fendants must bear their own costs, or
100
CONSTRUCTION" AND INTERPRETATION OF WILLS.
whether they must be paid by the complain-
ants, or out of the estate of the testator, are
different questions.
The next question which arises in this case
is, what interest in the property did the wid-
ow of the testator take under the will? The
rule contended for by the complainants' coun-
sel is undoubtedly correct, as stated by the
master of the rolls In Sims v. Doughty, 5
Ves, 247. If two parts of a will are totally
irreconcilable, the subsequent part is to be
taken as evidence of a subsequent intention.
But this rule is only adopted from necessity,
to prevent the avoiding of both provisions for
uncertainty. It is only applied in those cases
where the intention of the testator cannot be
discovered, and where the two provisions are
so totally inconsistent that it is impossible
for them to coincide with each other, or with
the general intention of the testator. The
great and leading principle in the construc-
tion of wills is that the intention of the
testator, if not inconsistent with the rules of
law, shall govern; and that intent must be
ascertained from the whole will taken togeth-
er, and no part thereof to which meaning and
operation can be given, consistent with the
general intention of the testator, shall be re-
jected. Where the words of one part of a
will are capable of a twofold construction,
that should be adopted which is most consist-
ent with the intention of the testator, as as-
certained by other provisions in the will;
and, where the intention of the testator Is
Incorrectly expressed, the court will effectu-
ate it by supplying the proper words. The
strict grammatical sense is not always re-
garded; but the words of the wiU may be
transposed to make a limitation sensible, or
to carry into effect the general intent of the
testator. 11 Ves. 148; Bradhurst v. Brad-
hurst, 1 Paige, 343. In Jesson v. Wright, 2
Bligh, 56, Lord Redesdale says: "It cannot
at this day be argued, because the testator
uses in one part of his will words having a
clear meaning in law, and in another part
other words inconsistent with the former,
that the first words are to be cancelled or
overthrown."
Testing the will in this case by these princi-
ples, I think the widow of the testator is en-
titled to the use of the whole estate during
her life or widowhood. The general intent of
the testator appears to have been to give one-
third of his personal estate to his wife abso-
lutely, and the use of one-third of his real es-
tate for life in lieu of dower if she married a
second time; and to give her the use of the
whole estate for life if she remained his wid-
ow. He imdoubtedly supposed, if she re-
mained single, that she would support and
educate her children out of the income and
profits of the estate, until they were able to
provide for themselves. There was little
probability she would do injustice to any
while there were no other claims on her
Dounty; and, at her death, he intended they
«hould share the property equally. It was,
however, necessary to provide for the contin-
gency of a second marriage, when the prop-
erty would be no longer under her control,
but under that of her husband. The devise
to her of the use of all the residue of the per-
sonal estate, and the occupation of the farm
so long as she remained his widow, is clear
and explicit, and is expressed in language
which can bear only one construction. The
subsequent clause of the wiU, which was in-
tended to provide for the contingency of a
second marriage, is not so clear. The testator
does not seem to have contemplated the pos-
sibility of her surviving him, and remaining
unmarried until the youngest child, then an
infant, became of age. He therefore directs
that after her marriage she shall only have
the use of one third of the estate, from which
time the income of the other two-thirds was
to be applied to the maintenance and educa-
tion of the children; and that share of the
estate was also in that case to be divided
among the children equally, when the young-
est became of age. If the last provision in
the will can be considered as evidence of the
final intention of the testator, a principle
which I consider more fanciful than sound,
it is in favor of the widow in this case; be-
cause the last declaration of the testator rec-
ognizes the devise and bequest before made to
his wife, and declares that the same is in-
tended to be in lieu of, and in extinguishment
of, her dower. As the contingency has not
yet happened which was to deprive her of the
use of any part of the estate, the complain-
ants cannot claim a division of the property
until her death or marriage. There can be
no doubt of the right of the children of the
testator by his wife Lena to the whole of the
property, on the death of their mother, ex-
cept the one-third of the personals given to
her absolutely. They take it by necessary im-
plication, though not by the express words of
the will. Where there is a bequest for life,
or other limited period with a limitation over,,
of specific articles, such as books, plate, etc.,
which are not necessarily consumed in the
using, the first taker was formerly required
to give security that the articles should be
forthcoming on the happening of the con-
templated event. And the remainder-man
must take them in the situation in which they
will be left by the ordinary prudent use there-
of by the first taker. Hayle v. Burrodale, 1
Eq. Oas. Abr. 361; Bracken v. Bentley, 1
Rep. Oh. 110.
The modern practice. In such cases, is ,only
to require an inventory of the articles, speci-
fying that they belong to the first taker for
the particular period only, and afterwards to-
the person in remainder; and security is not
required, uiUess there is danger that the ar-
ticles may be wasted or otherwise lost to the-
remainderman. Foley v. Burnell, 1 Brown,
Oh. 279; Slanning v. Style, 3 P. Wms. 336.
Whether a gift for life of specific articles,,
as of hay, grain, etc., which must necessarily
be consumed in the using, is to be consideredi
CONSTRUCTION AND INTERPRETATION OF WILLS
an absolute gift of the property, or whether
they must be sold, and the interest or income,
only, of the money applied to the use of tha
tenant for life, appears to be a question still
unsettled in England. 3 Ves. 314; 3 Mer.
104. But none of these principles in relation
to specific bequests of particular articles,
whether capable of a separate use for life or
otherwise, are applicable to this case. Where
there is a general bequest of a residue for life,
with a remainder over, although it includes
articles of both descriptions, as weU as other
property, the whole must be sold and convert-
ed into money by the executor, and the pro-
ceeds must be invested in permanent securi-
ties, and the interest or income, only, is to be
paid to the legatee for life. This distinction
is recognized by the master of the rolls in
Randall v. RusseU, 3 Mer. 193. . He says, if
such articles are included in a residtiary be-
quest for life, then they are to be sold, and
the interest enjoyed by the tenant for life.
This is also recognized by Roper and Preston
as a settled principle of law in England.
Prest Leg. 06; Rop. Leg. 209. See, also,
Howe V. Earl of Dartmouth, 7 Ves. 137, and
cases in notes. The case of De Witt v.
Schoonmaker, 2 Johns. 243, seems to be in
collision with this principle. But Mr. Justice
Tompkins, who delivered the opinion of the
court there, does not appear to have noticed
the distinction between the bequest of a gen-
eral residue and the bequest of specified arti-
cles. He says, however, it was the duty of
the executors, on the death of the widow, to
have paid and delivered the personal estate
to the residuary legatee. If such was their
duty, they were not boiuid to deliver the prin-
cipal of the estate into her hands without re-
quiring security that it should be preserved
and paid over to the residuary legatee after
her death. That case was correctly decided,
for it was manifestly the intention of the tes-
tator that the property should be delivered
over to the son after the death of the widow,
and that he should pay the legacy to his sis-
ter. The court presumed he had received the
property agreeably to the directions of the
wiU, and the executors were held not to be lia-
ble to the legatee in a court of law.
In the case before me, the vridow was not
entitled to the use or possession of any specific
Sf SE
(ioi3(
\ V ^^'
article of the personal estate, but only\o »^K;,_
third of the principal, and the interest aK„^(' ^1
come of two-thirds of the remainder, of tft© —
general residue, after the debts of the testa-
tor and the legacy to Mrs. Oady were paid or
satisfied. The complainants are therefore en-
titled to an account of all the personal esuite
of the testator, in value as it existed at the
death of their father; and after deducting the
legacy to Mrs. Cady, and the funeral charges
and the expenses of administration, their
share of the balance must be invested in per-
manent securities, and the Income thereof
paid to Lena Shuler during her life or widow-
hood; and the principal, after her death or
marriage, must go to the complainants.
I have stated the rights of these parties in
the hope that some arrangement may be made
for the settlement of these family difficulties
without the necessity of any further litiga-
tion; and I have formed no definite opinion
as to the question of costs on either side.
But no decree for an account can now be
made, as all the proper parties are not before
the court. It appears by the pleadings that
the testator left other children besides those
by Lena Shuler, who were the residuary dev-
isees and legatees in remainder. Jeremiah,
one of the children of Lena Shuler, died after
his father; and under the provisions of the
wiU he took a vested interest in remainder
in the personal as well as the real estate.
Sturgess v. Pearson, 4 Madd. 411; Benyon v.
Maddison, 2 Brown, Ch. 75; Prest. Leg. 70;
1 Rop. Leg. 376; O'DriscoU v. Koger, 2
Desaus. Eq. 295. In that share of the es-
tate, John Shuler and Mrs. Cady, and the
other brothers and sisters of the half blood,
if there are any, are equally entitled with
those of the whole blood. The cause must
therefore stand over, with leave to the com-
plainants, or such of them as have not re-
leased their interest to their mother, to file a
supplemental bill for the purpose of bringing
the personal representative of Jeremiah Shu-
ler before the court, or such other persons en-
titled to a distributive share of his estate as
are not now parties. Those who have con-
veyed aU their interest in the real and per-
sonal estate to their mother since the death
of Jeremiah have no interest in the account
to be taken, and need not be parties.
102
CONSTRUCTION AND INTERPRETATION OP WILLS.
PEASLEE V. FLETCHER'S ESTATE.
(14 Atl. 1, 60 Vt. 188.)
Supreme Court of Vermont. Chittenden.
May. 28, 1888.
Bxceptions from Chittenden county court;
raft, Judge.
Hard & Gushing, for plaintifiE. W. L. Bur-
nap and Geo. W. Wales, for defendant.
TYLER, J. The only question presented
by the bill of exceptions In this case arises
in construing the following clause in the will
of Mary M. Fletcher, late of the city of Bur-
lington, deceased, or rather that part of the
clause which relates to the bequest of the per-
sonal estate of the testatrix: "I give to
my uncle, George L. Peaslee, of Auburn, Me.,
my home place on Prospect street, in said
Burlington, with my household furniture and
aU my personal goods and chattels on said
premises at the time of my decease." The
plaintiff, who is the devisee mentioned in said
clause, claims that the words "all my per-
sonal goods and chattels on said premises at
the time of my decease" are operative to pass
to him seven promissory notes of $1,000 each,
which the testatrix held against one Manwell,
and $1,100.18 in money, which were in the
house or "home place" of the testatrix when
she died. In giving construction to this
clause, we must consider all the words con-
tained in it, and also its relation to the other
portions of the will, in order to ascertain, if
possible, the testatrix's real intention. It ap-
pears by the bill of exceptions that she was
accustomed to keep her promissory notes, and
other like securities, in her house, and that,
at the time of the execution of this will,
which was during an iUness from which she
did not expect to recover, she had in her
house, besides the notes in controversy, other
promissory notes amounting to about $80,000;
also that she was in the habit of having cer-
tain United States bonds brought from the
banks in the city, where she usually kept
tliem, to her house, where they would remain
during the day, while she cut off the coupons.
It is true that the word "chattels" has a
broad enough signification to include promis-
sory notes and bank-bills, and, in many loca-
tions in a wiitten instrument, it would be con-
strued to include them; but in this case, if it
had been the intention of the testatrix to be-
queath to the plaintiff so large an amount of
money and personal secm-ities as was often
in her house, and liable to be there at her
decease, it is hardly reasonable to suppose
that she would have employed so genei-al and
inapt a term as "goods and chattels" for that
purpose, when she obviously might have be-
queathed them in unmistakable language.
Had she intended to give her uncle all such
promissory notes and money on hand, or any
part thereof. It is fairly presumable that she
would have said so plainly. Again, we must
consider all the language of the clause in ques-
tion,— the words "my household furniture" as
well as "my personal goods and chattels,"—
and determine, if we can, what relation the re-
spective words bear to each dther; whether
or not the latter are restricted In their mean-
ing by the former. The authorities on this
point are numerous and somewhat conflicting,
but we find that the general current of thea,
both in England and in this country, is that,
except in residuary clauses, general w«rds,
such as "goods and chattels," when following
after and coupled with words of a limited
signification, are restricted to the same class
as the former. 2 WiUlams, Ex'rs, 1015, 1017,
and cases cited. Thus, where the testator be-
queathed to his niece aU his goods, chattels,
household stuff, furniture, and other things
which should be in his house at A., it was
decreed that cash found at the testator's house
did not pass; for by the words "other things"
should be intended things of like nature and
species with those before specified. Trafford
V. Berrige, 1 Eq. Cas. Abr. 201. Jarman, in
his work on Wills, cites the ease of Lamphier
V. Despard, 2 Dm. & War. 59, where a testa-
tor, after devising certain real estate to his
wife, bequeatlied to her all his household fur-
nitm-e, plate, house linen, and "aU other chat-
tel property that he might die seized or pos-
sessed of," and, after various legacies, he ap-
pointed A. his executor and residuary lega-
tee. Sir Edward Sugden held that "all other
chattel property" meant all ejusdem generis,
relying partly on the subsequent residuary
gift. He thought, however, that the words
would clearly not pass money, so that the
clause could not be a general bequest of the
entire personal estate. In Rawlings v. .len-
nings, 13 Ves. 39, the bequest was: "Unto
my wife, Alice Jennings, two hundred pounds
per year, being part of the moneys I now have
in bank security entirely for her own use and
disposal, together with all my household fur-
niture and effects, of what nature or kind so"
ever, that I may be possessed of at the time
of my decease." . The master of the rolls said:
"The second question arises upon the wid-
ow's claim of the whole residue of the per-
sonal estate as passing to her under the gen-
eral word 'effects.' That claim cannot l>e
sustained. Part of his property being par-
ticularly given to her afterwards, the word
'effects' must receive a more limited interpre-
tation, and must be confined to articles ejus-
dem generis with those specified in the pre-
ceding part of the sentence, viz., household
furnitm-e." In Dole v. Johnson, 3 Allen, 361,
tlae testator bequeathed to his vndow all his
household fm-nitm-e, wearing apparel, and all
the rest and residue of his personal property.
Hoar, J., in construing this clause said: "We
think the meaning of the whole will is made
most consistent by restricting the word 'prop-
erty' to chattels ejusdem generis with those
enumerated. By this construction the wid-
ow will take absolutely the household fm-ni-
ture, wearing apparel, and other chattels in
and about the house of the testator adapted
CONSTRUCTION AND INTERPRETATION OF WILLS.
103
to personal use and convenience, such as
books, pictures, provisions, watcbes, plate,
carriages, domestic animals, and the like, but
not including money, stocks, securities, or evi-
dences of debt." In Johnson v. Goss, 128
Mass. 433, where the bequest was as foUows:
"I give to my wife all my personal property,
my household effects, horses, carriages, life
insm'ance, etc.,"— the com"t held that this gen-
eral term, "all my personal property," was
not used in its ordinary sense; that the lan-
guage did not pmrport to bequeath the residu-
um of the testator's property, and, constming
it in connection with the words immediately
following, "my household efEects," etc., that
the testator's purpose was to describe prop-
erty of the same kind, and that he used the
adjective "personal" as descriptive of chattels
of personal use and convenience, not includ-
ing stocks, securities, or other productive
property. In Benton v. Benton, 63 N. H. 289,
the bequest was as follows: "I give my wife
every article of household furniture, books,
etc., and every other article of personal prop-
erty in and about said homestead, or wherever
found, belonging to my estate;" and under it
the widow and the residuary legatees both
claimed the bank shares, notes, and cash on
hand. The court held that the woids "every
other article of personal property" were lim-
ited to the same class of things as those enu-
merated, and did not Include the bank-stock,
notes, and cash claimed by the widow.
Were there no residuary clause in this wiU,
the words in question might and probably
would be construed to pass this property to
the plaintiff, for the reason that courts are al-
ways disposed to give the broadest meaning
practicable to the words of a bequest when it
is necessary to do so in order to prevent in-
testacy. The same is true when words of a
general signification are found in the resid-
uary clause itself, and for the same reason.
Jarman, in commenting upon cases which in-
dicate the disposition of judges of the present
day to adhere to the rule which gives to
words of a comprehensive import their full
extent of operation, remarks, however, "that
in all the preceding cases there was no other
bequest capable of operating on the general
residue of the testator's personal estate if the
clause in question did not. Where there is
such a bequest, it supplies an argument of no
inconsiderable weight in favor of the restrict-
ed construction, which Is then recommended
by the anxiety always felt to give to a will
such a construction as will render every part
of it sensible, consistent, and effective."
Many of the cases cited by the plaintiff's coun-
sel are upon the construction of residuary
clauses In wills. Such is the case of Parker
V. Marchant, 20 Eng. Ch. 200, where it was
held that the words "goods, chattels, and ef-
fects," after an enumeration of various arti-
cles, caried the residue of the testator's prop-
erty. The vice-chancellor, in considering the
point whether, by these words, the testator
had disposed of the general residue of his per-
sonal estate, or had so far died intestate, said:
"This tm-ns upon the meaning to be attributed
to the words 'goods, chattels, and effects,'
having regard to the position in which they
are found In the will, and having regard, also,
to the whole contents of the will." Such,
also. Is the case of Browne v. Cogswell, 5
Allen, 556; The will under consideration con-
tains a residuary clause. After the bequest
to her uncle, the testatrix gave all the residue
of her estate, except two small legacies, to the
Maiy Fletcher Hospital. Upon these well-
recognized rules of construction, we hold that
the words "goods and chattels," in the con-
nection In which they are found, should be
construed as having only a restricted and lim-
ited signlficatloin, and as not Including said
Man well notes and cash on hand; that they
are further restricted in their meaning by the
word "personal," which Indicates, when con-
sidered in Its relation to the words "house-
hold furniture," fhat the testatrix Intended by
the words in question to bequeath only other
articles of the same kind, belonging to the
house, — "savoring of the locality,"— adapted
and pertaining to her personal use. This
view is sustained by the fact that no definite
amount of money and notes was kept at the
house. It often varied with varying circum-
stances, and the notes and money were car-
ried away and brought back as the testatrix
had occasion to go from or return to her home,
and were being removed when she died. To
give these woi-ds the broad meaning claimed
for them by the plaintiff would be to Invest
them with power by which they might have
defeated what seems to have been the main
purpose of the will, namely, the endowment
of said hospital; for at times nearly the en-
tire personal estate of the testatrix was m her
house.
In the view we have taken of this case, the
testimony of the plaintiff received by the
court below was whoUy Immaterial. The re-
sult Is the judgment of that court is affirmed,
and certified to the probate court.
104
CONSTRUCTIOX AND INTEKPEETATION OF WILLS.
DICKISON V. DICKISON.
(28 N. E. 793, 138 111. 541.)
Supreme Court of Illinois. Oct. 31, 1S91.
Error to appellate court, second district.
This was an application of John A. Dicki-
son to the county court for an order al-
lowing him to share in the estate of Griffith
Dickison, deceased. The county court dis-
allowed his application, which order was
affirmed hy the circuit and the appellate
courts. He appeals. Affirmed.
McCulloch & McCiiUoch, for plaintiff in
error. Arthur Keithley, for defendant in
error.
SHOPE, J. April 9, 1874, Griffith Dicki-
son. then in life, madehis last will and testa-
ment. At that time, it is conceded for the
purposes of this appeal, he had lOchildren.
In and by clauses 2 to 8, inclusive, and
clause 10, of the will, he made specific de-
vises to his wife and 8 of the children, sev-
erally. By clause 9 he made a specific de-
vise to his two other children as follows:
"Ninth. To my children John Abraham
and Mary Ann I will, devise, and bequeath
the west halt of the north-west quarter of
section twenty-seven, in township ten
north, range seven oast, in equal shares,
to be in full of their portions of my estate,
both real and personal, to be theirs, their
heirs" and assigns' forever. " The eleventh
clause of the will is as follows: "Eleventh.
All the rest of the real estate of which I
may die possessed shall be by my executor
sold, also all the personal property I may
have at my death shall be sold, and from
the proceeds of such sales he shall first
pay all my debts, etc. The remainder he
shall divide amongst my heirs as follovrs:
To my wife, Sarah A. Dickison, one-third
part thereof; and the remainder to my
children in equal portions, share and share
alike, to be theirs, their heirs' and assigns'
forever absolute." On the 7th day of
March, 1882, there was executed by the
testator in due form of law, and attached
to the original will, the following codicil:
"Whereas, 1, Griffith Dickison, did on the
ninth day of April, 1874, make my last will
and testament, in and by which will I
made devises to all my children then born;
and whereas, since that date a son has
been born to me, whom I have named
Fred, I make this codicil to my said will,
to have the same force and effect as if it
was a part of my original will: That is
to say, I will, devise, and bequeath to my
son Fred [certain described realty] in fee,
and to my daughter Roxie .J. Hitchcock
[certain described realty] in fee. " The tes-
tator died March 14, 18S6, and shortly
thereafter said will, with the codicil an-
nexed, was duly admitted to probate.
Subsequently the executor reported to the
county court that after payment of all
claims, etc., he had in his hands $9,214.05
for distribution under the residuary clause
of the will, and asking an order of the
court thereon. The question presented by
this record is whether appellant, John A.
Dickison, is entitled to participate in the
distribution of that fund. That he was a
nhild of the testator, and therefore fell
within the designation of persons who
were to take under the residuary clause of
the will, is conceded It must, therefore,
be held that he is a distributee thereunder
of the residuum in the hands of the execu-
tor, unless that clause is controlled by
other portions of the will, so as to exclude
him from participation; and this must
depend upon the intention of the testator
as expressed in his will. The sole purpose
of construction of the instrument is to
find and declare the intention of the testa-
tor, that effect maybe given to such inten-
tion, when not contrary to public policy,
or in contravention of law or the rules of
property. The construction depends up-
on the intention of the testator, to be as-
certained from a full view of everything
contained in the will, giving just weight
and operation to each clause and word
employed, unless there is some invincible
repugnance, or some portion of it is abso-
lutely unintelligible. 1 Redt. Wills, 334 et
seq.; Caruthers v. McNeill, 97 111. 256; Ken-
nedy V. Kennedy, 105 III. 350; Taubenhan
V. Dunz, 125 III. 529, 17 N. E. Rep. 456, and
cases cited. By the ninth clause of his
will the testator devised to John A. (ap-
pellant) and Mary Ann, his son and
daughter, as tenants in common, the tract
of land therein described, "to be in full of
their portion of my estate, both real and
personal; to be theirs, their heirs' and
assigns' forever." The language here
employed Is neither ambiguous nor unin-
telligible. It understood in their ordinary
and popular significance, as they must
be, except where technical terms are used,
the words convey a definite and certain
meaning. The word " portion " in its com-
monly accepted meaning is the equivalent
of part, share, or division. Worcester.
"To be in full of their part or share or di-
vision of an estate," means to be the com-
plete measure of such share, part, or divis-
ion. Worcester. The ovidentintention of
the testator was that the land devised
was to be the complete measure of what
these devisees should take or receive as
their part, share, division, or portion of
his estate. Nor is the construction less
satisfactory if it be considered that the
testator used the word "portion" in its
technical legal sense. Technically a "por-
tion "is defined to be: "The part of a
parent's estate, or of the estate of one
standing in the place of a parent, which
is given to a child." Bouvier. The devise
would thereforebein full —i.e., thecomplete
measure— of the part of the testator's es-
tate given or devised, orthe provision made
by the testator for these devisees. The
evident Intention of the testator, as mani-
fested by this clause of the will, was to
limit thequantity of his estate to be taken
or received by his son John A. and his
daughter Mary A. to the specific devise of
the land mentioned in clause 9. This in-
tention is clearly and unambiguously ex-
pressed. The difficulty arises, however,
not in respect of any uncertainty as to
the intent expressed in this clause of the
will, but because of the repugnancy exist-
ing Ijetween this and theeleventh, or resid-
uary, clause. The latter clause provides,
as we have seen, that all the rest and resi-
due of the testator's real estate, not spe-
cifically devised, and all his personal es-
tate, shall be sold by his executor, and,
CONSTRUCTION AND INTERPKETATION OF WILLS.
105
after paying: debts, etc., the remainder be
divided among his heirs as follows: To
his wife, one-third part thereof; "and the
remainder to my children in equal por-
tions, share and share alike, their heirs
and assigns forever absolute." It will be
observed that the testator here again uses
the word " portion " as the equivalent of
part or share.
It is apparent that if appellant and his
Bister Mary A. are held to be included in
this general residuary clause, the provis-
ion of clause 9, that the land therein de-
vised shall be in full of all they shall re-
ceive from the estate of the testator, is
rendered nugatory. There is, therefore, it
is said, repugnance between these two
clauses, and that in such case the later
provision must control. The rule is well
established in this state, as elsewhere,
that when the clauses of a will are irrecon-
cilable, and the repugnance invincible, the
later clause will generally prevail. Brown-
field V.Wilson, 78111.470; Murfitt v. Jessop,
94 III. 158; 3 Jarm. Wills, 705; 1 Redf. Wills,
443-445. In matters of so great solemnity
as making a testamentary disposition of
property it cannot be presumed that a
testator would purposely make inconsist-
ent provisions, incapable of being carried
into effect. Unlike conveyance by deed,
in which the first complete grant leaves
nothing in the grantor to be subsequently
conveyed, a will remains ambulatory, and
the latest expressed intention is to be giv-
en operation; and, as the testator might
have changed his mind during the draft-
ing of his will, there being no way of ac-
counting for or removing the repugnancy,
itwill be presumed that he did, after writ-
ing the former clause, change his purpose,
and that the subsequent clause gives ex-
pression to a later formed intention. The
rule is adopted by the courts as an aid to
finding the real intention of the testator,
as finally expressed in his will, and arises
out of the very necessity of the case, and
rests upon the single presumption of fact
of change of intention while writing the
will. The fundamental rule of construc-
tion being, as we have seen, that the in-
tention is to be found from a consideration
of the whole will, and such construction
given as will uphold all of its provisions,
and give to each clause and part its just
operation and effect, it follows that the
presumption of the fact upon which therule
is predicated will never be indulged, or the
rule applied, until it is found by the appli-
cation of all other rules of construction
that the difficulty is unsolved, and the
clausesremain invincibly repugnant. Redf.
Wills, 445-452, and cases cited ; Morrall v.
Sutton, 1 Phil. Ch. 532. The tendency— of
modern American decisions at least — is to-
wards reconciling the apparent repug-
nancy, if possible, without adopting un-
reasonable or absurd constructions; so
much so, that it is stated by the learned
author jnst cited "that it is now becoming
very uncommon with us to hear a court
declare a will, or any of its provisions,
wholly Inoperative by reason of repug-
nancy or uncertainty." Page 453. The
rule, therefore, which sacrifices the former
clause, because inconsistent with a later
one, is never applied, except upon failure
to give such construction as renders the
whole will effective; and allows each pro-
vision to stand. Hence it has been held
that to enable the court to uphold all the
provisions of the will it is permissible to
resort to every reasonable intendment;
to reverse the relative order of the devises
or bequests; and to transpose the differ-
ent provisions of the will, if it be possible
thereby to render them consistent and
give effect to each. Mutter's Appeal, 38
Pa. St. 314; Covenhoven v.Shuler,2 Paige,
122; Pruden v. Pruden, 14 Ohio St. 251;
Langham v. Sanford, 19 Ves. 641 ; Brockle-
bank v. Johnson, 20 Beav. 205; Ridout v.
Dowding, 1 Atk. 419; Hatfield v. Sneden,
42 Barb. 615; Crissman v.Crissman, 5 Ired.
498. And so repugnant words, in what-
ever portion of the will they occur, which
contravene the evident general purpose and
intention of the testator as clearly ex-
pressed, may be rejected or transposed or
limited and controlled by other and prior
provisions, and by the general purpose
and intent thus clearly manifested. Hol-
liday V. Dixon, 27 111. 33; Watlington v.
Waldron, 4 De Gex. M. & G. 259; Boon v.
Cornforth, 2 Ves. Sr. 277; Jones v. Price,
11 Sim. 557. Further discussion of the gen-
eral rule will be unnecessary, as we are
not required to go to so great length in
the construction of this will as many of
the cases have gone.
It is also a familiar rule in the construc-
tion of wills that general provisions in a
will must give way to specific provisions ;
that where there is a general devise of
property in one part of the will, and a
specific disposition of the same property
in another part, these are to be regarded,
generally, as excepted out of the general
devise. Redf. Wills, 446, and cases cited.
Moreover, a general residuary clause, be-
ing ordinarily introduced by the testator
to prevent intestacy as to any part of his
estate, will generally be construed as in-
tended for nothing more than a disposi-
tion of those portions of the estate not
previously disposed of ; and in such case
the presumption of a change of purpose
in the testator's mind while preparing his
will cannot arise. Id. The specific direc-
tions in the will, where the mind of the
testator has been directly and intelligently
directed to them, are much safer guides to
his intention than general provisions,
which do, by virtue of their generality,
contravene the specific provision, but
which might or might not have been so
intended ; and especially is this so where,
as in this case, the general provision is a
residuary clause, which, as we have said,
might, as it generally is, have been insert-
ed with the sole view of the disposition
of any residuum' of estate not before de-
vised. Here the testator made specific do-
vises to all his children of land, and ac-
companied the devise to appellant and his
Bister Mary Ann with the express provis-
ion that the land devised was to be in full
of their portion of his estate, both real and
personal. Nothing can be clearer than
the intention, thus expressed, that neither
appellant nor Mary A. should participate
in the estate of the testator further than
the specific devise made to them. It was
to be, as we have seen, the complete meas-
ure of all they should take out of the es-
tate of the testator, "both real and per-
106
CONSTRUCTION AND INTERPRETATION OF WILLS.
sonal," excluding them from further par-
ticipation. Following this clause comes
a specific devise of other lands, without
limitation, to another son, Griffith A.,
and then follows the general clause before
quoted. By that clause the residue of the
testator's property, real and personal, is
to be sold, and, after the payment of
debts, to be divided, one-third to the tes-
talor's widow, Sarah A. Dicklson, and
the remainder to his children, share and
share alike. It is apparent that in mak-
ing this clause the testator intended espe-
cially to provide for his wife, giving her
one-third of the residue, which she could
not otherwise, as his widow, have taken,
without renouncing the previous specific
provision for her benefit. The care taken
in naming her evinces the solicitude of the
testator in her behalf, undoubtedly aris-
ing from the fact, as shown by the rec-
ords, that no formal marriage had been
solemnized between them, and at most a
common-law marriage only existed, which
might be contested. Beyond the naming
of his then wife, no one else is named. The
remainder of the residue is to be divided
among his children without further des-
ignation. There are no other words indi-
cating an intention to abrogateor destroy
the limitation coupled with the devise to
appellant. It is much, more probable
that the testator introduced the residu-
ary clause primarily to protect his widow,
and, secondly, to give effect to the limita-
tion coupled with the devise in the ninth
clause of the will by preventing any por-
tion of his estate from becoming intestate
estate,and distributable to his heirs, includ-
ing appellant, than that he had changed his
purpo.«e after the writing of the second
preceding clause. Especially is this so
when we consider that all that portion of
clause 9 repugnant to the residuary dispo-
sition could have been erased or ex-
punged without in the least affecting the
specific devise made.
The intention of the testator must con-
trol when it can be ascertained, and we
are of the opinion that it is clearly mani-
fest that the testator intended to exclude
appellant from participation in bis estate
beyond the specific devise made to him;
that the will, taken and considered as a
whole, leaves no serious doubt of that in-
tention. The testator had just previously
excluded appellant from participation in
any residue of his estate then existing or
thereafter to be acquired, and undoubt-
edly, having in mind this provision,
made the general provision subject to it.
Nor is this rendered less certain by the
codicil made by the testator. It is true
that he therein says that he had, in and
by his will, "made devises to all my diil-
dren then born," but the purpose of the
codicil, and to what devises the testator
referred, is clearly apparent. Thereby he
makes a specific devise to a son born sub-
sequently to the making of the original
will, and of the same kind as those spe-
cifically made to his other children. In-
deed, he takes by the codicil the land spe-
cifically devised to his daughter Eoxie by
the will, and gives it to the after-born son,
and in lieu thereof specifically devised an-
other tract of land to the daughter. He
had, as is said in the codicil, by his will
made devises to all of his children. He
had specifically devised to each a tract or
tracts of land, as he was then doing tor
his younger son, born after the making
of the will, and to such specific devises
alone the language of the codicil may be
referred. It was these he manifestly had
in mind, and to which his attention was
attracted, in making like provision for his
other and after-born child. We are oi
opinion that the provisions of this will
clearly evince an intention to exclude ap-
pellant from participation in any residue
of his estate, and thai the api)ellate court
held correctly in excluding him from par-
ticipating therein. The judgment of the
appellate court affirming the decree of the
circuit court is affirmed.
CONSTRUCTION AND INTERPRETATION OP WILLS.
107
FORI) y. FORD et al. (two cases).
(33 N. W. 188, 70 Wis. 19.)
Supreme Court of Wisconsin. June 1, 1887.
Appeals from circuit court, Dane county.
January 26, 1886, Francis F. Ford died,
leaving a will bearing date January 25, 1884,
wbich was admitted to probate in tbe coun-
ty court of Dane county, Wisconsin, May 17,
1886, and which will and schedules annexed
are to the following effect: "Know all men
by these presents, that I, Francis F. Ford,
of the city of Madison, county of Dane, and
state of Wisconsin, being of sound disposing
mind and memory, do malie, publish, and
declare this to be my last will and testa-
ment, in terms following, to- wit: (1) I di-
rect that all my lawful debts, funeral ex-
penses included, shall be paid as soon after
mj- decease as practicable, out of moneys
on hand, or, if need be, from the income of
my estate. (2) It is my will, and I so direct,
that the necessary expenses of carrying my
estate from year to year be paid from the
income thereof. (3) It is my will, and I
so direct, that all indebtedness of any of my
brothers to me shall be, and hereby is, can-
celed, and the legal evidences of such indebt-
edness shall be returned to the makers there-
of. (4) I direct that all properties in Sched-
ule A, attached to this instrument, and bear-
ing my signature, shall be converted, as soon
as practicable after my decease, into good
rentable 'inside' property in Kansas City,
Mo., at schedule prices, or as much better
as may be. (5) I also direct that the several
properties in Schedule B, attached to this
instrument, and bearing my signature, shall,
at the discretion of my executors, either be
sold and the proceeds thereof be invested
In more desirable rentable property in Kan-
sas City, or said proceeds be used in improv-
ing some one or more of my Kansas City
properties. (6) I also direct that all moneys,
notes, bonds, mortgages, or other evidence
of indebtedness to me from any and all par-
ties, except my brothers, shall, as soon as
practicable after my decease, be used either
in the purchase of property in Kansas City,
or for improving properties in said city then
on hand. (7) It is my will, and I so direct,
that my wife, Maggie, shall have the use
of my homestead, furniture, and appurte-
nances located on Spalght street, Madison,
Wis., so long as she may desire to live in
it as her home. In case, at any time, she
cease to desire it as her home, I direct that,
as soon thereafter as practicable, it be sold
at a price not less than ($10,000) ten thou-
sand dollars, or as much more as the prop-
erty will bring, and the proceeds thereof be
invested in good rentable property in Kansas
City, Mo., and the rentals of such property
be added to the income of the estate. (8)
It is my will, and I so direct, that, in addi-
tion to said homestead and furniture, my
said wife, Maggie, shall have one-quarter of
the net annual income of the remainder of
my estate during her natural life, subject
to modifications in article 12 of this Instru-
ment; and it is expressly stipulated that
the above bequests to my said wife are in
lieu of dower. (9) It is my will, and I so
direct, that my son, Marcus C. Ford, shall
have one-quarter of the net annual income
of my estate, homestead not included, until
such time as, in accordance with the pro-
visions of this will hereinafter made, he
shall come into the possession of the entire
estate, but the expenditure and use of said
income during his minority shall be under
the control and direction of his guardian,
and I appoint his mother his guardian dur-
ing his minority, and, in event of her death,
I appoint my brothers Edward I. and Henry
T. in her place. (10) It is my will, and I
so direct, that my brother Edward Irving
shall have one-quarter of the net annual
income of my estate, homestead not includ-
ed, during his natural life. (11) It is my
will, and I so direct, that my brothers Jo-
seph C. and Henry T. shall each have one-
eighth of the net annual income of my estate,
homestead not included, during their natural
lives. (12) It is my will, and I so direct,
that when my son, Marcus C, reaches his
majority, be shall become the owner in fee
of ten thousand dollars' worth of my real
estate, and at twenty-five (25) years of age
he shall have an additional twenty thousand
(?20,000) dollars' worth, and at thirty (30)
years of age he shall have an additional
twentj'-flve thousand ($25,000) dollars' worth,
and at thirty-five (33) years of age he shall
have an additional forty-five thousand ($45,-
000) dollars' worth, and at forty (40) years
of age the remainder of my estate shall be-
come his; and I also direct that the income
of my said wife, Maggie, shall be kept up
to fifteen hundred ($1,500) dollars, any deficit
to be taken from the income of my son, Mar-
cus C, and, as an offset thereto, my son,
Marcus C, shall be entitled to any excess
in said wife's income over and above twenty-
five hundred ($2,500) dollars a year. (13)
I also direct that in the event that my son,
Marcus C, shall decease after reaching his
majority, leaving one or more legitimate
children of his body, that the income of
forty thousand ($40,000) dollars' worth of my
estate, or so much thereof as may in pru-
dence be necessary, shall be used for the
proper support of such child or children,
until they shall severally become of legal
age, when an equal part of the above-named
principal, and accrued interest, shall become
his or hers absolutely. (14) In the event that
my son, Marcus C, shall sm-vive all my other
legatees, and then die before coming into pos-
session of my whole estate, it is my will, and
I so direct, that the remainder of my estate
as of that date shall belong to Hamil-
ton College, located at Clinton, New y.ork,
to be used in the endowment of some new
professorship, and the remainder to be used,
at the discretion of the trustees of said col-
108
CONSTRUCTION AND INTERPBETATION OF WILLS.
lege, in the erection of some building for
coUege uses, or in the endowment of addi-
tional professorships; such building or pro-
fessorships to bear my name. (15) If either
my wife, Maggie, or one of my brothers,
shall become my only surviving legatee, it
is 'my will in that event, and I so dii-ect,
that my estate, at that time, be divided as
nearly as may be into two (2) equal parts
as regards value aod renting power, and
said wife or brother shall tb»n choose be-
tween the incomes of said two properties,
and have and enjoy the same during his or
her natural life; and it is my will that the
other part of my estate shall at that date
become the property of Hamilton College, to
be used as directed in article 14 in this in-
strument. And I further direct that, at the
death of said wife or brother, the remaining
part of my estate shall become the property
of Hamilton College, to be used as in article
14. I hereby appoint my two brothers Jo-
seph G. and Henry T. Ford as executors of
this, my last will and testament. In wit-
ness whereof, I, Francis F. Ford, have to
this, my last will and testament, consisting
of four sheets of paper, subscribed my name
and affixed my seal at Madison, Wis., this
twenty-fifth (25) day of January, 1884.
[Signed] Francis F. Ford. [Seal.]"
The lands described in Schedule A were
situated and therein priced as follows:
Homestead, in Madison, Wis., priced at $10,-
000; lands in Kalamazoo, Mich., priced in the
aggi-egate at $27,000; about 1,508 acres of
land in the state of Kansas, priced in the ag-
gregate at $38,500. The lands described in
Schedule B were situated in Kansas City, Mis-
souri, and therein priced in the aggregate at
$19,200.
The plaintiff, as the qualified executor, com-
menced this action in the circuit court for
Dane county for the construction^ of said
' "The plaintifE prays the aid of this court,
among other things, to determine: (1) Wheth-
er the said property, real and personal,
of which the said Francis F. Ford died seized,
is, hy virtue of said will, vested in the plaintiff
as executor or trustee, to be controlled and
managed by him; whether he has power to
receive the rents, incomes, and profits thereof,
and disburse the same as in the said will pro-
vided; and, if the said plaintiff does not talie
the same as trustee, whether any trusts are cre-
ated by said will, and whether the court has
the power to appoint trustees, or whether the
said real estate descends to the heirs of the
said Francis F. Ford, or how and in whom the
title to the said estate and property, real and
personal, vests and descends. (2) Under the
second clause of said will, who is invested with
the power and has the authority to expend the
sums of money to defray the necessary ex-
penses of carrying on said testator's estate
from year to year which are to be paid from
the income thereof? (3) Whether, under
fourth clause of said will, the plaintiff, as ex-
ecutor of said estate, is invested with .the pow-
er and has the authority to convert and invest
in good, rentable inside property in Kansas
City all the properties set forth and described
in Schedule A annexed to said will; and, if
the plaintiff has the power to sell the said
last-mentioned property, at what price he is
will so probated in the county court, where-
upon the widow, Margaret G. Ford, and Mar-
cus C. Ford, the only child of said testator,
by his guardian ad litem, and Hamilton Col-
lege, respectively, ajiswered the complaint,
which complaint and answers were severally
amended by leave of the court.
Prior to the trial it was stipulated by the
respective parties, in effect, "that the printed
laws and decisions of the Revised Statutes"
in our state law library, "for the states of
Missouri, Kansas, Michigan, and Iowa, (and
of tlie state of New York, for the purpose of
proving the incorporation of the trustees of
Hamilton College,)" might "be referred to by
any and all of the parties herein to show what
the law of any of said states" was "as to any
of the legal points involved in or that" might
"arise in said case, either lq the circuit or su-
preme court of this state," and that it "should
not be necessary to introduce in evidence any
of said statutes, laws, or reported decisions;
but that any of the parties herein" should
"have the right to use or refer to same as evi-
dence herein."
In addition to what has been stated, it ap-
peared from the undisputed evidence, and was
found as facts upon the trial, in effect: That
the testator died testate at the age of 58 years,
in Kansas City, Missouri, January 26, 1886.
leaving said will. That, at the time of his
death, he was a resident of and domiciled in
the city of Madison, Dane ooointy, Wisconsin,
and had been for 10 years immediately -prior
thereto. That he left, him surviving, his wid-
ow, the said Margaret G., then aged 46 years;
and one child, a son, the said Marcus C, then
aged 12 years; and three brothers, Edward
Irving Ford, then living at Asbury Park, New
Jersey, and aged 60 years; Joseph C. Ford,
then residing in Madison, Wisconsin, and
aged 55 years; and Henry Thornton Ford,
then living at Jersey City, New Jersey, and
authorized to sell the same. (4) Whether the
plaintiff, as executor of said will, and, if not
the plaintiff, who otherwise, has power to sell
the property set forth and described in Sched-
ule B annexed to said will, and to invest the
proceeds thereof in more desirable rentable
property in Kansas City,, or to determine
whether the same shall be used in improving
some one or more of said Kansas City prop-
erty. (5) Whether the plaintiff, as executor of
said will, and, if not the plaintiff, who other-
wise, has power and control of all moneys,
notes, bonds, mortgages, or other evidence of
indebtedness mentioned in the sixth clause of
said will, and has authority and power to
use the same in the purchase of property in
Kansas City, or for improving properties in said
city on hand. (6) The said plaintiff alleges, up-
on information and belief, that it is the in-
tention of Margaret G. Ford, who claims
to be the widow of the said Francis F. Ford,
to renounce the benefits and provisions made
in and by said will for her; and the plain-
tiff prays the aid of this court that if
she shall so renounce said will, and take such
part of the property of the said Francis F.
'Ford as the law may give to her, what
power of sale he has over the furniture sit-
uated in the homestead in the city of Madi-
son, and other property connected therewith,
mentioned in clause seven of said will, and
CONSTRUCTION AND INTERPRETATION OF WILLS.
109
aged 53 years; and that all of said persons
were stiU living. That he left, him surviving,
no sister, father, or mother. That said will
was admitted to probate as stated. That
thereupon letters testamentary were issued
by said county com-t to Joseph O. Ford, the
plaintiff, who thereupon qualified as ex-
ecutor, and has ever since acted and
stiU acts as such. That, at the time of his
death, the testator's estate was worth about
$175,000, and located in the states of Wis-
consin, Michigan, Iowa, Kansas, and Mis-
souri. That the great bullc of said estate
was located in the states of Kansas and Mis-
souri. That the personal estate of said tes-
tator consisted of certain household goods
and furniture, and other personal property,
such as wagons, sleighs, etc., in Madison,
Wisconsin, and certain rents due him on real
estate. That, a short time prior to his death,
the testator assigned, or attempted to assign,
in writing to his brother Henry Thornton
Ford certain notes and mortgages, amount-
ing In value to about $30,000, to determine
the titie to which a suit was then [at the
date of the findings] pending in Kansas City,
Missouri, where said securities were at the
time of the testator's death. That the only
real estate belonging to the testator at the
time of his death, witnin the state of Wis-
consin, was his homestead in Madison, of
the value of about $12,000, exclusive of any
furniture therein. That the testator had
about 200 acres of land in Iowa at the time
of his death, or an interest therein. That
the lands so described in said schedules in
Michigan, Kansas, and Missouri were worth,
at the time of his death, and were stiU worth,
whether he has power and authority to sell and
dispose of the same. (7) That if the said Mar-
garet G. Ford shall so renounce under the
said will, what disposition is to be made of the
quarter of the net annual , income of the re-
mainder of testator's estate bequeathed to her
by the eighth clause of said will, and whether
thp same shall go to increase the income of the
other legatees of said will, or what other dispo-
sition shall be made of the same. (8) Wheth-
er the incomes severally given to the said Mar-
garet G. Ford, Marcus C. Ford, Edward Irving
Ford, Joseph C. and Henry T. Ford, by the
eighth, ninth, tenth, and eleventh clauses of
said will, are to be diminished by the estate of
said testator, passing, under the twelfth clause
of said will, to the said Marcus C. Ford, — that
is to say, ten thousand dollars when he arrives
at the age of twenty-one years, twenty thou-
sand dollars when he arrives at the age of
twenty-five years, twenty-five thousand dollars
when he arrives at the age of thirty years,
forty-five thousand dollars when he arrives at
the age of thirty-five years, and the remainder
of the estate when he arrives at the age of
forty years, — or whether the said Marcus
C. Ford takes the said several sums, parts of
said estate, subject to the payment of said
several legacies given for life to said Mar-
garet G. Ford, Marcus O. Ford, Henry T.
Ford, Joseph C. Ford, and Edward Irving
Ford, or whether the said legacies are di-
minished by the devise of said sums to the said
Marcus C. Ford as the same may become due
and payable to him, and how long and to
what extent said incomes respectively continue
to said legatees. ^9) In the event that Marcus
the value placed upon the same by him in
said schedules as stated. That February 15,
1887, the said widow renounced and sur-
rendered one and all the provisions of ev-
ery kind made for her in said will, and, in-
stead thereof, elected to take under the stat-
utes of the several states named. That the
trustees of Hamilton College were, and have
been since May 6, 1812, a corporation duly
organized and existing under and by virtiie
of the laws of the state of New York as a
college, and entitled, by virtue of their char-
ter, to take, hold, enjoy, and have lands and
real estate, in fee-simple, or for a term of
life or lives, or for years, or in any other
manner, and also goods, chattels, books, mon-
eys, annuities, and aU other things of what
kind or nature soever. That ^aid corpora-
tion has exercised the usual powers of a col-
lege for over 40 years. That it is generally
known and spoken of as Hamilton College,
at Clinton, Oneida county, New York. That
the testator graduated at said college in the
class of 1851. That he meant and intended,
by the words "Hamiltoh College," used in
the will, the said "Trustees of Hamilton Col-
lege." That, by the laws of Missom-i and
Kansas, the vesting of estates may be post-
poned, and a suspension of the power of
alienation is permitted, for a period of any
number of lives in being, and 21 years, and
the period of gestation thereafter, accord-
ing to the rule of the common law. That
the same period Is permitted by statute in
Iowa. That the law of Michigan in this re-
spect, both as to real and personal property,
is substantially the same as in Wisconsin.
As conclusions of law the court found, in
C. Ford shall decease after reaching his ma-
jority, leaving one or more legitimate children
of his body, how the sum of forty thousand
dollars, mentioned in the thirteenth clause of
said will, is to be ascertained and selected, by
whom the same is to be done, and who is to
hold the same in trust for the benefit of said
children. (10) Whether the fourteenth clause of
said will, so far as Hamilton College is con-
cerned, makes a lawful and valid disposition of
that portion of his estate described in said four-
teenth clause. (11) Whether the provision in
the fifteenth clause of said will, on the event
happening therein specified, for the benefit of
Hamilton College, is a lawful and valid pro-
vision for the benefit of said college. (12) How
the portions of the estate which are to become
Marcus' at the time when he arrives at the age
of twenty-one, twenty-five, thirty-five, and forty
years, respectively, are to be ascertained and se-
lected, by whom the same are to be ascertained
and selected, and whether to be paid over to
him absolutely, or to be held in trust, subject
to the legacies of the income for life to the
several legatees hereinbefore mentioned. (13)
If Marcus C. Ford dies under the age of twen-
ty-one years, or any of the other legatees of
the income of said estate shall die, what disposi-
tion is to be made of the income of such person or
persons so dying? Is it to be added to the in-
come of the surviving legatees? If not, how
otherwise? (14) If Hamilton College takes a
portion of the estate, under the fourteenth
clause of said will, does it take the same sul)-
ject to the payment of the legacies for life to
the said several legatees?"
110
CONSTBUCTION AND INTERPRETATION OF WILLS.
effect, that the will was valid in all its parts,
and no part of it within the provisions of the
statutes of this state against perpetuities, or
the suspension of the power of alienation, and
construed it accordingly. The plaintiff, said
widow, the said guardian for said Marcus
C, and said trustees of Hamilton College,
severally filed exceptions to said conclusions
of law and such construction of said will,
and from the judgment entered upon said
findings of act and conclusions of law they
severally appeal to this court.
I. C. Sloan and John M. Olin, for executor.
Stevens & Morris, for Mrs. Margaret G. Ford,
the widow. Pinney & Sanborn, for Marcus
O. Ford, the son. Gregory, Bird & Gregory,
for trustees of Hamilton College.
CASSODAY, J. At the time of the testa-
tor's death, and for several years immediate-
ly prior thereto, his residence and- domicile
were in the city of Madison, Wisconsin. As
stated, he left personal property, and large
amounts of valuable lands in Wisconsin,
Michigan, Iowa, Kansas, and Missouri. His
widow and little boy, Marcus C, and his
three brothers and Hamilton College, are the
sole objects of his bounty. The will is unique.
It is said to have been drawn by the testator
himself. It may be doubtful whether it
would have presented more intricate ques-
tions for solution had it been drawn by a
skUlful lawyer with that end in view. Its
validity is challenged as a whole and in
parts, and a construction is demanded. The
language employed seems to be sufficiently
clear to indicate the purposes intended. The
difficulties arise in applying the law to such
purposes. Before proceeding to make such
application it may be well to state a few
general rules of law applicable to the case,
readily deducible from the authorities and
virtually conceded by all.
1. The validity of every devise or disposi-
tion of real estate by wiU must be governed
by the law of the place where the land is
situated, and this includes not only the form
and mode of the execution of the will, but
also the lawful power and authority of the
testator to make such disposition. Story,
Confl. Laws, § 474, and note; 2 Greenl. Ev.
« 670; 1 Eedf. WiUs, p. 398, sub. 8; Rob-
ertson V. Plckrell, 109 U. S. 608, 3 Sup. Ct.
Rep. 407; White v. Howard, 46 N. Y. 144.
The importance of this proposition in con-
sidering the validity of a will covering lands
in so many different states will be appreci-
ated by all.
2. On the contrary, although not as well
defined, nor as extensively enforced, yet the
authorities clearly support the proposition
that the validity of a bequest or disposition
of personal property by last will and testa-
ment must be governed by the law of the tes-
tator's domicile at the time of his death, and
this Includes, not only the form and mode of
the execution of the will, but also the law-
ful power and authority of the testator to
make such disposition; and especially is this
true where, as here, the testator's domicile,
at the time of making his will, continues to
be the same until the time of his death.
Story, Confl. Laws, §§ 467, 468; Stewart v.
McMartin, 5 Barb. 438; Moultrie v. Hunt, 23
N. Y. 394; Nat v. Coons, 10 Mo. 543; Deses-
bats V. Berquier, 1 Bin. 336; Somerville v.
Somerville, 5 Ves. 750-786; Anstruther v.
Chalmer, 2 Sim. 1; Price v. Dewhurst, 8 Sim.
279; s. c. on appeal, 4 Mylne & C. 76; Eno-
hin V. Wylie, 8 Jur. (N. S.) 897, H. L. Cas. 1;
Crispin v. Doglioni, 9 Jur. (N. S.) 653; s. c.
on appeal, L. R. 1 H. L. 301; Eames v. Ha-
con, 16 Oh. Div. 407; s. c. on appeal, 18 Ch.
Div. 347. This is not shaken by the criticism
of Lord Westbury's opinion in Enohin v. Wy-
lie, supra; by the Earl of Selborne, L. C, in
Ewing V. Orr, 9 App. Cas. 39.
3. The same rule, as to the law of the tes-
tator's domicile, governs in the interpreta-
tion or construction of wills. Story, Confl.
Laws, ■§§ 479a-479c; Van Steenwyck v. Wash-
burn, 59 Wis. 510, 17 N. W. Rep. 289. In the
words of Mr. Justice Story: "The language
of wills is not of universal interpretation,
having the same precise import in aU coun-
tries and under all circumstances. They are
supposed to speak the sense of the testator,
according to the received laws or usages of
the country where he is domiciled, by a sort
of tacit reference, unless there is something
in the language which repels or controls
such a conclusion." Harrison v. Nixon, 9
Pet. 504; Trotter v. Trotter, 4 Bligh, (N. S.)
502; Enohin v. Wylie, supra; Chamberlain
V. Napier, 15 Ch. Div. 614. The general rule
is the same respecting real estate, whenever
the object Is merely to ascertain the mean-
ing and intent of the testator from the lan-
guage employed in the will. Id.; 2 Greenl.
Ev. § 671. With these general propositions
in mind, we may, without infringing any rule
of interstate comity, venture to ascertain, if
we can, the intention of the testator as dis-
closed in this will, and also its validity, at
least as to certain portions of the property.
4. The papers coming from the county
court must be taken as the wiU of the testa-
tor. Thornton v. Curling, 8 Sim. 310; Price
V. Dewhurst, supra. They consist in what
has been called the wUl, with Schedules A
and B therein mentioned and thereunto at-
tached. In construing the will, we are to
consider these three papers as one instru-
ment in law, and together constituting the
will of the testator. Ackerly v. "Vernon, Com.
381; s. e. affirmed on appeal, 3 Brown, Pari.
Cas. 91; Hill v. Chapman, 1 Ves. Jr. 407;
Habergham v. Vincent, 2 Ves. Jr. 204; Jack-
son V. Babcock, 12 Johns. 394; Loring v.
Sumner, 23 Pick. 102; Baker's Appeal, 107
Pa. St. 381; Fickle v. Snepp, 97 Ind. 289.
5. It is claimed on the part of the executor
that, under the directions of the will, aE the
personal property and all the real estate out-
side of Missouri must, for the purpose of
determining the validity of the wUl, or some
CONSTRUCTION AND INTERPRETATION OF WILLS.
Ill
■of its provisions, be regarded as converted
and permanently invested in lands in Kan-
sas City, Missouri, under the weU-known doc-
ti'ine of equitable conversion. That docti-ine
is firmly established; and if it applies, or in
so far as it applies, it must be enforced. It
may be weU to restate it, with some of its
limitations. As long ago as the time of Lord
Chancellor Thurlow it was observed by him
"that nothing was better established than
this principle: that money directed to be em-
ployed in the purchase of land, and land
directed to be sold and turned into mon-
ey, are to be considered as that species of
property into which they are directed to be
converted; and this, in whatever manner the
dii-ection is given, — whether by will" or oth-
erwise. "The owner of the fund, or the con-
tracting parties, may make land money, or
money land. The cases established this rule
miiversally. If any difficulty has arisen, it
has arisen from special circumstances."
Fletcher v. Ashburner, 1 Brown, Ch. 499.
This was expressly sanctioned by the su-
preme court of the United States at an early
day. Craig v. Leslie, 3 Wheat 577. The rea-
son for the rule is there stated by Mr.
Justice Washington, speaking for the whole
court, thus: "The principle upon which
the whole of this doctrine is founded,
is that a court of equity, regarding the sub-
stance, and not the mere form and circum-
stances of agreements and other instruments,
considers things directed or agreed to be
done as having been actually performed,
where nothing has intervened which ought to
prevent a performance." From that and oth-
er cases the late chief justice of this court
deduced this general rule: ""^Tien a will
contains a power of sale not mandatory in
terms, but it is apparent from the general
scope and tenor of the wUl that the testator
intended all his realty to be sold, the power
of sale will be held imperative, and the doc-
trine of equitable conversion applied."
Dodge V. WiUiams, 46 Wis. 97, 1 N. W. Rep.
92; De Wolf v. Lawson, 61 Wis. 477-479, 21
N. W. Rep. 615.
In Pennsylvania it has been held "that the
equitable conversion of realty into person-
alty, by force of a direction in a deed or will
to sell, only takes place where the- direction
is positive and absolute; * * * that, if a
proposed sale is contingent or eventual in a
deed or will, equitable conversion does not fol-
low." Neely v. Grantham, 58 Pa. St. 437. But
the better opinion seems to be, as, in effect,
held in Dodge v. Williams, supra, that when-
ever a direction to convert is apparent from
the whole wUl, whether expressed or implied,
then the duty and obligation to convert is
imperative, and the doctrine of equitable con-
version applies. Thus, in White v. Howard,
46 N. Y. 162, Grover, J., speaking for the
court, said: "To constitute a conversion of
real estate into personal, in the absence of an
actual sale, it must be made the duty of, and
obligatory upon, the trustees to sell it in any
event. Such conversion rests upon the princi-
ple that equity considers that as done which
ought to have been done. A mere discretion-
ary power of selling produces no such result."
Power V. Cassidy, 79 N. Y. 613, 614; Hobson
V. Hale, 95 N. Y. 605. So it has been held
that, "where the general scheme of the will
requires a conversion, the power of sale, al-
though not in terms imperative, operates as a
conversion; and this will be deemed tq be
immediate, although the donee of the power
is vested, for the benefit of the estate, with a
discretion as to the time of sale." Lent v.
Howard, 89 N. Y. 169; Ingrem v. Mackey, 5
Redf. 357. But the will must, in terms or by
necessary implication, disclose an intent to
convert, in order to sustain the theory of eq-
uitable conversion. Hobson v. Hale, supra.
6. Having thus stated some of the princi-
ples and some of the facts upon which the
doctrine of equitable conversion rests, it be-
comes necessary to consider the application
of those principles to some of the provisions
of this will.
(a) The lands la Iowa are nowhere men-
tioned or referred to in the will or either of
the schedules. This being so, it is manifest
that the doctrine of equitable conversion has
no application to them. They must therefore
be regarded as lands in Iowa; and the valid-
ity of the will respecting such lands be deter-
mined by the laws of Iowa.
(b) The several pieces of land speciflically
described in Schedule B are all situated in
Kansas City, Missouri. Considering that
schedule in connection with subdivision 5 of
the will, of which it forms a part, as we
must, and the directions thereby given to the
executors are that they "shall, at" their "dis-
cretion," "either" sell the several pieces of
lands so described in Schedule B, and in-
vest the proceeds thereof in more desirable
rentable property in Kansas City, or use said
proceeds in improving some of the testator's
Kansas City properties. This mere discre-
tionary authority can in no sense operate as
an equitable conversion, — certainly not until
an actual conversion should in fact occur.
Besides, such conversion of the lands de-
scribed, into other lands in the same city and
state, could in no way affect or change their
legal status. So they must be regarded as
lands in Missouri, in determining the validi-
ty of the will respecting the same.
(c) By the sixth subdivision of the will, the
testator expressly directs that all moneys,
notes, bonds, mortgages, or other evidence
of indebtedness to him from any and all par-
ties, except his brothers, "shall, as soon as
practicable after"- his death, "be used either
in the purchase of property in Kansas City,
or for improving properties in said city then
on hand." This clause of the will relates
particularly to the ?30,00u of personal prop-
erty in dispute; and which, for the purposes
of these appeals, is assumed to be the prop-
erty of the estate. The direction to so con-
vert is not prevented from being imperative
112
CONSTBUCTION AND INTERPRETATION OF WILLS.
by adding "as soon as practicable after" his
death, and tlius giving some discretion as to
the time or times of such conversion. If such
permanent investment of such personal estate
in lands in Kansas City can be lawfully
made, and then lawfully held as lands in
Kansas City dm'ing the time and for the
purposes expressed in the will, then there can
be no doubt but what, subject to the widow's
rights therein, as hereinafter stated, the doc-
trine of equitable conversion is applicable to
such personal estate, and in that event the
same is accordingly to be regarded as lands
in Missouri from the time of the testator's
death; otherwise not. In other words, since
the right to so convert is dependent upon the
right to so invest and hold, the legality of
such equitable conversion is dependent upon
the same right to so invest and hold. Wheth-
er such investment and holding would be
lawful or imlawful vriU be considered here-
after.
(d) The several pieces of land specifically
described in Schedule A consist of the home-
stead in Madison, Wisconsin, and lands
in Michigan and Kansas. As the directions
in relation to the homestead differ from the
directions In relation to the other lands, the
homestead will be considered by itself here-
after. Considering Schedule A in connection
with subdivision 4 of the wUl, of which it
forms a part, as we must, and the directions
thereby given as to the several pieces of land
in Michigan and Kansas are to the effect that
each and all af said pieces of land "shall be
converted, as soon as practicable, after" the
testator's death, "at schedule prices, or as
much better as may be, * * * Into good
rentable 'inside' property in Kansas City,
Mo." The testator manifestly had an exalt-
ed opinion of the present and future of Kan-
sas City. The scheme of his will indicates an
intention to have his lands in Michigan and
Kansas sold as soon as practicable, and the
proceeds thereof invested in real estate in
Kansas City. He directs, in efCect, that the
several pieces of land mentioned shall be so
converted as soon as practicable after his
death. Is such purpose to be frustrated mere-
ly by adding "at schedule prices, or as much
better as may be?" On the contrary, were
not those words added as a guide to his ex-
ecutors, or for the purpose of stimulating
purchasers to pay a larger price? It seems
to us that such was his intent, for, appar-
ently with the same view, he added to the
schedule price of each piece a still larger es-
timated value. Of course, it may turn out
to be impossible to ever sell some of the
pieces at the schedule price; and yet there is
nothing In the wIU indicating that he ever
contemplated such a result, or any permanent
holding of such lands as a part of the estate,
as is plainly Indicated as to the Missouri
lands. There are no negative words indicat-
ing an intent not to have any of the lands
in Michigan or Kansas sold at a less price.
As indicated in another connection, some dis-
cretion may be given as to the time or times
of making such sales and investments, with-
out preventing the application of the doc-
trine of equitable conversion. The only piu--
pose manifest in the will for selling any of tke
Michigan or Kansas lands is to Invest the pro-
ceeds of such sales in real estate in Kansas
City, and then to hold such lands in that city
as a part of the estate during the time and
for the purposes indicated in the will. If
such permanent investment can be lawfully
made, and such lands so lawfully held, then
we discover no reason why the doctrine of
equitable conversion should not apply to
them. Nevertheless, the legality of such
equitable conversion Is necessarily dependent
upon the right 'to so invest and hold. Wheth-
er such investment and holding would be
lawful or unlawful will be further considered
hereafter. What has been thus said is not
by way of determining the validity of the ti-
tle to any lands outside of Wisconsin, nor
the validity of any investment or trust in or
tenure of such lands, but merely to ascertain
the meaning and intent of the testator from
the language employed in the wUl, which, as
we have seen, is a duty devolving upon this
jurisdiction.
(e) In regard to the homestead, the direc-
tions are, in effect, that it shall be converted,
as soon as practicable after his death, into
good rentable "inside" property in Kansas
City, Missouri, "at schedule price," which is
$10,000, or as much better as may be; and then,
by subdivision 7 of the will, the testator di-
rects, in effect, that his wife shall have the
use of his homestead, furniture, and appurte-
nances so long as she may desire' to live in it
as her home; and that in ease she at any time
ceases to desire it as her home, he directs
that, as soon thereafter as practicable, it be
sold "at a price not less" than $10,000, or as
much more as the property will bring, and
the proceeds thereof be invested in good rent-
able property In Kansas City, Missouri, and
the rentals of such property be added to the
income of the estate. Here are directions tf
sell and to invest the proceeds in real estati-
in Kansas City, it is true, but they are ac
companied by other directions not to sell nor
to so invest until after the concurrence o,"
two events; one being that the widow shal£
cease to desire it as her home, and the other is
that it be sold at a price not less than $10,-
000. The word "homestead," as used in the
will, manifestly means the house and all the
grounds where the testator lived, and is not
restricted to the one-fourth of an acre men-
tioned in the statute. Section 2983, Rev. St.
As stated, the widow has elected to take the
provisions made for her by law, instead of
the provisions made for her in the will, as re-
quired by the statutes. Section 2172. Upon
making such selection, the widow at once be-
came entitled to the same dower In the tes-
tator's lands, and the same rights to the
homestead, and the same share of his per-
sonal estate, as if he had died intestate, ex-
CONSTKUCTION AND INTERPRETATION OF WILLS.
113
cept that the share of personal estate -which
she so took was restricted to one-third part
of his net personal estate. Sections 2172,
3935, Rev. St.; Leach t. Leach, 65 Wis. 291,
26 N. W. Rep. 754. Since the testator left a
son as well as widow, her right to the home-
stead thus secured by such election is the
right to such statutory homestead of one-
fourth of an acre during her widowhood, and
dower in the balance of the land connected
tlierewith. Rev. St. subd. 2, § 2271. In other
words, the extent and duration of her right
in the homestead has been diminished by
such election.
Oa-n we hold that the direction in the will
to sell the homestead, and invest the pro-
ceeds, as indicated, works an equitable con-
version of the estate into Missouri lands?
As observed, there is no such direction to
convert until the widow ceases to desire it
for a home. Presumably this will not occur
during her widowhood, which may be re-
garded as an equivalent to a life-estate. But
the sale is expressly forbidden, even after
the termination of the widow's right, at any
price less than that specified. To apply the
doctrine of equitable conversion to lands
which are directed not to be sold until the
termination of such life-estate, nor then, ex-
cept in an imcertain event which may never
occur, would be to stretch that doctrine be-
yond anything authorized by or contemplated
m the authorities. We must therefore hold
that the homestead must be regarded as
lands in Wisconsin, and accordingly the va-
lidity of the will respecting the same must
be determined by the laws of Wisconsin.
7. Before determining such validity, and to
aid such determination, it becomes necessary
to ascertain, if we can, more fully the inten-
tion and meaning of the testator, as disclos-
ed by the language employed in other parts
of his wiU. Undoubtedly the legal title to
the personal property belonging to the es-
tate is vested in the executor. Scott v. West,
63 Wis. 555, 556, 24 N. W. Rep. ICR, and 25
N. W. Bep. 18. Of course he holds the same
for the benefit of tlie cestui que trust, in-
cluding the rights of the widow, as indicated
in the sections of the statute cited above.
So far as the law will permit, the executor,
by virtue of the wUl, has acquired all the
rights therein given, and is charged with all
the obligations therein imposed. Id. The
several directions in the wiU are addressed
to him, and his successors in office, and his
subordinates, whether by ancillary adminis-
tration or otherwise. He and they are to exe-
cute the will so far as the law will permit.
He and they are to pay the testator's lawful
debts and funeral expenses from moneys on
hand at his death, and, if they are insuffi-
cient, then the balance from the income of
the estate. He and they are to pay the neces-
sary expenses of carrying the estate from
year to year from the income thereof. The
will impliedly excludes the whole of the
homestead, while occupied by the widow as
LAWSUCO. — 8
such, from being a som-ce of income to the
estate, but provides that in case of its con-
version, as indicated, then the rentals of suL-h
newly-acquired property are to be added to
the income of the estate.
By the election of the widow to talie un-
der the statute, instead of the will, the be-
quest to her in the eighth subdivision of the
will of "one-quarter of the net annual in-
come of the remainder" of the "estate dur-
ing her natural life," which by the twelfth
subdivision was to be kept up to $1,500 from
the share of the income given to the son,
becomes inoperative. By such election a por-
tion of the home property not included in
the statutory homestead, nor the widow's
right of dower in the balance, might be the
source of a ti-ifling income to the estate;
but this would be dependent upon the validi-
ty of the provision in the will for the future
conversion of the homestead, of which we
shall presently speak. By the direction In
the ninth subdivision of the will the son is
to have one-quarter of the net annual in-
come of the estate (exclusive of the home-
stead) until, under the provisions of the will,
he comes into the possession of the entire
estate, except as the same may be sooner
terminated by his death. By the direction
in the tenth subdivision of the will the broth-
er Edward Irving is to have one-quarter of
the net annual income of the estate (exclu-
sive of the homestead) during his natural
life. By the direction in the eleventh sub-
division of the will the brothers Joseph G.
and Henry T. were "each" to have one-eighth
of the net annual income of the estate (ex-
clusive of the homestead) during their nat-
ural lives. Such bequests annually, from the
"net annual Income", of the estate, are clear-
ly severable, as each is independent of the
other, and almost necessarily must terminate
at a different time than any of the others.
Since the annual share of each such legatee
is each year confined to such "one-quarter" or
"one-eighth" of such net annual income of the
estate, it manifestly cannot be increased by
the one-quarter of such net annual Income
now undisposed of by reason of the election
of the widow. As the undisposed-of one-
fourth of such net annual income cannot
arise from the rents, issues, or profits of
lands in Wisconsin, but must arise from the
rents, issues, and profits of lands outside of
this state, or from the personal estate liable
to be treated as converted into Missouri
lands, as Indicated, we reserve further con-
sideration of the question whether the ac-
cumulation of such undisposed-of net annual
income into the residuum of the estate would
or would not be valid. Manifestiy, it is the
theory of the will that the several fractional
shares of such net annual income thus be-
queathed will from time to time be dimin-
ished, as portions of the corpus of the estate
may pass to Marcus under the twelfth clause
of the will; for, the moment he may become
the absolute owner in fee of any portion of
114
CONSTRUCTION AND INTERPRETATION OP WILLS.
the land thereby devised, that moment such
portion will become segregated from the es-
tate, and thereby relieved from every pro-
vision of the will. So, whatever property
the widow, by reason of her election, takes
under the statutes of the several states, be-
comes in like manner segregated from the
estate. It is only the one-quarter or the one-
eighth of the net annual income of the tes-
tator's estate that is thus bequeathed; not
such fractional share of the net annual in-
come of what may become the estate of Mar-
cus or the widow.
By the will, Marcus is to have no portion
of the corpus of the estate, except as he
becomes entitled to it under the direction in
the twelfth subdivision of the will, and by
such direction he is only to become the own-
er in fee to a portion of the corpus of the
estate when he "reaches his majority," and
then additional installments of such corpus
from time to time until he reaches the age
of 40 years, when "the remauider" of the
"estate" is to become his. But in the event
of Marcus dying, "after reaching his majori-
ty, leaving one or more legitimate children
of his body," then the direction of the thir-
teenth subdivision of the will is "that the in-
come of forty thousand dollars' worth of" his
"estate, or so much thereof as may in pru-
dence be necessary, shall be used for the
proper support of such child or children, un-
til they shall severally become of legal age,
when an equal part of the above-named prin-
cipal and accrued interest shall become, his
or hers absolutely." That is to say, imme-
diately upon the death of Marcus after so
reaching his majority, and before becoming
40 years of age, leaving such child or chil-
dren him sm-viving, the $40,000 "worth of"
the "estate," if there shall be so much, is
to be regarded as segregated from the rest,
and held in trust for them, "until they shall
severally become of legal age," as therein di-
rected. "In the event" that Marcus "shall
survive all" the "other legatees," that is to
say, shall survive the widow and each of
the three brothers, "and then die before com-
ing into the possession" of the "whole es-
tate," then the fourteenth subdivision of the
will directs "that the remainder" of the "es-
tate, as of that date, shall belong to Hamil-
ton College." But the words "the remainder
of my estate," as here used, cannot mean
what will be the entire estate at the time of
such death of Marcus, unless it so happens
that upon such death he leaves no such child
or children him surviving. But in case he
does leave such child or children him sur-
viving, then such "remainder" of the estate
will only be what may remain of such estate
after setting apart the $40,000 worth of the
estate for the benefit of such child or chil-
dren, as provided in the fourteenth subdi-
vision of the will. Such must be the con-
struction, for, unless the words "the remain-
der of my estate" be so limited, the four-
teenth subJivision of thewill would be clearly
repugnant to the provisions made for such
child or children in the thirteenth subdi-
vision; for it could not have been the inten-
tion to give as a remainder of the estate, to
Hamilton College, the $40,000 which might
thus be set apart for such child or children.
If either the wife or one of the brothers "shall
become the only surviving legatee, then "in
that event" the fifteenth subdivision of the
will directs that the "estate at that time be
divided, as nearly as may be, into two equal
parts, as regards value and renting power,
and said wife or brother shall then choose
between the incomes of said two properties,
and have and enjoy the same during his or
her natural Ufe;" and "the other part" of the
"estate shall at that date become the prop-
erty of Hamilton College;" and "at the death
of said wife or brother the remaining part"
of the "estate shall become the property of
Hamilton College."
The words "my only surviving legatee," as
used in this last subdivision of the will, im-
ply, at least, that all other legatees named
in the wUl, and living at the time of the tes-
tator's death, including Marcus, shall, previ-
ous to the time of such sole survivorship,
have died leaving some portion of the corpus
of the estate which had not before passed
to the widow, to Marcus, or for the benefit
of such child or children by segregation, as
indicated. It may occur that all three broth-
ers die before Marcus, or that the widow and
two of the brothers die before Marcus, and
then, after reaching his majority, Marcus
dies, leaving one or more such children him
surviving. In that event, the words, "my
estate at that time be divided as nearly as
may be into two equal parts," as used in
the last subdivision of the will, manifestly
mean only so much of the estate as may
then remain after setting apart the $40,000
worth of the estate for the benefit of such
child or children, as provided in the thir-
teenth subdivision of the will. Such are the
provisions of the will we are called upon to
consider. Undoubtedly the will created in
the executor an express trust, within the
meaning of section 2081, Rev. St. In fact
he is required to do much more than to
merely sell or lease lands for the benefit of
legatees. He is required to do much more
than merely to receive the rents and profits
of lands, and apply them to the use of a per-
son, during the life of such person, or for
any shorter term. He is required to do
much more than merely to receive the rents
and profits of lands, and to accumulate the
same for any of the purposes and within the
Umits of chapter 95, Rev. St He manifestly
is to take, hold, and manage the estate for
the beneficial interest of the several persons
living and to be born as Indicated. Such
duties clearly imply that he Is to take a legal
title to the whole estate in trust for the pur-
poses mentioned. Scott v. West, 63 Wis.
558-562, 24 N. W. Rep. 161, and 25 N. W.
Rep. 18; section 2080, Rev. St
CONSTRUCTION AND INTERPRETATION OE WILLS.
115
The will throughout deals with the estate
of the testator. It uses the words "my es-
tate," or their equivalent, some 16 difEerent
times. It is such estate that the executor and
his successor and subordinates are charged
by the will with managing, converting, rent-
ing, improving, gathering, and dividing, and
paying over the income annually, and from
time to time segregating, and finally dividing,
the corpus of the estate, and then giving up
the residuum. Subject to such segregations
from time to time, they are required to so
hold and manage the corpus of such estate
until the same finally passes wholly to the
son, at the age of 40, (should he live so long,)
28 years alter the testator's death. Should he
die after reaching his majority, and before
becoming 40, leaving one or more such chil-
dren, then such executor, etc., is required to
set apart the $40,000 worth of said estate,
which may include the Wisconsin land, or even
the whole of the remainder of the estate, and
hold and manage the same until such children
severally become of age. The time for such
setting apart may commence soon after Mar-
cus becomes 21, or not until just before he
reaches 40, and then continue 21 years there-
after. No one can teU how many of such
children may be born, or whether any or
how many may reach their majority.
Thus, according to the will, the estate, in-
cluding the Wisconsin land, is liable to be so
tied up from 30 to 48 years after the testa-
tor's death. But even if Marcus does not so
die leaving such children, still, by the four-
teenth and fifteenth subdivisions of the wiU,
the estate, including the Wisconsin land, is
liable to be so tied up until Marcus and the
widow and the three brothers are aU dead
save one, either the widow or one ot the
brothers, as the "only sm-viving legatee." In
other words, at least four, if not aU, of these
five persons, living at the time of the testa-
tor's death, must die before either of those
subdivisions of the will can become opera-
tive. Dm-ing such periods, or large portions
of them, it is impossible to tell where the
corpus of the estate will finally go by the
terms of the will. If Marcus lives long
enough, then all Is to go to him. If he dies
during the next 19 years alter he becomes of
age, leaving chUdren, then a large portion of
it and possibly the whole may go to them.
If he survives all the other legatees named,
and then dies during that period, then a por-
tion of it will probably go to Hamilton Col-
lege; but no one can tell how much, nor, for
certain, whether any. If he dies under 21,
€ven though he leave children him surviving,
yet neither he, nor such children, nor his
heirs at law, are to have any of such corpus.
But even then such corpus is, by the wUl, to
remain tied up diu-ing the times and for the
purposes named, and only go to Hamilton
College upon the occurrence of the events
mentioned.
The necessity of the corpus of the estate
being held by a trustee during such several
periods, and awaiting such several contingen-
cies and possibilities, seems to be absolute.
Scott V. West, supra. Such trustee or execu-
tor is directed to sell some lands and buy
others, but he has no authority under the vrtll
to pervert or alienate any portion of the es-
tate, in contravention of the trust. Section
2091, Rev. St.; De Wolf v. Lawson, 61 Wis.
475, 21 N. W. Rep. 615. In other words, the
corpus of the estate is inalienable dm-ing the
continuance of the trust Should the trustee
die, it would become necessary to appoint a
successor; and, even while he lives, there may
be a necessity for an ancillary administration.
Under this will and our statutes, can we
hold that there is no unlawful suspension of
the power of alienation as to this Wisconsin
land? As indicated, upon the death of the
testator the widow took, under the will, a
present life-estate In that land; and she has
now substantially the same under the stat-
utes. According to the wiU, the executor, as
trustee, took a futm-e estate In trust In the
same land, for it was "limited to com-
mence In posse.ssion at a future day." Sec-
tion 2034, Rev.' St.; Scott v. West, 63 Wis.
570, 24 N. W. Rep. 161, and 25 N. W. Rep.
18. "Future estates," under our statute, "are
either vested or contingent." Section 2037,
Rev St. "They are vested when there is a
person In being who would have an imme-
diate right to the possession of the lands, up-
on the ceasing of the intermediate or preced-
ent estate." Id. By the terms of the will,
the trustee or executor was to take such fu-
ture vested estate in the homestead. As to
the other property he took a present vested
estate. Coster v. Lorillard, 14 Wend. 302, 303.
But neither Marcus nor Hamilton College had
anything more than a contingent interest
therein; for the statute expressly declares
that such "future estates * * * are con-
tingent while the person to whom, or tha
event upon which they are limited to take
effect, remains uncertain." Section 2037.
"These definitions of vested and contingent
remainders," said Savage, C. J., "are very
different from the common-law definitions of
those estates." Coster v. Lorillard, 14 Wend.
301. They took no vested interest in the land,
and could convey none. Sections 2086, 2089,
Rev. St.; De Wolf v. Dawson, 61 Wis. 561,
562, 21 N. W. Eep. 615. Under our statute,
"every future estate," whether vested or con-
tingent. Is "void In its creation," which "sus-
pends the absolute power of alienation
* * * for a longer period than during the
continuance of two lives in being at the cre-
ation of the estate," etc. Sections 2038, 2039,
Rev. St.; De Wolf v. Dawson, 61 Wis. 473,
21 N. W. Rep. 615. The only exception to
this, which is in section 2040, is clearly npt
applicable here.
To avoid all uncertainty, one of the same
sections declares that such "absolute power
of alienation shall not be suspended by any
limitation or condition whatever," and tlje
other declares that "suqh power is, suspend-
116
CON'STBUCTION AND INTERPRETATION OF WILLS,
ed when there are no persons in being by
whom an absolute fee In possession can be
conveyed." Since the trustee cannot, under
the will, relinquish the trust, which includes
the "possession," until the purposes of the
trust are fulfilled, as the several periods for
such fulfillment transpire; and since persons
are liable to be born who by the terms of the
instrument will be entitled to a large portion,
and possibly the whole, of what may then re-
main of the estate, including this homestead,
—it is very obvious that "there are no per-
sons in being by whom an absolute fee in
possession can be conveyed," within the
meaning of the statutes; and since this state
of things must, under the wiU, continue for
a longer period than two lives in being at the
creation of the estate, such suspension, as to
this homestead, must be adjudged contrary
to the statute, and therefore absolutely void.
Coster V. Lorillard, 14 Wend. 317-324; Haw-
ley V. James, 16 Wend. 121, 122, 164, 165,
174, 179.
It is impossible to escape this conclusion by
speculating as to the probabilities of Marcus
and his unborn children eventually getting
tiiis Wisconsin land under the will. We have
no authority to speculate upon the chances.
The rule is universal that such suspension of
the power of alienation must necessarily ter-
minate, under any and all circumstances,
within the period prescribed by the statute,
or the disposition will be void. Schettler v.
Smith, 41 N. Y. 328; Knox v. Jones, 47 N. Y.
397. Nor is it possible to escape such con-
clusion cm the theory that the trustee or exec-
utor merely has a power in trust to sell such
homestead; for, as indicated, neither the fu-
ture estate of Marcus, nor Hamilton College,
therein, is anything more than contingent un-
der our statutes. We must therefore hold
that the attempted disposition of the home-
stead by the will is void, and that, upon the
death of the testator, the same descended to
Marcus, subject to the widow's rights there-
in, as indicated under the statutes.
8. It is strenuously urged, in effect, that, as
the testator's residence and domicile were in
this state at the time of making his wiU and
his death, he could thereby create no valid
trust, except such as are sanctioned by the
laws of this state. In other words, that he
could not by such a will, under the doctrine
of equitable conversion, cause his personal
property, and his lands in Michigan and Kan-
sas, to be converted into lands in Kansas
City, Missouri, and there held as his estate,
and the power of the alienation thereof sus-
pended beyond the time authorized by our
statutes, even though such suspension would
be vaUd under the laws of Missouri; and that
the question as to the validity of such suspen-
sion is properly determinable by this jin-isdic-
tion. I franldy confess that I was deeply im-
pressed upon the hearing with the plausibili-
ty and force of this argument. The will was
here admitted to probate. The executor here
qualified, and received his commission from
the county covart. He is direetly accountable
to and subject to the orders of that court
There may, necessarily, be ancillary adminis-
trations in other states, but they will in law
be subordinate to this, which must be regard-
ed as the principal administration. But, in
such intricate matters of title and jurisdic-
tion, impressions are of no value unless sup-
ported by the logic of the law, if not by au-
thority.
In Curtis v. Hutton, 14 Ves. 537, cited by
counsel, the testator devised real estate in
England in trust to be sold, and the proceeds
of the sale, with the personal estate, upon
trust to be laid out in lands for the mainte-
nance of a charity in Scotland, and it was
held void as to the real estate, but valid as
to the personal property, by the effect of the
option. The reason for holding such devise
of such real estate in England void, as given
by Sir William Grant, M. K., was that "the
owners of such property are disabled from
disposing of it to any charitable use, except
by deed executed twelve months before the
death of the owner," etc., "to take effect from
the execution." Page 541. Such disability of
otherwise disposing of such land was held,
in effect, could not be frustrated by the doc-
trine of equitable conversion. That decision
is the foundation of section 479d of Story's
Conflict of Laws, which cannot be regarded
as of any greater authority; nor does it
squarely meet the question here presented.
Nine years after that decision the same learn-
ed master of the rolls, in a case where the
testator by his will directed his executors
to dispose of aU his real and personal prop-
erty at Grenada, in the West Indies, and re-
mit the proceeds to England to be laid out
as a charitable fund in the best manner pos-
sible, held that such directions were not void,
as the statute of mortmain did not extend to
Grenada. Attorney General v. Stewart, 2
Mer. 143.
In Attorney General v. Mill, 2 Dow & C.
393, the testator by his will, made in England,
where he was at the time domiciled, and so
remained until his death, gave his personal
and real estate (none of the latter being in
England or Scotland, but in the West Indies)
to trustees, to be laid out In the purchase of
lands, or rents of Inheritance, in fee-simple,
for a charitable purpose, at Montrose, in
Scotland; and it was held by the house of
lords, afllrming the decree of the chancellor,
"that the bequest was void by the statute of
mortmain, it not appearing from the wUl
that the testator intended that the trustees
should have the option to purchase lands in
Scotland." The plain inference from the
opinion is that had the will directed the pur-
chase of the lands in Scotland, then it would
have been valid, as the law there did not
prevent such purchase.
In Fordyce v. Bridges, 2 Phil. 515, Lord
Chancellor Oottenham, speaking of this sub-
ject, said: "An objection was made that the
bequest of a fund to be invested in a regular
CONSTRUCTION AND INTERPRETATION OE WILLS.
117
Scotch entail was void as a perpetuity. The
rules acted upon by the courts in this country,
with respect to testamentary dispositions
tending to perpetuities, relate to this country
only. What the law of Scotland may be
upon such a subject, the courts of this coun-
try have no judicial knowledge, nor will they,
I apprehend, inquire; the fund being to be
administered in a foreign country is payable
here, though the pm'pose to which it is to be
applied would have been illegal if the ad-
ministration of the fund had been to take
place in this country. This is exemplified by
the weU-established rule in cases of bequests
within the statutes of mortmain. A chai-ity
legacy void in this comitry under the statute
of mortmain is good and payable here if for
a charity in Scotland. * * * The objec-
tion raised upon the ground of perpetuity
cannot be maintained." This seems to be
peculiarly applicable to the personal estate
here.
It is said that Freke v. Lord Carbery, L. R.
16 Eq. 461, is to the contrary. In that case
the testator was a domiciled Irishman in Ire-
land, who, after disposing of personal estate
in trust, "gave his leasehold house in Bel-
grave square, England, to the same trustees,
upon trust to sell" as directed, and to ap-
ply the proceeds in discharge of any incum-
brance on the same, and the residue to in-
vest in government or real securities, and hold
the same upon such trusts as declared. "The
validity of the trusts for accumulation was
not disputed, so far as they related to the
testator's government stocks and funds and
other pure personalty. But the question was
raised whether these trusts was valid as to
the proceeds of the sale of the house in Bel-
grave square," and it was held that "the
Thellusson act applied to the English lease-
hold, and the proceeds of the sale thereof,
and that the trust for accumulation of the in-
vestments of the proceeds of the sale in ex-
cess of the periods permitted by that act was
invalid." This is clearly distinguishable
from the other cases cited, and is an author-
ity to the point that the law of the place
where the land is situated governs as to the
validity of its disposition by will, instead of
the law of the testator's domicile, as here
claimed.
In the celebrated case of Hawley v. James,
5 Paige, 337, 16 Wend. 74, 381, and 7 Paige,
213, the testator was domiciled in Albany,
New York. By his wUl he directed all his
lands outside of New York city, Albany, and
Syracuse, including 40,000 acres in the state
of Illinois, to be sold, and the proceeds there-
of to be invested in lands in the three cities
named, upon trusts which, under the stat-
utes like ours cited, were held void. But In
respect to any lands of the testator situated
in the state of Illinois, or elsewhere outside
of the state of New York, the decree, which
was entered by the court of errors, stated
that it was not to be deemed a decision upon
the title of the said trustees to those lands.
or their power over them, (16 Wend. 281,)
which question was thereby remitted for fur-
ther consideration to the court of chancery.
Upon the cause being remitted to the chan-
cellor, an application was made for further
directions in pursuance of such decree. Upon
a full hearing, the learned chancellor said:
"This court has no jurisdiction to make a de-
cree which will directly affect either the le-
gal or equitable title to lands situated in an-
other state. And if the legal title to the lands
now in question was in any of the infant par-
ties according to the laws of Illinois, or if
those who had the legal title were out of the
jurisdiction of this court, so that it would be
impossible for it to operate upon them per-
sonally, to compel them to execute the trust
or to convey the legal title according to the
decree, I should consider it my duty to dis-
miss the application, and to refer the parties
to the courts of the state where the trust
property is situated." Then, after showing
that the will had been executed in conformity
to the laws of Illinois, so as to vest the legal
title to the lands in that state in the ti-ustees,
and that as the object of the testator in di-
recting a sale of the, Illinois lands and a con-
version of the same into money was to buy
lands in the state of New York, and hold
them upon trusts which were contrary to the
statutes of that state, and therefore illegal,
the trustees were deemed to hold the title
to the Illinois lands in trust for the heirs;
and, as the trustees were aU within the juris-
diction of the court, they were accordingly
directed to convey the same to the heirs. 7
Paige, 213.
In Burrill v. Shell, 2 Barb. 457, the testa-
tor, domiciled in New York, directed lands
in that state to be sold, and a portion of the
proceeds invested in England; and, as no law
was thereby violated, it was held that the
courts of New York had no power to divert
the investment from England, and direct the
same to be made In New York, except with
the consent of all the parties interested;
and, as some were infants, such consent could
not be obtained.
In Bascom v. Albertson, 34 N. Y. 584, a be-
quest by a New York testator was made to
five such persons as the supreme court of
"Vermont should appoint to be trustees, to
found, establish, and manage an institution
for the education of females, to be located at
Middlebury, Vermont, and it was held in-
effectual for any purpose, since the object of
the bequest was unlawful in the state of the
testator's domicile. This is in harmony with
the second proposition announced in this opin-
ion.
In Chamberlain v. Chamberlain, 43 N. Y.
424, the testator was domiciled in the state
of New York, and, among other things, he be-
queathed a certain amount to the "Century
Fund Society, a corporation created under
the laws of Pennsylvania for charitable and
benevolent purposes." In passing upon its
validity, the court held that "the law of the
118
CONSTRUCTION AND INTERPRETATION OF WILLS.
testator's domicile controls as to the formal
requisites essential to tlie validity of the wiU,
the capacity of the testator, and the construc-
tion of the instrument. When, by the lex
domicilii, a wiU has all the formal requisites
to pass title to personalty, the validity of par-
ticular bequests will depend upon the law
of the domicile of the legatee, except in
cases where the law of the domicile of the
testator in terms forbids bequests for any
particular purpose, or in any particular man-
ner, in which latter case the bequest would
be void everywhere." The learned justice
giving the opinion said: "So far as lie va-
lidity of bequests depends upon the general
law and policy of the state affecting proper-
ty and its acquisition generally, and relating
to its accumulation and a suspension of own-
ership and the power of alienation, each state
is sovereign as to all property within its ter-
ritory, whether real or personal. It is no
part of the policy of the state of New York
to interdict perpetuities or gifts in mortmain
in Pennsylvania or California. Each state
determines those matters according to its
own views of policy or right, and no other
state has any Interest in the question; and
there is no reason why the courts of this
state should foUow the funds bequeathed to
the Century Fund Society to Pennsylvania,
to see whether they will there be administer-
ed in aU respects in strict harmony with our
policy and our laws." Page 434. To the
same effect is Mapes v. American Home M.
Soc, 33 Hun. 360; Bible Soc. v. Pendleton,
7 W. Va. 79.
This case of Chamberlain v. Chamberlain
Is in harmony with subsequent decisions in
the same state, in which it has been held,
in effect, that, in the absence of any equita-
ble conversion, the question as to the unlaw-
ful suspension of the power of alienation of
lands in New York must be governed by the
laws of that state, notwithstanding the tes-
tator who attempted to dispose of the same
was at the time of making his will and his
death domiciled in some other state, as, for
instance,' in Connecticut, Massachusetts, or
California, as will appear by White v. How-
ard, 46 N. Y. 144; Despard v. Churchill, 53
N. Y. 192; Hobson v. Hale, 95 N. Y. 588.
The only case cited which seems to be in
conflict with the principles stated is Wood v.
Wood, 5 Paige, 596. But that is expressly
overruled in Chamberlain v. Chamberlain, 43
N. Y. 435, and impliedly so in other cases.
It is unnecessary to look further into the
authorities. The difficulty in holding that the
laws and courts of this state may interdict
the conversion of personal property into lands
in Missom-l, or lands in Michigan or Kansas,
or into lands In Kansas City, is apparent
when we remember that the laws of this
state have no extraterritorial force, and the
courts of Wisconsin have no extrastate ju-
risdiction. The principles of law thus indi-
cated are in strict harmony with the rulings
of this court in Van Steenwyck v. Washburn,
59 Wis. 510, 511, 17 N. W. Rep. 289.
We must therefore disclaim jurisdiction to
determine the title to any of the lands outside
of Wisconsin, or the legality of accumulations
of rents and profits therefrom. It follows
that the validity of the proposed conver.sion
of personal property Into lands in Kansas
City must be determined by the laws and
courts of Missouri. So the question of the
validity of the proposed conversion of lands
in other states Into lands In the same city
would seem to be determinable by the same
jurisdiction, but of this we have no authority
to decide. Such questions of the validity of
such conversions should be determined at an
early day by instituting the proper suit in
the proper jiu-isdiction.
The costs and disbursements of aU parties
in this court and the circuit com:t are payable
out of the estate. The county court will
make such allowance to the respective par-
ties out of the estate for counsel fees as,
in the exercise of a sound discretion, may be
just.
The judgment of the circuit court is re-
versed on each of the four appeals, and the
cause is remanded, with directions to enter
judgment in accordance with, and to the ex-
tent indicated in, this opinion, but leaving
open for further action the questions as to
the validity of such conversions, suspensions,
and accumulations, until authoritatively de-
termined by the rightful jurisdiction.
Motions for a rehearing, made by each of the
several parties, were denied November 22,
1887.
CONSTRUCTION AND INTERPRETATION OF WILLS.
119
READ et al. v. WILLIAMS et al.
(26 N. E. 730, 135 N. Y. 560.)
Court of Appeals of New York. Feb. 24, 1891.
Appeal from supreme court, general
term, first department.
J. Edward Swanstrom, P. H. Vernon,
John E. Parsons, lordham Morris, and
Manley A. Raymond, for appellants.
Charles A. Jackson, for respondents.
ANDREWS, J. The jurisdiction of a
court of equity toentertain an action in be-
half of the next of kin of a testator for the
construction of a will disposing of person-
al estate, where the disposition made by
the testator is claimed to be invalid or in-
operative for any cause, was asserted by
the chancellor in Bowers v. Smith, 10
Paige, 200, and was maintained in Wager v.
Wager, 89 N. Y. 161, and in Holland v. Al-
cock, 108 N. Y. 312, 16 N. E. Rep. 305. It
is true that in such cases the next of kin
claim in hostility to the will, but the exec-
utors. In case the disposition made by
the testator Is invalid or cannot take
effect, hold the personalty upon a result-
ing trust for those entitled under the stat-
ute of distributions; and thereby the ju-
risdiction to bring an equitable action for
construction, and to have the resulting
trust declared by the court, attaches as
incident to the jurisdiction of equity over
trusts. The Code of Civil Procedure (sec-
tion 1866) has extended the remedy so as
to include suits for construction of devises
In behalf of heirs claiming adversely to
the will, and it would not be consistent
with the spirit of this legislation to nar-
row the jurisdiction in cases of bequests
of personalty. The case of Chipman v.
Montgomery, 63 N. Y. 221, contains ex-
pressions which, considered independently
of the facts of the case, may seem ad-
verse to this view ; but, as was said by
Rapallo, J., in Wager v. AVager, supra,
"the plaintiffs there had on their own
showing no present interest in the prop-
erty, and might never have any. " The
case of Horton v. Cantwell, 108 N. Y.
256, 15 N. E. Rep. 546, was one also where
the plaintiff had no interest in the ulti-
mate disposition of the estate there in
question, whether the clauses challenged
were valid or invalid, and the court decided
that she could not maintain the action.
It is not really contended that the pro-
vision in the third paragraph of the will,
and the modification thereof in the second
paragraph of the third codicil, setting
apart a trust fund, to be perpetually kept
by the executors and trustees and their
successors, and directing the application
of the income for cemetery purposes, can
be upheld. These provisions aremanifest-
ly void, as involving an unlawful suspen-
sion of the absolute ownership of personal
property. The principal question in the
case relates to the validity of the residu-
ary clause in the second codicil. That
clause is as follows: "Eleventh. After the
payment and discharge of my just debts,
(if any there be,) funeral expenses, and ex-
penses of administration, and after all leg-
acies and bequests mentioned in my last
will and testa ment, as modified by my codi-
cils, shall have been paid in full, if there-
after there shall be any residue and re-
mainder of my estate and property, 1 give
and bequeath such residue and remain-
der, after the same shall have been duly
converted into money, as follows, viz.,
to such charitable institutions, and in
such proportions, as my executors, by
and with the advice of my friend. Rev.
John Hall, D. D., shall choose and desig-
nate. " Subsequent to the death of the tes-
tatrix, and prior to the commencement of
this action, the executors, with the ad-
vice and approval of Dr. Hall, made a
written choice and designation of certain
incorporated charitable institutions or-
ganized or existing under the laws of this
state, authorized to take real and person-
al property by devise and bequest, among
whom they directed the residuary estate
to be divided. It will be noticed that the
particular donees of the gift are not des-
ignated in the will. -They could not be
known until the executors should select,
in the manner pointed out, the particular
charitable institutions which should take
the bequest. The range of selection was
unlimited, except that the appointees"
were to be institutions of charity, and per-
haps, also, it is implied that they were to
be incorporated charities, because a pro-
vision is made that the institutions select-
ed shall be under no disability to accept
the legacy ; but beyond this there was no
limitation whatever. The selection was
not confined to charitable institutions in
this state or in the United States. If the
power was valid, the executors, with the
approval of Dr. Hall, might appoint the
gift to charitable institutions anywhere
in this country or in foreign countries.
The will did not vest the title to the prop-
erty in any one pending the exercise of the
power of appointment. It was not given
to the executors, nor was it given to any
particular charitable institution which
could be pointed out or ascertained at the
death of the testatrix. IE the property,
under the will, vested anywhere, it was
in the whole aggregate incorporated in-
stitutions of the whote world capable of
taking by devise or bequest, subject to be-
ing divested in favor of such particular
charities as should thereafter be designat-
ed by the executors. The question pre-
sented is not an original one in thia
court. It was decided adversely to the
defendants in the case of Prichard v.
Thompson, 95 N. Y. 76. There is between
that case and this no distinction in prin-
ciple. In that case the legal title to the
fund was vested in the executors in trust.
In this case the executors were given sim-
ply a power in trust, without clothing
them, in terms, with the legal title to the
fund to be distributed. But this creates
no legal distinction. The point of the de-
cision in Prichard v. Thompson is that,
while the law recognizes the right of a
testator by will to create powers of ap-
pointment and selection, and will sustain
dispositions of property made pursuant
thereto, although the testator himself did
not designate the particular individuals
in whose favor the power should be exer«
120
CONSTEUCTION AND INTEKPEETATIOlSr OP WILLS.
clsed, nevertheless that this right is sub-
ject to the limitation that the testator
must himself designate the class of per-
sons in whose favor the power may be ex-
ercised, with sufficient certainty so that
the court can ascertain who were the ob-
jects of the power; and that a power to
select the beneficiaries from among all
the members of the community, or all cor-
porations of a particular class, wherever
they may exist, however numerous, is
void for indefiniteness. Such a power is
distinctly in contravention of the policy
of the statute of wills. It substitutes for
the will of the testator the will and dis-
cretion of the donees of the power, and
makes the latter controllingin the disposi-
tion of the testator's property. That can-
not fairly be said to be a disposition by
the will of the testator, with which the
testator had nothing to do, except to
create an authority in another to dispose
of the testator's property according to
the will of the donee of the power, with no
limitation except that the distribution
shall be made among corporations to be
selected from a large class of corpora-
tions, wherever existing, answering the
description in the will. The statute of
powers does not define all the purposes
for which a power over property may be
created. It recognizes the existence of
powers of appointment and selection,
which were well known to the common
law. Bnt, as pointed out in the opinion
of Van Bhunt, P. J., in the opinion of the
general term, the statute presupposes
that a power of selection must be so de-
fined in respect of the objects that there
are persons who can come into the court
nnd Pay that they are embraced within the
class, and demand the enforcement of
the power; and the same principle is rec-
ognized in the provision that, "if the trus-
tee of a power with a right of selection
shall die leaving the power unexecuted, its
execution shall be decreed in equity for
the benefit of all persons designated as ob-
jects of the trust. " 1 Rev. St. p. 734, § 100.
It would be manifestly Impracticable for
the court to ascertain in respect of the
will in question what corporations con-
stituted the whole class of charitable in-
stitutions mentioned in the will, or to de-.
cree the execution of the power for the
benefit of the numerous class embraced in
the description. The difficulty in this case
is not avoided because the power of selec-
tion has in fact been exercised, nor be-
cause it has been exercised in favor of
corporations which, if they had been the
direct objects of the testator's bounty,
would have been entitled to take. The
vice lies in the unauthorized power.
What has been done under it is, in a legal
sense, immaterial. The validity of the
power depends upon its nature, and not
upon its execution. The heirs and next of
kin of the testatrix derive their title un-
der the law of descent and distribution,
and their rights attached, immediately on
the death of the testatrix, to any part of
the estate not validly disposed of by the
will. If the power attempted to be cheat-
ed by the will was valid, their rights,
whatever they were, were subject to it.
If invalid, and there was no valid alter da-
tive disposition by the testator of the res-
idue, they immediately became entitled.
This question was considered by Rapal,-
LO, J., in Holland v. Alcock, 118 N. Y. 323,
16 N. E. Rep. 809, 310, and It is unnecessary
to further elaborate it.
We are of oiJinion that the court below
erred in holding that the heirs of the tes-
tatrix are excluded, under the doctrine
of equitable conversion, from any inter-
est in the real estate of the testatrix
remaining undisposed of. The testatrix
intended to dispose of her whole estate,
which consisted both of real and perisonai
property. By the original will sljegave
the residue, after satisfying charges and
legacies, to certain specified corporations,
"after the same shall have been duly con-
verted into money. " B.v theseventh clause
of the will she directed the executors to
sell and convert into cash all her real es-
tate, "and also to do all and other acts
and things which may be proper and req-
uisite in iawforthe purpose of and to ac-
complish the due payment of the bequests,
and the carrying out all of the provisions
in this, my last will and testament, con-
tained. " By her second codicil she revoked
the residuary clause in the will, and sub-
stituted the power to theexecutors to dis-
pose of the residue, to which reference has
been made ; and in the gift to the institu-
tions to be designated she uses the same
language as in the gift to the corpora-
tions in the will, viz., "after the same
[her estate] shall have been converted into
money." It seems to be quite clear that
the conversion was directed for the pur-
poses of the will. She may reasonably
have supposed that it would be more con-
venient that the corporations should take
their respective interests as money, and
not as land. The personal estate was
largely in excess of the sum required to
pay charges and legacies outside of what
was given by the residuary clause. The di-
rection to sell the real estate apparently
could have had no purpose except to ac-
complish an easy division of the residuary
estate among the corporations to which
it was to be given. The gift failing, the
purpose of the conversion ceased, and
the direction to sell the real estate
was no longer imperative. The conver-
sion was not directed for the purpose
of distribution of the estate as money
among the next of kin. The testatrix
never intended that they should take it
in an.y form. The case falls within the
general principle declared in many cases,
that a power of sale in a will, however
peremptory in form, if it can be seen that
it was inserted in aid of a particular pur-
pose of the testator, or to accomplish his
general scheme of distribution, does not
ipso lacto operate as a conversion where
the scheme or purpose fails by rea.^on of
illegality, lapse, or other cause. In that
case the property retains its original char-
acter, and it goes to the heir or next of kin
as re;4l estate or personalty, as the case
may be. Nothing short of a clear inten-
tion, to be collected from the will, that the
land shall be sold and converted into
money before division, whether the par-
CONSTEUCTION AND INTERPEETATION OP WILLS.
121
tlcular purpose fail or not, will besiifBcient
In equity to change the character of the
property. In England even this is not
sufficient to excludethe heir.in theabsence
of an express gift of the proceeds away
from him. Fitch v. Weber, 6 Hare, 145;
Hopkinson v. Ellis, 10 Beav. 169; Taylor
V. Taylor, a De Gex, M. & G. 190; 1 Will-
iams, Ex'rs, 6fi3 et seq. In this country
the courts do not seem to hold so strict
a doctrine. The result is that thejudg-
meiAt should be reversed on the appeal of
the infant defendant, Kate Haddock, so
far as it adjudges an equitable conversion,
and in other respects it should beafflrnied.
All concur. Judgment accordingly.
122
CONSTRUCTION AND INTERPRETATION OF WILLS.
DAY et al. v. WALIiACH.
(33 N. E. 185, 144 111. 256.)
Supreme Court of Illinois. Jan. 18, 1893.
Appeal from circuit court, Sangamon coun-
ty; Jacob Fouke, Judge.
Cross bill by Mary Wallace against Ed-
ward Day and others. Decree for cross com-
plainant. Defendants appeal. Reversed.
Patton & Hamilton, for appellants. Ricks
& Creighton and Drennan & Hogan, for ap-
pellee.
WIIjKIN, J. By the eighth clause of the
last will of George Gregory, deceased, he de-
vised to appellants two tracts of land,— one
of 20 acres, and the other of 80 acres. By
the ninth clause of the same will he de-
vised to appellee two tracts also,— one of 20
acres, and the other of 80 acres. The 80-
acre tract In both clauses is the same. By
her certain cross biU in the court below, ap-
pellee alleged that the two clauses, in so far
as they attempt to devise the same land, are
Irreconcilably repugnant to each other, and
therefore the last must prevail, and she
asked the court to decree her the said 80-
acre tract, to the exclusion of appellants, and
the prayer of her bill was granted. From
that decree this appeal is prosecuted.
Appellants do not deny that said 80-acre
tract was devised twice, in the manner al-
leged in the biU, but they deny that the two
clauses of said wiU are thereby rendered
wholly and irreconcilably repugnant, within
the meaning of the rule which gives effect
to the latter clause, to the exclusion of the
former; and insist that the riile of construc-
tion in such case is to give the land to the
devisees in both clauses, concurrently as ten-
ants in common. The authorities are not
unHorm on the subject, but the later and
more generally approved rule seems to be as
contended by appellants. In Jarman on
Wills (volume 2, p. 44) it is said: "Some-
times it happens that the testator has, in sev-
eral parts of his wUl, given the same lands
to different persons in fee. At first sight
this seems to be a case of incurable repug-
nancy, and, as such, calling for the applica-
tion of the rule which sacrifices the prior
of two irreconcilable clauses, as the only
mode of escaping from the conclusion that
both are void. Even here, however, a rec-
onciling construction has been devised; the
mle being in such cases, according to the
better opinion, that the devisees take con-
currently. The contrary, indeed, is laid
down by Lord Coke and other early writers,
who say that the last devise shall take ef-
fect; and a similar opinion seems to have
been entertained by Lord Hardwicke, though
he admitted that latterly a different con-
struction had prevailed. The point under-
went much discussion in Sherratt v. Bentley,
2 Mylne & K. 149, already stated; and Lord
Brougham, after reviewing the authorities,
and fully recognizing the general docti-ine
which upholds the latter part of a will, by
the sacrifice of the former, to which it was
repugnant, considered that, consistently with
this rule, it might be held that, where there
are two devisees in fee of the same property,
the devisees take concurrently. 'If, in one
part of a wiU,' he said, 'an estate is given to
A., and afterwards the same testator gives
the same estate to B., adding words of ex-
clusion, as "not to A.," the repugnance would
be complete, and the rule would apply; but
if the same thing be given first to A., and
then to B., unless it be some indivisible chat-
tel, as in the case which Lord Hardwicke
puts in Ulrich v. Litchfield, 2 Atk. 372, the
two legatees may take together, without any
violence to the construction.' It seems there-
fore by no means inconsistent with the rule,
as laid down by Lord Coke, and recognized
by the authorities, that a subsequent gift,
entirely and irreconcUaby repugnant to a
former gift, of the same thing, shall abro-
gate and revoke it, if It be also held that
where the same thing is given to two differ-
ent persons, in different parts of the same
Instrument, each may take a moiety; though,
had the second gift been in a subsequent
will, it would, I apprehend, work a revoca-
tion." Redfield, speaking on the same sub-
ject, says: "The more rational, and perhaps
the general, opinion at the present day is
that, where the same thing is given in the
same wIU to two different persons, they
Shan, take jointly, either as joint tenants or
tenants in common, according to the terms
of the devise or bequest." After referring to
what was said by Lord Brougham in Sher-
ratt V. Bentley, 2 Mylne & K. 149, quoted by
Jarman, as above, he adds: "We fully concur
In his lordship's suggestions here, as everyone
must, we think, in regard to the reasonable-
ness of the latter rule of construction, when
It can be applied, as in the case of the de-
vise of the same estate to different devisees;
and we have no doubt it wUl generally be
recognized as the true rule, and the one es-
tablished by the authorities, for the govern-
ment of cases of this character. But, as weU
observed by the learned chancellor, In an aft-
er portion of his opinion, that Is not a case of
clear and irreconcilable repugnancy; but,
the testator having given the same estate to
two persons. In different portions of his will,
it is the same as if all the names had been
united in one gift of the same estate." 1
Redf. Wills, 443. The case of McGuire v.
Evans, 5 Ired. Eq. 269, goes to the full extent
of holding this doctrine, even as applied to
a double bequest of Indivisible property.
On the contrary, as said by Jarman, supra,
authorities are not wanting holding the con-
trary construction. HoUins v. Coonan, 9 GiU,
62; Covert v. Sebern, gowa,) 35 N. W. Rep.
636.
The case Is one of first Impression In this
state, and. In the conflict of authority on the
CONSTEUCTION AND INTERPRETATION OF WILLS.
125
subject, we are left free to adopt that rule
which to us seems most reasonable and best
calculated to efCectuate the intention of the
testator. Taking into consideration all the
facts of this case proper to be considered, it
is manifest that whatever presumption might
otherwise arise in favor of the latter clause
expressing that intention, rather than the for-
mer, is rebutted. In the first place, it is clear
from the two clauses that he intended to give
appellants 100 aa'es of land, and a like quan-
tity to appellee. He owned at the time of
making his wUl, and when he died, some 240
acres of land not disposed of by the wiU.
Eighty acres of this undisposed-of land was
in the same section as the 80 in question. It
is therefore clear that, instead of changing
his mind after making the first devise of the
80-acre tract described in the will, either he
or the person who wrote his wiU made a mis-
take in the description of one of the clauses.
It is impossible to tell in which clause that
mistake occurred. We know of no rule by
which we are allowed to say it was made in
the first, rather than in the last. We can con-
ceive of no good reason why the consequen-
ces of such a mistake should be wholly visit-
ed upon appellants. W^hile it is true that an
application of the rule laid down by the
above-named authors will not fuUy carry out
the intention of the testator, it will come
nearer accomplishing that purpose than the
one insisted upon by appellee, and adopted
by the court below. Certainly it does justice
between the parties. Appellants and appel-
lee should take said real estate as tenants in
common, appellants taking one undivided
half thereof, and appellee the other. We are
of the opinion that the decree below is erro-
neous, and should be reversed, and the judg-
ment of this court will be entered according-
ly, and the cause will be remanded to the cir-
cuit court, with directions to enter another
decree, conforming to the views herein ex-
pressed.
Reversed and remanded.
124
CONSTRUCTION AND INTEBPEETATION OP WILLS.
BISHOP V. McOLELLAND'S EX'RS.
(16 Atl. 1, 44 N. J. Eq. 450.)
Court of Chancery of New Jersey. November
13, 1888.
On final hearing on bill and answer.
Bill by Howard Bishop against the execu-
toi's of Mary A. McQlelland, deceased, for
the construction of a will.
C. B. Harvey, for complainant. George C.
Ludlow, for defendants.
VAN FLEET, V. 0. This is a suit for a
legacy. The case presents but a single ques-
tion, and that is, what is the complainant
entitled to, $12,000 or $6,000? The complain-
ant is a great-grandson of Mrs. Mary A. Mc-
Clelland, deceased. By her will, made in
March, 1864, Mrs. McClelland gave her two
grandchildren, Howard W. Bishop (the fath-
er of the complainant) and Alexander McC.
Bishop, each the sum of $3,000. Howard W.
Bishop died in September, 1866, leaving the
■complainant, his only child, surviving him.
The testati'ix, by a codicil made in December,
1868, revoked the gift made by her will of
^3,000 each to her two grandchildren, and
in lieu thereof gave to her executors the sum
of S12,(X)0, with direction to invest the same
for the sole use and benefit of her grandson,
Alexander McC. Bishop, and of her great-
grandson, the son of her deceased grandson,
Howard W. Bishop. The codicil then says:
"And I hereby order and direct my executors
to pay over one-half of the clear yearly in-
come of said sum to Alexander, and the
other half of said income to the guardian of
my great-grandson, until my great-grandson
shall become of lawful age; when my execu-
tors shall pay over the same, together with
the principal thereof, to my great-grandson
and my grandson Alexander, share and share
alike. Should either of said descendants
die, the survivor shaU have the whole of the
interest on said sum. Should both these die
before the said great-grandchUd comes of
age, the whole, together with the principal
thereof, shall revert to my estate, to be dis-
posed of accordingly." By a further codicil,
made in January, 1869, the testatrix said:
"If my grandson Alexander McC. Bishop,
and my great-grandson Howard Bishop, both
die without children, then their and each of
their shares shall revert to my estate." The
testatrix died in February, 1870. Her grand-
son Alexander McC. Bishop died without is-
sue, never having been married, in April,
1885. The complainant attained his majori-
ty in February, 1888. Shortly after that
event he made demand on the defendants
for the payment of the whole $12,000; claim-
ing that, as he had survived his colegatee,
he, on attaining his majority, became en-
titled, by the true construction of the will,
to the whole fund. The defendants offered
to pay him one-half of the whole fund, to-
gether with the interest on the whole up to
the time he attained his majority; but this
he declined, and thereupon brought this suit.
The court cannot in this suit, or on the
present record, decide any question except
this: Is the complainant entitled to the
whole fund in question? If it is found that
he is not, but is only entitled to half, the
question where the other half goes, whether
it faUs into the residue of the testatrix's es-
tate, or goes to the personal representatives
of the deceased legatee, is one that the court
cannot deal with in the present condition of
the record. None of the persons having the
highest beneficial interest In the decision of
that question are before the court as parties,
and they would not, therefore, be bound by
any decision of that question which might
be made in this suit. The gift over, or rath-
er the direction contained in the last codicil,
declaring that, if both the grandson and
great-grandson die without children, that
then their and each of their shares shall re-
vert, must, according to the prevailing rule
in such cases, be held to mean that if both
should die before the time fixed for the
payment of the legacies, that is, before the
great-grandson attained 21 years of age, that
then, and in that case, the $12,000 should
faU into the residue of the testatrix's estate.
The settled rule of construction in such case
is not to interpret the will as meaning death
at any time, but death before the legacy or
fund is, by the terms of the will, payable
or distributable. Baldwin v. Taylor, 37 N
J. Eq. 78; on appeal, 38 N. J. Eq. 637.
The complainant puts his right to the
whole fund in question on two grounds:
First, that there is a gift made to him, by
implication, of the whole fund; and, second,
it is claimed that where a bequest is made
to two persons of a particular sum, payable
at a future time, with direction that the
money shall, in the mean time, be invested,
and the interest thereof be paid to the lega-
tees, and there is also a gift of the interest
of the whole fund to the survivor, in case
one dies before the time for payment arrives,
that the gift of the interest in such case
carries with it the whole fund, both princi-
pal and interest. The claim is that by force
of this rule the complainant is entitled to
the whole fund. On neither ground can the
complainant's claim, in my judgment, be
sustained. A bequest may undoubtedly arise
from implication, but, to wari-ant the court
in so declaring, there must be something
more than conjecture to support its declara-
tion. The implication must be a necessary
one. The probability of an intention to make
the gift implied must appear to be so strong
that an intention contrary to that which is
imputed to the testator cannot be supposed
to have existed in his mind. A construction
in favor of a gift by implication should
never be adopted, except in cases where,
after a careful and full consideration of the
whole will, the mind of the judge is con-
vinced that the testator intended to make
CONSTRUCTION AND INTERPRETATION OE WILLS.
125
the gift. Denise's Ex'rs v. Denise, 37 N. J.
Bq. 163. Now, as I read the testati-ix's will,
there is not only nothing on its face which
will support an implication that the testatrix
meant that the complainant should, in any
event or under any circumstances, take the
whole fund, but, on the contrary, I think it
quite clearly appears that such was not her
intention. The gift to the complainant and
his co-legatee is made by separate and dis-
tinct parts or shares. The principal is to be
paid to them "share and share aUke." They
take equaEy in severalty. Under a gift in
this form to two or more, the legatees take,
not as joint tenants, but as tenants in com-
mon, without right of survivorship. 2 Wil-
liams, Ex'rs, 1463; Hawk. Wills, 112; Heathe
V. Heathe, 2 Atk. 121; Vreeland v. Van Ry-
per, 17 N. J. Eq. 133. The same intention
is made manifest again, when the testatrix
makes provision as to what shall be done in
case either of the legatees happen to die be-
fore the fund becomes payable. In that
event she says: "The survivor shall have
the whole of the interest on said sum;" thus,
by express words, limiting the enlargement
or increase of the right of the survivor to the
interest, but leaving his right to the principal
exactly as it stood before; and so, too, it will
be observed that the testatrix, when she
gives direction as to what shall be done in
case both legatees die without children be-
fore the fund becomes payable, treats or
speaks of their rights in the fund as several
and distinct Her language is that "their
and each of their shares" shall revert to her
estate. There Is nothing in the testamen-
tary provisions under consideration which
will, in my judgment, support the claim of
a gift by Implication. The other claim of
the complainant is, in my opinion, also
groundless. There can be no doubt that a
gift of the interest, income, or produce of a
fund, without limitation as to continuance,
or without limit as to time, will, according
to a settled rule of construction, be held to
pass the fund itself; and this wUl be the
efCect given to a gift made in this form,
whether the gift be made directly to the lega-
tee, or through the intervention of a trustee.
2 Williams, Ex'rs, 1193; Craft v. Snook, 13
N. J. Eq. 121; Gulick's Ex'rs v. Gulick, 25
N. J. Eq. 324, on appeal, 27 N. J. Eq. 498;
Huston V. Read, 32 N. J. Eq. 591. But it is
perfectly plain that the complainant cannot,
by force of this rule, lay the slightest ^laim to-
that half of the fund in question which was
given to his co-legatee. It is true that, in
consequence of the death of his co-legatee
before the fund became payable, he became
entitled, under the will, to the interest of the
whole fund from the date of the death of
his co-legatee up to the time when the fund
became payable, but the gift of the interest
to him was not forever or without limit as to
time. The natural and obvious meaning of
the gift of "the whole of the interest on said
sum" to the survivor is not that the survivor
shall have a right to take the interest on the
whole fund forever, or without limit as to
time, but, on the contrary, that he shall have
the right to take it merely for the period in-
tervening between the time when his co-lega-
tee died and the time when the fund became
payable. As I construe the testamentary
provisions on which the complainant rests
his claim, he is entitled to one-half of the
fund in question, together with the interest
on the whole fund from the time of the death
of his co-legatee up to the time the com-
plainant attained his majority, but to noth-
ing more.
126
JURISDICTION TO GRANT LETTERS.
SCOTT V. MoNEAL et al.
(14 B. Ct. 1108, 154 U. S. 34.)
SuDreme Court of the United States. May 14,
1894.
No. 890.
In error to the supreme court of the state
of Washington.
This was an action of ejectment, brought
January 14, 1892, In the superior court of
Thurston county, in the state of Washington,
by Moses H. Scott against John McNeal and
Augustine McNeal to recover possession of a
tract of land in that county.
At the trial, it was conceded that the title
in this land was in the plaintifC until 1888;
and he testified that he entered into posses-
sion thereof, and made improvements there-
on, and had never parted with the possession,
nor authorized any one to go upon the land;
that he had demanded possession of the de-
fendants, and they had withheld it from him;
and that its rental value was $100 a year.
The defendants denied the plaintifC's title,
and claimed titie in themselves tmder a deed
from an administrator of the plaintiff's es-
tate, appointed In April, 1888; and in thedr
answer alleged that in March, 1881, the plain-
tifC mysteriously disappeared from his place
of abode, and without the knowledge of those
with whom he had been accustomed to as-
sociate, and remained continuously away un-
til July, 1891, and was generally believed by
his former associates to be dead; and spe-
cifically alleged, and at the ti-ial offered evi-
dence tending to prove, the following facts:
On April 2, 1888, Mary Scott presented to
the probate court of the county of Thurston,
in the territory of Washington, a petition for
the appointment of R. H. Milroy as admin-
istrator of the estate of the plaintifC, alleging
"that one Moses H. Scott, heretofore a resi-
dent of the above-named county and terri-
tory, mysteriously disappeared some time
during the month of March, 1881, and more
than seven years ago; that careful inquiry
made by relatives and friends of said Moses
H. Scott, at difCerent times since his said dis-
appearance, has failed to give any trace or
information of his whereabouts, or any evi-
dence that he is still living; that your peti-
tioner verily believes that said Moses H.
Scott is dead, and has been dead from the
time of his said disappearance;" that he was
never married, and left no last wiU or testa-
ment yet heard of; that he left real estate in
his own right in this county of the value of
$600, more or less; that his heirs were three
minor children of a deceased brother; and
that the petitioner was a judgment creditor
of Scott.
Notice of that petition was given by post-
ing in three public places, as required by law,
a notice, dated April 7, 1888, signed by the
probate judge, and in these words: "In the
Probate Court of Thurston County, W. T.
Mary Scott having filed in this court a peti-
tion praying for the appointment of E. H.
Milroy as administrator of the estate of
Moses H. Scott, notice is hereby given that
the hearing and consideration of said petition
has been fixed for Friday, April 20, 1888, at
10 o'clock a, m., at the office of the under-
signed."
At the time thus appointed, the probate
court, after appointing a guardian ad litem
for said minors, and hearing witnesses, made
an order by which, "it duly appearing that
said Moses H. Scott disappeared over seven
years ago, and that since said time nothing
has been heard or known of him by bis rela-
tives and acquaintances, and that said rela-
tives and acquaintances believe Him to be
dead, and that his surroundings, when last
seen (about eight years ago), and the circum-
stances of that time and immediately and
shortly afterwards, were such as to give his
relatives and acquaintances the belief that he
was murdered at about that time; and it ap-
pearing that he has estate in this county:
Now, therefore, the cotu-t find that the said
Moses H. Scott is dead to all legal Intents and
purposes, having died on or about March 25,
1888; and no objections having been filed or
made to the said petition of Mary Scott, and
the guardian ad litem of the minor heirs here-
in consenting, it Is ordered that said R. H.
Milroy be appointed administi^tor of said
estate, and that letters of guardianship issue
to him upon his filing a good and sufficient
bond in the sum of one thousand dollars."
Letters of administration were issued to Mil-
roy, and he gave bond accordingly.
On July 16, 1888, the probate court, on the
petition of Milroy as administrator, and after
the usual notice, and with the consent of the
guardian ad litem of said minors, made an
order, authorizing Milroy as administrator to
sell all Scott's real estate. Pursuant to this
order, he sold by public auction the land now
in question, for the price of $301.50, to Sam-
uel C. Ward. On November 26, 1888, the
probate court confirmed the sale, the land
was^ conveyed to Ward, and the purchase
money was received by Milroy, and was aft-
erwards applied by him to the payment of
a debt of Scott, secured by mortgage of the
land.
On November 26, 1889, Ward conveyed this
land by warranty deed to the defendants, for
a consideration paid of $800; and the defend-
ants forthwith took and since retained pos-
session of the land, and made valuable im-
provements thereon.
At the time of the offer of this evidence,
the plaintifC objected to the admission of the
proceedings in the probate court, upon the
ground that they were absolutely void, be-
cause no administration on the estate of a
live man could be valid, and the probate
court had no jurisdiction to make the orders
in question; and objected to the rest of the
evidence as irrelevant and immaterial. But
the court ruled that, the probate court having
passed upon the sufficiency of the petition to
give it jurisdiction, and having found that
the law presumed Scott to be dead, its pro-
JURISDICTION TO GRANT LETTERS.
127
ceedings were not absolutely void; and there-
fore admitted tlie evidence objected to, ani.;
directed a verdict for tlie defendants, wliich
was returned by the jury, and judgment ren
^ered thereon. The plaintiff duly excepted
to the rulings and instructions at the trial,
and appealed to the supreme court of the
state.
In that court, it was argued In his behalf
"that to give effect to the probate proceed-
ings under the circumstances would be to de-
prive him of his property without due pro-
cess of law." But the court held the proceed
ings of the probate court to be valid, and
therefore aflarmed the judgment 5 Wash.
309, 31 Pac. 873.
The plaintiff sued out this writ of error,
and assigned for error that the probate pro-
ceedings, as regarded him and his estate,
were without jurisdiction over the subject-
matter, and absolutely void; and that the
judgment of the superior com^, and the judg-
ment of the supreme court of the state af-
firming that judgment, deprived him of h'=
property without due ■ process of law, and
were contrary to the fourteenth amendment
of the constitution of the United States.
Nathan S. Porter, for plaintiff in eiTor.
Milo A. Boot, for defendants in error.
Mr. Justice GRAY, after stating the case,
delivered the opinion of the court.
The plaintiff formerly owned the land in
question, and still owns it, unless he has been
deprived of it by a sale and conveyance, un-
der order of the probate court of the county
of Thurston and territory of Washington, by
an administrator of his estate, appointed by
that court on April 20, upon a petition filed
AprU 2, 1888.
The form of the order appointing the ad-
ministrator is i)ecullar. By that order, after
reciting that the plaintiff disappeared mor«
than seven years before, and had not since
been seen or heard of by his relatives and
acquaintances, and that the circumstances at
and immediately after the time when he was
last seen, about eight years ago, were such
as to give them the belief that he was mur-
dered about that time, the probate court
finds that he "is dead to all legal Intents
and purposes, having died on or about March
25, 1888;" that is to say, not at the time of
his supposed murder, seven or eight years be-
fore, but within a month before the filing of
the petition for administration. The order
also, after directing that Milroy be appointed
administrator, purports to direct that "letters
of guardianship" issue to him upon his giv-
ing bond; but this was evidently a clerical
error in the order or in the record, for it ap-
pears that he received letters of administra-
tion and qualified'under them.
The fundamental question in the case is
whether letters of administration upon the
estate of a person who is in fact alive have
any validity or effect as against him.
By the law of England and America, be-
fore the Declaration of Independence, and
for almost a century afterwards, the abso-
lute nullity of such letters was treated as
beyond dispute.
In Allen v. Dundas, 3 Term R. 125, in 1789,
in which the court of king's bench held that
payment of a debt due to a deceased person
to an executor who had obtained probate of
a forged will discharged the debtor, notwith-
standing the probate was afterwards de-
clared nuU and void, and administration
gi'anted to the next of kin, the decision went
upon the ground that the probate, being a
judicial act of the ecclesiastical court within
its jurisdiction, could not, so long as it re-
mained unrepealed, be impeached in the tem-
poral courts. It was argued for the plaintiff
that the case stood as if the creditor had not
been dead, and had himself brought the ac-
tion, in which case it was assumed, on all
hands, that payment to an executor would be
no defense. But the court clearly stated the
essential distinction between thei two cases.
Mr. Justice Ashurst said: "The case of a
probate of a supposed will during the life
of the party may be distinguished from the
present, because during his life the ecclesias-
tical court has no jurisdiction, nor can they
inquire who is his representative; but, when
the party is dead, it is within their jurisdic-
tion." And Mr. Justice Buller said: "Then
this case was compared to a probate of a sup-
posed will of a living person; but in such a
case the ecclesiastical court have no juris-
diction, and the probate can have no effect:
their jurisdiction is only to grant probates of
the wills of dead persons. The distinction in
this respect is this: if they have jurisdiction,
their sentence, as long- as it stands unrepeal-
ed, shall avail in all other places; but where
they have no jurisdiction, their whole pro-
ceedings are a nullity." Id. l30. And such
is the law of England to this day. Williams,
Ex'rs (9th Ed.), 478, 1795; Taylor, Ev. (8th
Ed.) §§ 1677, 1714.
In Griffith v. Frazier, 8 Cranch, 9, 23, in
1814, this court, speaking by Chief Justice
Marshall, said: "To give the ordinary jm-is-
diction, a case in which, by law, letters of
administration may issue, must be brought
before him. In the common case of intes-
tacy, it is clear that letters of administration
must be granted to some person by the ordi-
nary; and though they should be granted to
one not entitled by law, still the act is bind-
ing until annulled by the competent author-
ity, because he had power to grant letters
of administration in the case. But suppose
administration to be granted on the estate of
a person not really dead. The act, all will
admit, is totally void. Yet the ordinary must
always inquire and decide whether the per-
son, whose estate is to be committed to the
care of others, be dead or in life. It is a
branch of every cause in which letters of ad-
ministration issue. Yet the decision of the
ordinary that the person on whose estate he
acts is dead, if the fact be otherwise, does not
invest the person he may appoint with the
123
JUEISDICTION TO GRANT LETTERS.
character or powers of an administrator.
Tlie case, in truth, was not one within his
jurisdiction. It was not one in which he
had a right to deliberate. It was not com-
mitted to him by the law. And although one
of the points occurs in all cases proper for
his tribunal, yet that point cannot bring the
subject within his jurisdiction." See also In-
surance Co. V. Tisdale, 91 U. S. 238, 243;
Hegler v. Faulkner, 153 U. S. 109, 118, 14
Sup. Ct. 7T9.
The same doctrine has been affirmed by the
supreme court of Pennsylvania in a series of
cases beginning 70 years ago. MePherson v.
eunlifC (1824) 11 Serg. & R. 422, 430; Peebles'
Appeal (1826) 15 Serg. & E. 39, 42; Devlin v.
Com. (1882) 101 Pa. St. 273. In the last of
those cases, it was held that a grant of let-
ters of administration upon the estate of a
person who, having been absent and imheard
from for 15 years, was presumed to be dead,
but who. as it afterwards appeared, was in
fact alive, was absolutely void, and might be
impeached collaterally.
The supreme judicial court of Massachu-
setts, in 1861, upon full consideration, held
that an appointment of an administrator of a
man who was in fact alive, but had been ab-
sent and not heard from for more than seven
years, was void, and that payment to such an
administrator was no bar to an action
brought by the man on his return; and, in
answer to the suggestion of counsel, that
"seven years' absence, upon leaving one's
usual home or place of business, without be-
ing heard of, authorizes the judge of probate
to treat the case as though the party were
dead," the court said: "The error consists in
this, that those facts are only presumptive
evidence of death, and may always be con-
trolled by other evidence showing that the
fact was otherwise. The only jurisdiction Is
over the estate of the dead man. When the
presumption arising from the absence of sev-
en years is overthrown by the actual personal
presence of the supposed dead man, it leaves
no ground for sustaining the jurisdiction."
Jochamsen v. Ban]£, 3 AUen, 87, 96. See,
also, Waters v. Stickney, 12 Allen, 1, 13; Day
V. Floyd, 130 Mass. 488, 489.
The Civil Code of Louisiana, in title 3, "Of
Absentees," contains provisions for the ap-
pointment of a curator to take care of the
property of any person who is absent from or
resides out of the state, without having left
an attorney therein; and for the putting of
his presumptive heirs into provisional posses-
sion after he has been absent and not heard
from for five, or, if he has left an attorney,
seven, years, or sooner if there be strong pre-
sumption of his death; and for judicial sale,
if necessary, of his movable or personal prop-
erty, and safe investment of the proceeds;
and, upon proof that he has not been heard
from for 10 years, and has left no known
heirs, for sale of his whole property, and pay-
ment of the proceeds into the treasury of the
state, as in the case of vacant successions;
but neither the curator nor those in provision-
al possession can alienate or mortgage his im
movables or real estate; and, if he returns at
any time, he recovers his whole property, or
the proceeds thereof, and a certain proportion
of the annual revenues, depending upon the
length of his absence. The main object of
those provisions, as their carefur regulations
show, is to take possession of and preserve
the property for the absent owner, not to
deprive him of it upon an assumption that he
is dead. Accordingly, the supreme court of
Louisiana held that the appointment, by a
court having jurisdiction of successions, of
an administrator of the estate of a man rep-
resented to be dead, but who was in fact
alive at the time of the appointment, was
void; and that persons claiming land of his,
under a sale by such administrator under or-
der of the court, followed by long possession,
could not hold the land against his heirs;
and, speaking by Chief Justice Manning, said:
"The title of Hotchklss as administrator is
null, because he had no authority to make it,
and the prescription pleaded does not validate
it. It was not a sale, the informalities of
which are cured by a certain lapse of time,
and which becomes perfect through prescrip-
tion; but it was void, because the court was
without authority to order it. * * * It is
urged, on the part of the defendants, that the
decree of the court ordering the sale of the
succession property should protect them, and,
as the court which thus ordered the sale had
jiu'isdiction of successions, it was not for
them to look beyond it. But that is assum-
ing as true that which we know was not
true. The owner was not dead. There was
no succession." And the court added that
Chief Justice Marshall, in Griffith v. E'^azier,
above cited, disposed of that position. Burns
V. Van Loan (1877) 29 La. Ann. 560, 563.
The absolute nullity of administration
granted upon the estate of a living person
has been directly adjudged or distinctly rec-
ognized in the courts of many other states.
French v.Frazier's Adm'r (1832) 7 J.J.Marah.
425,427; State v. White (1846)7Ired.ll6; Dun-
can V. Stewart (1854) 25 Ala. 408; Andrews
V. Avory (1858) 14 Grat 229, 236; Moore v.
Smith (1858) 11 Rich. Law, 569; Morgan v.
Dodge (1862) 44 N. H. 255, 259; Withers v.
Patterson (1864) 27 Tex. 491, 497; Johnson v.
Beazley (1877) 65 Mo. 250, 264; Melia v. Sim-
mons (1878) 45 Wis. 334; D'Arusment v.
Jones (1880) 4 Lea, 251; Stevenson v. Supe-
rior Court (1882) 62 Cal. 60; Perry v. Rail-
road (1882) 29 Kan. 420, 423; Thomas v. Peo-
ple (1883) 107 HI. 517, in which the subject is
fully and ably treated.
The only judicial opinions cited at the bar
(except the judgment below in the present
case) which tend to support the validity of
letters of administration upon the estate of a
living person were delivered in the courts of
New York and New Jersey within the last 20
years.
In Roderigas v. Institution, 63 N. Y. 460,
in 1875, a bare majority of the court of ap-
peals of New York decided that payment of 6,
JURISDICTIOlsr TO GRANT LETTERS.
120
deposit In a savings institution to an admin-
istrator under letters of administration is-
sued in tlie lifetime of the depositor was a
good defense to an action by an administra-
tor appointed after his death, upon the
ground that the statutes of the state of New
Yorli made it the duty of the surrogate, when
applied to for administration on the estate
of any person, to try and determine the ques-
tion whether he was alive or dead, and there-
fore his determination of that question was
conclusive. That decision was much criti-
cised as soon as it appeared, notably by Chief
Justice Redfleld in 15 Am. Law Reg. (N. S.)
212. And in a subsequent case between the
same parties in 1879 the same court unani-
mously reached a different conclusion, be-
cause evidence was produced that the surro-
gate never in fact considered the question of
death, or had any evidence thereof,— thus
making the validity of the letters of adminis-
tration to depend, not upon the question
whether the man was dead, but upon the
question whether the surrogate thought so.
Eoderlgas v. Institution, 76 N. Y. 316.
In Plume v. Institution, 46 N. J. Law, 211,
230, in 1884, which was lilsewise an action to
recover the amount of a deposit in a savings
institution, the plaintiff had been appointed
by the surrogate administrator of a man who,
as the evidence tended to show, had neither
drawn out any part of the deposit, nor been
heard from, for more than 20 years; an infe-
rior court certified to the supreme court of
New Jersey the questions whether payment
of the amount to the plaintiff wotdd bar a re-
covery thereof by the depositor, and whether
the plaintiff was entitled to recover; and
that court, m giving judgment for the plain-
tiff, observed, by way of distinguishing the
case from the authorities cited for the de-
fendant, that "in most, if not all, of such
cases, it was affirmatively shown that the al-
leged decedent was actually alive at the time
of the Issuance of letters of administration,
while in the present case there is no reason
for even surmising such to have been the
fact"
The grounds of the judgment of the su-
preme court of the state of Washington
In the case at bar, as stated in its opinion,
were that the equities of the case appeared
to be with the defendants; that the court
was inclined to follow the case of Roderigas
V. Institution, 63 N. Y. 460; and that, under
the laws of the territory, the probate court,
on an application for letters of administra-
tion, had authority to find the fact as to the
death of the intestate, the court saying:
"Our statutes only authorize administration
of the estates of deceased persons, and before
granting letters of administration the court
must be satisfied by proof of the death ol the
intestate. The proceeding is substantially in
rem, and all parties must be held to have
received notice of the institution and penden-
cy of such proceedings, where notice Is given
as required by law. Section 1299 of the
1881 Code gave the probate coxirt exclusive
original jurisdiction in such matters, an!
authorized such court to summon parties and
witnesses, and examine them touching any
matter in controversy before said court or
in the exercise of its jurisdiction." Such
were the grounds upon which it was held
that the plaintiff had not been deprived of
his property without due process of law.
5 Wash. 309, 317, 318, 31 Pac. 873.
After giving to the opinion of the supreme
court of the state the respectful considera-
tion to which it Is entitled, we are unable to
concur in its conclusion or in the reasons on
which it Is founded.
The fourteenth article of amendment of the
constitution of the United States, after other
provisions which do not touch this case, or-
dains: "Nor shall any state deprive any
person of life, liberty or property without due
process of law, nor deny to any person with-
in Its jurisdiction the equal protection of
the laws." These prohibitions extend to all
acts of the state, whether through its legis-
lative, its executive, or Its judicial authori-
ties. Virginia v. Rives, 100 U. S. 313, 318,
319; Ex parte Virginia, Id. 339, 346; Neal v.
Delaware, 103 U. S. 370, 397. And the first
one, as said by Chief Justice Waite in U. S.
T. Cruikshank, 92 U. S. 542, 554, repeating
the words of Mr. Justice Johnson in Bank
V. Okely, 4 Wheat. 235, 244, was intended
"to secure the individual from th^ arbitrary
exercise of the powers of government, un-
restrained by the established principles of
private rights and distributive justice."
Upon a writ of error to review the judg-
ment of the highest court of a state upon
the ground that the judgment was against a
right claimed under the constitution of the
United States, this court is no more bound
by that court's construction of a statute of
the territory or of the state, when the ques-
tion is whether the statute provided for the
notice required to constitute due process of
law, than when the question is whether the
statute created a contract which has been
impaired by a subsequent law of the state,
or whether the original liability created by
the statute was such that a judgment upon
It has not been given due faith and credit
in the courts of another state. In every
such case, this com't must decide for itself
the true construction of the statute. Hunt-
ington v. Attrill, 146 U. S. 657, 683, 684, 13
Sup. Ct. 224; Mobile & O. R. Co. v. Tennes-
see, 153 U. S. 486, 492-^95, 14 Sup. Ct. 968.
No judgment of a court is due process of
law, if rendered without jurisdiction In the
court, or without notice to the party.
The words "due process of law," when ap-
plied to judicial proceedings, as was said by
Mr. Justice Field, speaking for this court,
"mean a course of legal proceedings accord-
ing to those rules and principles which have
been established in our systems of juris-
prudence for the protection and enforcement
of private rights. To give such proceedings
any validity, there must be a tribunal compe-
tent by its constitution— that is, by the law
T. A w aTjnn .
130
JURISDICTION TO GRANT LETTERS.
of its creation— to pass upon the subject-mat-
ter of the suit; and, If that involves merely
a determination of the personal liability of
the defendant, he must be brought within its
jurisdiction by service of process within the
state, or his voluntary appearance." Pen-
noyer v. NefC, 95 U. S. 714, 733.
Even a judgment in proceedings strictly In
rem binds only those who could have made
themselves parties to the proceedings, and
who had notice, either actually or by the
thing condemned being first seized into the
custody of the court. The Mary, 9 Cranch,
126, 14-1; Hollingsworth v. Barbour, 4 Pet.
466, 475; Pennoyer v. NefC, 95 U. S. 714, 727.
And such a judgment is wholly void if a
fact essential to the jurisdiction of the court
did not exist. The jiu-isdiction of a foreign
court of admiralty, for Instance, m some
cases, as observed by Chief Justice Marshall,
"unquestionably depends a& well on the state
of the thing as on the constitution of the
court. If by any means whatever a prize
court should be induced to condemn, as prize
of war, a vessel which was never captured,
it could not be contended that this con-
demnation operated a change of property."
Rose V. Himely, 4 Cranch, 241, 269. Upon
the same principle, a decree condemning a
vessel for unlawfully tailing clams, in viola-
tion of a statute which authorized proceed-
ings for her forfeiture in the county in which
the seizure was made, was held by this
com-t to be void, and not to protect the officer
maliing the seizure from a suit by the owner
of the vessel, in which it was proved that
the seizure was not made in the same county,
although the decree of condemnation recited
that it was. Thompson v. Whitman, 18
Wall. 457.
The estate of a person supposed to be dead
is not seized or talien into the custody of the
court of probate upon the filing of a peti-
tion for administration, but only after and
under the order granting that petition; and
the adjudication of that com-t is not upon
the question whether he is living or dead, but
only upon the question whether and to whom
letters of administration shaU issue. In-
surance Co. V. Tisdaie, 91 U. S. 238, 243.
The local law on the subject, contained in
the Code of 1881 of the territory of Wash-
ington, in force at the time of the proceed-
ings now in question, and since continued in
force by article 27, § 2, of the constitution
of the state, does not appear to us to war-
rant the conclusion that the probate court is
authorized to conclusively decide, as against
a living person, that he is dead, and his es-
tate therefore subject to be administered
and disposed of by the probate court
On the contrary, that law, in its very
terms, appears to us to recognize and assume
the death of the owner to be a fundamental
condition and prerequisite to the exercise by
the probate court of jurisdiction to grant let-
ters testamentary or of administration upon
his estate, or to license any one to sell his
lands for the payment of his debts. By
section 1, the common law of England, so far
as not inconsistent with the constitution and
laws of the United States, or with the local
law, is made the rule of decision. In the
light of the common law, the exclusive orig-
inal jurisdiction conferred by section 1299
upon the probate covrt in the probate of wills
and the granting of letters testamentary or
of administration is limited to the estates of
persons deceased; and the power conferred
by that section to summon and examine on
oath, as parties or witnesses, executors and
administrators or other persons intrusted
with or accountable for the "estate of any
deceased person," and "any person touching
any matter of controversy before said court
or in the exercise of its jurisdiction," is
equally limited. By section 1340, wiUs are
to be proved and letters testamentary or of
administi'ation are to be granted in the coun-
ty of "which deceased was a resident," or in
which "he may have died," or in which any
part of his estate may be, "he having died
out of the territory." By section 1388, ad-
ministration of the estate of "a person dying
intestate" is to be granted to relatives, next
of kin, or creditors, in a certain order, with
a proviso in case the person so entitled or
interested neglect "for more than forty days
after the death of the intestate" to apply for
administration. By section 1889, an appli-
cation for administration must "set forth
the facts essential to giving the court juris-
diction of the case," and state "the names
and places of residence of the heirs of the
deceased, and that the deceased died with-
out a wiU;" and, by section 1391, notice of
such application is to be given by posting
in three public places in the county where the
court is held a notice "containing the name
of the decedent," the name of the applicant,
and the time of hearing. And, by sections
1493 and 1494, a petition by an executor or
administrator for the sale of real estate for
the payment of debts must set forth "the
amount of the personal estate that has come
to his hands, and how much, if any, remains
undisposed of, a list and the amounts of the
debts outstanding against the deceased, as
far as the same can be ascertained, a descrip-
tion of aU the real estate of which the testa-
tor or intestate died seized, the condition and
value of the respective lots and portions, the
names and ages of the devisees, if any, and
of the heirs of the deceased;" and must
show that it is necessary to sell real estate
"to pay the aUowance to the family, the
debts outstanding against the deceased, and
the expenses of administration."
Under such a statute, according to the over-
whelming weight of authority, as shown by
the cases cited in the earlier part of this
opinion, the jurisdiction of the court to which
is committed the control and management
of the estates of deceased persons, by what-
ever name it is called,— ecclesiastical court,
probate court, orphans' covirt, or court of the
ordinary or the surrogate, — does not exist or
take effect before death. AU proceedings of
JURISDICTION TO GRANT LETTERS.
131
succ courts m the probate of -wills and the
granting of administrations depend upon the
fact that a person is dead, and are nuU and
void if he is alive. Their jurisdiction in this
respect being limited to the estates of de-
ceased persons, they have no jurisdiction
whatever to administer and dispose of the
estates of living persons of fuU age and
sound mind, or to determine that a living
man is dead, and thereupon undertake to dis-
pose of his estate.
A court of probate must, indeed, inquire Iir-
to and be satisfied of the fact of the death of
the person whose will is sought to be proved
or whose estate is sought to be administered,
because, without that fact, the court has no
jurisdiction over his estate; and not. because
its decision upon the question, whether he is
living or dead, can in any wise bind or estop
him, or deprive him, while alive, of the title
or control of his property.
As the jurisdiction to issue letters of ad-
ministration upon his estate rests upon the
fact of his death, so the notice given before
issuing such letters assumes that fact, and is
addressed, not to him, but to those who after
his death may be interested in his estate, as
next of kin, legatees, creditors, or otherwise.
Notice to them cannot be notice to him, be-
cause all their interests are adverse to his.
The whole thing, so far as he is concerned, is
res inter alios acta.
Next of kin or legatees have no rights in
the estate of a living person. His creditors.
Indeed, may, upon proper proceedings, and
due notice to him, in a court of law or of eq-
uity, have specific portions of his property ap-
plied in satisfaction of their debts. But
neither creditors nor purchasers can acquire
any rights in his property through the action
of a court of probate, or of an administrator
appointed by that court, dealing, without any
notice to him, with his whole estate as if he
were dead.
The appointment by the probate court of an
administrator of the estate of a living per-
son, without notice to him, being without ju-
risdiction, and wholly void as against him,
all acts of the administrator, whether ap-
proved by that court or not. are equally void.
The receipt of money by the administrator is
no discharge of a debt, and a conveyance of
property by the administrator passes no title.
The fact that a person has been absent and
not heard from for seven years may create
such a presumption of his death as, if not
overcome by other proof, is such prima facie
evidence of his death that the probate court
may assume him to be dead, and appoint an
administrator of his estate, and that such ad-
ministrator may sue upon a debt due to him.
But proof, under proper pleadings, even in a
icoUateral suit, that he was alive at the time
of the appointment of the administrator, con-
trols and overthrows the prima facie evi-
dence of his death, and establishes that the
court had no jurisdiction and the administra-
tor no authority; and he is not bound, either
by the order appointing the administrator or
by a judgment in any suit brought by the ad-
ministrator against a third person, because
he was not a party to and had no notice of
either.
In a case decided in the circuit court of the
United States for the southern district of
New York in 1880, substantially like Roder-
igas V. Institution, as reported in 63 N. Y. 460,
above cited, Judge Choate, in a learned and
able opinion, held that letters of administra-
tion upon the estate of a living man, issued
by the surrogate after judicially determining
that he was dead, were null and void as
against him; that payment of a debt to an
administrator so appointed was no defense
to an action by him against the debtor; aii'i
that to hold such administi-ation to be valid
against him would deprive him of his prop-
erty without due process '>f law, within the
meaning of the fourteenth amendment of the
constitution of the United States. This court
concurs in the proposition there announced
"that it is not competent for a state, by a law
declaring a judicial determination that a mnn
is dead, made in his absence, and without
any notice to or process issued against him,
conclusive for the purpose of divesting him
of his property and vesting it in an admin-
istrator, for the benefit of his creditors and
next of kin, either absolutely or in favor of
those only who innocently deal with such ad-
ministrator. The immediate and necessary
effect of such a law is to deprive him of his
property without any process of law what-
ever, as against him, although it is done by
process of law againsl other people, his next
of kin, to whom notice is given. Such a stat-
utory declaration of estoppel by a judgment
to which he is neither party nor privy, which
has the immediate effect of divesting him of
his property, is a direct violation of this con-
stitutional guaranty." Lavin v. Bank, 18
Blatchf. 1, 24, 1 Fed. 641.
The defendants did not rely upon any stat-
ute of limitations, nor upon any statute al-
lowing them for improvements made in good
faith; but their sole reliance was upon a deed
from an administrator, acting vmder the or-
ders of a court which had no jurisdiction to
appoint him or to confer any authority upon
him, as against the plaintiff.
Judgment reversed, and case remanded to
the supreme court of the state of Washington
for further proceedings not inconsistent with
this opinion.
132
JURISDICTION TO GRANT LETTERS.
HADDOCK V. BOSTON & M. R.
(15 N. E. 495, 146 Mass. 155.)
Supreme Judicial Court of Massachusetts. Es-
sex. Feb. 29. 1888.
Report from supreme judicial court;
Morton, Chief Justice.
Appeal by the Boston & Maine Railroad
from a decree of the probate court for Essex
county, (entered November 16, 1885,) admit-
ting to probate the will of Sarah Pender-
gast. The appeal was claimed by the Bos-
ton & Maine Railroad Company, at the hear-
ing before the probate court, and was al-
lowed by the judge of that court, it appear-
ing that said railroad owned real estate in
Haverhill, devised by the will, the title to
which might be affected by the establish-
ment of rights under said wUl. The wiU
was dated October 31, 1807. At the hearing
in the supreme judicial court, the chief jus-
tice made certain rulings, the nature of
which, with other facts, sufficiently appear
In the opinion, and reported the case to the
full court.
S. Lincoln, for appellant. B. F. Butler
and P. Webster, for appellee.
DEVENS, J. The first question discussed
by the appellant is whether the probate court
has authority, as matter of law, to admit a
will to probate 63 years after the death of
the testator; and, incidentally, whether
there is any limit of time after the death
of the testator, subsequent to which the
court has no such authority. In Shumway
V. Holbrook, 1 Pick. 117, the question was
whether a will not admitted to probate was
admissible in evidence. It was held that
it was not; but it is said: "If a will can
be found. It may be proved in the probate
court at any time, in order to establish a
title to real estate. It differs from an ad-
ministration of personal property, which can-
not be originally granted upon the estate
of any person after twenty years from his
decease." In the course of the argument,
Mr. Justice Jackson alluded to a case in
Essex county, perhaps 30 years before,
where it was found that a widow must hold
land under the wiU which had not been
proved. The will having been offered for
probate, the judge of probate declined to
allow it, as more than 20 years had elapsed
since the death of the testator, and, on ap-
peal, his decision was reversed, and the wiU
admitted to probate. The research of the
counsel for the defendant has established
that the case thus alluded to was that of
Dennis v. Bearse, (Essex,) and has supplied
us with as satisfactory an account of it,
drawn from the papers on file, as they will
afford. It is a case to which some weight
must be attached, as it brought into ques-
tion, directly, the authority of the court of
probate, and the appeal was to the full
bench of the supreme court, which reversed
the original decree. While no opinion ap-
pears to have been written. It could not but
have been a carefully considered case, as it
reversed the opinion of the judge of probate
as to the extent of his jurisdiction. The
WiU thus admitted to probate was so ad-
mitted 36 or 37 years after its date. How
long after the death of the testator does not
clearly appear, although some of the papers
found indicate that it was more than 30
years after. In Marcy v. Marcy, 6 Mete.
(Mass.) 360, the question was whether there
was sufficient evidence that a will, which
became operative 43 years before, had been
admitted to probate, so that it could be
read in evidence. The court held that there
was such evidence; adding: "On evidence
like the present, it would be the duty of the
probate court to establish the wiU, if, foi-
want of form, the probate should have been
considered so defective that the will had
been rejected as evidence in its present
state." In Waters v. Stickney, 12. Allen, 1,
where it was held that the probate court,
14 years after admitting a will to probate,
might admit to probate a codicil, written
upon the same leaf, which had escaped at-
tention, and was not passed upon at the
time of the probate of the original will, it
is said by Mr. Justice Gray, citing the above
cases: "It has been directly adjudged by
this court that a wlU may be proved even
thirty years after the death of the testator,
although original administration could not,
by statute, be granted after twenty years;"
and again, "if no wlU had been proved, the
lapse of time would not prevent both will
and codicil from being proved now." While
it is true that In neither of these cases has
it been decided that a wiU disposing of
lands can be admitted to probate after 60
years, yet there is no siiggestlon in any of
them that there is any limitation of time
to such proof, and the language used is
quite explicit to the contrary. In view of
the decisions made, and the repeated ex-
pressions directly relevant to the cases con-
sidered, used in argument by judges of this
court, we cannot treat this inquiry as the
defendant desires we should,— as practically
a new question. We must deem it one that
has been fairly passed upon and decided.
It may be that the inconveniences which
might arise from the probate of a wUl many
years after the death of the testator are such
that a statute limiting the period might he
properly enacted. That course has. In some
states, been adopted. Conn. Revision, 1875,
c. 11, §§ 21-23; Rev. St. Me. c. 64, § 1. But
statutes of limitation are arbitrary, and the
considerations which apply to positive laws
of this character are legislative, rather than
judicial. In every instance, where a great
length of time has elapsed after the death of
a testator, possessory titles may have been
acquired which will prevail against the rec-
ord. What is due to the just rights of the
devisees is to be considered with reference
to other rights of property, or to the repose
JURISDICTION TO GRANT LETTERS.
133
of the community; but such considerations
belong to the domain of legislation. So long
as one can produce the evidence necessary to
obtain the probate of a will, we can see no
legal reason why one who relies upon It
should not be allowed to prove it as he would
be permitted to prove a deed, however an-
cient, under which he claimed title. The fact
that he could not offer in evidence a will
not admitted to probate, as he might an an-
cient deed, would certainly afford no reason
why its authenticity should not be estab-
lished in the probate eom^t by its regular
course of procedure.
The appellant further contended that the
jury ought not to have been allowed (in de-
termining the question whether the testatrix
was a widow, and thus competent to malie a
will as the law stood in 1807) to consider
the fact that "she actually executed a paper,
purporting to be a wiU devising land, as any
evidence that she had legal capacity so to do.
This fact, in connection with the other facts
proved, was competent to be considered.
There was no ruling that, alone, it would
have been sufficient to establish her legal
capacity; that Is, that she was, at the time,
a widow. There was evidence of reputation
that the husband of the testatrix died soon
after their marriage; that a deed was made
to her on December 21, 1801, of the very land
which she undertook to dispose of by will, in
which she was described as "Sarah Pender-
grass, widow," which deed was found among
her papers; and that she executed the will
by the same name as that recited in the
deed, in which she was described as widow,
although that word is not appended to her
name in the will. The act done by her, of
disposing, or assuming to dispose, of her
property, which she could only lawfully do if
a widow, was an assertion of her status, and
tnus of her legal capacity, made in an Im-
portant transaction which might properly
have been considered in connection with the
other evidence.
The conclusion we have reached renders it
unnecessary to decide whether the appellant
was lavrfuUy entitled to appeal. Other ex-
ceptions taken by it were waived in this
court. Cause to stand for further proceed-
ings.
134
JUKISDICTION TO GRANT LETTERS.
SCHLUTER V. BOWERY SAV. BANK.'
(28 N. E. 573, 117 N. T. 125.)
Court of Appeals of New York. Nov. 1, 1889.
Appeal from supreme court, general term,
first department.
This action was brought by Eliza Schluter,
as administratrix of Antoinette Knittel,
against the Bowery Savings Bank. The
grounds of the action are as follows: In
October, 1872, Margaret Knittel, then a mar-
ried woman, deposited in the Bowery Sav-
ings Bank the money claimed in this action,
in trust for Antoinette Knittel, which was
entered upon the books of the bank, and the
pass-book belonging to Mrs. Knittel, as fol-
lows: "Bowery Savings Bank, in account
with Margaret Knittel, in trust for Antoi-
nette Knittel. " Antoinette was then an infant
about six years old, and lived with lier par-
ents in this state. Subsequently, they moved
to the state of New Jersey, wliere they lived
until June, 1875, when Mrs. Knittel died.
Her husband took out letters of administrar
tion on her estate in the state of New Jersey;
and on October 22, 1875, the defendant paid
to him, as such administrator, the deposit,
with the interest thereon, then amounting to
1629.40. Mrs. Knittel, in fact, left a last
will and testament, which was subsequently,
on the 17th day of November, 1875, admitted
to probate by the surrogate of the county of
New York, and letters testamentary were
issued to Louis Sier, the executor named in
the will. Soon thereafter, he demanded pay-
ment of the deposit to him, which was re-
fused. On the 18th day of December, 1885,
Antoinette, who continued to reside in the
state of New Jersey, died, and the plaintiflE
was, on the 14th day of May thereafter, ap-
pointed by the surrogate of New York ad-
ministratrix of her estate. She then demand-
ed payment of the deposit, and the interest
thereon, which was refused, and then this
action was commenced. The action was
brought to trial at a circuit, and at the close
of the evidence the court directed a verdict
in favor of the defendant on the ground that
the payment to the administrator of Mrs.
Knittel discharged the defendant. From the
judgment entered upon the verdict the plain-
tiff appealed to the general term, and then to
this court.
John McOrone, for appellant. Carlisle
Worwood, Jr., for respondent.
EARL, J., (after stating the facts sub-
stantially as above.) The defendant was in-
corporated by the act, chapter 229 of the
Laws of 1834; and by section 6 of that
act it was provided that deposits therein
should be repaid to each depositor when
required, and at such time, and with
sucli interest, and under such regula-
tions, as the board of managers from
time to time prescribed. One of the by-laws
of the defendant, printed in the pass-book
• Afarming 47 Hun, 633, mem.
which was delivered to the depositor, pro-
vided that on the decease of any depositor
the amount standing to the credit of the de-
ceased should be paid to his or her legal rep-
resentatives. We have several times held
that by such a deposit the depositor consti-
tuted himself or herself, a trustee, and that
the title to the fund was thereby transferred
from the depositor individually to the depos-
itor as trustee; and in Boone v. Bank, 84 N.
Y. 83, a case entirely similar to this, we held
that payment of the deposit to the adminis-
trator of the depositor, in the absence of any
notice ifrom the beneficiary, was good and
effectual to discharge the savings bank; and
it is unnecessary now to repeat the reasoning
of the opinion in that case. Here there was
no notice to the bank from the beneficiary,
and the payment to the administrator of Mrs.
Knittel was made in entire good faith.
But the claim is made that because Mr.
Knittel was a foreign administrator, deriv-
ing his authority from administration granted
in the state of New Jersey, he was not the
personal representative of the deceased, and
that therefore payment could not legally be
made to him. Payment to the personal rep-
resentative is good, because at the death of the
intestate he becomes entitled to all his per-
sonal property wherever situated, and, hav-
ing the legal title thereto, he can demand
payment of choses in action ; and a payment
to him made anywhere, in the absence of any
contiicting claim existing at the time, is valid.
It is true that, if the defendant had declined
payment, tlie foreign administrator could not
have brought action in this state to enforce
it. But a voluntary payment to such an ad-
ministrator has always been held valid.
Therefore, in receiving this payment, Mr.
Knittel was the representative of the de-
ceased, and able to give an effectual dis-
charge to the defendant. Parsons v. Ly-
man. 20 N. Y. 103; Petersen v. Bank, 32 N.
Y. 21; In re Butler, 88 N. Y. 397; Wilkins
v. Ellett, 9 Wall. 740.
Mrs. Knittel, however, actually left a will,
which was subsequently admitted to probate.
But l;he letters of administration \vere not
therefore void, the court having jurisdiction
to grant them; and, until they were revoked,
all persons acting in good faith wore pro-
tected in dealing with the administrator thus
appointed. And so it has always been heid.
Eodgerigas v. Institution, 63 N. Y. 460, 76
N. Y. 316; Kittredge v. Folsom, 8 N. H. 98;
Patton's Appeal, 31 Pa. St. 465. Here the
payment was made before the will was ad-
mitted to probate, and at the time of such
payment Mr. Knittel was the legal represent-
ative of the deceased, and authorized to ad-
minister upon her estate. Our attention has
been called to no case, and we are confident
that none can be found, holding that the sub-
sequent discovery of a will, and its admis-
sion to probate, renders the prior appoint-
ment of an administrator absolutely void so
as to give no protection to persons who, in
dealing with the administrator, have acted on
JURISDICTIOK TO GRANT LETTERS.
135
the faith thereof. Wo^rner, Adm'n, 568,
571, 588.
Under the act, chapter 782 of the Laws of
1867, Mrs. Knittel, although a married wo-
man, was capable of being a trustee. She con-
stituted herself a trustee here, and here the
trust fund remained; and therefore, although
by ttie law of New Jersey a married woman
could not be appointed a trustee, yet the
trust could be enforced here. Her removal
to that state did not divest her of the title to
the fund she thus had; and that title re-
mained in her, as no one was appointed to
take it from her.
The statutes of New Jersey were proved,
showing that the surrogate of the county of
which Mrs. Knittel was an inhabitant and
resident at the time of her death had juris-
diction to grant letters of administration
upon her estate. "While he had no authority
to grant letters of administration unless she
died intestate, intestacy, like inhabitancy,
was one of the facts which he was to deter-
mine. He had general jurisdiction of the
subject of administration; and, having de-
termined that she died intestate, he was au-
thorized to grant administration upon her es-
tate. The proceedings in the surrogate's
court were properly exemplified and proved.
Hut the further claim is made that the an-
swer was insufficient to permit the laws of
New Jersey to be read in evidence, for the
reason that they were not therein alleged.
It is there alleged "that Margaret Knittel
died an inhabitant of, and domiciled in, and
a resident of, Hoboljen, Hudson county, N.
J. ; tliat thereafter, and on the 19th of Oc-
tober, 1875, letters of administration on the
goods, chattels, rights, and credits of Mar-
garet Knittel, deceased, were duly issued to
one Louis Knittel, the husband of the said
Margaret Knittel, by the surrogate of the
county of Hudson, state of New Jersey ; that
said surrogate had jurisdiction, and was duly
authorized and empowered, by the laws of
the state of New Jersey, to issue said letters
as aforesaid." We tliink these allegations
were sufficient to authorize proof of the laws
of New Jersey, and of the jurisdiction of the
surrogate in issuing letters. If the plaintiff
desired more specific allegations, and was
fairly entitled to them, he should have moved
to make the answer more specific and defi-
nite. The answer gave him every informa-
tion to which he was entitled; and he might,
if he could, have shown 'that the surrogate
had no jurisdiction, and that the laws did not
authorize him to grant administration of the
estate of Mrs. Knittel. So far as the case of
Throop V. Hatch, 3 Abb. Pr. 23, may seem
to hold the contrary doctrine, it does not re-
ceive our approval. We are therefore of
opinion that the judgment should be affirmed,
with costs. All concur.
136
ACTS DONE BEFORE GRANT OF LETTERS.
READ'S CASH,
(5 Coke, 67.)
Common Pleas. 2 Jac. I.
Read brought an action of debt against
Carter, executor of Yong, which plea began
in the common piers, Hilt. 44 Eliz. Rot.
401. The jurors found, that the said Yong
made his testament and last will, and made
one A. his executor; and the day of his
death was possessed of goods above the val-
ue of the debt in demand, and died; and be-
fore the will was proved the defendant took
the testator's goods into his possession,
and intermeddled with them; and after-
wards, and before the writ purchased, the
will was proved; and if on this matter the
defendant should be charged as executor
of his own wrong was the question. And
on great deliberation judgment was given
for the plaintiff. And in this case these
points were resolved.
1. When a man dies Intestate, and a
stranger takes the intestate's goods and
uses them, or sells them. In that case it
makes him executor of his own wrong. For
although the pleading in such case be, that
he was never executor, nor ever adminis-
tered as executor; and therefore It was
objected, that he ought to pay debt or leg-
acy, or do something as executor: yet it
was resolved, and well agreed, that when
no one takes upon him to be executor nor
any hath taken letters of administration
there, the using of the goods of the deceased
by any one, or the taking of them into his
possession, which is the office of an execu-
tor or administrator, is a good administra-
tion to charge them as executors of their
wrong; for those to whom the deceased was
Indebted in such case have not any other
against whom they can have an action for
recovery of their debts.
2. When an executor Is made, and he
proves the will, or takes upon him the
charge of the will, and administers in that
case, if a stranger takes any of the goods,
and, claiming them for his proper goods,
uses and disposes of them as his own goods,
that doth not make him in construction of
law an executor of his wrong, because there
is another executor of right whom he may
charge, and these goods which are in such
case taken out of his possession after that
he hath administered, are assets In his hand:
but although there be an executor who
administers yet if the stranger takes the
goods, and claiming to be executor, pays
debts, and receives debts, or pays legacies,
and intermeddles as executor, there, for
such express administration as executor, he
may be charged as executor of his own
wrong, although there be another executor
of right; and therewith agreeth 9 B. 4, 13.
3. In the case at bar, when the defend-
ant takes the goods before the rightful
executor hath taken upon him, or proved the
will, in this case he may be charged as
executor of his own wrong, for the rightful
executor shall not be charged but with
the goods which come to his hands after he
takes upon him the charge of the will.
Note, reader, these resolutions, and thereason
of them, and by them you will better under-
stand your books, which otherwise seem pri-
ma facie to disagree. 41 E. 3, 13b; 50 Edw.
3, 9; 6 H. 4, 3a; 11 H. 4, S3b, 84a; 13 H. 4, 4b;
8 H. 6, 35b; 19 H. 6, 14b; 21 H. 6, 26 & 27;
32 H. 6, 7a; 33 H. 6, 21; 21 E. 4, 5a; 20
H. 7, 5a; 26 H. 8, 7b, 8a; 1 Eliz. 2 Dyer,
166; 9 Eliz. 3 Dyer, 255. And so the quaere
in 1 Mariae, 1 Dyer, 105, 203, well resolved.
ACTS DONE BEFORE GRANT OF LETTERS.
137
HATCH V. PROCTOU et al.
(102 Mass. 351.)
Supreme Judioial Court of Massachusetts.
Worcester. Oct. Term, 1869.
Contract by an administrator of the estate
of Frank J. Hatch to recover of (Jeorge L.
Lawrence for goods belonging to the estate,
and sold and delivered. From an order di-
recting a verdict for the defendant, plaintiff
excepted.
H. B. Staples and F. P. Goulding, for plain-
tiff. C. H. B. Snow and G. A. Torrey, for
defendants.
COLT, J. The case presented in the offer
of evidence is this: The plaintiff, acting,
with the knowledge of the defendants, as ex-
ecutor in his own wrong of his deceased
brother's estate, delivered certain personal
property, with a biU of sale and warranty of
title, to one Lawrence, in consideration of
the verbal promise of the defendants to pay
the plaintiff $1700 towards the price thereof.
At the time of the sale and delivery, the de-
fendants took a mortgage from Lawrence to
secure them the amount to be paid, and no
credit appears to have been given to him by
the plaintiff. The property passed into the
possession of Lawrence, and it does not ap-
pear that his title, or the title of the de-
fendants, claiming under the mortgage, has
ever been questioned by anybody else, or
possession under it disturbed. After this,
the plaintiff was regularly appointed admin-
istrator of his brother's estate, and notified
the defendants that he ratified and confirmed
as administrator, all his acts and contracts
with them in the sale of said property. And
thereupon they told him, by the defendant
Proctor, their agent in the premises, that the
agreement for the payment of said sum was
fair, and the money should be paid; though
shortly after, while the property still reinain-
ed with Lawrence, they notified the plaintiff
that they claimed no title to the same under
the mortgage, which they thought invalid.
In the opinion of the coiu:t, the evidence
offered should not have been rejected. The
facts, if proved, would entitle the plaintiff to
maintain his action.
The defendants do not now insist that the
contract cannot be enforced as against the
statute of frauds. It was an original prom-
ise made by the defendants to pay for prop-
erty delivered to another. Stone v. Walker,
13 Gray, 613; Swift v. Pierce, 13 Allen, 136.
The personal estate of a deceased intestate,
when an administrator is appointed, vests in
him by relation from the time of the death.
Until then the title may be considered to be
in abeyance. Lawrence v. Wright, 23 Pick.
128. He may have an action of trespass or
trover for goods of the intestate taken before
letters granted. When the wrongdoer has
sold the property taken, the administrator
may waive the tort and recover in assumpsit
for money had and received. And, in a case
very like the one at bar, it was held that,
where the sale was made avowedly on ac-
count of the estate, by one who had been
agent of the intestate, the administrator aft-
erwards appointed might recover from the
vendee in assumpsit for goods sold and de-
livered. Foster v. Bates, 12 Mees. & W.
226, 233. It is said that, if an executor de
son tort obtains letters of administration
pendente lite, it legalizes his previous tor-
tious acts. 1 Williams, Ex'rs (6th Ed.) 598,
and cases cited. By the law of this state,
as laid down by Hoar, J., in Alvord v. Marsh,
12 AUen, 603, the letters of administration,
by operation of law, make valid all acts of
the administrator in settlement of the estate
from the time of the death. They become
by relation lawful acts of administration for
which he must account. And this liability
to account involves a validity in his acts
which is a protection to those who have dealt
with him.
The case here presents no question as to
the peculiar liability of an executor in his
own wrong, to creditors, to the rightful ad-
ministrator, or to others who have suffered
by his unlawful acts. As to the defendants,
the sale here was not tortious. It was made
legal, and the title of the vendee confirmed,
by the retroactive effect of the subsequent
letters of administration. Nor is it to be
overlooked that the defendants knew, when
the property was delivered and the war-
ranty of title given, that the vendor had no
legal right to sell. There was no ignorance
or mistake on their part, and no fraud or
false affirmation of title on the part of the
plaintiff. The property still remains undis-
turbed in the hands of the purchaser. The
plaintiff's express confirmation of the sale
was agreed to, and payment of the price
promised. These last considerations alone
would, imder the circumstances, seem to be
a sufficient answer to the defence set up.
Story, Sales, § 367b, note; Id. § 423.
Exceptions sustained.
138
ACTS DONE BEPORE GRANT OF LETTERS.
EOZELLE V. HARMON.
(15 S. W. 433, 103 Mo. 839.)
Supreme Court of Missouri, Division No. 2.
Feb. 34, 1891.
Appeal from circuit court, Holt county;
C. A. Anthony, Judge.
L. B. Knowles, John Edwards, and H.
S. Kelley, for appellant. E. Van Buskirk
and T. C. Dungaa, for respondent.
MACFARLANE, J. This suit was com-
menced in thecircuit court of Holt county.
Plaintiff was a creditor of one B. W. Ross,
dei;eased. Tlie suit was for the purpose
of recovering the amount of the debt from
defendant on the ground that he had
wrongfully appropriated and converted
the assets belonging to Ross' estate to his
own use. Plaintiff recovered judgment in
the circuit court, and defendant appealed
to the Kansas City court of appeals, where
the judgment was reversed. The case was
certified to this court by the court oi ap-
peals on the ground that the decision
rendered therein was in conflict with the
decision of this court in the cases of Foster
v. Nowlin, 4 Mo. 18, and Magner v. Ryan,
19 Mo. 196. The question presented by
the record in this case is sufficiently stated
by Judge Philips (29 Mo. App. 578) to be
"■whether there can be, under the probate
system of this state, an executor de son
tort, in so faras to authorize a single cred-
itor oJthe intestate to maintain an action
of trover against him, as here sought, and
thereby appropriate the whole assets to
the payment of plaintiff's debt." The
system provided by the laws of our state
for thesettlement of the estates of deceased
persons was evidently intended to be ex-
clusive of all others. Theconstitution pro-
vides for the establishment of a probate
court in each county, which shall have
jurisdiction in all matters pertaining to
probate business. The laws of the state
governing the procedure in the manage-
ment and settlement of estates are ample
and sufficient to meet any emergency that
may possibly arise during administration.
They provide for the appointment of ex-
ecutors and administrators, for the pres-
ervation of the property, and the collec-
tion of the debts of the estate. They also
provide summary and efficient proceed-
ings for the discovery of assets, and for
their recovery from the possession of one
who intermeddles with thetn. Under
them any creditor can have an adminis-
trator appointed. Each county is provid-
ed with a public administrator, already
qualified, whose duty requires him sum-
marily to take charge of all estates in
which the property is left in a situation ex-
posed to loss or damage; and the court is
given power to require him to take charge
of any other estates in case of necessity.
Ample provisionis made for the allowance
and classification of debts, converting the
assets into money, and paying the debts
of all creditors pro rata according to clas-
sification. Executors and administrators
alone, under these laws, can recover the
assets or damages for its conversion. All
these provisions of the law are wholly in-
consistent with the idea of executors de
son tort as at common law. The admin-
istration laws of the state do not recog-
nize the right to wrongfully administer,
nor the right of onecreditor to secure pay-
ment of his debt to the exclusion of others.
Itislnsisted byplaintiff that thisstate has
adopted the common law, that under
the rules of the common law his action is
authorized, and that the rules of the com-
mon law on this subject have not been
abrogated by the statutes. It is contend-
ed that under proper rules of construction
a statute in derogation of the common
law must be strictly construed, and that
none of its rules can be changed, except by
express terms of the statute, or by neces-
sary implication therefrom. That rule of
construction is not of universal applica-
tion. It depends much on thecharacter of
the law to be affected. In case of statutes
penal in their character, or in derogation
of common right, a strict construction is
required ; but in regard to statutes merely
remedial in their character a fair, if not
liberal, construction should be given.
Oster V. Rabeneau, 46 Mo. 595; Putnam v.
Ross, Id. 337; Chamberlain v. Transfer
Co., 44 N. Y. 305; Buchanan v. Smith, 43
Miss. 90. The statute of this state, adopt-
ing the common law, itself limits or modi-
fies the rule of construction insisted upon.
Section 3117, St. 1879, provides that the
common law, which is not repugnant to
or inconsistent with the constitution of
this state or the statute laws in force for
the time being, shall be the rule of action
and decision in this state. The examina-
tion wehave given shows conclusively that
thestatute laws of thisstateon thesubject
of administration, taken together as form-
ing oneen tire system, are wholly repugnant
to and inconsistent with the common law
In respect to administrators de son tort.
We must therefore conclude that the inten-
tion of the legislature was to supersede the
common law on that subject altogether.
The early cases of this court referred to by
the court of appeals do seem to have rec-
ognized and acted under the common-law
doctrine invoked by plaintiff in this case,
but since that early day the administra-
tion laws of the state have been greatly
enlarged, the jurisdiction of the probate
courts extended, and the powers and duties
of administrators and executors increased
until there is no longer a place in the sys-
tem for the inequitable, expensive, and
tedious proceedings required by the rules
of the common law in bringing intermed-
dlers to settlement. The opinion of Phil-
ips, P. J., in this case when before the court
of appeals, and which is reported in 29 Mo.
A pp. 570, with the authorities cited by him,
is convincing and conclusive, and is adopt-
ed as the opinion of this court. The judg-
ment of the court of appeals is affirmed,
and that of the circuit court of Holt coun-
ty reversed. All the judges of this division
ioncur.
TEREITOBIAL EXTENT OF GRANT.
139
VAUGHN V. BARRET.
(5 Vt. 333.)
Supreme Court of Vermont. Rutland, Jan.,
1833.
This was an action of debt on judgement
brouglit by Wm. Vaugbn, administrator upon
ttie estate of John W. Mott, deceased, late of
the city, county and state of New York. The
writ in this case was dated and served on
the first of September, A. D. 1831. It was
alleged in the declaration that the judge-
ment was recovered by John W. Mott, afore-
said, against the defendant, by the consider-
ation of the Rutland coimty court, at their
term, began and holden at said Rutland on
the 2d Monday of Sept. A. D. 1826, for the
sum of four hundred and fifty-seven dollars
and nine cents, for damages and costs, and
that no part of said judgement has been
paid except $309.88, being part of the dam-
ages which had been allowed against the
estate of Erastus Barker, leaving the sum of
one hundred and thirty-six dollars and two
ceuts damages, and the further sum of twelve
dollars and nine cents costs, making in
whole $148.11, being the residue of said
judgement The defendant pleaded that
after the recovery of said judgement and be-
fore the commencement of this suit, to wit,
on the 20th of October 1827, Henry Mott, of
the said city of New York, was regularly ap-
pointed administrator by James CampbeU,
smTogate of the said city of New York, upon
the estate of the said John W. Mott; and
that afterwards, to wit, on the 24th day of
November, A. D. 1830, the said Henry Mott
as administrator as aforesaid, for a valu-
able consideration executed to the said Jaaz-
aniah a discharge of said judgement in favor
of said John W. Mott. To this plea, the
plaintiff replied that prior to the said 24th
day of November, A. D. 1830, the time at
which the said Henry Mott discharged the
judgement, to wit, on the third of April, A.
D. 1830, the said William Vaughn was regu-
larly appointed administrator upon the
estate of the said John W. Mott, by the pro-
bate court for the district of R.utland, but
there was no protert of the records of said
probate court. And that the defendant at
the time of the recovery of the said judge-
ment against him in favor of the said John
W. Mott, and long before and ever since, has
been and still is an inhabitant of the state of
Vermont, residing in said probate district,
and not a citizen or inhabitant of the state
of New York. To which replication there
was a general demurrer and joinder in the
demurrer. The county court rendered judge-
ment for the plaintiff, and the defendant' ex-
cepted; whereupon the case comes here for
reconsideration.
J. Clark, for plaintiff. Moses M. Strong,
for defendant
PHELPS, J. It appears that John W.
Mott, being a citizen and resident of New
York, obtained a judgement against the de-
fendant, and afterwards died In New York.
Administration of his effects was there com-
mitted, by the surrogate, to Henry Mott, and
administration of the effects of J. W. Mott
in this state, was granted to the plaintiff, bj
the probate court, for the district of Rut-
land within which the defendant resided.
Subsequently the defendant obtained a dis-
charge from Henry Mott, and, the plaintiff
having brought this action, the defendant
pleads that discharge in bar. The question
is, wiU the discharge avail him? The dis-
position of effects left vacant by the decease
of the owner, has ever been regarded as a
matter strictly of local jurisdiction. It is in-
deed, a proceeding In rem; and in every
country, is considered as falling within the
jurisdiction of the particular state, province
or district, in which the effects are situate.
In England, where this subject is com-
mitted to the ordinary, if there are effects in
two dioceses, admlnlsti'ation must be taken
in the provincial court; and If there are ef-
fects in two provinces, i. e. within the juris-
diction of two arch-bishops, administration
must be taken In both. The reason given Is,
that they are each supreme jurisdicfions,
and neither can act in the other. Bac. Abr.
tit. "Executors," E; Hardre«s, 216; 1 Salk.
39-40; 3 Bl. Comm. 509. So no notice Is
taken there, of administration granted
abroad, nor does a grant of administration
in England extend to the colonies. The
same view of the subject has ever been taken
in the United States. Hence, an adminis-
trator appointed in a foreign state, has no
authority in the United States. Graeme v.
Harris, 1 Dall. 456; Dixon v. Ramsay, 3
Cranch, 319; Lewis v. McFarland, 9 Cranch,
151; Selectmen of Boston v. Boylston, 2
Mass. 384. So letters of administration
granted in one of the states are of no au-
thority in another. This point has been re-
peatedly decided by the courts of the United
States. See Fenwick v. Sears, 1 Cranch, 259;
Dixon V. Ramsay, 3 uranch, 319; Champlln
V. Tilley, 3 Day, 304, Fed. Cas. No. 2,586. It
has been so held in Maine, (see Stearns v.
Burnham, 5 Greenl. 261;) in New Hamp-
shire, (see Sabin v. Gilman, 1 N. H. 198;) in
Massachusetts, (see Goodwin v. Jones, 3
Mass. 514; Selectmen of Boston v. Boylston,
2 Mass. 384; Borden v. Borden, 5 Mass. 67;
Richards v. Dutch, 8 Mass. 506; Stevens v.
Gay lord, 11 Mass. 256;) in Connecticut, (see
Riley v. Riley, 3 Day, 74; Stanton v. Holmes,
4 Day, 87;) and similar decisions have been
had In Virginia, Kentucky, Ohio, and North
Carolina. So far indeed has this doctrine
been carried, that in some states, they do
not hold an administrator appointed abroad
responsible within their jurisdiction, nor an
administrator appointed within the state, re-
sponsible for effects received out of their
140
TERRITORIAL EXTENT OF GRANT.
jurisdiction. See 2, 5 and 8 Mass., cited
above.
This subject has also been before our
courts, and similar decisions had. See Dodge
V. Wetmore, Brayt. 92; also, Lee v. Havens,
Id. 93. The case of Lee v. Havens, is strict-
ly In point with the present In that case an
administrator appointed In Massachusetts,
had attempted to evade our jurisdiction, by
indorsing a note due from a citizen of this
state to his. intestate there. A suit was
brought by the endorser, but the court held
the Indorsement nugatory as the adminis-
trator had no interest in, or control over, the
note in question. In short, if the courts of
this state have jurisdiction, it follows that
the courts of no otter state can have. The
idea of a concurrent jurisdiction, in such a
case, is absurd and impracticable. If any
reason be necessary to show the propriety of
the decisions on this subject, it is found in
the obvious propriety, not to say necessity,
of protecting the rights of our own citizens
who may be creditors of the intestate. To
sufEer the effects of the intestate to be eloin-
ed, without attending to these rights, is an
act of comity to other jurisdictions which
no state does, or will exercise. An idea
seems to have been entertained, that the
jurisdiction over the debt in this case, fol-
lowed the person of the creditor. But it is
to be observed, that jurisdiction, or the right
of administration in respect to debts due a
deceased person, never follows the residence
of the creditor. They are always bona no-
tabilia, unless they happen to fall within the
jurisdiction where he resided. See Bac. Abr.
"Executors," E; Cro. Eliz. 472. Judgements
are bona notabilia where the record is, (Ld.
Raym.<855; Garth. 149; 8 Mod. 244; Anon.,
6 Geo. 11., cited by Selw.;) specialties, where
they are at the time of the creditor's decease,
(Lum V. Dodson, cited in Selw. N. P.; Byron
V. Byron, Cro. Eliz. 472;) and simple con-
tracts where the debtor resides, (Garth. 373;
SaJk. 37; Ld. Raym. 562.)
An attempt is also made to support this
defence upon the rule of lex loci contractus.
This rule in most cases is founded upon the
supposed intent of the parties. Further than
this it is a matter of comity merely, as no in-
dependent state is bound to execute, or be
governed by, the laws of another. To apply
the rule however to a case like the present,
and permit the interference of another state
with subjects falling within our jm-lsdiction,
would be an abandonment of our sovreignty.
All transactions taking place in New York,
upon matters subject to their jurisdiction, if
regular by their laws, would be properly re-
garded here. A judgement rendered there
if the parties and subject matter are within
their jurisdiction, would be held conclusive;
and even the act of a sheriff executed there,
would, under like circumstances be esteemed
valid, if called in question here. But we
should hardly concede to their courts, the
power of acting upon the title of our lands,
or to their sheriffs that of disposing of them
at auction.
The judgement of the county court is
therefore affirmed.
TERRITORIAL EXTENT OF GRANT.
141
NELSON V. POTTER.
(15 Atl. 375, 50 N. J. Law, 324.)
Supreme Court of New Jersey. Feb. Term,
1888.
On certificate upon a feigned issue out of
the court of chancery.
Argued, November term, 1887, before DE-
PUB, VAN SYCKEL, and KNAPP, Jus-
tices.
John S. Voorhees, for plaintiff. A. Q.
Keasbey, for defendant
DEPUB, J. This suit involves title to cer-
tain lands situate In the county of Middle-
sex, in this state, of which Isaac J. Potter
died seized. The deceased, whose domicile
was in California, died May 19, 1885. By
his last will, dated November 19, 1884, he
devised the residue of his estate, in which
the lands in question were included, to two
incorporated societies. The plaintiff derived
title by conveyance from these societies.
The defendant makes title as an heir at law
of the deceased. The testator's will was in
writing, and signed by him, but not executed
by him in the presence of subscribing wit-
nesses. It Is admitted that the will was
made and executed in compliance with the
laws of California, and that under the laws
of that state it would be a valid testamen-
tary disposition of lands. It was not made
and executed in conformity with the law of
this state, which requires all wills to be ex-
ecuted in the presence of two witnesses,
present at the same time, who shall sub-
scribe their names thereto as witnesses in
the presence of the testator. Revision, p.
1247, § 22. The certificate presents the ques-
tion whether a will, made and executed by
a non-resident testator, in such a manner
as by the law of his domicile would be a
valid devise of lands, can operate to devise
lands in this state, the will not having been
executed in conformity with the law of this
state.
The incidents of real estate, Its disposi-
tion, and the right of succession, depend up-
on the lex rei sitae. The validity of be-
quests of personal property depends upon
the law of the testator's domicile, and the
validity of devises of real property upon the
law of the state where the lands lie. Hence
a will executed according to the law of the
testator's domicile will pass personal prop-
erty wherever situate; but, with respect to
devises of lands, the will must be executed
according to the formalities prescribed by
the law of the state in which the land is
situdted. 4 Kent, Comm. 91, 93; Story, Oonfl.
Law, § 474; Whart Confl. Law, § 585; Jones
V. Habersham, 107 U. S. 174^179, 2 Sup. Ot.
336; Robertson v. Pickrell, 109 U. S. 608, 3
Sup. Ct. 407; Pratt v. Douglas, 38 N. J. Eq.
516; 1 Jarm. Wills, (Rand. Ed.) 1, note b.
The courts of one state are without ju-
risdiction over title to lands in another state.
The clause of the federal constitution which
requires full faith and credit to be given in
each state to the records and judicial pro-
ceedings of every other state applies to the
records and proceedings of courts only so
far as they have jurisdiction. Public Works
V. College, 17 Wall. 521; Davis v. Headley,
22 N. J. Eq. 115-121. Hence the probate of
a will in one state, though conclusive as to
title to personalty if the probate be made at
the domicile of the testator, is of no force in
establishing the sufficiency or validity of a
devise of land in another state. It can ob-
tain such force only in virtue of some law
of the state in which the lands are situate.
McCormick v. Sullivant, 10 Wheat. 192; Dar-
by V. Mayer, Id. 465; Watts v. Waddle, 6.
Pet. 389; Robertson v. Pickrell, 109 U. S.
608, 3 Sup. Ct. 407; Brine v. Insurance Co.,
96 U. S. 627, 635. The state legislature might
provide that lands within the state should,
pass by a devise in a will executed accord-
ing to the law of the state or country in,
which the testator was domiciled. But an
act of legislation of that import would be so
extraordinary and impolitic, in its tendency
to introduce doubt and uncertainty in the
title to lands, that a statute of that simili-
tude would not be allowed that effect, unless
such intent was expressed in clear and un-
equivocal language.
The testator's will was duly probated in
the office of the clerk of Tuolumna county,
Cal., May 27, 1885, and an exemplified copy
thereof filed and recorded in the surrogate's
office of Middlesex county, in this state. May
2, 1887, in compliance with the act of the-
legislature of May 11, 1886, (Supp. Revision,
775.) It is contended by the plaintiff that,,
by force of this statute, a will, not executed
in the manner prescribed by the law of this,
state, is nevertheless operative to devise
lands in this state, if it be executed accord-
ing to the formalities required for a devise
of lands by the law of the state or cotmtry
where the testator was domiciled. The act
in question provides that when any will shall
have been admitted to probate in any state-
or territory of the United States, or the Dis-
trict of Columbia, or in any foreign state
or kingdom, and any person shall desire to
have the same recorded in this state, for the
purpose of making title to lands or real es-
tate in this state, it should be lawful for the
surrogate of any county in -this state, upon
an exemplified copy .of such will and of the
certificate of probate thereof and of the let-
ters testamentary, exemplified and attested
as mentioned in the act, being filed in his
office, to record such will, certificate, and
letters, and file the said copy in his office.
The act further provides that any such will,
certificate,, and letters, being so recorded,,
should have the same force and efiEect, in
respect to all lands and real estate whereof
the testator died seized, as if the said will
had been admitted to probate, and let-
ters testamentary had been issued in this-
state. It also provides that all conveyances-
142
TEKRITOKIAL EXTENT OF GRANT.
theretofore or thereafter made by any ex-
ecutor, or by any devisee, should be as valid
as if said will had been admitted to probate,
and letters testamentary, etc., had been is-
sued in this state, and that such record or
certified copies thereof should be received
in evidence in all courts of this state. This
statute vyas originally passed March 28, 1866,
(Nixon, Dig. p. 1035, § 40.) It was repealed
in 1872, (P. L. 1872, p. 58,) and restored in
1873, (P. L. 1873, p. 168,) and was included
in the orphans' com-t act in the Revision of
1874. Revision, p. 757, § 26. It was re-enact-
ed with some amendments in 1882, (P. L.
1882, p. 112,) and again in 1886, with some
other amendments, (Supp. Revision, 775;)
but the act as it now stands is, so far as
concerns this suit, substantially the same
as it was when it was passed in 1866. The
act, as passed in 1866, was entitled "A sup-
plement to the act relative to the probate
of wills from other or foreign states," which
was an act passed April 15, 1846, (Nixon,
Dig. p. 1032, § 31.) The act of 1846, to which
the act of 1866 was a supplement, was orig-
inally passed March 6, 1828, under the title
of "An act relative to the probate of wills,"
(Har. Comp. 195;) and with some additions,
of no importance in this case, was included
in the Revision of 1846, under the title above
mentioned.
When the act of 1828, providing for the
record of foreign wills, was passed, statutes
were in force making the record of wills
originally proved under the laws of this
state, either in the prerogative court or be-
fore the surrogate, or transcripts thereof,
competent evidence of the same validity and
effect as if the original will were produced
and proved. The germ of this legislation
was the act of March 17, 1713-14, (Nixon,
Dig. 1034; Revision, 1249;) which in the sec-
ond section provided that wills thereafter
made in writing, signed and published by
the testator in the presence of three sub-
scribing witnesses, and regularly proved and
entered upon the books of records or regis-
ters, should be sufficient to devise and con-
vey lands, tenements, hereditaments, or oth-
er estates, as effectually, to all intents and
purposes, as if the testator had conveyed
the same away in his life-time; and that
the books in which they were registered or
recorded should be accepted, and be sufficient
evidence at all times and places. The fourth
section declared that the copy of any will,
made in any of his majesty's colonies, by
which any real estate within this colony is
devised, being proved according to the cus-
tom of such colony, and certffied under the
great seal of such colony, should be received
in evidence in any of the courts within this
province, and be esteemed as valid and suffi-
cient as if the original will or testament was
then and there produced and proved. This
act is still in force, (the word "colony" being
taken to include "state,") except as modified
by the act concerning wills, of March 12,
1851, (Revision, 1247,) with respect to the
number of witnesses required, and the mode
of executing and attesting wills. Graham
V. Whitely, 26 N. J. Law, 254r-259; 4 (JrifC.
Law Reg. 1241, § 72. Mr. Griffith, in com-
menting on the act of 1713-14, and other
provisions for authenticating wills made in
other states, as furnishing evidence of the
existence and of the probate of such a will
in another state, containing a devise of lands
in this state, adds that: "Still it [the will]
must appear to be executed in such manner
as our law requires for the devising of real
estate lying here." 4 Griff. Law Reg. 1241,
§ 72, note 1.
None of these acts, which made the rec-
ord of probate or transcripts thereof evi-
dence, was designed to change the law with
respect to the manner in which wills were
required to be executed to -make a valid de-
vise of lands. When these acts were passed,
and down to the act of 1851, a will of per-
sonalty was valid, and therefore entitled to
probate, though it was executed without any
subscribing witnesses; and at the same time
a will was inoperative to devise lands, un-
less executed in the presence of subscribing
witnesses, and with certain formalities pro-
vided by statutes regulating that subject.
The object of these acts was simply to pro-
vide instruments of evidence to dispense
with the production of the subscribing wit-
nesses in support of title by devise. As was
said by Chief Justice Beasley, the inten-
tion was to make them prima facie evidence
for the sake of convenience. Otterson v.
HofCord, 36 N. J. Law, 129-133. If the will,
as probated, showed a will executed in such
a manner as was required for a valid devise
of lands, the record of the probate, or a tran-
script thereof, was prima facie evidence of
the title of the devisee. If the record did
not exhibit a will so executed, the record or
transcript went for naught. Den. v. Allen, 2
N. J. Law, 35, 38, 42, 43; Allaire v. Allaire, 37
N. J. Law, 312, 318, 319, 39 N. J. Law, 113.
The act of 1846, which applies to foreign
wills, must receive the same construction;
for by the third section of that act it is de-
clared that such record, or certified copies
thereof, should be evidence in the same man-
ner, and have the same force and effect, as
if such will had been proved in the usual
manner, under the existing laws of this
state. It was so decided in Allaire v. Al-
laire, supra.
It was contended by the plaintiflE, to sus-
tain this devise, that the act of 1886, (Supp.
Revision, 775,) requires a broader construc-
tion. The argument was based upon the
phrase, "shall desire to have the same re-
corded in this state for the purpose of mak-
ing title to lands or real estate in this state,"
and the fact that conveyances theretofore
or thereafter made by executors or devisees
were validated. The reason for the intro-
duction of the words above quoted, with re-
spect to the purpose for which such will was
TEKRITOKIAL EXTENT OF GRANT.
143
recorded, is apparent. The act of 1846 con-
templated letters testamentary, or of admin-
istration, upon the recording of the will, and
required a bond, with security from non-
residents for the faithful administration of
the testator's estate. In some instances the
record of a foreign will in this state was
needed exclusively as a muniment of title,
without any administration on the testator's
estate. The supplements of 1866 and 1886
were designed to meet this situation of af-
fairs. Provision was therein made for re-
cording the will for the sole purpose of mak-
ins title to lands or real estate in this state
without letters testamentary or of adminis-
tration thereon, and consequently without
any bond for the administration of the tes-
tator's estate. And it will be observed that
ID every instance in these statutes, in which
the effect of such a record is declared, it is
declared that such will, upon being recorded,
"shall have the same force and effect, in re-
spect . to all lands and real estate whereof
the testator died seized, as if said will had
been admitted to probate, and letters testa-
mentary or of administration with the will
annexed had been issued in this state;" and
that conveyances of such real estate by the
executor or devisee, "shall be as valid as if
said will had been admitted to probate, and
letters testamentary or of administration
with the will annexed had been issued in this
state." In this language the legislature ex-
pressed a purpose to put such a will, when
recorded, on the same footing, with respect
to lands, as wills recorded under the act of
1866. The language in which these stat-
utes are expressed gives no countenance to
the supposition that the legislature intended
to suspend the statute concerning wills, with
respect to lands in this state, in favor of for-
eign testators; or to give the record of for-
eign wills an efCect which it has not given
to domestic wills, duly probated in our
courts. The whole of the legislation with re-
spect to the force and effect of the probate
and recording of wills,— domestic or foreign,
—upon the title to lands, is of the same char-
acter. The record of probate, or a transcript
thereof, is made competent evidence dis-
pensing with proof by the subscribing wit-
nesses; leaving the legal effect of the will,
as a devise of lands, to be determined as it
would be if the original will was produced
and proved. The testator's will, if produced
and proved, would be inoperative to devise
lands in this state. It acquired no additional
force from the recording. A certificate will
be made that the title to the lands in ques-
tion did not pass under the testator's will,
but descended to his heirs at law.
In preparing this opinion, I have not over-
looked the fact that upon the testator's
death, in 1885, the lands in question de-
scended to his heirs at law, and that their
title was vested before the act of 1886 was
passed. But inasmuch as the act of 1882,
which was in force when the testator died,
is. In all respects material to this contro-
versy, identical with the act of 1886, I pre-
ferred to consider the case as if controlled
by the latest act on this subject.
NOTE. According to the uniform course of
the decisions of this court, the validity of these
devises, as against the heirs at law, depends upon
the law of the state in which the lands lie, and
the validity of the bequests, as against the next
of kin, upon the law of the state in which the
testatrix had her domicile. Vidal v. Girard, 2
How. 127; Wheeler v. Smith, 9 How. 55; Mc-
Donogh V. Murdoch, 15 How. 367; Fontain v.
IJavenel, 17 How. 369, 384, 394; Perin v. Ca-
rey, 24 How. 465; Iiorings v. Marsh, 6 Wall.
337; U. S. V. Fox, 94 U.' S. 315; Kain v. Gib-
honey, 101 U. S. 362; RusseU v. Allen, 107 U.
S. 163, 2 Sup. Ct 327.
144
TERRITORIAL EXTENT OF GRANT.
JOHNSON et al. v. WALLTS et al.
(19 N. E. 653, 112 N. Y. 230.)
Court of Appeals of New York. Jan. 15, 1889.
Appeal from supreme court, general tei-m,
Second department.
Action for specific performance, brought
by William S. Johnson et al. against Hamil-
ton Wallis et al., executors of A. H. Wallis.
Judgment for plaintiff was affirmed by the
general term, and defendants appeal.
William G. Wilson, for appellants^ Frank
0. Lown, for respondents.
FINCH, J. This is an action In equity to
compel the specific performance by the vend-
ors of a contract to sell and assign a judg-
ment recovered by John McAnerney and
others in the supreme court of this state
against a corporation known as the "Hud-
son River Iron Company." The judgment
was assigned to one Alexander H. Wallis,
who was a resident of New Jersey, and
died, leaving a last will and testament,
which has been duly proved in that state,
and by which the defendants were ap-
pointed executors. They have qualified,
and entered upon the performance of their
trust. They thereafter made a written con-
tract with one Jacob Russell, all whose
rights have passed to tte present plaintiff,
to sell and assign to him such judgment for
a price to be fixed as follows: The judgment
was a lien, or supposed to be a lien, upon
certain lands under the waters of the Hud-
son river, near Poughkeepsie, In this state,
and had no value beyond such lien. Ar-
bitrators were chosen to fix the value of
one acre of the upland, and that value,
multiplied by the number of acres subject
to the lien, was to be the purchase price of
the judgment That value was ascertained,
the price tendered, and a deed duly de-
manded, which was refused, and thereupon
this action was brought. The plaintiff had
judgment, which the general term affirmed,
and the defendants appealed to this court
They rely mainly upon the proposition
that as foreign executors they could not suf
or be sued In this state, and acquire all
their rights from and owe their responsi-
bilities to another jurisdiction. That is the
general rule, but In this state, at least. Is
confined to claims and liabilities resting
wholly upon the representative character. In
Lawrence v. Lawrence, 3 Barb. Ch. 74, the
rule was declared to be applicable only to
suits brought upon debts due to the testator
in his life-time, or based upon some trans-
action with him, and does not p^-event a
foreign executor from suing In our courts
upon a contract made with him as such ex-
ecutor. Of course, where he can sue upon
such a contract, he may be sued upon It
The remedy must run to each party, or
neither. In the present case the action Is
not founded upon any transaction with the
deceased, but upon a contract which the de-
fendants themselves made. By force of the
will and their appointment they became
owners of the judgment. Their title, al-
though acquired under the foreign law, was
good. In Petersen v. Bank, 32 N. Y. 21, the
foreign executor sold an obligation of the
estate, and his assignee sued upon it The
action was sustained on the grounds that
the title of the foreign executor was good,
and he could transfer it and while he could
not have sued upon It his assignee was not
prevented. In this case, therefore, the de-
fendants were owners of the judgment, and
could lawfully contract for Its sale. Having
done so, they were liable upon that contract
which could be enforced against them be-
cause they made it, and It did not derive
Its existence from any act or dealing of
their testator. We agree, therefore, with the
courts below that the action could be main-
tained.
Objection Is made that the arbitrators
valued the land under water, and not the
upland. The arbitrators certify that they
valued the land per acre lying between the
railroad and the river. That was upland,
and not land under water. While they de-
scribe It as 11 8-10 acres, that may be re-
jected as an Immaterial element of the de-
scription, and does not establish that their
valuation extended to anything but the up-
lands Taking their whole report together.
Its fair meaning Is that they valued one
acre of upland at $25, and so the value of
the 11 8-10 was $295.
The judgment should be affirmed with
costs.
All concur.
Judgment affirmed.
TERUITOEIAL EXTENT OF GRANT.
145
FUGATB V. MOORE et al.
(11 S. E. 1063, 86 Va. 1045.)
Supreme Court of Appeals of Virginia. Sept.
17, 1890.
Appeal from decree of circuit court of Lee
county, rendered June 21, 1887, in a suit
■wherein Nathan H. Moore and others were
complainants and the appellant, Peter P.
Pugate, executor of M. B. Overton, deceased,
was the defendant. Opinion states the case.
Duncan & Sewell, for appellant. A. L.
Pridemore, for appellees.
LEWIS, P. The testator at his death, in
1880, was domiciled in Tennessee, and there
the will was proved, and the executor quali-
fied. No administration upon the estate has
ever been granted in Virginia. The legacy
sued for is claimed under the second clause
of the will, which is as follows: "(2) I give
and bequeath to Martha J. Combs, daughter
of Virginia A. Combs, deceased, five hun-
dred dollars out of the G. B. Short debt,
when collected and put at interest, including
the amount due her in my hands from the
estate of Virginia A. Combs, deceased; and, if
the above Martha J. Combs should die leav-
ing no heirs of her body, the said amount
to be divided equally between my heirs."
The bill alleges that the complainant, Moore,
after the testator's death, intermarried with
the said Martha, since deceased, and had
issue by her, who survived her about three
months, leaving the complainant its sole dis-
tributee; that both the complainant and the
defendant, the executor, reside in Lee
county, in this state; that the Short debt
"was owing" in that county; that the same
has been "collected by the said executor;"
and that the money remains undisbursed in
his hands. The object of the bill, therefore,
as averred, is "to enforce said trust, and to
compel the defendant to pay said legacy."
• There was a demurrer to the bill, on the
ground— First, of want of jurisdiction, inas-
much as the bill shows on its face that the
defendant has never been appointed or
qualified as the personal representative of
the testator in this state, but in Tennessee
only, where the testator was domiciled; and
secondly, because the complainant, not be-
ing the personal representative either of his
deceased wife or of their deceased infant
child, had no right to sue. The defendant
also answered the bill, denying, among
other things, that the Short debt was pay-
able in this state, and averring that Short,
the debtor, resided in Hancock county, in
Tennessee, and that the debt had there been
collected. Afterwards an amended bill was
filed, in which it was charged that the Short
debt was secured by a lien on certain real
estate in Tennessee, which had been sold to
enforce the lien; that at the sale the defend-
ant purchased the land for a sum suflScient
to pay the debt, and now owes the purchase-
T.A w RTrnn 10
money. To this the defendant answered
that he had not bought the land for him-
self, individually, but for the estate, and
that he owed nothing on account thereof.
He admitted, however, that the debt had
been collected. He also demurred to the
amended bill. Afterwards Reese D. Flan-
ary, administrator of the deceased wife,
and also of her deceased child, was by con-
sent made a party plaintiff to the suit; and,
when the cause came on to be heard, a de-
cree was entered directing the legacy to be
paid to him, which is the decree appealed
from.
It does not appear from the record what
disposition was made of the demuerers to
the original and amended bills; but, as the
decree adjudicates the principles of the cause,
we must assume that they were overruled.
Matthews v. Jenkins, 80 Va. 463.
A number of questions were discussed in .
the argument at the bar, of which one of
the principal was whetlier the legacy is a
vested or contingent one; but, in the view
we take of the case, it will not be necessary
to pass upon that question. We think the
objection to the jurisdiction must be sus-
tained, and therefore that the case must go
off on that ground.
It is an established general rule that a
grant of administration has no legal opera-
tion outside of the estate from whose juris-
diction it was derived. Hence, ordinarily,
no suit can be maintained by any executor
or administrator, or against any executor
or administrator, in his official capacity, in
the courts of any other state. Story, Confl.
Laws (7th Ed.) § 513; 1 Barb. Ch. Pr. 153;
Andrews v. Avory, 14 Grat. 229; Harvey v.
Richards, 1 Mason, 381. If, however, an
executor or administrator should go into an-
other state, and there, without taking out
new letters of administration, should collect
debts or other assets of his decedent, found
there, he would be liable to be sued in the
courts of that country by any creditor there,
and held liable to the extent of the assets
so collected. And in Tunstall v. Pollard, 11
Leigh, 1, it was decided that an executor
who has qualified and received assets in a
foreign country, and has brought them in-
to this state, is liable to be sued and to be
compelled to account here, although he has
never qualified here, and although he may
have received no assets here. The present
case however, is not within the principle
of that decision, for here no assets have
been collected in this state, nor have any
been brought hither, by the defendant. The
charge in the amended bill that the land
upon which the Short debt was secured was
purchased by the defendant, and that he now
owes the purchase money out of which the
legacy is payable, is denied in the answer;
and the agreed statement of facts in the
record, upon which the case was decided, is
in conformity with the averments of the
answer on that point. According to those
46
TERRITORIAL EXTENT OF GRANT.
averments, the land was purchased by the
executor, not for himself, but for the estate;
and it is neither alleged nor proven that,
under the laws of Tennessee the purchase
for the estate was not a valid one. It is ad-
mitted, however, tliat the debt has been
collected, so that the case stands upon the
same footing as if the land had been sold
to a stranger for cash. The fact that the
executor resides in this state does not affect
the case. He is none the less a foreign ex-
ecutor on that account. The testator at his
death was an inhabitant of Tennessee; the
executor qualified there; administration has
never been granted here; and no assets of
the testator are, or at any time have been,
in this state; and that is decisive of the
case, so far as the question of jurisdiction
is cQucerned. The jurisdiction is sought to
be maintained on the ground of a personal
trust in the executor, which, it is insisted,
may be enforced in the courts of this state;
and Governor v. Williams, 3 Ired. 152, cited
in 1 Eob. Pr. (New,) 179, is relied upon. In
that case, it is true. Chief Justice Ruffln
expressed the opinion that an administrator
may be compelled to account In a court of
equity where he may be found to those en-
titled to the estate, wherever it may be sit-
uate, on the ground of a personal trust, no
matter where It may have been assumed;
but the remark was purely obiter, (the case
being an action at law, and consequently no
such question being before the court,) and
is, therefore, not authority, even in the
courts of North Carolina. The doctrine is
strongly combated by Mr. Justice Story In
his treatise on the Conflict of Laws, (sec-
tion 514,) where numerous authorities are
cited, including Doolittle v. Lewis, 7 Johns.
Ch. 45, in which case Chancellor Kent said:
"It is well settled that a party cannot sue
or defend in our courts as executor or ad-
ministrator under the authority of a for-
eign court of probate. Our courts take no
notice of a foreign administration, and, be-
fore we can recognize the personal repre-
sentative of the deceased and his repre-
sentative character, he must be clothed
with authority derived from our law. Ad-
ministration only extends to the assets of
the intestate within the state where It was
granted. If it were otherwise, the assets
might be drawn out of the state, to the
great inconvenience of domestic creditors,
and be distributed, perhaps, on very differ-
ent terms, according to the laws of another
jurisdiction." See, also, Vaughan v. North-
up, 15 Pet. 1; 1 Lomax, Bx'rs, marg. page
142. This doctrine, it is true, has been modi-
fied in Virginia, to the extent of holding, as
we have seen, that where a foreign execu-
tor comes into this state, bringing assets
with him, he may be sued here; but that, as
we have also seen, does not afCect the pres-
ent case, nor are we aware of any principle
upon which the unqualified doctrine enunci-
ated by Chief Justice Ruffln, and contended
for here, can be supported. The decree
must therefore be reversed and the bill dis-
missed for want of jurisdiction.
Decree reversed.
PAYMENT OF DEBTS AND LEGACIES.
147
HOOVER V. HOOVER.
(5 Pa. St 351.)
Supreme Court of Pennsylvania. June 9, 1847.
Appeal from the orphans' court of Cumber-
land.
The petition (or bill) stated that John
Hoover devised a tract of land to his son
David, yielding and paying out of the same
$7,250, in instalments of $700; the first pay-
able in sis months after testator's decease,
the second in eighteen months thereafter,
and the remaining instalments yearly. Out
of the first instalment a legacy of $500 v^as
given to the petitioner. Of the residue, por-
tions were given to the testator's other chil-
dren, and the amount undisposed of, with
the residue of the estate, was given equally
among all the children. The petition then
averred the acceptance of the land devised,
prayed an order of sale, etc.
The answer of the devisee admitted the
will, of which he and another were execu-
tors, and averred a settlement of an admin-
istration account, by which it appeared he
had paid debts of the estate beyond the as-
sets $1,683.63, and that debts yet remained
unpaid, which, with that sum, amounted to
$4,453. It further averred there were no as-
sets nor any annual payment due out of the
land which respondent could apply to the
payment of legacies. That testator had
made no provision by his wiU for payment
of his debts, and that the estate would not
be sufficient to pay all the legacies when the
assets came to hand, but that they must
abate ratably.
The complainant demurred, and the co\nrt
■ dismissed the bill.
Graham and Reed, for appellants. Biddle
and Watts, contra.
BELL, J. It is admitted by the defend-
ant's answer, as indeed it could not, with
any show of reason, have been denied, that
the sum of $7,250, bequeathed by the testa-
tor to be paid to his children in the propor-
tions and at the time mentioned in his will,
is a charge upon the lands devised to David.
It is also admitted that the latter, in pursu-
ance of the will, took possession of the lands
devised, and still continues in the seisin and
occupation of them. Upon these facts alone,
it is not to be disputed that, having taken
the land cum onere, he is bound to pay to
his brothers and sisters their several lega-
cies as they respectively fall due, and this
liability may be enforced by a proceeding in
the orphans' court, such as has been insti-
tuted here, under the statute giving the spe-
cific remedy. By the terms of this will, not
only is a lien created on the land devised,
but the devisee, immediately upon his ac-
ceptance of it, became personally responsible
to the legatees for the amount of their re-
spective legacies. As is said in Glenn v.
Fisher, 6 Johns. Ch. 33, a case which can-
not, in this particular, be distinguished from
the present, by acceptance, the devisee be-
comes absolutely bound for the legacies, and
cannot set up any condition precedent to it,
for the law makes none. He who accepts a
benefit under a wiU, must conform to all its
provisions, and renounce every right incon-
sistent with them. To the same effect is the
doctrine of our own case of Zobach's Case,
6 Watts, 167, which. In Its leading featm*es,
is also very similar to the present The tes-
tator, said Mr. Justice Kennedy, in deliver-
ing the opinion of the court, not only intend-
ed to charge the land, but to make it a
personal charge on the devisee, and he be-
came personally liable on taking possession,
under the will. These distinct liabilities are
illustrated by the consideration that the es-
tate given to David may be treated as an
estate on condition. In a will, no precise
form of words is necessary to create a con-
dition. Any expressions denoting such an
intention will have that effect Thus a de-
vise to A., "he paying," or "he to pay £500
in one year after my decease," would, it is
said, be a condition for the breach of which
the heir might enter. 2 Pow. Dev. 251;
Barnardiston v. Fane, 2 Vern. 366; 1 Eq. Cas.
Abr. 109, pi. 8. But In such a case equity
would afford relief against the forfeiture, on
payment of principal, interest and costs, (1
Pow. Dev. 195, note 7;) and it is not to be
doubted that, on application of the party en-
titled to payment out of the land devised, the
devisee would be compelled to perform the
condition, on the principle that no man shall
be allowed to disappoint a will under which
he takes a benefit Per Eyre, Chief Baron,
in Blake v. Bunbury, 1 Ves. Jr. 523. But the
defendant, David Hoover, endeavours to ex-
cape from the responsibillly he has thus
assumed, by showing that, although five- in-
stalments of $700 each were due, and pay-
able under the will of the testator, at the
time the plaintiff filed his bill in the orphans'
court, these were not sufficient In amount
to cover a balance of debts remaining due
from the testator's estate, after exhausting
the personal estate and other lands not de-
vised; and, therefore, he avers "there are no
assets of the estate of the said John Hoover,
deceased, in his hands, which he could apply
to the payment of the legacy of Michael
Hoover, nor is there any annual payment
due and payable out of the land so as afore-
said devised to him, which he can legally
and safely apply to the payment of the said
legacy or any part thereof." This averment
proceeds upon the notion that although the
aggregate sum charged on the land, and
which, as we have seen, has become the per-
sonal debt of the devisee, is directed to be
paid in ascertained legacies and by way of
residuary bequest to the other children of
the testator, yet that is subject to be first
appropriated in payment of the debts due
from his estate, leaving only any balance
that may remain, applicable in satisfaction
148
PAYMENT OF DEBTS AND LEGACIES.
of the legacies, pro rata. This view seems
to have been adopted by the orphans' court,
and to have led it to the support of the de-
fendant's answer by a dismissal of the plain-
tiff's bill with costs. But in this, we are
of opinion the court was clearly wrong.
Viewed as a personal liability attaching up-
on the devisee, there can be no pretence
whatever to say the plaintiff's legacy is lia-
ble to be defeated by the fact that the tes-
tator died indebted in a larger amount than
his personal estate was sufficient to dis-
charge. This legacy is made directly pay
able by the devisee to the legatee, without
the intervention of the executor, who alone,
has to do with the payment of his testator's
debts. That the devisee was also executor
can make no difference, for the land devised
did not pass to him in that character, but as
devisee, and his acceptance of it immediately
raised a promise to pay the sums charged
upon it, irrespective of the testator's debts.
It may be true the latter acted upon a mis-
take as to the amoimt of these debts, and
that a consequence will be a diminution of
the benefit intended to be conferred by him
on his devisee; still this acceptance by the
latter of the thing devised, subject to the
burden expressly imposed on it, closes his
mouth from averring, as a defence to the
plaintiff's claim, that there are no assets of
the estate of the deceased in his hands appli-
cable to the payment of the legacy. The
right of the legatees to claim payment at the
hands of the devisee does not rest upon as-
sets, as such, in his possession, but upon his
liability as devisee, holding under the same
will that gives birth to their interests.
But if we put out of view the personal re-
sponsibilities of the devisee, and treat this
as a case in which a chancellor would mar-
shal assets as between creditors, devisees,
and legatees. It will be found the defence set
up here is equally imavailing. In this as-
pect, the legacies must be regarded as demon-
strative, and, in some sort, partaking of the
nature of specific legacies, as charged upon
a particular fund specially appropriated to
their payment. Ward, Leg. 21. This fund
is the devised land which. It is not denied,
is sufQcient for the payment of the balance of
the testator's debts, and the legacies be-
queathed. The established order of the ap-
plication of the several funds liable to the
payment of debts is definitively settled by ad-
judged cases, and is thus generally stated
by text writers upon this subject. 1. The
general personal estate not expressly, or by
implication, exempted. 2. Lands expressly
devised to pay debts. 3. Estates descended
to the heir. 4. Devised lands, charged with
the payment of debts generally, whether de-
vised in terms general or specific, (every de-
vise of land being in its nature specific.) 5.
General pecuniary legacies, pro rata. 6.
Specific legacies, pro rata. 7. Real estate
devised, whether in terms general or specific.
2 Pow. Dev. 667, 668, and cases there cited.
In this instance the first and third class of
assets have been exhausted, without fuUy
satisfying the debts; and this testator did
not expressly devise any lands for their pay-
ment. Nor did he charge any of his lands
with the payment of his debts generally, so
far as we are enabled to ascertain from the
paper-book, which, however, does not set out
the whole of his wiU. But with us, aU the
lands of a decedent, whether descended or
devised, are, by law, charged with the pay-
ment of his debts, and, as is intimated in
Manning v. Spooner, 3 Ves. 118, and express-
ly said by Mr. Justice Rogers, in Walker's
Estate, 3 Rawle, 241, a case also turning upon
the mode of marshalling assets in payment
of debts; every testator is presumed to know
the law of the country in which he lives,
and to make his will in reference to it; and
he adds, that though a clause in wills, char-
ging the testator's estate with the payment of
his debts, is usual, it is by no means neces-
sary, for the estate is equally bound without
such direction, and in the order indicated.
Accordingly, in that case, personal property
bequeathed to the widow of the testator was
decreed to be subject to the payment of
debts, before descended real estate could be
called on. It does not, however, follow
from this, that when no other fund than the
personal estate is provided for the payment
of legacies, and this is swept away by the
creditors of the testator, the legatees are en-
titled to call upon the lan^s devised to re-
place the amount abstracted from the per-
sonalty, for this would be in contravention
of the order of application I have already
stated. The right to do so seems to depend
upon an expression of intention by the testa-
tor to charge the devised lands with his
debts, in which case the assets will be mar-
shalled in favour of pecuniary and specific
legatees; lands so charged being appli-
cable before pecuniary or specific lega-
cies. But the case is very different where
the burden of paying the legacies is spe-
cifically imposed on the devised land.
The devisee then takes it so subject, and, in
Pennsylvania, on failure of the prior funds,
also onerated with the debts. The testator
says he shaU pay the legacies, and the law
says he shall pay the debts. It is, in this re-
spect, like a devise of mortgaged lands,
charged by the testator with the payment of
a sum certain, partly applicable to the dis-
charge of legacies given to other children of
the testator. When construing such a de-
vise, C. J. McICean, as the organ of the court,
observed: "It appears to have been the in-
tention of the testator that the legacies, spe-
cific and pecuniary, should be paid, as well
as that the devise of the real estate should
take effect; and, if practicable, the assets
should be so marshalled that the testator's
intention in the whole should be carried into-
execution;" and it was, accordingly, decided
that the specific and pecuniary legacies be-
queathed to the children, ought not to be
PAYMENT OF DEBTS AND LEGACIES.
149
brought in ease of the particular lands
mortgaged, for the devisee of the real estate
must take it cum onere, that is, subject to
the mortgage, unless the residue of the per-
sonal estate be suiQcient to discharge it. In
this case, too, it was apparent the testator
had miscalculated the amount of his debts, a
circumstance which is never allowed to de-
feat legatees, where a sufficient fund still
remains. Ruston's Ex'rs v. Ruston, 2 DaU.
243. A similar principle was announced in
the case of Davies v. Topp, 1 Brown, Oh.
4S5, in note, where one seised in fee of con-
siderable real estate, subject to a mortgage,
by his will gave to his sister an annuity,
during her life, to be paid by the person who
should be seised of his real estate, under his
wUl, and also several pecuniary legacies, the
payment of which, together with his debts,
he charged upon all his real and personal
estate, which he devised, subject thereto, to
his nephew in tail male; and to the same
nephew he gave all the rest of his personal
estate, subject to his debts, legacies, and fu-
neral expenses, and appointed him executor
of the will. Upon a bill brought for an ac-
count and application of the personal estate,
not specifically bequeathed, in payment of
debts and legacies, and in case the personal
estate should not be sufficient, to have the
deficiency raised by a sale or mortgage of a
competent part of the real estate, the master
of the rolls decreed, and this decree was af-
terwards affirmed by Lord Thurlow on appeal,
that the personal estate not specifically be-
queathed should be first applied in payment
of debts, funeral expenses, and legacies, but
in case the personal estate should be insuffi-
cient for the payment of debts, the balance
due the mortgagee and other specialty cred-
itors to be raised by mortgage or sale of cer-
tain freehold estates, acquired of the testator
after making his will, and which had de-
scended to his heirs at law; and in case
these funds should not be sufficient for the
payment of debts and legacies, the deficiency
to be made good out of the real estate de-
vised by the will, charged with the payment
of the testator's debts and legacies. In
these, and similar instances, a demonstrative
legacy is not suffered to fail while the fund
charged with its payment holds good for the
purpose. After debts, these have the pri-
mary claim upon the fund, and where that
fund is land devised, the devisee is, if neces-
.sary, to be postponed. But here the devisee
claims to apply the legacies in case of the
land upon which they are charged, which,
as we have seen, cannot be done. It follows
that, under the facts disclosed, the orphans'
court erred in dismissing the bill of Michael
Hoover, the legatee, and its decree must,
therefore, be reversed.
Decree reversed, and it is ordered that
the record be remitted to the orphans' court,
with directions to proceed.
150
PAYMENT or DEBTS AND LEGACIES.
HAYS et al. v. JACKSON et al.
(6 Mass. 149.)
Supreme Judicial Court of Massachusetts.
Nov. Term, 1809.
The petitioners alleged, and proved by the
requisite documents from the probate of-
fice, that the personal estate of the testator
was insufficient, by the sum of 66,000 dol-
lars, for the payment of his just debts and
legacies, and thereupon prayed that they
might be licensed to convey so much of the
real estate, of which he died seized, as
should be sufficient to pay those debts and
legacies, with the charges of sale.
Upon notice ordered, the heirs at law ap-
peared, and sundry questions arose, all of
which are discussed in the following opin-
ion of the court.
Otis and Sullivan, for petitioners. Pres-
cott and Jackson, for respondents.
PARSONS, C. J. Henry Jackson made
his last will on the 13th of January, 1805,
in which he makes the following disposition
of his estate.
First After all his just debts and funeral
charges are paid, he gives to such of his
nephews and nieces as may survive him,
fifty dollars each. Also, he gives to his
sister Susanna Gray in fee, certain specifick
real estate, on condition that she does not
demand against his estate her portion of her
father's estate remaining in his hands; and
his executors are to hold the real estate,
thus devised her, upon the same trusts as he
held her said portion.
Also, he gives to Mrs. Hepzibah 0. Swan
in fee, all the remaining part of his estate,
real and personal, of which he might die
seized, or which might afterwards descend
to him by gift, grant, as heir at law, or oth-
erwise, to be held in trust by his executors,
for her sole use and disposal.
And he appoints Judah Hays and Blisha
Sigourney his executors.
Mrs. Swan, the residuary legatee, and also
the heirs at law are before us.
The testator was seized of other real es-
tate, than that specifically devised to Mrs.
Gray, when he made his will; and he aft-
erwards acquired other real estate, which on
his death, without a republication of his
win, descended to his heirs.
It appears that the personal estate, left by
the deceased, is insufficient to pay all his
debts. The heirs contend that the lands,
which would pass by the residuary devise to
Mrs. Swan, shall first be applied to the pay-
ment of the debts, before the descended
lands can be called for. On the other side,
Mrs. Swan and the executors, who are her
trustees, insist that the descended lands are
first to be appropriated to the payment of
the debts.
Whether we are authorized, on this peti-
tion, to marshal the assets; and if we are,
in what manner they are to be marshalled,
are the questions before the court.
The case may first be considered as at
common law, and according to the equitable
rules established for marshalling assets,
where there is a will.
At common law, the lands of a testator
are not assets in the hands of the heirs, for
the payment of any but specialty debts,
where the heir is bound expressly by the
contract And his lands are not bound for
the payment of any of his debts in the
hands of a devisee, unless charged by the
testator, either generally or specially, in his
will. To prevent the injustice of the testa-
tor, in devising his lands without charging
them with the payment of his debts, the
statute of 3 & 4 W. & M. c. 14, was passed,
by which the lands in the hands of a devisee
are made assets for the payment of debts
due on specialties. Since that statute all
the lands of the testator, whether they de-
scend or are devised, are charged by law
with the payment of the creditors by spe-
cialty; who may also resort to the personal
estate.' But creditors by simple contract
can avail themselves only of the personal
estate, and of such of the lands as are
charged in the wiU with the payment of
debts; unless when they take the place of
creditors, who have been paid out of the
personal estate. These rights of the credit-
ors remain uncontrouled by any provisions,
which a testator can make.
But as between legatees and devisees who
claim under the will, and the heirs who can
take only what the testator has not given
away, he may regulate the funds, out of
which his debts shall be paid; by which
regulations they will be bound.
And the general rule in equity for mar-
shalling assets is thus settled. 1. The per-
sonal estate excepting specific bequests, or
such of It as is exempted from the payment
of debts. 2. The real estate which is ap-
propriated in the wiU as a fund for the pay-
ment. 3. The descended estate, whether
the testator was seized of it when the will
was made, or it was afterwards acquired.
4. The rents and profits of It, received by
the heir after the testator's death. And 5.
The lands specifically devised, although
they may be generally charged with the
payment of the debts, but not specially ap-
propriated for that piurpose. And this rule
Is executed by a decree In chancery, accord-
ing to the rights of the pariies respectively
interested.
The laws of this commonwealth, ap-
plicable to this subject, may next be con-
sidered. And here all the personal estate
of the testator, and all the real estate, of
which he died seized, whether devised or
not, are assets for the payment of aU his
debts, whether due by simple contract, or
by specialty. Also by the statute of 1783,
c. 24, § 10, all estate real or personal, imde-
vised in any will, shall be distributed as if
PAYMENT OF DEBTS AND LEGACIES.
151
It were intestate, and the executor shall ad-
minister upon it as such.
A question has been made, whether the
executor must take out administi^ation on
such undevised estate, or whether he shall
administer it ex officio as executor. The
usage has been to administer it without a
letter of administration: and we are satis-
fled that this usage is correct. There can
be no benefit to any person, from having
two accounts Opened by the executor in the
probate office; and the natural construction
of this section supports the usage. For the
executor, by the probate of the will, has the
administration of the testate estate, ao-
cording to the will, and on undevised estate
he is also directed to administer agreeably
to the provisions respecting intestate es-
tate.
According to the strict rules of law, there
can be no undevised personal estate in a
will, where an executor is appointed: for he
has aU the personal estate, whether ac-
quired before or aftei* the will, in trust, —
first to pay the debts and then the legacies;
and if any remained, it was his own, un-
less the testator by his provision for the
executor, had excluded him from it; in
which case he was trustee of the remainder
for the next of kin.
As questions frequently arose, whether
the executor was excluded from the residue
or not, the section of the statute above" cited
removed all doubt: and the executor is now
in all cases trustee of the imdisposed resi-
due for the next of kin.
As to the distribution of undevised lands,
this section is merely afiirmative of the com-
mon law, which gives to the heir all unde-
vised estate. But by the obligation imposed
on the executor to administer it as intestate
estate, it becomes assets in his hands for the
payment of the testator's debts; and it may
be sold by the executor, on license for that
purpose, or a creditor may take it in execu-
tion.
There is another provision, applicable to
this subject, in the 18th section of this stat-
ute; where it is enacted, that whenever a
testator in his will shall give any chattels
or real estate to any person or persons, and
the same shall be applied to satisfy the debts
of the testator, all the other legatees, de-
visees or heirs, shall refund their propor-
tionable part of such loss, and contribution
may be compelled by suit.
From this view of our statute provisions, it
is manifest that a testator cannot, by any
dispositions in his will, affect the rights of
creditors, who may, if their debts are not
discharged, enforce satisfaction by the levy
of their executions on any estate, which
was the testator's at his decease; the whole
of it being' assets in the hands of the exec-
utor. But it is also manifest that the testa-
tor may bind, by his dispositions, his leg-
atees, devisees and heirs.
Hence results the right and duty of the
court, In the due exercise of its jm-isdiction,
so to marshal the assets, that as little in-
terruption be given to the interests of the
claimants under the will, and of the heirs,
as may consist with the more perfect rights
of creditors. This can be done only by a des-
ignation in the license of the estate, which
the executor may sell for the payment of
debts. And when the testator, or the law
has appropriated an adequate fund for the
payment of the debts, it would be unreason-
able for the court to permit that fund to lie
by, and to license an executor to sell a spe-
cifick devise, and thus drive the specifick
devisee to his action at law, for relief out of
the appropriate fund.
In what manner the assets are in this case
to be marshalled, is the next question. And
in our opinion, the rule established in equity,
in cases where all the debts are due by spe-
cialty, is applicable in this case, except as
it relates to the rents and profits of the de-
scended estate, received after the testator's
death, which we cannot come at. For in
those cases, the whole estate personal and
real, as well the devised as the descended
lands, are assets for the payment of all the
debts. So here the whole estate of Jackson,
the testator, including the descended real
estate, is assets for the payment of all his
debts, in the hands of his executors. And in
both cases the charge on the estate is by
operation of law.
In this will there is no specifick bequest of
any chattel, and no exemption of any part of
the personal estate, from the payment of
debts. Therefore the whole of the personal
estate, after the payment of the expenses of
the last sickness, funeral charges, and of the
debts due to the government, (if any,) is first
to be applied to discharge the debts. It is
also very clear, that the devise of lands to
Susanna Gray is a specifick devise, not lia-
ble, by the terms of it, to any deduction. The
descended estate must then be applied to the
payment of the debts, before the specifick
devise can be resorted to. And the same rule
must apply to the lands, which Mrs. Swan
can claim as residuary legatee, if the devise
of those lands can be considered as specifick
within the intention of the rule.
Jackson first provides that his debts and
funeral charges be paid: He next bequeaths
legacies to his nephews and nieces, and
makes a specifick devise to his sister Susan-
na Gray. Then he gives to Mrs. Swan in
fee all the remaining part of his estate real
and personal. The just construction of which
is, "when my debts and funeral charges, and
the legacies are paid, and the specifick devise
to my sister is deducted, then what remains,
whether real or personal, I devise in fee to
Mrs. Swan." If nothing should remain, then
nothing is devised to her.
"We cannot therefore consider this devise
of the remainder as specifick. It is rather
creating a fund for the payment of the debts
and legacies, with a devise of what remains.
152
PAYMENT OF DEBTS AND LEGACIES.
if any, to the residuary devisee. If after the
personal estate was exhausted by the debts,
the unsatisfied creditors should levy their
executions on all the devised lands, except-
ing those specifically devised to Mrs. Gray,
Mrs. Swan could not compel contribution by
Mrs. Gray and the heirs, under the statute;
because a general residuary legatee cannot
have contribution, if nothing remains. For
in that case nothing is given to him, but on
a contingency that some estate may remain;
and if no estate shall remain, then nothing
devised to him is taken from him, to satisfy
a creditor of the testator. The debts and
legacies, being first to be paid, are to be con-
sidered as 'a deduction from the property
contemplated to be given: and if after the
deduction, there is no remainder, the con-
templated bounty has wholly failed, there
being in fact, no object, on which it could
operate.
Thus when the testator, after mortgaging
lands, devised them, with a clause, that the
devisee pay off the mortgage, he can resort
to no other part of the estate for relief: but
the money seciu'ed is considered as a deduc-
tion from the property devised. But the case
of King V. King, 3 P. Wms. 358, is in point.
There the testator being seized of freehold
lands, and of a copyhold, which last he had
mortgaged, devised and copyhold to his
nephew; and after all his debts were paid,
he devised the rest of his estate real and per-
sonal to his son, who was his heir. And it
was holden that the import of this deviso
was, that until all the debts were paid, noth-
ing was devised to the son; or that when the
debts should be paid, then and then only, ho
should be entitled to the residue. We can-
not therefore consider this residuary devise'
to Mrs. Swan as specifick, within the rule
of marshalling assets, so that the descended
lands shall first be sold.
It has been argued by the counsel for the
petitioners, admitting the rule to be general-
ly correct, yet that in this case it ought not
to apply, because in the residuary devise the
testator gives, not only all his real and per-
sonal estate, of which he was then seized
and possessed; but all of which he might
afterwards die seized; and therefore that he
contemplated after acquired estate; which
although it could not pass by his will, yet
was evidently intended to pass: and that
this intent ought to be so far executed, as to
cause It to be sold for the payment of debts,
before the residuary devise should be ap-
plied for that piu-pose.
This argument, however Ingenious, is not
solid. For the testator cannot, in his will
charge with the payment of his debts after-
purchased lands, any more than he can de-
vise them. And if in this case he intended
it, the intent was void. And an intent
against law cannot affect this rule or prin-
ciple of law. Otherwise the rights of the
heirs would be implicated by a testamentary
disposition, made before the lands were ac-
quired by the testator. If this case should
be allowed as an exception, it would involve
most residuary devises: for it is common for
the scrivener to Include expressly all the resi-
due of the estate, of which the testator may
die seized or possessed. We think therefore
that the rule should be applied in this case,
without admitting the exception.
The order of the court was entered as fol-
lows.
Ordered that the said executors be, and
they hereby are empowered and licenced to
raise the sum of by sale at publick auc-
tion of the houses, lands, or tenements, of
which the said Henry Jackson died seized
in fee, being devised by him by his last will
and testament: excepting such part thereof
as Is therein devised in trust for his sister
Susanna Gray, and such as may have been
held by said Jackson to the use of, or in trust
for any other person or persons; the said
sum when raised, to be applied to the pay-
ment of the debts aforesaid, with the inci-
dental charges of sale: and if the said sum
cannot be raised by such sale, it is fui'ther
ordered, that the said executors may raise
by sale at publick auction of so much of the
real estate of which the said Jackson died
seized, not having devised the same in and
by his last will and testament, such fm-ther
sum of money, as with the money raised by
the sale first above ordered, will amount in
the whole to the said sum of to be ap-
plied as aforesaid, giving bond, &c.
PAYMENT or DEBTS AND LEGACIES.
ISS
BKILL V. WRIGHT et al.»
(19 N. B. 628, 112 N. Y. 129.)
Court of Appeals of New York. January 15,
1889.
Appeal from supreme court, general term,
Second depai-tment.
Action by Job Seaman Benjamin against
William H. Wright, executor, etc., of Job
Seaman, deceased, and James O. Cronk and
Matilda Cronk, for a legacy given to the
plaintiff by said will, to require an account
by the executor, and, in case of a deficiency
of the personalty, to charge plaintifE's legacy
on the real estate. The latter two defendants
were residuary legatees. Pending the ac-
tion the plaintiff died, and it was revived
in the name of Rowland Brill, his administra-
tor. The special term adjudged the legacy a
charge on the realty, which was affirmed on
appeal to the general term, (44 Hun, 628,
mem.,) and the defendants again appeal.
C. B. Herrick, for appellants. O. D. M.
Baker, for respondent.
ANDREWS, J. Where in a will general
legacies are given, followed by a gift of all
the rest and residue of the real and personal
property of the testator by a residuary clause
in the usual form, and nothing more, it must
now, we think, be regarded as the establish-
ed rule in this state that the language of
the wiU alone, unaided by extrinsic circum-
stances, is insufficient to charge the legacies
upon the lands included in the residuary de-
vise. This was clearly the opinion of Chan-
cellor Kent in- the leading case of Lupton v.
Lupton, 2 Johns. Ch. 614, as appears by his
comment on the case of Bmdenell v. Bough-
ton, 2 Atk. 268; although his judgment in that
case rested in part upon the circumstance
that, in the wiU then under consideration,
there was a prior devise which easily per-
mitted an interpretation reddendo singula
singulis of the residuary clause. In Hoyt v.
Hoyt, 85 N. Y. 142, Folger, C. J., referring
to Lupton V. Lupton, and other cases, justly
stated that they asserted the doctrine that,
"unaided and alone, the words that make up
the usual residuary clause of a will are not
enough to evince an intention in the testator
to charge a general legacy upon real estate,"
but the question was not passed upon in that
case.
The com-ts, however, have held that a gift
of general legacies, followed by a general re-
siduary clause, is not inconsistent with an
intention cu the part of a testator to charge
the legacies on the land. They have there-
fore permitted extrinsic circumstances to be
considered for the piu^ose of ascertaining
the actual Intention of the testator, and in
some cases, by reading the langauge of the
will in the light of the circumstances, have
inferred an intention to charge legacies on
'Reversing 44 Hun, 628, mem.
the land, and given effect to such intention,
although the language, considered independ-
ently of the circumstances, would not alone
justify such an inference.
The cases of Wiltsie v. Shaw, 100 N. Y.
191, 3 N. E. 331, and McOorn v. McCorn, 100
N. Y. 511, 3 N. B. 480, illustrate very clearly
the attitude of this court upon the subject.
Both were cases substantially of wills giving
general legacies, followed by the usual re-
siduary clause. In each the question was
whether the legacies were charged on the
land. In Wiltsie v. Shaw it appeared that
the testator left a large personal estate, am-
ple for the payment of debts and legacies;
and, no other circumstance appearing, it was
held that a legacy given by the testator in
his will, in trust for a son, was not a charge
on the lands which passed to the testator's
daughter under the residuary clause. In Mc-
Corn V. McCorn the legatees were the wife
and son of the testator, and the gift of the
legacies was followed by the usual residuary
clause, under which all the testator's real es-
tate passed to four other children. It appear-
ed that the will was made the day before
the testator's death, and that his personal
estate was insufficient to pay his funeral ex-
penses. The legacies to the testator's wife
and son were mere pretenses, "unless meant
to be a charge on the real estate." Under
these circumstances, the court held that the
legacies were intended to be charged on the
realty, and sustained the claim of the lega-
tees.
We think the cases in this state estabUsh
these two propositions: First, that general
language in a will giving legacies, followed
by the usual residuary clause, is alone insuffi-
cient to charge the legacies on the realty;
and, second, that such language wiU justify
such charge if it is made to appear by extrin-
sic circumstances, such as may under the
rules of law be resorted to, to aid in the in-
terpretation of written instruments, that it
was the testator's intention that the legacies
should be charged on the land. The rule in
England, and in some of the states in this
country, and in the United States supreme
court, is different from the rule in this state.
The cases are cited in Hoyt v. Hoyt, supra.
In Greville v. Browne, 7 H. L. Cas. 689, it
was regarded as having been long settled in
England that where legacies are given gener-
ally and the rest and residue of the real and
personal estate is afterwards given in one
mass, the legacies are a charge on the re-
siduary real, as well as the personal, estate.
But some of the judges were of the opinion
that, if the question was res nova, the natu-
ral construction of the language would lead
to the opposite conclusion.
Under the rule in this state, we think the
legacy of $2,000 given by the wiU of Job
Seaman to his nephew Job S. Benjamin was
not charged on the real estate which passed
under the residuary clause to James O. Cronk
and Matilda Cronk. The will is very simple,
154
PAYMENT OF DEBTS AND LEGACIES.
and is partly printed and partly written.
After lie usual inti'oductory clause, the will
proceeds as follows: "First, after all my
lawful debts are paid and discliarged, I give
and bequeath to Job S. Benjamin the sum
of two thousand dollars, to be paid to him
within three months after my decease; sec-
ondly, I give and bequeath all the rest and
residue of all my real and personal estate, of
whatsoever name or nature, to James O.
Cronk and Matilda Crohk, to each the one-
half part thereof. Likewise I make, consti-
tute, and appoint William H. Wright" execu-
tor, etc.
It is claimed that the words in the first
clause, viz., "after all my lawful debts are
paid and discharged, I give," etc., (which were
printed,) indicate an intention to constitute
the whole estate, real and personal, a fund
for the payment in the first instance of the
debt and legacy. The direction as to the
payment of debts was formal and conven-
tional merely. The law charges the debts
of a decedent upon his real estate, if the
personal estate is insufficient to pay them.
The debts owing to the testator amounted
only to $114.11, and his personal property
was appraised at $2,643.07, and produced
$3,553.36. Similar language was in the will
considered in the case In re Rochester, 110
N. Y. 159, 17 N. E. 740, and was held insufll-
cient to create a charge on the realty.
The extrinsic circumstances do not tend to
show an intention on the part of the testator
to charge the legacy on his real estate. Ex-
cept for the expenses allowed against the es-
tate, growing out of a contest on the pro-
bate of the wlU, instituted by the legatee
and a niece of the testator, and in subsequent
proceediugs on an accounting by the execu-
tor, the personal estate left by the testator
would have been ample to have paid the
legacy and the ordinary expenses of admin-
istration. The legatee was of kindred to the
testator, and the residuary devisees and lega-
tees were strangers in blood; but they be-
came members of his fanuly when they were
children and lived with him until his death,
one for the period of 20 and the other for 25
years. The testator's wife was mflrm and
crippled, and died a short time before the
testator, and they had no children or direct
descendants living. We perceive no circum-
stance which takes the case out of the gener-
al rule. The condition of the testator's prop-
erty when the wiU was made, in 1879, four
years before his death, is not shown. He was
a small farmer, and it is quite probable that
his circumstances had not materially changed
during that time. It may be assumed that
the testator intended that the legacy to his
nephew should be paid. But there is no pre-
sumption that when the will was made liis
personal estate was not adequate for that
purpose. If it was not, and the fact was ma-
terial, the burden of establishing It was upon
the legatee, who in this proceeding is seeldng
to charge the real estate in a case where the
language of the will does not affirmatively
show that this was the Intention of the tes-
tator. It is quite significant of his actual in-
tention that he directs the legacy to be paid
within three months after his death, and
gives no power of sale to his executor.
We think the judgments below should be
reversed, and a new trial granted, with costs
to the executor appellant in all courts against
the respondent, but without costs to the other
defendants.
AH concur.
PAYMENT OP DEBTS AND LEGACIES.
155
In re ROOT'S WILL.
HINEE V. ROOT'S HEIRS.
(51 N. W. 435, 81 "Wis. 263.)
Supreme Court of ■Wisconsin. Feb. 2, 1892.
Appeal from circuit court. Fond du Lac
county; Norman S. Gilson, Judge.
Petition by the administrator with the
will annexed of Truman Root, deceased,
for leave to sell real estate for the pay-
ment of legacies. From an order of the
circuit court aflSrming a judgment of the
county court of Fond du Lac county, de-
nying the prayer of the petition, the ad-
ministrator appeals. Reversed.
The other facts fully appear in the fol-
lowing statement by LYON, C. J.:
Truman A. Root, late of Fond du Lac
county, died seised of a farm in that coun-
ty ; of a parcel of land in the cit.y of Fond
Uu Lac, on which were two dwelling-
bouses, (one of which was his homestead ;)
and of some personal property. He left
a will, which has been dul.v probated, in
which he directed a sale of his farm, the
payment to his widow of $1,000 of the
proceeds, the investment of another .fl,000
thereof in a house and lot or other pro-
ductive propert.v in that city, and the pay-
ment to his widow of the rents, issues,
and profits of such property during her
life. He also devised to his widow the
other city property above mentioned, for
her life. He made general money bequests,
amounting to $2,600, to 15 or more per-
sons other than his widow, S of whom
were not his heirs at law. The others
were such heirs. He left two heirs at law
to whom no bequests were made. The re-
siduary clause of the will is as follows:
"After the sale of said farm, and the pay-
ment of said debts, legacies, bequests, and
devises as aforesaid, the rest, residue, and
remainder of my property shall go to my
wife for life, remainder over to my heirs
at law. " The testator left no lineal de-
scendants. In due course of administra-
tion the farm was sold; the $1,000 be-
queathed to the widow paid to her; an-
other $1,000 of the proceeds invested in
building another house on the city lot,
under the order of the county court; the
personal property was sold, and the debts
of the estate paid ; and a balance remained
in the bands of the administrator, appli-
cable to the payment of the general lega-
cies, of about $500. None of these legacies
have been paid. Thereupon the adminis-
trator presented a petition to the county
court, setting forth the above facts, and
praying license to sell the reversion of the
Fond du Lac city property, so that he
might pay the unpaid legacies, and close
the estate. The heirs at law of the testa-
tor interposed objections in the nature of
a demurrer to the petition, and the mat-
ter was determined on the petition and
objections thereto, without testimony.
The county court denied the petition, and
the circuit court, on appeal, affirmed the
order of the county court denying the
same. The administrator now appeals
to this court from the judgment of affirm-
ance.
J. W. Hiner, (Oeorge Gary, of counsel,)
for appellant. David Babcock, for re-
spondents.
LYON, C. J., (after stating the facts.)
For the purposes of this appeal, the objec-
tions interposed by the heirs of the testa-
tor to the petition of the administrator
for leave to sell the reversion in the Fond
du Lac city property must be treated as
u demurrer thereto, and hence tlie aver-
ments in such petition must be taken to
be true. Indeed, we do not understand
there is, or will be, any controversy con-
cerning the facts of the case. Some ques-
tion was made in the argument as to
whether the interest of the heirs of the tes-
tator in the Fond du Lac real estate is a
remainder or reversion. If they take un-
der the will, undoubtedly they take an es-
tate in remainder; but if by descent, they
take an estate in reversion. And whether
it be one or the other, it is a vested es-
tate. Rev. St. §§2033-2037, inclusive. For
reasons which will presently appear, the
question is not important. It may be
observed, however, that at common law
the rule seems to have been well settled in
England, and in many, perhaps most, of
the United States, that a devise to the
heir at law of precisely the same estate he
vvould take by dewcent, were there no de-
vise, is void, and the heir takes by descent
in such case, and not by purchase. 4
Kent, Comm. 507. The rule was changed
in England by statute 3 & 4 Wm. IV. c.
106. Were it necessary to decide the ques-
tion, we should probably be constrained
to hold that, notwithstanding the resid-
uary clause in the will, the heirs of the
testator in this case take their estate in
the city property by descent, because they
would take the same estate therein had
the will contained no residuary clause;
and hence, that their estate is a reversion.
But whether their estate be a remainder
or a reversion, the will itself contains in-
disputable evidence that the testator in-
tended to charge his real estate not spe-
cifically devised with the payment of leg-
acies, if the personal estate proved insuffi-
cient to pay them. Such evidence is
found in the residuary clause, which ex-
pressly limits the residue of his estate,
both real and personal, to such of it as
shall remain after all debts, legacies, be-
quests, and devises have been paid. Lan-
guage could not more plainly express the
intention of the testator to charge both
his real and personal estate with the pay-
ment of the legacies in his will. Such in-
tention of the testator is controlling in
the distribution of his estate. It may be
observed here that there is abundance of
authority to the effect that when, as in this
case, legacies are given generally, and the
residue of the real and personal estate is
afterwards given in one mass, such lega-
cies are a charge on the resi(3uary real as
well as personal estate, unless such con-
struction is opposed to other proyisions
in the will. In Turner v. Gibb, (N. J. Ch.)
22 Atl. Rep. 580, numerous cases are cited
which sustain this doctrine. Under this
rule, the residuary estate would be charged
with the payment of legacies in this case,
even though the residuary clause did not
contain the limitation above mentioned.
It follows that the heirs took the rever-
sion or remainder (whichever it may be)
subject to the payment of legacies. The
personal estate has been exhausted, and
156
PAYMENT or DEBTS AND LEGACIES.
it has proved insufficient to pay all the
legacies. Hence, tlie continsency has
arisen which renders necessary a resort to
the residuary real estate to make up the
deflcienoy. A reversion or vested remain-
der may be sold on execution before the
expiration of the precedent estate. 1
Freem. Ex'ns, § 178, and cases there cited.
No valid reason has been suggested why
the same interest may not also be sold to
enable an administrator to pay lesacies
which are a charge upon such interest.
We think the power and duty of the
court to order the residuary estate sold
to pay legacies is not impaired or af-
fected by the circumstance tliat a por-
tion of such estate was tlie homestead of
the testator at his decease. The testator
had the right, while living, to convey to a
stranger, without the signature of his
wife to the conveyance, the reversion in
the homestead after it should cease to be
auch. Ferguson v. Mason, 60 Wis. 377, 19
N. W. Rep. 420. He may also devise it to
a stranger, (Rev. St. §§ 2271, 2277, 2280,)
and his widow can preserve a homestead
right therein only by electing to take the
provision made for her by law, instead of
that contained in the will of her deceased
husband. Id. §§ 2171, 2172. Here the hus-
band specifically devised to the wife an es-
tate in Che homestead which may endure
longer than that she would have taken
under the statute, for under the statute
her estate would terminate upon her
marriage, as well as at her death, while
under the will it only terminates at her
death. She elected to take under the will,
and holds the property by virtue of the
devise thereof to her. Thefactthatit was
once the homestead of her husband and
herself does not affect the tenure upon
which she holds, one way or the other,
and there remains attached to the prop-
erty no quality of a homestead which in-
terferes with the sale of the reversionary
interest therein to complete the payment
of legacies. It is urged that, inasmuch as
the widow is only about 45 years of age
and liable to live many years, the rever-
sion in the property dependent upon her
life-estate would sell for but little, and
hence that it would be a bardsliip on the
heirs to force a sale thereof. The answer
to this is the same that would be made
were the property about to be sold on
execution, or foreclosure of a mortgage,
or mechanic's or laborer's lien; that is,
the heirs must protect themselves by bid-
ding, or procuring bidders at the sale.
The legatees must protect themselves in
like manner. The courts cannot always,
or usually, save the parties interested in
property about to be sold under judicial
process from the peril that it may be sold
below its value. The remedy against
such peril is, in a large measure, in the
hands of such parties themselves. It seems
to us that in this case some, amicable ar-
rangement might be made between the
heirs and legatees who are not heirs,
by which the property may be made to
sell for its value, or a sale thereof be
avoided by a satisfaction of the legacies,
the assignment of the residuary estate to
the heirs by the proper court, and the dis-
charge of the administrator. But, how-
ever that may be, we think the petition of
the administrator for leave to sell the
residuary estateshould have been granted.
It is scarcely necessary to add that the
specific life-estate in the property devised
to the widow is not chargeable 'with the
payment of legacies. The judgment of
the circuit court is reversed, and the cause
will be remanded, with directions to that
court to reverse the order and judgment
of the county court, denying the petition
of the administrator, and for further pro-
ceedings according to law."
PAYMENT or DEBTS AND LEGACIES.
157
DAVroSON et al. v. COON,
(2S N. E. 601, 125Ind. 497.)
Supreme Court of Indiana. Oct. 38, 1890.
Appeal from circuit court, Hancock coun-
ty; M. E. FoRKNER, Judge.
T. B. Redding, M. Marsli, and W. W.
Cook, for appellants. D. S. Gooding, M.
B. Gooding, and J. A. New, for appellee.
ELLIOTT, J. The appellee's complaSnt
contains these allegations: That Conrad
Coon died the owner of real estate of the
value of $5,000. That he died testate,
having executed a will, and tliat his ■will
was probated in due course of law. That
the will contains this provision : " After the
death of my wife, I direct that my estate
shall be divided in the following manner :
First, I give to my son Joseph Coon the
sum of eight hundred dollars in money, to
be made out of my estate, and I also di-
rect that my son Joshua shall have three
hundred dollars, also to be made out of my
estate, after the death or marriage of my
wife. When the above amounts of money
shall have been paid, I direct that the re-
mainder ot my whole estate shall be equal-
ly divided among my heirs." The legacy
bequeathed to the appellee, Joseph Coon,
is wholly unpaid. That since the testa-
tor's death the real estate has been con-
veyed to the appellants. That all of the
debts of the testator's estate have been
paid except the legacies bequeathed by
him to the legatees named in the will.
That "the estate has been finally settled,
and that there was not then, nor is there
now, any personal property with which
the legacy could or can be paid. "
The general rule is that the personal es-
tate supplies the fund out of which lega-
cies are to be paid. Duncan v. Wallace,il4
Ind. I(i9, 16 N. E. Eep. 137. Where a specific
devise of land is made, and a general leg-
acy is bequeathed, without charging the
legacy upon the land devised, then it is in-
cumbent upon the legatee who seeks to
charge the land to show that the testa-
tor had no personal estate at the time the
will was executed out of which the legacy
could be paid. The reason for this rule is
that where there is a specific devise of land
to one, and the bequest of a general leg-
acy to another, but no express words
charging the land, there must be such facts
as authorize the implication that the tes-
tator intended to charge the land. Where
there is no personal property out of which
the legacy can be paid, there is reason for
inferring that the testator meant to
charge the land specifically devised, other-
wise the bequest would be a mere mockery.
Duncan v. Wallace, supra; Hoyt v. Hoyt,
85 N. Y. 142; McCorn v. McCorn, 100 N. Y.
511, 3 N. E. Rep. 480; Corwine v. Corwine,
24 N. J. Eq. 579 ; Lypet v. Carter, 1 Ves. Sr.
499; Cross v. Kennington, 9 Beav. 150; El-
liot V. Hancock, 2 Vern. 143. But where
there is personal property at the time of
the execution of the will, although it may
be afterwards wasted, there is no ground
for implying an intention on the part of
the testator to charge the land specifical-
ly devised. The general rule is that, where
the provisions of the will can be given ef-
fect without burdening the land specific-
ally devised, it will be done, and this Im-
plies that where there is a specific devise
of land, and a general bequest of money,
and no express charge upon the land,
the land is not burdened unless it appears
that the testator impliedly intended that
the land should be charged; and where
he has personal estate no such intention
can be implied, as against the specific dev-
isee. If the will before us is to be re-
garded as specifically devising land with-
out charging it by implication with the
general legacy, then the complaint is fa-
tally defective, because it does not show
that the testator did not have personal
estate out of which the legacies could be
paid. The question hinges upon the con-
struction to be given to the peculiar pro-
visions of the will. The will does not
specifically devise the real estate to the
heirs of the testator, but the devise is a
residuary one. The general rule respect-
ing such devises is that "nothing is given
by residuary clause except upon the con-
dition that something remains after all
paramount claims upon the testator's es-
tate are satisfied." Tomlinson v. Bury,
145 Mass. 346, 14 N. E. Eep. 137. The will
we are considering does, by its terms,
make the legacies a paramount claim, in-
asmuch as there is no specific devise of the
land, and there is manifested aclear inten-
tion to devise only what remains after the
payment ot the legacies. This intention is
exhibited in the provision that the lega-
cies shall be made out of the estate, and
by the use of the words that follow tlie
bequests, which are: "I direct that the
remainder of my whole estate shall be di-
vided among my heirs. " These words
clearly evince an intention to vest in the
heirs the estate remaining after the pay-
ment ot the legacies; and the antecedent
provisions, taken in connection with thi^
language, express an intention to charge
the whole estate with the payment of the
legacies. Wilson v. Piper, 77 Ind. 437;
Lofton V. Moore, 83 lud. 112; Castor v.
Jones, 86 Ind. 289; Porter v. Jackson, 95
Ind. 210. As the will does not specifically
devise the land, and does, by its terms,
bequeath a legacy to the appellee, and
make it a charge upon the land, it was not
necessary, in order to have the lien of the
charge established, that the complaint
should allege that the testator had not
sutflcient personal estate to satisfy the
legacy at the time he executed the will.
The authority ot Reynolds v. Bond, 83
Ind. 36, and McCoy v. Payne, 68 Ind. 327,
is invoked to sustain the proposition that,
as the estate has been finally settled, the
action will not lie. These cases are not
influential, for the reason that the heirs
took by a residuary clause of the will, and
acquired their interest subject to the leg-
acies charged upon theland; and, as there
was no personal estate upon final settle-
ment, the legatees had a right to establish
against the land the equitable lien created
by the will. As we understand the cases
of Reynolds v. Bond, supra, and Gound v.
Steyer, 75 Ind. 50, they assert that the lien
created by a legacy charged upon the land
may be established after final settlement.
No other rule can be sound, for if, after
final settlement, there is no personal estate,
the charge fixes upon the land, and the
158
PAYMENT OF DEBTS AND LEGACIES.
equitable lien may beestablished. Theex-
ecutor, to be sure, is the person primarily-
bound to pay a general legacy, but he is
only bound where there are personal as-
sets in his hands, and no charge upon the
land. The cases of Levering v. King, 97
Ind. 130, and Carr v. Huette, 73 Ind. 378,
are not relevant to the point here in dis-
pute. The point in dispute in those cases
concerned the rights of creditors, while
here the point in dispute concerns the right
of a legatee whose legacy is a charge upon
land. While the complaint is lacking
in symmetry and precision it is good as
against a demurrer, for it states, although
somewhat vaguely and obscurely, facts
constituting a prima facie case.
The facts contained in the special finding
shortly stated are these: Conrad Coon
executed the will filed with the complaint.
He died the owner of the land in contro-
versy, and the will was probated on the
11th of November, 1861 . The personal prop-
erty of which Conrad Coon died the ownar
was taken by his widow and applied to
the payment of the debts of his estate.
Numerous conveyances vvere made by the
heirs: somefrom one to another, and some
to third persons. The con vey ances to which
Joseph Coon was a party are these: One
executed on the 30th of May, 1862, in which
he appears as a grantee; three executed
on the 9th of April, 1862, in two of which
he was one of the grantors, and in one of
which he was a grantee ; one on the 16th
day of February, 1866, in which he was a
grantee; one on the 26th day of February,
1876, in which he was one of the grantors ;
and one on the 13th day of January, 1876,
in which he was of the grantors. All of
the deeds referred to, except that of Feb-
ruary 26, 1876, executed to Washington
Jackson, were quitclaim deeds. The deeds
of April 9, 1864, were executed simply to
partition the lands described among the
parties. In executing those deeds, the ap-
pellee's legacy was not considered, nor has
he ever been paid , any part of it. The ap-
pellant Davidson purchased the land from
the grantees of the heirs of Conrad Coon,
as appears from the deeds referred to in
the special finding. The rule established
by the decisions of the American courts is
that a voluntary partition of lands made
by tenants in common, although evidenced
by quitclaim deeds, does not imply a war-
ranty. Weiser v. Weiser, .5 Watts, 280;
Picot V. Page, 26 Mo. 422; Dawson v.Law-
rence, 13 Ohio, 546; Carpenter v. Schermer-
horn,2Barb.Ch.322; Beardsley v. Knight,
10 Vt. 185; Rountree v. Denson, 59 Wis
522, 18 N. W. Kep. 518. This rule has been
asserted in cases where there has been a
failure of title, and one of the co-tenants
has demanded compensation from an-
other, or where there has been an attempt
to estop one of the co-tenants from assert-
ing an after-acquired title. It is very ev-
ident that no such case is before us. Here
no warranty is invoked, no failure of title
Is asserted, nor any effort made to defeat
an after-acquired title. In this instance,
all the title and interest the appellee had
existed when the partition was made, and
the deeds executed. Ho united in the par-
tition, accepted grants, and executed con-
veyances. He was treated as a co-tenant,
and, for aught that appears, he reaped all
the benefits of that position. He acqui-
esced in the partition for almost 20 years.
In our judgment, he is not now in a situa-
tion to assert that the legacy bequeathed to
hira by the ancestor, who was the source
of title, is a charge upon the land. The
reason of the rule that there is no warranty
in case of voluntary partition completely
fails in such a case as this. Ordinarily, a
quitclaim deed conveys all the existing in-
terest of the grantor in the land described,
but does not affect an after-acquired title.
Title passes as effectually by a quitclaim
deed as by any other. Has tings v. Brooker,
98 Ind. 1.58; Kowe v. Beckett, 30 Ind. 154;
McConnel v. Eeed, 4 Scam. 117; Fash v.
Blake, 38 III. 363; Graff v. Middleton, 43
Cal. 341; Hall v. Ashby, 9 Ohio, 96; Hunt
V. Hunt, 14 Pick. 374; Smith v. Pendell, 19
Conn. 107. Our statute sets this question
at rest, for it declares that "a deed of re-
lease or quitclaim shall pass all the estate
which the grantor could convey by a deed
of bargain and sale." Rev. St. § 2924. If
the appellee was not a tenant in common,
his deed would, beyond controversy, con-
vey all the estate he had in the land at the
time of its execution. If the legal effect of
the deed is changed, it is solely because it
was executed by him, in the capacity of a
tenant in common, in order to effect a par-
tition of the land. We are not inclined to
rule that the position he occupied com-
pletely changed the effect which the law so
emphatically affixes to his deed; but, if
we were inclined to so rule, it would give
the appellee no comfort. The appellee is
in this dilemma : If his deed is to have its
usual effect, it conveys his interest in the
land, and releases his lien; if it is not to
have its usual effect, it is because it was
executed by him as one of several owners
in common; but, if it was executed by him
as one of several owners, he cannot as-
sert his l;en, since that was buried c)r
merged in his character of an owner. We
are not unmindful of the doctrine that
equity will not suffer a merger to take
place where injustice would result, but
that doctrine the appellee, after having
voluntarily assumed the position of a
tenant in common, is in no plight to in-
voke. Equity almost imperiously de-
mands that his lien shall be merged, for
no other course will promote justice. At
law, where the estate of a lienor meets
that of the owner in one person, the lien
is merged. That rule must govern here,
for there is no equity to break its force.
The appellee having by unequivocal acts
asserted that he was one of several ten-
ants in common, claiming under the same
ancestor, and having tor so many years
deported himself as an owner, is in no sit-
uation to cast aside that character, and
enforce a lien by taking upon himself the
character of a lienholder. Upon the facts
contained in the special finding, the law
is with the appellants. Judgment re-
versed, with instructions to restate conclu-
sions of law, and enter judgment in favor
of the appellants.
PAYMENT OF DEBTS AND LEGACIES.
159
COOCH'S BX'R v. COOCH'S ADM'K.
(5 Houst. 540.)
Court of Errors and Appeal of Delaware.
June, 1879.
Mr. Patterson, for appellant. Mr. Gray,
for respondents.
COMEGYS, 0. J. The controversy be-
tween tie parties in this case arose out of
the wUl of William Cooch (the husband of
the appellant's testatrix), which is in these
words:
"In the name of God, amen. I, William
Cooch, of Pencador Hundred, New Oastle
county, and state of Delaware, being of
sound and disposing mind and memory, do
make and declare this to be my last will
and testament, hereby revoking all former
wills heretofore made by me. Item 1. It is
my desire and wish that my executor, here-
after named, shall pay all my just debts
and funeral expenses as soon after my de-
cease as possible. Item 2. I give, devise,
and bequeath to my beloved wife, Tamar,
all my personal property, and three thousand
five hundred dollars in cash out of my real
estate, as soon as sold by my executor. Item
3. I devise, give, and bequeath to Dillon
Hutchison the sum of five hundred dollars.
Item 4. I devise, give, and bequeath to my
brothers Zebulon H. Cooch and Levi G.
Cooch the balance of my estate, to be di-
vided between them, share and share alike.
It is my desire and wish that my executor,
hereinafter named, shall sell all my real es-
tate at public sale within one year after my
decease, and convey to the purchaser or pur-
chasers thereof a good and lawful deed or
deeds for the same. I do hereby nominate
and appoint my brother Levi G. Cooch to be
my executor of this my last will and testa-
ment. In witness whereof," etc.
The appellant conceived his testatrix to be
entitled under this wall to all the personal
estate of her husband, without any deduc-
tion therefrom whatsoever; and, the re-
spondents not admitting such claim, the bill
which forms part of the record before us
was brought to determine that question. The
case presented by it having been so conduct-
ed on both sides as to require of the chan-
cellor a decision of the matter in controversy,
he made It on the 21st day of February last,
denying the claim of the complainant in his
court. Prom that decision this appeal was
taken, and we have been favored by the
chancellor, in the opinion expressed by him
in the cause, and now read to us, with the
reason or grounds upon which he based his
decree. Such reasons are full and lucid;
and we proceed to give our views of the law
by which this court is to decide whether they
are sufficient or not in oiu* judgment.
There are certain well-established and rea-
sonable rules which serve as a sure guide
to coiu"ts in the decision of such questions
as that presented by the record in this case,
and which are by no means new, but are so
old as to have become venerable landmarks
of equity decisions in cases of this nature
under wills. They are those for the admin-
istration of the estates of all testators, and
have so long prevailed as to be entitled to
the appellation of maxims. They are as fol-
lows: 1. The personal estate of a testator
is the primary fund for the payment of his
debts, and of such legacies as he may choose
to give. 2. In the payment of legacies, those
of a specific natm'e are to be paid before gen-
eral ones. 3. The real estate is not liable
for the payment of either debts or legacies,
unless the testator has unequivocally so de-
clared in his will.
With respect to this rule we may now say,
as we shall repeat hereafter, that in this
state all the property of a testator is sub-
ject to the payment of his debts, but the real
is only to be resorted to for that purpose,
even in the case of liens upon it, after and
not until the personal estate has been ex-
hausted, which still preserves the rule that
the personal estate is the primary fund for
the payment of a testator's debts. Of course,
we are not to be understood as speaking of
liens which the creditor proceeds to enforce.
We did not understand the learned solicitor
for Tamar Cooch's executor to make any con-
tention with the respondents upon this view
of the law, but he did insist, and exhibited his
usual industry in collecting and citing author-
ities to sustain his view, that according to the
true legal construction of the wUl of her hus-
band, her executor is entitled to the whole
personal estate of the testator, and that, by
force of the terms used by him, all his debts,
funeral chai-ges, and expenses of administra-
tion are thrown upon the proceeds of the sale
of the real estate, which is substituted in lieu
of the personal for the payment and dis-
charge of them; and he founds or places his
argument or contention upon the express
words of the second item of the testator's
will: "I give, devise, and bequeath to my
beloved wife, Tamar, all my personal prop-
erty, and three thousand five hundred dol-
lars in cash out of my real estate as soon as
sold by my executor."
If the question presented by the solicitor
for the appellant had never been decided,
we might possibly take the view of it sub-
mitted by him, and conclude that the chan-
cellor erred, and that the appellant could
claim the whole personalty of the testator,
and that such claim should be allowed; but
such question has been passed upon and de-
termined over and over again by courts of
equity, whose concern it is chiefly to inter-
pret wills; and never, in cases having no
special features more than this case has, has
it been decided otherwise than that the per-
sonal estate must first be applied to the pay-
ment of debts before resort can be had to
160
PAYMENT or DEBTS AND LEGACIES.
tlie real estate. The very words used in this
case, "all my personal estate," have, in the
numerous instances produced by the learned
solicitor for the appellees in his forcible ar-
gument in their behalf, undergone the most
critical and exhaustive examination that
minds of the highest order of legal acumen
could give to them, and they have always
(vrhere there were no expressions in the will
that required a difCerent construction) been
held to mean simply the balance of the per-
sonal estate that should be left after the pay-
ment of the debts of the testator and the
other legal charges, such as those of
burial and of administration. We are not
aware of any cases in contravention of this
view, or that would Justify us, as a court of
review, in departing from the old accustomed
pathway, of the law. In looking through
this whole case, with the will of William
Oooch and all its provisions or clauses in our
mind, we do not see how we can do other-
wise than confirm and establish the chan-
cellor's decree.
A case in some respects similar to the pres-
ent (though there were many different cir-
cumstances or facts in it) came before this
court, and was decided at the June term,
1872. It was that of Morris v. Morris's Ex'r,
4 Houst. 414, involving the construction of
Elijah Morris's will. While the expression
in it is not the same exactly as that in
Cooch's will, yet the question was so much
the same that the court felt called upon, and
properly, to express its opinion in language
involving the very considerations this case
requires. His honer, Judge Wootten, in the
judgment of the court then declared, and
speaking the sense of all its members, said
the import of the words "balance of my
whole estate, after deducting the aforesaid
legacies," being in question, "this cannot
mean the whole original estate, but it is the
residue remaining after the payment of the
debts; that residue is what constitutes a
man's estate; and, when we speak of our
own or another's estate, we mean that which
remains clear for distribution after the pay-
ment of debts. Whatever is necessary for
the payment of a deceased man's debts be-
longs to his creditors, and cannot properly
be considered any part of his estate for dis-
tribution, and especially when we apply the
act of distribution; for no matter how much
property he may have in possession, if It is not
more than sufficient to pay his debts, he has no
distributive estate. This is true, not only in a
common-sense view, but in legal contempla-
tion." We not only feel ourselves bound by
the words of the court, spoken by its organ
for that case, but independently we decide
that there is nothing in the will of William
Cooch that woijld justify us in reversing the
decree of the chancellor, which, to say noth-
ing of its sufficient reasoning, is strictly in
accord with the law as we take it to be.
In this case there is no question between
legatees; it Is simply one between the de-
visees, in effect, of the real estate, and the
legatee of the personal; and we have been
unable to find any case, nor has the learned
solicitor for the appellant furnished us with
any, which decides that the words, "all my
personal estate," in a will like that before
us, have been held to cast the payment of
debts, expenses of administration, and lega-
cies upon the realty. Much stress was laid
by him upon the fact (which he assumed)
that the bequest to the widow ■v\as specific;
but we do not agree with him that it was
specific in any legal sense, although it was
of all, etc. A legacy is only specific when it
designates a particular thing or things by
specific description, as my bay mare, my
gold watch, my shares of stock in such a
bank, or the like; or mentions some place
where the thing itself can be found, as my
bank notes in a certain drawer; or indicated
some part of the personal estate consisting
of various articles which can be easily dis-
tinguished and set apart from the residue,
as all my personal property in a certain
room, house, hundred, county, etc. Cases of
a similar kind will be found referred to in
part 2 of Redfield on Wills, 475, where will
also be found authority for the principle that
a bequest of all a man's personal property
is not a specific legacy. Where it is of all
merely, indicating no locality or more par-
ticular specification, it is general, the same
as is imported by the words "rest" and "resi-
due," because such word means what every
testator must be taken to know,— the balance
after payment of debts, etc.,— the law being
that the personal estate must first be ex-
hausted before resort can be had for such
payment to the realty. Every testator is pre-
sumed to know the law with respect to the
liability of his estate for his debts, and con-
sequently to make disposition of it in ac-
cordance with such knowledge. Therefore
it is that, where a testator even uses
such sweeping and apparently conclusive
words in disposing of his personalty as
"all my persanal estate," the law still holds
that he only meant such portion of it
as should be left after taking from it
all that it was liable to, either as matter
of legal responsibility for debts, funeral ex-
penses, and charges of administration, or on
account of some further deduction which the
provisions of his wiU require,— for example,
a specific legacy. The authorities are abun-
dant upon this point, and were fully laid he-
fore us in the argument in June last; it is
unnecessary to recite them here. And, fur-
ther, there is, in our opinion, no warrant for
the position assumed by the learned solicitor
for the appellant that this bequest is specific.
We have before given examples of specific
legacies; v\;e now refer to authorities in like
cases of specification. Sayer y. Sayer, 2
Vern. 688; Prec. Oh. 392; Gilb. Ex'ns, 87;
Green v. Symonds, 1 Brown, Ch. 129, iu
PAYMENT OF DEBTS AND LEGACIES.
161
notes; Moore v. Moore, Id. 127; Gayre v.
Gayre, 2 Vern. 538; Shaftsbury v. Slmfts-
bury, Id. 747; Land v. Devayanes, 4 Brown,
Ch. 537; Clarke v. Butler, 1 Mer. 304. The
principle is the severance of the particular
property from the great body of the estate,
and the specific gift of it to the legatee. 1
Rop. Leg. 243. Where there are no such
restrictire expressions, a legacy of personal
estate generally will be general, and not
specific; and even the circumstance that the
real and personal estates are blended togeth-
er will make no difference, although as to
the former the devise must necessarily be
specific. Id.; 2 Williams, Ex'rs, 849.
But of course the case is different when a
testator exonerates his personal estate from
the payment of his debts, and casts that
burden upon his realty. Whenever that oc-
curs, the primary liability is transferred from
the personal and thrown upon the real, and
the latter is the source to which the execu-
tor must first apply. There is no doubt of
that. When the intention of a testator to
create a new fund for the payment of his
debts appears plain, that fund must first be
resorted to if he has so expressed himself.
But, before that is taken as a fact, there must
be no doubt left upon the face of the will;
it must plainly appear by it that the testator
so leant. This is not to be settled by con-
jecture or mere inference, but is to be shown
by unequivocal language or expressions con-
tained in the paper itself. There must be
something the courts will recognize as suflS.-
cient for that purpose to justify them in de-
parting from the old, established, certain
rule, that the primary fund for payment of
debts is a testator's personal estate. And
our system of settlement of estates, under
which all a man's property, as well rqp,l as
personal^ is responsible for his debts, does
not affect the rule; for the primary liability
Is stiU on the latter, and there remains until
it is exhausted. In England, the real estate
was not liable for simple contract debts at
all unless made so by a testator; but here it
has always been otherwise, and the law as
uniform as it is now. But, notwithstanding
the difference, the first fund to be taken has
always been the personal, the real being
merely auxiliary or secondary.
Now, in looking through the will that forms
part of the record before us, we do not find
any clause, word, or expression that would
allow us to depart (if we were inclined to do
so) from the established line of decisions up-
on questions such as are by that record pre-
sented to us. There is certainly nothing said
about exempting the personal estate from
the payment of the testator's debts, nor is
.any language used that can fairly be con-
strued as favoring the notion of such an in-
tent. There is not even any charge of the
real estate with them, though that by itself
would mean nothing more than that they
should be paid at all events. Nor does the
LAWSUCC— 11
testator direct that, to insure the payment of
his debts, his real estate should be turned in-
to money, and made part of the personal.
If he had gone as far as that even, still the
first fund to be taken would be personalty;
as, by a well-known rule, the residue of such
real estate, after such charge upon or with
respect to it had been liquidated, would
descend to the heir or pass to the devisee
qua realty, he having the right to redeem it
from sale, and take it as heir or devisee,
according as it may have been undevised or
devised.
But, in reality, the will itself negatives
the idea that the land of William Cooch
was devoted by him as the first fund for
the payment of his debts. The language
of the first item is that the executor shall pay
all the just debts and funeral expenses of
the testator as soon after his decease as pos-
sible; and in the second paragraph of the
fourth item he expresses his desire and wish
that his real estate shall be sold within a
year from the time of his death, thus allowing
the executor a full year to find an advan-
tageous period to offer his land for sale. If
anything could be wanting to furnish us with
assurance that the conclusion we are about
to announce is the correct one, these clauses
would be sufficient to do it. The testator
evidently contemplated that his personal es-
tate should be at once, in the usual course,
converted into money to satisfy his creditors,
and his land in a reasonable time to raise
the money to be paid out of it.
The question is, did William Cooch, by his
will, intend that his real estate should be re-
sorted to before his personal in the settle-
ment of his estate? As we do not find in
that will any language that requires of us
to say that he did, the bequest to his wife
being a general and not a specific legacy, and
that bequest alone being the source to which
we have been referred and must resort for
such a conclusion, and the two clauses of the
will we have just referred to being, as we
think, at variance with the idea of substitu-
tion, we are of opinion and decide that the
decree of the chancellor in the com-t below
was right, and should be affirmed.
WALES, J. The general rule is well set-
tled that, in the absence of express words or
manifest intent of the testator, his personal
estate is primarily liable for the payment of
his debts: Duke of Ancaster v. Mayer, 1
Brown, Ch. 454; Sam well v. Wake, Id. 145;
Dickens, 597; Walker v. Jackson, 2 Atli.
625; Tait v. Lord Northwick, 4 Ves. 824.
The doctrine is clearly stated by Sir William
Grant, in Hancox v. Abbey, 11 Ves. 186, as
being perfectly established, that in order to
exonerate the personal estate there must be
either express words or a plain intention.
Precise and specific words of exemption are
not necessary, but it is sufficient if the!' inten-
tion can be collected from the wholo will to
162
PAYMENT or DEBTS AND LEGACIES,
give the personal estate exemption from the
debts. Mr. Jarman, in his ti-eatise on Wills,
after a full discussion of the authorities, re-
marks: "These cases seem to authorize the
proposition that whenever the personal estate
is bequeathed in terms as a whole, and not
as a residue, and the debts, funeral, and tes-
tamentary charges are thrown on the real
estate, this constitutes the primary fund for
their liquidation." 2 Jarm. Wills, 586. This
rule, and the principles on which it is found-
ed, have been fully recognized and accepted
by the courts in this country. 1 Story, Eq.
Jur. '§§ 572, 573; Lupton v. Lupton, 2 Johns.
Ch. 623; In re Walker's Estate, 3 Rawle, 229.
In England, real estate is not liable for the
payment of simple contract debts. Here that
estate is subject to the demands of all the
creditors of the deceased, but not until the
personal estate has been exhausted, when It
becomes the auxiliary fund for the paylnent
of debts. Hence the doctrine of the English
courts of equity has been adopted, that not
only must the testator charge his lands with
the payment of his debts, but must also show
his intention to exempt the personalty. If
the personal estate has been specifically be-
queathed, and the lands directed to be sold
for the payment of debts, the personal is
held to be exempted by necessary implica-
tion. But the testator is always presumed to
act upon the legal doctrine that the personal
estate is the natural and primary fund for
the payment of all debts imtil he shows some
other distinct or unequivocal intention. In
Lupton V. Lupton, 2 Johns. Ch. 623, Chancel-
lor Kent states the rule broadly, and as not
admitting of dispute, that the real estate is
not as of course charged with payment of
legacies. It is never charged unless the tes-
tator intended it should be, and that inten-
tion must be either expressly declared or
fairly and satisfactorily inferred from the
language and dispositions of tlie will. It is
not sufficient that debts or legacies are direct-
ed to be paid,— that alone does not create the
charge,— but they must be directed to be first
or previously paid, or the devise declared to
be made after they are paid. Where there
Is an express bequest of all the testator's per-
sonal estate (with or without an enumeration
of particular articles), and the will also con-
tains a charge of debts upon the real estate,
these facts have sometimes been held to
favor the exemption of the personalty. But
the position is nowhere sustained that a spe-
cific bequest of the personal estate, without
a charge on the lands for the payment of
debts, will exonerate the former. Hill, Trus-
tees, 352; Duke of Ancaster v. Mayer, 1
White & T. Lead. Cas. Eq. 918.
Applying these rules of construction to the
interpretation of Mr. Cooch's will. In which
are no express words of exemption, resort
must be had to the intention of the testator
in ordfer to ascertain what was his wish in
respect to the payment of his debts. The
first item contains the general and usual di-
rection to his executor to pay his debts and
funeral expenses. By the second, he be-
queaths to his wife "aU my personal proper-
ty, and three thousand five hundred dollars
in cash out of my real estate as soon as sold
by my executor." By the third, he gives to
D. Hutchison five hundred dollars. By the
fourth, he gives to his brothers "the balance
of my estate, to be divided between them
share and share alike." Finally, he empow-
ers his executor to sell his real estate at pub-
lic sale within one year after his decease.
Th question is, what does the testator mean
by "balance of my estate?" Do these words
signify what may remain or be left after aU
the personal property has been given to the
wife, and the debts and legacy to Hutchison
have been paid out of the proceeds of the sale
of the land? And Is the Inference plain from
the context of the whole will that the inten-
tion is to cast the burden of the debts upon
the real estate? It would be begging the
question to say that the Inquiry suggests a
doubt, and there is therefore no plain declara-
tion or manifest intent to change the legal or-
der of payment
It cannot be denied that in the expressions
and terms of this will there is room for con-
jecture that the testator may have desu-ed
to leave to his wife all his personal property
free and discharged from the payment of his
debts, but there Is no plain declaration or
manifest intent to that effect He neither
discharges the personal nor charges the real
estate, and he is, in the language of Judge
Story, presumed to act upon the legal doctrine
that his personal estate is the natural and
primary fund for the payment of his debts
until some other distinct and unequivocal
intention be shown. The object in selUng
the real estate appears to have been to se-
cure the cash payment of thirty-five hundred
dollars to his wife, and the division of "the
balance" of the proceeds of such sale between
his two brothers. This was the purpose of
the conversion of the real estate, and in this
respect it differs from the case of Sharpley v.
Forwood's Ex'r, 4 Har. (Del.) 336, where the
court held that if there be no direcUon as to
the object of the conversion, and the land is
directed to be sold, it is a change, out and
out, of the realty. Here there is a special di-
rection to pay the wife three thousand five
hundred dollars out of the real fund, and to
divide the balance between the brothers.
There Is, then, no fan- or satisfactory Infer-
ence to be drawn from the context that Mr.
Cooch intended to exonerate his personal es-
tate. As was said by the master of the rolls
in Brydges v. Phillips, 6 Ves. 570, it is only a
probable conjecture. There is no certainty,
no clear, unambiguous intention to be col-
lected from the whole will, that he meant
that There is no groimd upon which to
judicially collect a settled intention. The
word "all" prefixed to "my personal estate"
PAYMENT OF DEBTS AND LEGACIES.
163
is not sufficient to make a specific legacy,
wliicli is of a particular and individual char-
acter, precisely described and limited as to
its nature, value, or the place where it may
be found. But, admitting the legacy to the
wife to be a specific one, the debts must stiU
be paid out of the personalty, unless there is
at the same time an express charge on the
realty for that purpose, or an evident inten-
tion to make the charge. A testator must
comply with the rules of construction and
the settled principles of law, which have been
established, as well to carry out his intention,
where it is consistent with them, as to admin-
ister the estates of deceased persons, accord-
ing to a fixed and regular order. Looking
at the will alone, and extracting its mean-
ing by intrinsic evidence, there is wanting
that clear, unequivocal, and manifest Intent
which is required to exempt the natural and
primary fund, and throw the burden upon the
real estate.
164
PAYMENT OF DEBTS AND LEGACIES.
WELCH et al. v. ADAMS et al.
(25 N. B. 34, 153 Mass. 74.)
Supreme Judicial Court of Massachusetts.
Suffolk. June 23, 1890.
Reserved case from supreme judicial
coui't, Suffolk county.
Chas. A. Welch, for plaintiff. W. Gas-
ton and F. E. Sno w.ior Adams. .7. L.
Thorndike and M. Storey, for residuary-
legatees.
DBVENS, J. The plaintiffs, who bring
this bill for instructions, are the executors
of the will of Isaac Ad«,mB, which is dated
the 13th of May, A. D. 1879. Mr. Adams
had his legal domicile in the state of New
Hampshire, and died on July 19, 1883. His
will having been admitted to probate in
New Hampshire, the present plaintiffs
have there received letters testamentary,
under which they have duly qualified ; the
decree of the appropriate probate court
having been finally affirmed by the su-
preme court of that state on August 6,
1885. All of the testator's personal es-
tate except household effects, farming
implements, etc., was in Massachusetts,
and on November 26, 1883, by reason of
the necessary delay in granting letters
testamentary in respect to the testator's
personal estate in this commonwealth,
which was large, the plaintiffs had been
duly appointed special administrators
thereof, with authority to take charge of
his real estate, and had given bond for the
faithful performance of their duties as
such. On March 7, 1887, upon the petition
of the plaintiffs, after due notice it was or-
dered by a decree of the probate court for
the county of Suffolk that a copy of the
said will and the probate thereof in New
Hampshire, duly authenticated and pre-
sented to that court, should be filed and
recorded, and letters testamentary be
granted to the plaintiffs. Pub. St. c.l27, §§
nii-17. From this decree an appeal having
been taken, it was affirmed on the 5th of
October, 1887,bythis court; and the plain-
tiffs, having here received letters testa-
mentary, have qualified, and proceeded to
act thereunder. By this bill the plaintiffs
seek instructions as to the paynieiitof two
legacies given by the will, or rather of the
interest claimed to be due thereon, one be-
ing a legacy of ^64,000 to Mrs. Anna R. Ad-
ams, wife of the testator, and the other of
$5,000 to Julius Adams, his sf)n. Mrs.
Adams having deceased since the death of
the testator, Julius Adams has been ap-
pointed her administrator with the will
annexed. It is found that the personal es-
tate in the hands of the executors is more
than sufficient, after paying all debts and
other legacies, to pay all sums which are
claimed on account of these legacies.
Under Pub. St. c. 127, § 34, and chapter
156, §§ 5, 6, the supreme judicial court and
the probate court have concurrent juris-
diction of a.petition bytheexecutor for in-
structions as to tfie construction of a will,
and from ihe decree of the probate court
any party aggrieved may appeal to this
court. Assumingior the moment that the
subjects on which the bill requests instruc-
tions present inquiries such as in ordinary
cases where the testator has been domi-
ciled here and original administration has
been here granted could properly be ad-
dressed to this court, it is to be considered
whether the matter is in any way affected
by the fact that the testator was domi-
ciled In New Hampshire, and that the
original probate of his will was in that
state. In dealing with personal property
here found the executors are accountable
to the probate court in this common-
wealth, and there is no duty imposed up-
on them to transfer It or its proceeds to
New Hampshire, to be there administered,
even after the payment of the debts in this
state. On the contrary, it would be irreg-
ular so to do unless an order to that eHect
was made by the probate court. The
Public Statutes (chapter 138, § ],) provide,
in the case of administration taken in this
state on the estate of an inhabitant of any
other state or country, that "his estate
found here shall, afterpayment of his debts,
be disposed of according to his last will,
if he left any duly executed according to
law;" otherwise his real estate is to de-
scend according to the laws of this com-
monwealth, and his personal estate to be
distributed and disposed of according to
the law of the state or country of which
he was an inhabitant. Section 2 provides
that after payment of the debts in this
commonwealth "the residue of the per-
sonal estate may be distributed and dis-
posed of in the manner aforesaid by the
probate court, or, in the discretion of the
court, it may be transmitted to the execu-
tor or administrator, if any, in the state
or country wliere the deceased had his
domicile, to be there disposed of according
to the laws thereof." Sections 3, 4, and 5
provide for the settlement of the estate in
this commonwealth if it is insolvent, and
are intended to enablecreditors hereto ob-
tain an equal share, in proportion to their
respective claims, of the whole property,
whether within or without the common-
wealth. This statute certainly gives the
right to the probate court here to dispose
of the estate according to the will as orig-
inally proved in another state. In leaving
it in its discretion to determine whether,
after the payment of debts here, the resi-
due of the personal property shall be trans-
mitted to anotherjurisdiction, the statute
is only declaratory of a general principle
often acted on. Stevens v. Gavlord, 11
Mass. 256, 264 ; Harvey v. Richards, 1 Mason,
381.; Ewing v. Ewing, £,. R. 9 App. Gas. 34, 39,
L. R. 10 App. Gas. 453, 502. It is said by Mr.
Justice Story, in discussing the question
whether a court in which ancillary admin-
istration had been granted oughtto enter-
tain a decree for final distribution of the
as.sets among the various claimants hav-
ing equities or rights in the fund, that such
court is not incompetent to act upon the ,
matter, and that whether it will do so, or
whether it will transmit the property to
the forum of the domicile of the deceased,
is a matter of judicial discretion, depend-
ent on the circumstances of the case.
"There can be, "he adds, "and ought to
be, no universal rule on the subject. But
every nation is bound to lend the aid of
its judicial tribunals for the purpose of en-
forcing the rights of all- persons having a
title to the fund, when such interference
will not be productive of injustice, or in-
PAYMENT or DEBTS AND LEGACIES.
16S
convenieuee, or cooflicting equities, ■which
may call upon such tribunals for absti-
nence in the exercise of the jurisdiction."
Story, Eq. Jur. § 589. If the property had
been transmitted to another jurisdiction,
tliis court would not undertake to con-
strue the will or determine how the estate
should be distributed, or how interest
should be computed on the legacies.
Emery t. Batchelder, 1.S2 Mass. 452. But
the personal property is here, and was so
when the testator deceased. It is ample
for the payment of the legacies immedi-
ately in question, as well as all other leg-
acies or debts, whatever may be the inter-
est thereon. The legatees are also here,
as well as the residuary legatees, who are
the only persons who can be affected by
any determination as to these legacies,
and no such case is presented as might be
if the marshaling and distribution of the
whole estate were now to be considered.
Under such circumstances, it does not con-
stitute a valid objection to the giving of
instructions that the testator was domi-
ciled in another state, or that his will was
originally proved there.
If it be urged that the probate court
may yet, in the exercise of its discretion,
order the personal property transmitted
to New Hampshire, and thus that any in-
structions we might give would become
inoperative, it i.s sufficient to say that it is
not to be presumed that it would do so
when all the circumstances exist which
render the disposition of the property, so
far as the legatees are concerned, more
appropriate here than elsewhere, and
when important rights of opposing par-
ties have here been settled upon full no-
tice ; especially so when any order for this
transfer of the funds would be subject to
review by this court, sitting as the su-
preme court of probate.
The first question presented bv the ex-
ecutors, according to the report, is wheth-
er the legacy by Mr. Isaac Adams to his
wife carries interest from the date of the
testator'sdeath.orfrom theeud o' Oneyear
thereafter. This bequest was of "the sura
of sixty-four thousand dollars in money, to
Oe paid her as soon as convenient after
my decease, " and was accompanied by a
devise to her of five pieces of productive
real estate in Massachusetts, of which she
was dowable. These provisions by the
devise and bequest in behalf of his wife
are declared to be in full satisfaction "of
lier dower and homestead rights in my es-
tate, and of all distributive shareor rights
whatsoever therein." In Pollard v. Pol-
lard, 1 Allen, 490, it was held that, a widow
to whom a legacy was given in lieu of
dower was entitled to be paid in full, in
case of a deficiency of assets, in preference
to legatees who were mere volunteers,
and also to receive interest thereon from
the death of the testator, if he had pro-
vided no other means for her support dur-
ing the first year after his death ; and this
upon the ground that she is to be regard-
ed as a purchaser for value, by reason of
her relinquishment of her important rights
ill her husband's estate. The question
here presented is, however, to be decided
according to the law of New Hampshire.
It is not merely a question of how prop-
erty shall be here administered, but what
is the construction and effect of the will,
and what was the intent of the testator
by its provisions. The construction of the
will, and the distribution thereby made of
the testator's personal estate, are to be
governed by the la w of his domicile. Sew-
all V. Wilmer,132 Mass. 136; Pub. St. c. 138,
§ 1. By the law of New Hampshire, as of
Massachusetts, the wife is treated, in ac-
cepting a provision by will, as a pur-
chaserfor value, and the general rule which
applies in the case of creditors who receive
a legacy in satisfaction of a debt, and who
are held entitled to interest from the death
of the testator, would apply where no dif-
ferent intent is shown. Towle v. Swasey,
106Ma.ss.l00; Williamson v. Williamson, 6
Paige. 298. But by the law of New Hamp-
shire, as of Massachusetts, while the wid-
ow is a purchaser for value she also has a
right to determine whether she will accept
the provision made, aud to accept or reject
it as she may choose. Gen. Laws N. H. c.
202, §§ 9, 18; c. 193, § 13. If she accepts it,
she must accept upon the terras and con-
ditions on which it is made. She can have
only what the will gives her, and in the
mode in which it gives the property be-
queathed to her. The precise point decid-
ed in Pollard v. Pollard, ubi supra, does
not appear to have been decided in New
Hampshire. In Loring v. Woodward, 41
N. H. 391, it is said that to the general
rule there laid down, that a pecuniary
legacy, payable generally, without desig-
nation of any time of payment, is payable
at the end of a year from the death of the
testator, without interest, and, if not then
paid, with interest after the end of the
year, there is one exception, which is in
favor of minor children of the testator,
who are entitled, unless other provision
is made for their support, to interest upon
their legacies from the date of the testa-
tor's decease. It is argued therefore by
the residuary legatees,that in New Hamp-
shire no such exception exists in favor of
the testator's widow as has been held to
exist in Massachusetts, as otherwise the
learned chief justice of New Hampshire
who delivered the opinion would not have
failed to state it. We shall not have oc-
casion to consider this contention, or
whether the language used is fairly to be
Construed as holding that no other excep-
tion to the general rule than that specified
actually exists in New Hampshire. We
are of opinion that upon other grounds
the position taken by the residuary lega-
tees is correct. In Pollard v. Pollard, ubi
supra, it is clearly implied that if other
provision is made by the testator for the
support of the wife, which will avail her
during the year following her husband's
decease, she would not be entitled to in-
terest from that time. The legacy to Mrs.
Adams was accompanied by a devise to
her of five pieces of productive real estate,
to the considerable income of which she
became at once entitled, and the case is
not presented of a widow left without
other means of support than her legacy.
In Loring v. Woodward it is said that
minors are entitled to interest upon their
legacies from the decease of the testator
only in those cases where no other pro-
vision was made. If, therefore, it can be
held that in New Hampshire the same ex-
166
PAYMENT OF DEBTS AND LEGACIES.
ception exists in favor of the widow as to
the allowance of Interest that exists in
this commonwealth, it cannot be reason-
ably doubted that it applies only in those
cases where other provision is not made
for her support. Again, it is said in Cor-
ing V. Woodward, ubi supra, that the gen-
eral rules there laid down on the subject of
interest and income do not apply where
specific directions are given by the will, or
where a different intention is to be inferred
from its provisions. The inference is fairly
to be drawn from the provisions of Mr.
Adams' will that he did not intend that
the payment of the legacy should be im-
mediate. If a will is silent as to the time
when a legacy is to be paid, one to whom
such a legacy is bequeathed, and who
stands in the position of a purchaser for
value, is entitled to have the time of pay-
ment determined by the legal presumption
of the intent of the testator. If a time
were specified for its payment, he could
make no claim for any delay in its pay-
ment except after the expiration of the
time specified. By the terms in which the
legacy to Mrs. Adams was given, no time
for its payment was specifically stated ;
but the provision that "'it shall be paid as
soon as convenient after my decease" dis-
tinctly shows that the legacy would not
be paid at once, but that its payment
would be governed by the convenience of
the estate. The rule that legacies draw
interest only after the expiration of a year
contemplates that such atime is a reason-
able one for the collection of assets and
reducing them to money. By accepting
her legacy to be paid at the convenience
of the estate, for that is its fair interpreta-
tion, the widow consented to wait for the
expiration of the usual time for its pay-
ment. It follows that she would not be
entitled to interest until the end of a year,
and such instruction is given accordingly.
The next question reserved for our con-
sideration by the report, and on which
the bill requests instructions, is whether
the interest upon both the legacies of $64,-
000 to the widow and $5,000 to Julius
Adams, is affected by a deposit made on
August 8, 1887, with the New England
Trust Company, to the credit of Julius
Adams, of an amountequal to these sums;
and also in what manner, and at what
rate, interest on these sums shall be com-
puted. The inquiry thus presented does
not involve the construction of the will,
but concerns the duty of the executors un-
der it, and the effect of the acts which they
have already done. It Is well established
that trustees may ask the instruction of
the court, not merely as to the construc-
tion of the instrument under which they
act, but also as to their duties under it.
Hyde v. Wason, 131 Mass. 450. Nor is there
any reason why executors and adminis-
trators might not do the same, except
where the matter is one which can be
more appropriately dealt with in the pro-
bate court, especially in the settlement of
their accounts. Treadwell v. Cordis, 5
Gray, 341, 348. Whenever a trustee doubts
as to his safety and security in complying
with a claim of the cestui que trust, his
only prudent and safe course is to wait
for the directions of a court of equity.
Dimraock v. Bixby, 20 Pick. 368. While
our statutes hare established an elabo-
rate system of procedure for the adminis-
tration of the estates of deceased per-
sons, in the settlement of the accounts of
executors, the jurisdiction of the probate
Courtis limited to these, and it cannot,
upon a hearing of that character, give
directions as to how future accounts shall
be rendered, or the duties of executors
performed. Lincoln v. Aldrich, 141 Mass.
342, 5 N. E. Rep. 517; Trust Co. v. Eaton,
140 Mass. 532, 4 N. E. Rep. 69. The probate
court may indeed, upon proper petition,
concurrently with this court determine
all questions arising under wills or relat-
ing to their construction, any party ag-
grieved hy the decision of that court
having a right of appeal to this. Pub.
St. c. 127, § 34; c. 156, §§ 5, 6-11; Swasey v.
Jaques, 144 Mass. 135, 10 N. E. Rep. 758. It
may be that the inquiry which the execu-
tors seek now to have determined could
be passed upon and decided in the probate
court on the final settlement of their ac-
count by the order for the payment of
debts and legacies, and of distribution to
be passed thereon, from which order an
appeal could be taken by any party ag-
grieved to this, as the supreme court of
probate. Yet, in the situation in which
the executors find themselves by the de-
lays and embarrassments of the case, and
by the accumulations of inltrest on the
funds they have collected, a majority of the
courtareof opinion that theexecutorsmay
properly ask instructions upon the matter
thus in question. Whether such a bill
shall be entertained, or whether the par-
ties interested shall be left to the other
remedies provided, is, to some extent, a
matter of discretion. The inquiries sub-
mitted have been fully argued by the lega-
tees and the residuary legatees, who are
the only persons interested, and both par-
ties have desired that they should be defi-
nitely passed upon.
On August 8, 1887, the plaintiffs, after
aome correspondence with Julius Adams,
who had become the administrator with
the will annexed of the estate of his moth-
er, who had then deceased, deposited with
the New England Trust Company the
amount of the two legacies of $64,000
and $5,000 (together with another sum
for rents collected, not necessary to be
here considered) to the credit of Julius
Adams. These sums were deposited with-
out any interest being included, the mat-
ter of interest having been the matter
in dispute between Adams and the execu-
tors. Adams never authorized or ratified
this deposit with the trust company, re-
fused to receive the deposit book, and has
in no way recognized the deposit, which
bore interest at the rate of 2J^ per cent.
He had been informed before the deposit
was made, he having declined to receive
these sums without interest, that they
would be thus deposited unless he should
receive them, or designate some other
place for their deposit. On behalf of the
residuary legatees it is contended that,
the executors had a right to require Ju-
lius Adams to receive, on account of the
legacies, the principal of the amounts due;
that he was not at liberty to refuse to re-
ceive any portion unless the whole sum
due was paid; and that the deposit of
PAYMENT or DEBTS AND LEGACIES.
167
these sums with the trust company was
a valid appropriation in part satisfac-
tion of the legacies. Itisconceded by them
that the legacies carried interest from
the end of a year after the testator's
death, and therefore that the sums depos-
ited on account of the legacies were less
than the amounts due at that time.
The first inquiry which we consider in
this transaction is whether the plaintiffs,
as executors, were then in a position right-
fully to make appropriations for the pay-
ment of legacies. If they were not, Adams
could not be called upon to deal with
them, nor be bound to assent to their acts.
On August 8, 1887, their situation was a
somewhat peculiar one. The will of Isaac
Adams had been finally admitted to pro-
bate in New Hampshire, and they were
lawfully appointed executors in that state
on August 6, 1885. Previous to this time
the same gentlemen had been appointed
special administrators in this common-
wealth, on November 26, 1883. On March
7, 1>*^7, the probate court of Suffolk coun-
ty had admitted to probate a copy of the
will proved in New Hampshire, and from
this decree Julius Adams had appealed.
This appeal was pending until October 5,
1887, when the decree of the probate court
was afl5rmed, but letters testamentary
were not issued to the plaintiffs until Sep-
tember 17, 1888. On the 8th of August,
1887, the plaintiffs were not executors in
this commonwealth. As executors of a
foreign will, they had no right to a<:t here,
and to dispose of the estate here. In or-
der that they should have this authority,
it was necessary that the will should have
been here admitted to probate, and letters
testamentary issued to them. Campbell
V. Sheldon, 13 Pick. 8; Pub. St. c. 127, § 7.
As special administrators, whose duty is
only to take care of and preserve property
until it can be regularly administered,
they certainly had no authority to pay
legacies. While the plaintiffs acted ap-
parently as executors appointed in the
state of New Hampshire, describing them-
selves as "co-executors" before any ap-
pointment of them as such in this com-
monwealth, the two sums deposited
" were paid out of the personal estate of
the testator in Massachusetts, which had
come to the hands of the plaintiffs as spe-
cial administrators. " The probate court
hud never authorized or directed the
transfer of any part of the property held
by the plaintiffs as special administrators
to themselves as executors in New Hamp-
shire. In the account subsequently filed
by the plaintiffs on November 23, 1888, as
executors in this commonwealth, they
claim to be allowed for the payment of
these sums. Adams was not called upim
to deal with the plaintiffs while ocitupying
so ambiguous a position, or to recognize
them as having authority as executors
under the laws of New Hampshire to de»l
with property here without having been
authorized to do so by this common-
wealth. Until, in its discretion, the pro-
bate court directed the personal estate
here found to be transferred to the foreign
jurisdiction, executors there could not
rightfully deal with it. Many acts may
without doubt be done by one as executor
previous to his appointment, as such,
which, if in themselves not illegal, and
such as an executor may properly do,
might be validated by his subsequent ap-
pointment relating back to the time of do-
ing the acts. No person, however, is re-
quired to deal with one who may thereafter
be appointed as executor, trusting to the
chance that he will be appointed, or tocon-
sent toai)propriations made by him in the
anticipation that they may thereafter be
lawfully made. The case as here present-
ed has also this peculiarity : that if the
appropriation made by the plaintiffs while
executors in New Hampshire is to be treat-
ed as authorized, so as to bind Julius Ad-
ams, in whose favor the deposit was
made, it is so because of their subsequent
appointment in Massachusetts. Acts
done in one capacity are thus treated as
authoi'ized by a subsequent appointment
of the actors to another capacity. The
plaintiffs are now attempting to adminis-
ter the efitate in Massachusetts. This is
the foundation of their bill for instruc-
tions, yet the act concerning which in-
struction is asked was done while they
were executors in New Hampshire only.
.4it the time when the plaintiffs undertook
to offer payment of the legacies, to appro-
priate a sum therefor, and to make a de-
posit thereof, they had no authority to do
so in such manner that the rights of the
legatees would be affected.
Nor, irrespective of this matter of the
plaintiffs' authority, are we of opinion
that legatees are bound to accept a pay-
ment by installments which should oper-
ate pro tantu to diminish their claims.
That It is an exceedingly convenient mode
often of administering an estate to malie
partial payments to creditors or legatees
when the rights of creditors are satisfied
may be admitted. Orders to this effect
are' often made by courts, independently
of statute authority, for the more conven-
ient (<i.«tiibution of the estate, as the funds
accumulated in administration by the
collection of debts or the reduction of se-
curities into possession would otherwise
be substantially idle. In this common-
wealth, the practice is recognized by stat-
ute, and the probatecourts are authorized
to order partial distribution of the funds
of estates in the course of administration.
Pub. St. c. 136, § 21. If such an order is
obtained, there would be much force in
contending that interest should not, after
such an order, or proper information of
such an order, be allowed except on the
balance of the debt or legacy which would
remain after the application of the partial
payment was, or might have been, made.
No such order was passed or applied for,
and the legatee or creditor ought not to
be expected to receive payment of his
legacy ob debt in such installments as the
executor may, in his own discretion, see
fit to apportion to him. The existence of
the power in the court to order partial
payments, and its frequent exercise, do
not indicate that the executors have any
such power, but rather otherwise. If the
legatee or creditor should consent to re-
ceive partial payments, which no doubt
are often made without any order of
court, it certainly would be right that m-
tercst on his claim should be diminished.
In the case we are considering the two
168
PAYMENT OF DEBTS AND LEGACIES.
suras offered to Adams, and deposited to
his credit, were refused by him, and it is
conceded that they did not equal, interest
included, the amount of the legacies to
which, in his own right and that of his
mother, he was entitled. Even if the offer
was madethatAdams should receivethese
sums for the legacies, leaving the question
of interest upon them open for further
consideration or litigation, he was un-
der no obligation thus to accept them.
These views render it unnecessary to
consider several points which have been
quite fully discussed, viz., what was the
true construction of the correspondence
between the executors in some other re-
spects, and whether Julius Adams might
safely have accepted the offer of the exec-
utors without waiving his right to op-
pose the probate of his father's will in this
commonwealth, which he was then con-
testing, and certain other claims made by
him.
It is urged in connection with the claim
for interest on these legacies that the con-
duct of Julius Adams in opposing the pro-
bate of his father's will in New Hamp-
shire and in this commonwealth was litig-
ious and unreasonable. So far as the
legacy to Mrs. Adams is concerned, her es-
tate should certainly not be diminished
by any acts done by her son in his individ-
ual capacity. The facts are not before us
upon which we could decide whether his
conduct was litigious and his resistance
to the probate of the will unwarrantable,
even if we could hold that his claim for in-
terest should be affected thereby. It is
without doubt true that, where the settle-
ment of an estate is delayed by legal con-
troversy, and where funds are accumulat-
ed under such circurast;;inces that they
cannot be permanently invested, loss may
be occasioned to the residuum of the es-
tate. The contestant who disputes a will
is still, however, in the exercise of his legal
rights. It was held, therefore, in Kent v.
Dunham, 106 Mass. 586, that the fact that
legatees had caused delay by unjustifia-
ble proceedings, embarrassing the execu-
tors in the settlement of the estate, was
inadmissible for the purpose of defeating
their claim to interest. On the other hand,
we can perceive no ground for the claim
on behalf of Julius Adams that intereist
should be computed on these legacies after
the expiration of one year from the death
of the testator, with annual rests, and
thus that the legatees should receive com-
pound interest.
The question remains to be determined
at what rate interest shall be computed.
It is urged on behalf of the residuary leg-
atees that It should be something less than
the legal rate, and that certainly this
should be so after the deposit made by the
plaintiffs, upon which only2J^ per cent, was
to be allowed. In the view we have talj-
en, the matter of interest is not affected
by the deposit. That interest at the legal
rate is payable after one year from the tes-
tator's death, is well established as a gen-
eral rule in Massachusetts and New Hamp-
shire. Loring v. Woodward, Kent v. Dun-
ham, ubi supra; Ogden v. Pattee, 149
Mass. 82, 21 N. E. Rep. 227. Even where
the estate could not have been reduced to
money within that time, or where the ad-
ministration had not been taken for a
considerable time after the death of the
testator, it would still be allowed to the
legatee as an incident and accretion to the
legacy. Ogden v. Pattee, ubi supra; Lamb
v. Lamb, 11 Pick. 371; Martin v, Martin,
6 Watts, 67. This allowance is made, not
merely because it will be presumed that the
estate will, after the year has expired,
have actually made this sum, but also be-
cause, as it would be difficult, it not im-
possible, to investigate how much inter-
est had been made in such cases, it is a
reasonable rule to adopt that rate of in-
terest which the law has fixed where none
other is stipulated for. It is urged that it
is a matter of public knowledge that no in-
terest can now be obtained as high as 6
per cent, on any safe investment; that
such an allowance should no longer pre-
vail; that the court should determine, ei-
ther directly or with the aid of a master,
what could reasonably have been ob-
tained, and that this only should now be
allowed. It is probable that the rate ol
interest does not so nearly represent now
what can be earned by a safely invested
fund as it did when it was originally es-
tablished by statute as the legal rate, and
that it would be difficnltnowto obtain it.
But, as it is inferred that where no time is
specified for the payment of a legacy it is
not to be paid until theend of a year from
the death of a testator, so It is a reasona-
ble inference that the testator intended, if
the legatee did not receive it until some
time afterthat period, tliat he should then
receive it with the interest allowed bylaw.
His gift fairly imports this, because that
is the rate where a debt orpaymehtwhich
is due in prsesenti is deferred. This view is
not in conflict with Williamson v. Will-
iamson, 6 Paige, 298, and Healey v. Top-
pau, 45 N. H. 243. The question in these
cases was not between legatees of specified
sums and the estate, but between those
who were the legatees, one class of whom
were entitled to an estate for life in the
legacy, and the other to the remainder.
As between them.therewas no doubt that
the tenant for life, after the fund was act-
ually formed, was entitled only to the in-
terest or income which it produced. In
determining what should be the basis of
apportionment between them before the
settlement of the estate and before it was
actually formed and productive, it was de-
termined that 5 per cent, upon it as ulti-
mately ascertained would be right, as it
represented the income which might have
been obtained. It by no means follows
that what is right as between legatees in-
terested in different proportions in the
same fund is a proper rule between a lega-
tee of a definite sum and the estaie of the
testator. It is urged that by the English
rule less than the usual or legal rate of in-
terest is often allowed, and that the
amount of interest which legatees areenti-
tled to recover is regulated by the court
of chancery with reference to the amount
which executors could have made, and
that this rate has been diminished from
time to time by reason of the change in
the value of the interest upon money.
Beckford v. Tobin, 1 Ves. Sr. 308, 311; Guil-
1am V. Holland. 2 Atk. 343; Wood v. Bri-
ant. Id. 523; Sitwell v. Bernard, 6 Ves. 520.
PAYMENT or DEBTS AND LEGACIES.
169
The rule of the court of chancery appears
from these cases to have been that it
could determine, at its own discretion,
how much interest should be allowed, and
even without inquiry into the circum-
stances of any particular case. Sitwell v.
Bernard, ubi supra. No action could have
been brought at common law to recover
the amount of a legacy which was treated
only as a direction to the executor. The
remedy of the legatee was only in the ec-
clesiastical courts or the court of chan-
cery. These courts have always assumed
the right to determine the terms on which
the beneficiary should receive it. This is
given as one of the reasons why an action
at law should not be maintained for it.
Deeks v.Strutt,5Term R.690; Allen v. Ed-
wards, 136 Mass. 138. In this common-
wealth an action at law has long been the
remedy to recover the amount of such a
legacy. Allen v. Edwards, 136 Mass. 138,
and authorities cited. Such is the rule, we
believe, in most, if not all, of the states of
the Union. While in many cases inter-
est has been recovered, none has been
cited or is known to us where it has been
at less than the legal rate. It has been
recovered upon the same principle that it
is awarded in any case where the pay-
ment of a debt due has been deferred. We
have no reason to believe that the law of
New Hampshire in this respect differs
from that which prevails in this common-
wealth, and we do not feel authorized to
change the rule so long as the statute re-
mains unchanged which fixes a rate of
interest. Kent v. Dunham, ubi supra;
Ogden V. Pattee, ubi supra; Pub. St. c.
77, § 3; Wood v. Corl, 4 Mete. 203; Loring
V.Woodward, ubi supra; Gen. Laws N.
H. c. 232, •§ 2. The executors are there-
fore instructed that the legacies of $5,000
and $64,000 are payable, with legal inter-
est, in a year from the dea'lh of the testa-
tor. Instructions accordingly.
170
POWERS AND LIABILITIES OF REPRESENTATIVES.
PARKER V. PROVIDENCE & S. STEAM-
BOAT CO.
(23 Atl. 103, 17 R. I. 376.)
Supreme Court of Rhode Island. Nov. 21, 1891.
Action on the case by Arabella T. Par-
ker against the Providence & Stonington
Steam-Boat Company for personal injnries
to plaintiff'H testator resulting in death.
Defendant pleaded in bar a settlement and
receipt of plaintiff in full of all demands
by reason of the injurycomplained of, to
which plaintiff demurred. Demurrer over-
ruled.
Stephen A. Cooke, Jr., Louis L. Anti;eU,
W. C. Parker, and W. M. Butler, for plain-
tiff. Walter B. Vincent, for defendant.
TILLINGHAST, J. After the overruling
of the defendant's demurrer to the plain-
tiff's declaration inthiscase, (Index II. 24,)i
the defendant pleaded the folio wing release
in bar of said action : "New Bedford, Mass.,
July 16, 1889. Received from the Provi-
dence & Stonington Steam- Ship Co. the
sum of one (1) thuusand dollars, the same
being in full settlement of all claims and
demands which I, as executrix of the last
will and testament of Charles W. Parker,
deceased, and as legatee named in said
will, may have against the Providence &
Stonington Steam-Ship Co., its agents
and servants, for loss of life in conse-
quence of the collision on the 14th day of
May, 1889, between the schooner Nelson
Harvey and the steamer Nashua, owned
by the said Providence & Stonington
Steam-Ship Co.; and I do hereby covenant
and agree, to and with said company,
that no suit shall at any time be brought
or prosecuted against said company
therefor. Akabeli-a T. Parkeb, Exec-
utrix. Witness: Frank N. Howes." To
this plea the plaintiff has demurred, as
follows: "And the said plaintiff, as to the
first plea, or plea of settlement of said
cause of action, comes, " etc.," when, " etc.,
"and says that the said plea, and the
matter therein contained, in manner and
form as therein set forth, are not suffi-
cient in law for a bar to said action, and
the said plaintiff is not bound by law to
answer the same, because said 'right of
action is given to said plaintiff in her said
capacity as a representative of her chil-
dren as well as herself, and is not included
in the powers given by statute to admin-
istrators to compromise claims such as
appear in favor of ordinary estates, and
is such a claim as cannot be compromised
or settled by her as administratrix with-
out concurrence of her children, if of age,
or their duly-qualified guardians of such
of them as are minors, and this she is
ready to verify. Wherefore, for want of
a sufficient plea in this behalf, she prays
judgment of this court, and that said de-
fendant may further answer the said dec-
laration. "
The only question raised by the demur-
rer is whether an executrix has the power
to compromise and settle such a cause of
action as is set out in the plaintiff's dec-
laration without the assent of the next of
kin. Pub. St. R. I. c. 184, § 32, provides
'a? Atl. Rep. 284.
as follows: "Executors and administra-
tors may submit to arbitration or may
adjust by compromise any claims in favor
of or against the estates by them repre-
sented, in the same manner and with the
same effect as the testator or intestate
might have done." The defendant con-
tends that this statute authorizes the
plaintiff in her said capacity to compro-
mise and settle a claim like the one in
suit, and that, having done so, as set up in
the plea in bar, she is precluded irom
maintaining her action. The defendant
further contends that said statute is
simply intended to afford executors and
administrators additional protection, and
not in any manner to take away or
abridge their common-law powers, among
which is that of compromising and ad-
justing disputed claims in favor of or
against the estates which they represent.
The plaintiff, on the other hand, contends-
that said statute does not confer any au-
thority upon her to make said compro-
mise, and also that it has no bearing up-
on the case at bar, because she is merely
a representative of the widow and next of
kin, and sues exclusively for their benefit,''
the damages to be recovered not being-
assets in her hands, with which to pay
the debts or liabilities of the testator, but
to go to the widow and next of kin under
the statute. Shefurther contends that the
action is brought under the provisions of
Pub. St. R. I. c. 204, § 1.5, and that section
20 of said chapter has no application. Said
sections tire as follows: "Sec. 15. If the
life of any person, being a passenger in any
stage-coach or other conveyance, when
used by common carriers, or the life of any
person, whether a passenger or not, in thV
care of proprietors of, or common carriers
by means of, railroads or steam-boats, or
the life of any person crossing upon a pub-
lic highway with reasonable care, shall be
lost by reason of the negligence or care-
lessness of such common carriers, pro-
prietor, or proprietors, or by the unfitness
or negligence or carelessness of their serv-
ants or agents, in this state, such com-
mon carriers, proprietor, or proprietors
shall be liable to damages for the injury
caused by the loss of life of such person,
to be recovered by action of the case, for
the benefit of the husband or widow and
next of kin of the deceased person, one-
half thereof to go to the husband or wid-
ow, and one-half thereof to the children of
the deceased." "Sec. 20. In all cases in
which the death of any person ensues
from injury inflicted by the wrongful act
of another, and in which an action for
damages might have been maintained at
the common law had death not ensued,
the person inflicting such injury shall bft
liable to an action for damages for the
injury caused by the death of such person,
to be recovered by action of the case for
the use of the husband, widow, children,
or next of kin, in like manner and with
like effect as in the preceding five sections
provided."
The power of an executor or adminis-
trator at common law to compromise or
submit to arbitration disputed claims in
favor of or against the estate which he
represents is undoubted. Chadbourn v.
Chadbourn, 9 Allen, 173; Bean v. Far-
POWERS AND LIABILITIES OF REPEESENTATIVE8.
171
nam, 6 Pick. 269; Chase v. Bradley, 26 Me.
531; Chouteau v. Suydam, 21 N. Y. 179,
184; Wood v. Tunnicliff, 74 N. Y. 38; Mur-
ray v. Blatchford, 1 Wend. 583,616; Rog-
ers V. Hand, 39 N. J. Eq. 270, 271, and note.
Pub. St. E. I. c. 204, §§ 15-20, are printed
in Index II, pp. 115, 116. It is also well
settled that a statute like the one under
consideration does not change the power
of the executor or administrator existing
at common law, but simply reinforces and
affirms the same. If, in the exercise of
this power, the executor or administrator,
by reason of negligence or any serious er-
ror in judgment, obtains a less sum than
he would clearly be entitled to recover at
law, he may be held to be guilty of a dev-
astavit, and be required to make up the
loss out of his own estate; but still the
compromise, if made in good faith, would
be bindinff upon the parties thereto. In
Rogers v.' Hand, 39 N. J. Eq. 270, 275,
which was a case in which the executors
compromised and settled a claim against
the estate, without suit, the court says:
"When they act in good faith, those who
would impeach their conduct must show
fraud or mistake, or that they have acted
without authority or contrary to law."
"They may compromise a lawsuit, may
buy the peace of the estate, and extinguish
even doubtful claims against it, provided
they act discreetly and in good faith."
See, also, Meeker v. Vanderveer's Ex'rs,
15 N. J. Law, 392.
It will be seen that what we have said
thus far relates to the power of executors
and administrators generally to com-
promise claims in favor of and against
the "estates" which they represent, as
that term is ordinarily understood; and
the question which now presents itself is
whether the law, as above stated, is ap-
plicable to a case like the one before us, in
which the cause of action is purely stat-
utory, and where the damages do not ac-
crue to the "estate" of the deceased, prop-
erly so called, but to the widow and next of
kin. We fail to see, upon principle, that
any distinction can properly be made be-
tween the two classes referred to. The
reasons which underlie and support the
law above laid down, in its application
to executors and administrators, general-
ly, are equally applicable and cogent in a
casein which the claim arises by statute.
The plaintiff, in her capacity as executrix,
had a claim against the defendant cor-
poration growing out of its alleged neg-
ligence and wrongful acts in causing the
death of herhusband. Shecould prosecute
this claim or not, at her option. No one
else had any power to prosecute it. Good-
win V. Nickerson, (R. I.) Index 11, 115.1 If
suit is brought upon said claim, it is her
suit, and she may discontinue, compro-
mise, or settle the same at her pleasure.
And if she has power to compromise the
suit after it is brought, why should she
not also have power to compromise the
claim upon which it is based without
bringing a suit? We cannot see that any
reason can be urged in support of the ex-
istence of the pawer in the former case
which does not also apply with equal, if
not added, force to the existence thereof
'83 Atl. Rep. 12.
in the latter. In Greenlee v. Railroad Co.,
5 Lea, 418, which was a case brought by a
widow, under a statute quite similar to
the one under which this suit is brought,
it was held that she had power to control
the suit by compromise or otherwise.
The court says: "The question is, can
the widow, under the statutes author-
izing the suit, dismiss it against or with-
out the consent of the children? » » *
It is true, as argued, that the suit is
lor the benefit of the widow and chil-
dren. It is also true, the widow alone
has the right to sue in the first instance.
The children have the right only when
there is no widow. The widow may
sue or not, at her option. We have hold-
en that, if she fail to sue for the period of
12 months, the suit is barred even as
to minors. Having, then, theright to sue,
to be exercised at her own election, it fol-
lows, as a necessary incident to that right,
that she may control the suit by compro-
mise, abandonment, prosecution, or dis-
missal." In Stephens v. Railroad Co., 10
Lea, 448, which was a suit for the benefit
of the widow and children of deceased, it
was held that she had the right to com-
promise or settle the suit as she saw fit,
without the consent of the guardian of
Ihe child of the decease-l, and against the
consent of her own attorney who man-
aged the case.
As to the contention of the plaintiH
that tlie action is brought under the pro-
visions of Pub. St. R. 1. c. 204, § 15, and
hence that section 20 of said chapter has
no application, two answers suggest
themselves: IT/rst, the second count in the
declaration is evidently framed upon both
of said sections, as it not only charges
that the deceased came to his death by
reason of the carelessness and negligence
of the defendant, but also by the wrong-
ful acts of said defendant; and, second,
that, even though the declaration were
framed solely upon section 15, as con-
tended, yet so long as the two sections
give but one remedy, and the declaration
might as well have been framed under the
one section as under the other, or even
under both together, we think they should
clearly be construed together in determin-
ing the question whether the plaintiff had
power to compromise the claim upon
which this suit is based before any suit
was brought. If the injury had not re
suited in the death of the plaintiff's testa-
tor, he would undoubtedly have had
power to compromise and adjust the
claim against tne defendant. Furthermore,
the injury here comolained of was not
occasioned by the mere passive neglect of
the defendant, as wasthe casein Bradbury
V. Furlong, 13 R. I. 15, cited by the plain-
tiff, but might properly be described as an
injury "inflicted by a wrongful act." See,
also. Chase v. Steam-Boat Co., 10 R. I. 79,
and McCaughey v. Tripp, 12 E. I. 449.
Furthermore, the law favors the compro-
mise of disputed claims, (1 Bouv. Law
Diet., 15th Ed., tit. "Compromise, and
cases cited,) and will sustain the same as
far as possible, when fairly made. But
the plaintiff argues that the settlement m
question, if allowed to stand, will have
the effect to bind living parties, who are
competent to act for themselves, which
172
POWERS AND LIABILITIES OF REPRESENTATIVES.
is very different from the settlement ot
claims in favor of or against the estate of
a person who is dead, and which are neces-
sarily represented by the executor or ad-
ministrator as the only one who can repre-
sent them. Wertonot think that this is so.
There are no parties to this suit, except-
ing the plaintiff and defendant. The
next of kin are not and cannot be made
parties thereto. And while the settlement
made, if allowed to stand, will doubt-
less incidentally affect their interest, still
it is not a proceeding in which they have
any right as parties thereto. Nor is the
case materially different in this respect
from that of an ordinary claim in favor of
an estate in the handsof anexeeutoror ad-
ministrator; for, as we have already seen,
they have power to compromise claims,
and by so doing theyincidentally affect the
interest of the heirs or devisees, as thecase
may be, in the estate. If a large amount
is realized it inures to their benefit, as-
suming, of course, that the estate Is
solvent, while if only a small amount is
realized they will suffer the loss, if such it
may properly be called. In other words,
the executor or administrator has full
power to settle the estate in conformity to
law, and, this being done, the heirs or
devisees have no legal cause of complaint,
whether they receive much or little there-
from. But no one would contend that be-
cause of their interest they either are, or
have the right to be made, parties to a
suit, or a proceeding of compromise. In
conclusion, we think that the statute in
question, being evidently intended to
facilitate the settlement of disputed claims
growing out of or appertaining to the es-
tates o* deceased persons, should be lib-
erally construed 'in favor of the object
sought to be attained, and that, thus con-
strued, itmayfairly be held to include such
a compromise as the one under considera-
tion. The demurrer to the defendant's
said plea in bar must therefore be over-
ruled. Demurrer overruled.
POWERS AND LIABILITIES OF EEPEESENTATIVES.
173
BARRY V. LAMBERT.
(98 N. Y. 300.)
Court of Appeals of New York. March 3, 1885.
Appeal from supreme court, general term,
second department.
Action by one Barry against one Lambert,
executrix of the will of Thomas Lambert,
deceased, to establish a trust In a certain
loan made by said executrix. From a
judgment in fayor of plaintiff, defendant ap-
Willlam B. Osbom, for api)ellant. N. 0.
Moak and J. S. Stearns, for respondent.
RUGBR, C. J. The evidence In this case,
outside of the admissions of the defendant's
deceased co-executrix,~ tended strongly to
show that the plaintiff, immediately previ-
ous to January 31, 1882, delivered to Maria
Lambert, defendant's co-executrix, the sum
of $2,000 in bills of the denomination of $100
each, and on that day the defendant with his
co-executrix of the estate of Thomas Lam-
bert, loaned $1,800 of this identical money,
togetha: with $6,000 belonging to the estate,
and about $200 belonging to Mrs. Lambert,
in one aggregate sum of $8,000 to Margaret
Lawrence, taking back a bond and mort-
gage as security therefor to themselves
as executors.
Outside of such declarations, however,
the evidence was not entirely clear as to
the particular understanding and agreement
with reference to the disposition of these
moneys entered into, between Mrs. Lambert
and the plaintiff, when the money was deliv-
ered to her. This evidence was attempted
to be supplied by proof of certain declara-
tions, made by the deceased co-executrix,
Maria Lambert, soon after the loan was
made, in the presence of the plaintiff and
other parties. Mrs. Lambert was at that
time In feeble health, and her early death
was then anticipated. The declarations
were offered to be proved by the witnesses
who were present at the time they were
made, but their admission was objected to by
the defendant upon the ground that the dec-
larations of one executor were not admis-
sible as against his associate. The objec-
tion was overruled by the court, and the
evidence was received, to which ruling the
defendant excepted. This exception pre-
sents the only serious question in the case.
The proof showed that Mrs. Lambert then
made statements to the effect that she had
received $2,000 from the plaintiff, to make
up the sum of $8,000 loaned to Mrs. Law-
rence, and that plaintiff was to have an in-
terest in the mortgage taken as security
for the loan, and to receive her share of the
interest as it was paid by the mortgagor;
that she intended to make an acknowledg-
ment to that effect, either by her will, or in
a separate instrument, before she died. She
also stated that she expected to live until
September. She in fact died in Jime, soon
after this conversation. These declarations
were made by Mrs. Lambert in reply to a
request on behalf of, and in the presence
of, the plaintiff, that she should make such
a declaration or acknowledgment, as, in the
event of her death, would render the interest
of the plaintiff in the Lawrence mortgage
secure to her. Mrs. Lambert then promised
to attend to it as soon as she got a little
stronger, but death intervened before she
was able to perform her xmdertaking.
Assuming, for the purpose of the argu-
ment, that this evidence was admissible,
there can be no doubt that these facts
raised a valid implied trust in invitum
(Haddow v. Lundy, 59 N. Y. 320; Newton v.
Porter, 69 N. Y. 137), and that the express
acknowledgment made by Mrs. Lambert
operated as a full and perfect declaration of
trust, sufficient, within the authorities, to
charge the property then in the hands of the
executors with the obligations of the trust.
While there is no proof of any express
stipulation made between the parties, at the
time the money was delivered, that the se-
curity for the loan was to be taken in such
form as to disclose the plaintiff's interest
therein, yet an understanding to the effect
that the plaintiff was the owner of one
fourth of the mortgage, and of the interest
accruing thereon, must be implied from the
absence of any agreement transferring the
title of the money advanced to the execu-
tors. A trust by implication arises from
the use of the money according to such un-
derstanding and agreement, and notwith-
standing the security was taken in the
name of the executors, equity will protect
the interest of the beneficiary, and follow
the property in which the money was in-
vested, and impose a lien thereon In favor
of the plaintiff to the extent of the sum
belonging to her thus advanced and in-
vested. Price V. Blakemore, 6 Beav. 507;
Perry, Trusts, § 842; In re Prazer, 92 N. Y.
240; In re European Bank, 5 Oh. App. 358;
Pennell v. Deffell, 4 De Gex, M. & G. 372.
No difficulty arises from the blending of
the money of the estate with that of another
person in the same loan, for, the units
of which it is composed being of equal val-
ue, it is clearly severable and distinguish-
able, and sufficient data are given to
enable such severance to be made. The
cases above cited show numerous Instances
in which such a separation has been de-
creed. Conceding for the present that the
admissions of Mrs. Lambert were incompe-
tent to establish the facts upon which a
trust in invitum can be decreed, it is never-
theless true that her statement also operat-
ed as a valid declaration of trust. It is
well settled that a trust in personal prop-
erty may be created by parol, and that no
particular form of words is necessary for
its creation, but the words or acts relied
on to effect that object should be unequivo-
cal, and plainly imply that the party mak-
174
POWERS AND LIABILITIES OF REPRESENTATIVES.
ing them intended to divest liimself of his
interest in the property, and to hold it there-
after for the use and benefit of another.
Hill, Trustees, 130; Martin v. Funk, 75
N. Y. 140; Young v. Young, 80 N. Y. 438;
Willis V. Smyth, 91 N. Y. 297. This is
all that Is required to create a trust even
as against the owner, and although he con-
tinues to retain possession of the property
devoted to the trust. But when the legal
title is in one party, and the equitable
ownership in another, it is only necessary
for those facts to appear, in order to con-
stitute the holder a trustee for the benefit
of the other. Pye's Case, 18 Ves. 140.
The evidence, aside from the declarations
in question, tended strongly to establish
these facts, and a strong presumption of
an intended trust might fairly be implied
from the nature and surroimdings of the
transaction.
By the will of Thomas Lambert, his wife,
Maria Lambert, was given a life estate in
all of his property, both real and personal,
and his executors were directed to keep it
invested during her life, and pay to her the
income thereof as long as she should live.
The duties of their office required the exec-
utors to seek for advantageous investments,
and keep the moneys of the estate em-
ployed. It was entirely within their power,
if it was not their duty, in case a profitable
investment offered itself larger in amount
than the available assets of the estate, to
supplement them with other funds, if they
could be legitimately obtained from other
parties. These moneys were received by
Mrs. Lambert under such a contingency, and
sl^e was engaged in the lawful and legiti-
mate performance of her duties as an exec-
utrix when she received and invested them.
There is nothing in the office or obligations
of executors that precludes them from act-
ing as trustees upon other trusts, and for
other beneficiaries, if the transaction is not
inconsistent with the duties which they owe
as executors. Neither will that fact sub-
ject property, thus held by them in trust, to
the hazard of a loss on account of their dual
character, so long as such property can be
separated and distinguished from the funds
held by them under their trust as executors.
The transaction between the plaintiff and
Mrs. Lambert was, so far as here appears, a
beneficial one for both of the funds intrusted
to her, and in receiving the plaintiff's money
she was acting in the performance of her
legitimate duty as an executrix. It was
clearly the duty of Mrs. Lambert, when she
used the plaintiff's money in acquiring this
mortgage, to have caused a recognition of
the plaintiff's interest to appear in the instru-
ment itself (Price v. Blakemore, supra), and
it was evidently her intention to repair this
omission before her death, by making such
a declaration of trust as would protect the In-
terest of the plaintiff, and the question in
this case is whether legal proof has been
given, from which a court of equity will find
the existence of the trust.
Co-executors, however numerous, consti-
tute an equity, and are regarded in law as
an individual person. Consequently the acts
of any one of them in respect to the admin-
istration of estates are deemed to be the acts
of all, for they have all a joint and entire
authority over the whole property. WU-
liams, Ex'rs. 810; Wheeler v. Wheeler, 9
Cow. 34. Thus one of two executors may
assign a note belonging to the estate of the
testator (Wheeler v. Wheeler, supra), or
make sales and transfers of any personal
property of the estate (Bogert v. Hertell, 4
HiU, 492). He may release or pay a debt,
assent to a legacy, surrender a term, or
make an attornment without the consent or
sanction of the others. Williams, Ex'rs, 812;
Jackson v. Shaffer, 11 Johns. 513; Douglass
V. Satterlee, Id. 16; Murray v. Blatchford, 1
Wend. 583. It was said in Wheeler v.
Wheeler, supra, "that, if a man appoint sev-
eral executors, they are esteemed in law as
but one person representing the testator, and
that acts done by any one of them, which
relate to the delivery, gift, sale or release
of the testator's goods, are deemed the acts
of all." It would seem to follow from this
principle that they Lave the power of joint
and several agents of one principal, and that
any act done or performed by one, within
the scope and authority of his agency, is a
valid exercise of power, and binds his asso-
ciates.
It is quite true, however, that neither ex-
ecutors nor administrators, whether acting
separately or jointly, have authority to cre-
ate an original liability on the part of the
estate, or enter into an executory contract
binding upon or enforceable against it. Mc-
Laren V. McMartin, 36 N. Y. 88; Perrin v.
Myrick, 41 N. Y. 315; Austin v. Munro, 47
N. Y. 366.
It would seem to follow, as the result of
the authorities, that the powers of executors,
in the administration of estates confided to
them, are commensurate with those express-
ly granted, or necessarily implied, from the
nature of the duties imposed upon them,
and their power to bind their associates by
their acts is limited only by the nature of the
transactions they are called upon to perform.
Thus having no power to bind the estate by
a new contract, or to revive a demand which
has once expired, neither their contracts nor
admissions can have the effect of creating
one or reviving the other; but having the
original power to transfer the property of
the estate for the purposes of their trust, any
act, whether performed by one or all, which
has this effect, is within their authority, and
binds the estate. It must be assumed, how-
ever, that such a transfer is made for a law-
ful purpose, and in form sufficient to operats
as a transfer of property between individ-
uals.
We are, therefore, of the opinion that the
POWERS AND LIABILITIES OF REPRESENTATIVES.
175
acknowledgments of Mrs. Lambert consti-
tuted a good declaration of trust, and tliat
tlie maliing thereof was an act done in the
performance of her duty as an executrix of
the estate of Thomas Lambert, which oper-
ated upon and was enforceable against it.
It would hardly be contended, under the cir-
cumstances of this case, that a declaration
made by Mrs. Lambert, at the time these
moneys were received by her, as to the pur-
pose for which they were received, would
have been incompetent to prove her trust
character, even as against her co-executor;
and it is difficult to see why a similar decla-
ration made by her at a subsequent time
would not be equally competent. Such a
declaration could in no just sense be said to
create any liability against the estate rep-
resented by her, or subject it to any action
on account of the statement made, for such
an action could arise only by a wrongful re-
fusal on the part of the executors to recog-
nize the plaintiff's equitable rights of prop-
erty. The arrangement shown by such a
declaration, instead of creating a liability
against the estate, would simply have the
effect of protecting the party advancing the
money from an unjust claim of ownership on
the part of the executors, by reason of the
form in which the securities for the loan
were taken.
The establishment of this trust works no
injury to the estate, for the evidence, aside
from the declaration, shows quite conclusive-
ly that the plaintiff's moneysi to the extent
of the lien claimed, and to which the estate
had no title, went to make up the value of
the property now in possession of the de-
fendant.
Some objections were made by the appel-
lant to remarks that fell from the plaintiff
while giving her evidence, that tended to
show personal communications and trans-
actions between herself and Mrs. Lambert.
The witness was admonished by the court
not to relate such transactions, and no rul-
ing was made by the court, or exception
taken by the appellant, on the subject of
such evidence on the trial. After the close
of the trial the appellant asked to have
these expressions struck out. This motion
was denied by the court, and we think cor-
rectly disposed of.
The expressions referred to were inadvert-
ently used by the witness, were ruled as in-
competent by the court at the time they
were made, and were not relied upon in de-
ciding the case.
The conclusion arrived at on the main
point of the case renders it unnecessary for
us to consider the question as to the admissi-
bility of the declarations of one executor
against his associate, when offered as evi
dence to prove the facts stated in such dec-
larations.
The judgment should be affirmed.
All concur.
Judgment affirmed.
POWERS AND LIABILITIES OF REPRESENTATIVES.
176
CARTER V. MANUFACTURERS' NAT.
BANK OF LBWISTON.
(71 Me. 448.)
Supreme Judicial Court of Maine. Nov., 1880.
An action by an administrator de bonis
non against the Manufacturers' National
Bank of Lewiston for the conversion of
shai-es belonging to the decedent, ti-ansferred
on the books of the bank to "John G. Cook,
Executor." The executor borrowed from the
bank on his note, giving the stock as secm-ity.
The money was loaned by the bank on the
statement of the executor that it was re-
quired in the settlement of the estate.
Wm. P. Frye, John B. Cotton, Wallace H.
White, and Seth M. Carter, for plaintiff.
Ludden & Drew, for defendants.
VIRGIN, J. The main question is whether
the bank obtained a valid title to the shares
of stock pledged to it by the executor as
collateral security for the payment of his
note.
The interest which an executor as such has
In the personal estate of his testator is not
the absolute title of an owner, else it might
be levied on for his personal debts; but he
holds In autre droit, as the minister and
dispenser of the goods of the dead. Went.
Off. Ex'r (14th Ed.) 196; Pinchon's Case, 9
Coke, 86b; Dalton v. Dalton, 51 Me. 171;
Weeks v. Glbbs, 9 Mass. 76; Hutchins v.
State Bank, 12 Mete. (Mass.) 423. As soon
as he is clothed with a commission from the
probate court, the executor is vested with
the title to all the personal effects which the
testator possessed at the instant of his de-
cease; but the title is fiduciary and not ben-
eficial (Petersen v. Chemical Bank, 32 N. Y.
21), and his office is not that of an agent,
but of a trustee (Dalton v. Dalton, supra;
Sumner v. Williams, 8 Mass. 198; Shirley v.
Healds, 34 N. H. 407).
As a necessary incident to the execution of
the wiU and the administration of the estate,
the power to dispose of the personal estate
is given to the executor. And no general
proposition of law is better established than
that an executor has an absolute control
over all the personal effects of his testator.
Petersen v. Chemical Bank,, supra; 1 Wil-
liams, Ex'rs (6th Am. Ed.) 709; 2 Williams,
Ex'rs, 998; 1 Perry, Trusts, § 225, and cases
in notes. And this rule prevails where no
statute intervenes. Rev. St. c. 64, § 49.
While it is the duty of an executor to use
reasonable diligence in co averting assets into
money for the general purposes of the will,
the law permits hirn to exercise a sound dis-
cretion as to the time, within a limited pe-
riod, when he will sell. And high authority
has declared that circumstances may exist
in which it is certainly not wrong in him,
although it may not be a positive duty, to
make advances for the benefit of the estarte
and reimburse him_self therefrom. Munroe
v. Holmes, 13 Allen, 110. If he may advance
his own money for the general purposes of
the will, and may sell the personal effects
for the like object, it is difficult to see why,
in the absence of any prohibitory provision
in the will, he may not mortgage or pledge
the assets for the same purpose; and the
great weight of authority so holds. 2 Wil-
liams, Ex'rs, 1001, and cases cited; McLeod
V. Drummond, 17 Ves. 154; Andrew v. Wrlg-
ley, 4 Brown, Oh. 125. In Earl Vane v. Rig-
den, 5 Ch. App. 663, Lord Hatherly said:
"Lord Thurlow expressed his opinion clearly
to be that the executor is at liberty either to
seU or pledge the assets of the testator.
Scott V. Tyler, 2 Dickens, 712, 725. In fact,
he has complete and absolute control over
the property, and it is for the safety of man-
kind that It should be so; and nothing which
he does can be disputed, except on the
ground of fraud or collusion between him
and the creditor." And Sir W. M. James, in
the same case, said: "It seems to be settled
on principle, as well as by authority, that an
executor has full right to mortgage as well
as sell; and It would be Inconvenient and
very disastrous if the executor were obUged
immediately to convert into money by sale
every part of the assets. It is a very com-
mon practice for an executor to obtain an
advance from a banker for the immediate
wants of the estate by depositing securities.
It would be a strange thing if that could not
be done." See, also, 3 Redf. Wills, c. 8, §
32, pi. 4 et seq.
In considering the question whether an ex-
ecutor had followed a specific power in a
will. Chancellor Buchner made the general
remark: "It is certain that an executor, as
such, has no power to pledge the estate of
his testator for a loan of money." Ford v.
Russell, 1 Freem. Ch. (Miss.) 42. If the
learned chancellor meant that an executor
has no authority to pledge the assets of his
testator for a contemporaneous advance of
money for the use of the estate,— for a pur-
pose connected with the administration of
the assets,— he Is not sustained by the great
current of modern authority. 1 Perry, Trusts,
270, and cases there cited, and cases supra.
Although the general proposition mentioned
Is so well established, nevertheless, like most
others, it Is not without an exception; for
while It is of the greatest importance that the
disposal of a testator's effects should be made
reasonably safe to the pm-chaser, still it Is
the bounden duty of the executor to faithful-
ly appropriate the assets to the due execution
of the will; and a misapplication thereof Is a
breach of duty for which he is liable. And
all the authorities concur in holding that, it
the purchaser, mortgagee, or pledgee know
or have notice that the transfer to him is
made for the purpose of misapplying the as-
sets, his titie cannot be upheld, and he there-
by becomes Involved, and Is made liable to
all persons beneficially interested in the will,
except the executor. 2 Williams, Ex'rs, 1002,
POWERS AND LIABILITIES OF BEPRESENTATIVES.
177
and cases in note x; 1 Perry, Trusts, 270, and
cases in note 1; 1 Story, Bq. Jur. §§ 400, 402,
and cases; McLeod v. Drummond, 17 Ves.
153, where tlie cases are critically reviewed
by Lord Elden; OoUinson v. Lister, 7 De Gex,
M. & G. 633; Yerger v. Jones, 16 How. 30, 37,
38; Hutdiins v. State Bank, supra.
It also now seems to be well settled, in
equity at least, that an executor can make
no valid sale or pledge of his testator's effects
for the payment or security of his own pri-
vate debt (2 Sugd. Vend. 372, and cases in
note o; 1 Perry, Trusts, 270, and cases in note
8; 2 Williams, Ex'rs, 1004, and cases in note
d), on the ground res ipsa loquitur, giving the
purchaser, mortgagee, or pledgee such notice
of the misapplication as necessarily to in-
volve him in the breach of duty.
Chancellor Kent concludes a critical exami-
nation of the cases which had then been de-
cided as foUows: "I have thus looked pretty
fully into the decisions of a purchaser from
an executor of the testator's assets, and they
all agree in this: that the purchaser is safe
if he is no party to any fraud in the execu-
tor, and has no knowledge or proof that the
executor intended to misapply the proceeds,
or was in fact by the very transaction apply-
ing them to the extinguishment of his own
private debt The great difficulty has been
to determine how far the purchaser dealt at
his peril, when he knew from the very face
of the proceeding that the executor was ap-
plying the assets to his own private purposes,
as the payment of his own debt. The later
and better doctrine is that in such a case he
does buy at his peril, but that, if he has no
such proof or knowledge, he is not bound to
inquire into the state of the trust, because
he has no means to support the inquiry, and
he may safely repose on the general pre-
sumption that the executor is in the due exe-
cution of his trust" Field v. SchiefEelin, 7
Johns. Ch. 150, 160.
So Chief Judge Taney said: "An executor
may seU or raise money on the property of the
deceased, in the regular execution of his du-
ty; and the party dealing with him is not
bound to inquire into his object, nor liable
for his misapplication of the money. * * ♦
But it is equally clear that if a party dealing
with an executor has at the time reasonable
ground for believing that he intends to mis-
apply the money, or is, in the very transac-
tion, applying it to his own private use, the
party so dealing is responsible to the per-
sons Injured." Lowry v. Commercial &
Farmers' Bank, Taney, 310, 330, Fed. Gas.
8,581.
The law recognizes a distinction between
an ordinary trustee and an executor. The
LAWSUCC— 12
former has possession for custody, and the
latter for administration. The latter has a
necessary incidental power of disposal which
the former does not; and, as a consequence,
when one purchases of the latter stocks or
other securities bearing on their face the rev-
elation of a trust, he may do so safely in the
absence of notice or knowledge of any in-
tended breach of trust on the part of the ex-
ecutor; but, if he purchases like trust prop-
erty of an ordinary trtistee, the law imposes
upon him the duty of inquiring into the right
of the trustee to change the securities. Dun-
can v. Jaudon, 15 Wall. 165, 175; Shaw v.
Spencer, 100 Mass. 388; Pendleton v. Fay, 2
Paige, 205; Atkinson v. Atkinson, 8 Allen, 15;
1 Perry, Trusts, § 225, p. 271.
In the case at bar the certificate of stock,
was changed by the corporation, and issued
to Cook, exeeutor, thus revealing to the bank
the trust. But this alone would not imperil
the bank in the transaction, for the executor
had the presumptive right to sell or pledge
the stock. But the executor gave to lae bank
his note, for the secm-ity of which the pledge
was made. The note could not be collected
against the estate, for it was the personal
note of the executor. Davis v. French, 20
Me. 21. He could not create a debt in that
manner against the estate. And if the money
was thereby procured for his own private
use, and the bank knew it at the time, .the
transfer of the stock would be a devastavit
and could not be upheld. If the note had
been given to the bank for a private debt due
to the bank from the executor, created before
or during his executorship, but independent
thereof, it would come within the principle of
the numerous cases before cited, where the
transaction Itself would speak, and conclude
the bank. But, if given as a voucher for
money obtained for a legitimate purpose con-
nected with a bona fide administration of the
will, then, though the executor alone was
made liable for its payment, the transaction
would be legitimate, and the estate would
have no reason for complaint. The case finds
"that the money was loaned in good faith by
the bank, and upon the statement made by
Cook that the same was wanted in the settle-
ment of the estate." The presumption is that
he was acting faithfully. There is no evi-
dence to the contrary, and the presumption
must stand. The doctrine of this case is rec-
ognized in Pettingill v. Pettingill, 60 Me. 412,
425.
Plaintiff nonsuit.
APPLBTON, C. J., and WALTON, BAR-
ROWS, LIBBEY, and SYMONDS, JJ., con-
curred.
178
POWERS AND LIABILITIES OP REPRESENTATIVES.
RICH et al. v. SOWLES.
(23 Atl. 723, 64 Vt. 408.)
Supreme Court of Vermont. Franklin. Feb.
15, 1892.
Exceptions from Franlilln county court;
Tylek, Jiidafe.
Assumpsit by L. H. & J. P. Rich, ad-
ministraturs, against Albert Sowlea, ad-
ministrator, to recover tlie price oi a pair
of liorses. Judgment tor plaintiffs. De-
fendant excepts. Affirmed.
At tlie time of the sale the defendant
was the administrator of one W. L.
Sowles, and was carrj'ing on a farm be-
longing to the estate of his intestate.
The horses were bought for use on this
farm. The sale was bj* letter. The plain-
tiff's intestate addressed the defendant
as "A. Sowles, Adm'r, " and the defendant
signed, "A. Sowles, Adm'r." The writ
and declaration ran against "Albert
Sowles, administrator of W. L. Sovrles'
estate," and the court rendered judgment
againstthe defendant "as administrator. "
iS'. E. Royce, for plaintiff. E. A. ISowles
and H. A. Burt, for defendant.
ROSS, C.J. The declaration sets forth a
good cause of action, and was properly
adjudged sufficient against the causes al-
leged in the demurrer. It commands the
attachment of the goods, chattels, or es-
tate of Albert Sowles, administrator of
Wrillam L. Sowles' estate, and not of the
estate of Wil'iam L. .Sowles, of which Al-
bert Howies isadniini.strator. The words,
"administrator of William L. Sowles' es-
tate, " are descriptive of the person named
as the defendant in the suit. If, by chance,
there were two persons of that name in
that locality, these descriptive words
would direct the officer serving the writ
to the person intended. The common
counts in general tissnnipsit constitute the
declaration. Those declare that the de-
fendant, viz., Albert Sowles, and that one
who holds the office of admini.strator of
the estate of William L. Sowles, Is in-
debted, and made the promises, to the tes-
tator whose will the plaintiffs are execut-
ing. The plaintiffs do not declare, nor
seek to recover, upon a promise or under-
taking of William L. Sowles, the intes-
tate, of whose estate Albert Sowles is ad-
ministrator. Inasmuch as the defendant
is the legal representative of the estate of
William L. Sowles, if the declaration
sought !i recovery upon the promise or
undertaking of the intestate it would be
necessary to describe him as such re[)re-
sentative. Then the recovery would be
against the estate, or the defendantas the
representative of the estate. The judg-
ment, in sui'h a case, would be against
and to be satisfied out of the estate, and
not out of the property of Albert Sowles.
The words, "administrator of Wm. L.
Sowles' estate," in such an action, would
be descriptive of the capacity In which Al-
bert'Sowles was sued, and that he stood
as the representative of the estate of Will-
in m L. Sowles. Hence, when these words
in the declaration follow the name of the
party, whether they will be deemed de-
scriptive of his person ordescriptive of the
character or capacity in which he is sued,
is determined by the allegations of the
declaration. If the declaration is against
him personally, they will be held to be de-
scriptive of his person. That is the only
office they can serve in such a declaration.
They may be rejected as surplusage. If
the declaration is against the estate which
he represents, and the promises declared
upon are not his promises, but the prom-
ises of the person he represents, then they
will be held to be words properly used,
necessary to set forth the representative
character in which he is sued. The allega-
tions of the declaration and the facts
found show a personal promise by the de-
fendant, and these words are only descrip-
tive of theperson intended to be named as
defendant. The writ might be amended
by striking them out. Johnson v. Nash,
20 Vt. 40; Waterman v. Railroad, 30 Vt.
614; Myers v. Lyon, 51 Vt. 272: Jones v.
Tuttle, 54 Vt. 4H8.
As contended by the defendant, an ad-
ministrator has no authority, as such rep-
resentative, to create any debts against
the estate. He only has authority, by
virtue of his office, to administer upon the
estate; that is, to ascertain both its as-
sets and debts, and to put the former in
condition to pay the latter, if sufficient,
and the surplus, if any, in a condition to be
distributed to those legally entitled there-
to. Whatever proper expenditures he
may make in accomplishing this will be al-
lowed him by the probate court out of
the estate, on the settleitient of his admin-
istration account. But. if, in caring for
and administering upon the estate, it be-
comes necessary to incur an indebtedness,
he can bind himself, and not the estate,
for its payment. He cannot incur a debt
in the administration of the estate, and
bind the estate for its payment. He can
bind himself only for such payment. Up-
on his becoming insolvent, equity will not
enforce the payment of such a debt out of
the estate. Lovell v. Field, 5 Vt. 218;
Bank v. Weeks, 53 Vt. 115.
Whether, when trust or other property
not owned by the estate has become
mingled with it, a suit may be maintained
for its recovery nut of the estate against
the administrator in his representative
capacity, as was held in De Valengin v.
Duffy, 14 Pet. 289, is not involved in this
suit, and need not be considered.
The execution for the enforcement of the
judgment follows the writ. Rider v. Alex-
ander, 1 D. Chip. 267; Perry v. Whipple, 38
Vt. 278; Wright v. Hazen, 24 Vt. 143. .4s
the writ is against the defendant, not rep-
resentatively but personally, so must the
judgment and execution be. Rendering
judgment against the defendant, "as ad-
Hifnistrator, " did not make it a judgment
to be enforced out of the property of the
estate of which the defendant is adminis-
trator, but to be enforced against the de-
fendant's own property. Adding "admin-
istrator" to his name when tte defendant
purchased the horses did not bind the es-
tate for their payment, but bound the de-
fendant. No more does such addition to
POWERS AND LIABILITIES OF REPRESENTATIVES.
179
his name In the judgment affect the nat-
ure ol thejudgmpnt, or ehanse it from a
judgment to be satisfied out of tlie defend-
ant's property to one to be eatisfied out
of tlie property of the estate. Such addi-
tion in making thecontract and rendering
the judgment might indicatethat the debt
wascontracted by the defendant in admin-
istering upon the estate, and that he
claimed that it conHtituted ah item in his
administration account. It might be re-
jected as surplusage, or by way of amend-
ment, without changing the legal nature
of the contract or judgment. This dis-
poses of all the contentions insisted upon
in this court. Judgment affirmed.
180
POWERS AND LIABILITIES OF REPBESENTATIVES,
LUSCOMB V. BALLAED.
(5 Gray, 403.)
Supreme Judicial Court of Massachusetts. Nov.
Term, 1855.
Action of contract against the executor of
Nathan Cooli for services in taking care of
the house and furnitiu-e of said Cooli after
his decease. There was evidence that one
Osborn, named as executor In the will, but
who declined to accept the trust, employed
plaintiff to take care of the house; that a
special administrator, afterwards appointed,
did not discharge plaintiff, but permitted
him to remain. The jury returned a verdict
for the plaintiff, and defendant excepted.
S. H. Phillips, for plaintiff. J. W. Perry,
for defendant.
THOMAS, J. The jury have found that
the defendant neither caused, nor in any
way assented to, the employment of the
plaintiff for the services for which this suit
is brought. He cannot therefore be charged
de bonis propriis.
If not liable as of his own goods, has the
estate in his hands been charged by the acts
of Osborn, or the special administrator, so
that there may be a judgment de bonis tes-
ta toris? We think not; but that the law
is, that by a promise, the consideration of
which arises after the death of the testator
or intestate, the estate cannot be charged,
but that the executor or administrator is per-
sonally liable on his contract. And whether
the amount is to be repaid from the estate
is a question for the com-t of probate, in the
settlement of his account.
The old doctrine seems to have been, that,
upon any promise made after the death of
the testator or intestate, the executor or ad-
ministrator was chargeable, if at all, as of
his own goods, and not in his representative
capacity. Trewinian v. Howell, Cro. Eliz.
91; Hawkes v. Saunders, 1 Cowp. 289; Jen-
nings V. Newman, 4 Term R. 348; Brigden
V. Parkes, 2 Bos. & P. 424.
The more recent authorities, however, have
settled that an executor may, in some cases,
be sued in his representative capacity on a
promise rnade by him as executor; and a judg-
ment had de bonis testatoris. But it will be
found that, in these cases, that which con-
stituted the consideration of the promise or
the cause of action arose in the lifetime of
the testator. Dowse v. Coxe, 3 Bing. 26;
Powell V. Graham, 7 Taunt. 581; Ashby v.
Ashby, 7 Barn. & C. 444. And an action for
goods sold and delivered to one as executor,
or for work done for one as executor,, charges
the defendant personally, and not in his rep-
resentative character. Comer v. Shew, 3
Mees. & W. 350. See, also, Forster v. Fuller,
6 Mass. 58; Sumner v. Williams, 8 Mass.
162; Davis v. French, 20 Me. 21; Myer v.
Cole, 12 Johns. 349.
In this commonwealth, an exception Is
made in the case of funeral expenses of the
deceased. For these, the executor or admin-
istrator may be charged in his representa-
tive character, and judgment be rendered de
bonis testatoris. But the case stands on its
peculiar ground, and is to be limited to it.
Hapgood V. Houghton, 10 Pick. 154.
The modern English doctrine on this point
is, that if the executor or administratoif gives
orders for the funeral, or ratifies or adopts
the acts of another party who has given or-
ders, he makes himself liable personally, and
not in his representative capacity. Brice v.
Wilson, 8 Adol. & E. 349, note; Corner v.
Shew, 3 Mees. & W. 350; 2 Williams, Ex'rs,
1522.
If the contract of Osborn, or of the special
administrator, did not charge the estate, of
course the defendant can in no form be lia-
ble.
In this view of the case, it is unnecessary
to consider how far the contract of Osborn,
who was named executor in" the wUl, but de-
clined the trust, could bind the estate. If
the executor could not so charge the estate,
a fortiori one who never accepted the trust
could not.
Exceptions sustained.
POWERS AND LIABILITIES OF KEPEESENTATIVES.
181
NANZ V. OAKLEY.
(24 N. E. 306. 120 N. Y. 84.)
Court of Appeals of New York, Second DItI-
sion. April 15, 1890.
Appeal from eupreme court, general
term, first department.
William H. Arnoux,iov appellant. David
Tboruton, for respondent.
HAIGHT, J. One Eliza Mun<3y, as the
present owner of the claim in suit, joins
with the plaintiff in this appeal. The ac-
tion was Brought against the defendant,
as surety upon an administrator's bond,
to recover the amount adjudged by the
surrogate to be due and owing by the ad-
ministrator, and which he was ordered to
pay to Cornelius W. Depew as administra-
tor of Rachel Depew, deceased. Itappears
that one Mary Ann Schultz died in the
city of New York intestate, and that
Rachel Depew was her only heir at law
and next of kin; that, on her petition,
Bomt P. Winant and herself were ap-
pointed administrator and administratrix
of the estate, and the defendant and one
Peter Cortelyou executed the usual bond,
which was joint and several, as sureties.
It further appears that Winant alone ad-
ministered the estate, and that, on a final
accounting before the surrogate, it was
adjudged and decreed that there was in his
hands as such administrator the sum of
$1,930, which, with the interest, costs, and
disbursements of the proceedings to com-
pel him to account, amounted in the ag-
gregate to $4,017.57, which sum he was or-
dered to pay over to Cornelius W. Depew as
administrator of Rachel Depew, she having
died in the mean time. Winant, having
converted the money to his own use, failed
to make payment, and the decree was duly
docketed, execution issued and returned
unsatisfied ; and thereupon this action
was ^brought against the defendant, the
sole surviving surety upon the adminis-
trator's bond, Depew, as such administra-
tor,having assigned theclaimtotheplain-
tiff.
The trial court held that the plaintifi
was not entitled to recover, for the reason
that Rachel Depew was a co-adniinistra/-
trix with Winant, tha t she was one of the
principals in the bond of which the defend-
ant was surety, and that she could not
maintain an action against her own sure-
ty for the wrongful acts of her co-princi-
pal. This would be so if, by executing the
bond, she became liable as surety for the
devastavit of Winant, her co-principal.
This question has received attention in
numerous reported cases in the different
states, in some of which it has been held
that one executing a bond is liable for the
default of his co-principal. Brazerv. Clark,
5 Pick. 96; Towne v. Ammidown, 20 Pick.
535; Newton v. Newton, 53 N. H. 537;
Ames V. Armstrong, 106 Mass. 15; Boyd
V. Boyd, 1 Watts, 365; Bostick V; Elliott,
3 Head, 507; Babcock v. Hubbard, 2 Conn.
536; Caskie V. Harrison, 76 Va. 85; Jeffries
v. Lawson, 39 Miss. 791 ; Braxton v. State,
25 Ind. 82; Moore v. State, 49 Ind. 558;
Eckert v. Myers, (Ohio,) 15 N. E. Rep. 862.
In several of these cases the question ap-
pears to have received but slight atten-
tion. Some have cited as authorit.v the
case of Brazer v. Clark, supra, of which w6
shall speak la ter on, whilst others huVB
been overruled by later decisions. In the
case of Boyd v. Boyd the administrators
filed a joint inventory, and it -was held
that they were jointly and severiiUy liable
for the whole amount of the personal
propert.y described in the inventory upon
the joint and several bond which they had
given. In the case of Ames v. Armstrong,
it was held that the bond was binding
upon both of the executors as to all the
assets included in their inventory which
had come into their joint possession. In
the case of Brazer v. Clark, two executors
gave a joint and several bond with sure-
ties. One died, and afterwards the sur-
vivor committed waste, which the sureties
upon the bond had to pay. It was held
that they had no right of action for in-
demnity or contribution against the heirs
or reijresentatives of the deceased execu-
tor; and to the same effect is the case of
Towne v. Ammidown. It will be observed
that these cases have chiefly been disposed
of upon questions of liability outside of
the bond ; and in the last two cases the
decision was, in fact, against the right to
recover. The Indiana cases to which we
have referred have been expressly over-
ruled in the case of State v. Wyant,67 Ind.
25, in which case it was held that where
two persons, as administrators, executed
a smgie Dona with sureties, such bond
must be construed as if each of the princi-
pal obligors therein had executed a sepa-
rate bond with the same sureties, subject
to the same conditions; and in such a case,
after the resignation of one of the adminis-
trators, the other may maintain an action
against him and his sureties upon the
bond for breaches committed by him
alone. In our own state but one caSe has
been found in which the question appears
to have been considered; and that was
the case of Kirby v. Taylor, first reported
in 6 Jolms. Ch. 242-253, wherein Chancellor
Kent remarks that "it was probably not
the intention of the bond that Thompson
should himself be considered as a surety
for his co-guardian. " The same case was
again reported in Hopk. Ch. 309-831, in
which Chancellor Sanbfoed considers the
question in an elaborate opinion, reaching
the conclusion that a principal in a guard-
ian's bond is not liable to the sureties for
the default of his co-principal. This qucf-
tion was not considered in the case of
Tighe V. Morrison, 116 N. Y. 263, 22 N. E. Rep.
164; and in the case of Speib v. McCoun,
110 N. Y. 605, 18 N. E. Rep. 441, the ques-
tion was as to whether one administrator
could maintain an action upon the bond
against the sureties to recover the amount
of the devastavit of a co-administrator,
and it was held that such action could be
maintained even aptia its assumption
that the plaintiff individually was liable
to the sureties upon the bond. But it was
expressly stated by the court, in its opin-
ion, that it did not deem it important to
determine the relation which the plaintiff,
individually, as one of the principals in
the bond, bears to the sureties in reference
to the default.
The question in reference to the liability
182
POWERS AND LIABILITIES OF REPRESENTATIVES.
of executors and administrators for the
default of each other, independent of any
bond, is well settled by the authorities.
Each of several executors or administra-
tors has the power to reduce to possession
the assets, and collect all the debts due
the estate, and is responsible for all that
he receives. The payment of money or
delivery of assets to a co-executor or co-
administrator will not discharge him from
liability; for, having received the assets
in his official capacity, he can discharge
himself only by a due administration there-
of in accordance with the requirements of
the law. Consequently, one joint execu-
tor or administrator is not liable fqr the
assets which come into the hands of the
other, nor for the laches, waste, devasta-
vit, or mismanagement of his co-executor
or co-administrator, unless he consents to
or joins in an act resulting in loss to the
estate, in which event he will become
liable. In other words, co-executors and
co-administrators may act either separate-
ly or in conjunction. They are jointly re-
sponsible for joint acts, and each is sepa-
ratelv answerable for his separate acts and
defaults. Bruen v. Gillett, 115 N. Y. 10, 21
N. E. Rep. 676; Croft v. Williams, S8 N. Y.
384; Ormiston v. Olcott, S4 N. Y. 339;
Adair v. Brimmer, 74 N. Y. 539 ; 2 Woerner,
Adm'n, § 348; Brandt, Sur. § 4S)0.
It is not claimed that any of the estate
came into the hands of Rachel Depew as
administratrix, or that she, as such, com-
mitted any act or default that would make
her liable for the devastavit of Winant, un-
less she may be liable therefor upon the
bond executed by her. The bond tHus exe-
cuted was in the form required by the stat-
ute, conditioned that they should faith-
fully execute the trust reposed in them as
such administratrix and administrator,
and that they shall obey all orders of the
surrogate touching the administration of
the estate committed to them. The statute
provides that every person appointed ad-
ministrator shall, befnre receiving lettei's,
execute a bond to the people of the state,
with two or more competent sureties, to
be approved by the surrogate, and to be
jointly and severally bound. 3 Rev. St.
(6th Ed.) p. 82, § 56. So that, before receiv-
ing letters, she was required to execute
the statutory bond ; and, having been as-
sociated with Winant as co-administra-
trix, she joined with him in executing the
bond, in which they each undertook to
faithfully execute the trust reposed in them
as administratrix and administrator.
What was the trust reposed in her as ad-
ministratrix? It was to administer upon
the money and assets coming into her
hands, and for which she became person-
ally liable, and for such assets as came in-
to tlieir joint possession in vt liich they be-
came jointly liable to administer and ac-
count, and not to execute the trust as to
money and assets which came into the ex-
clusive control and management of her co-
principal, over which she had no jurisdic-
tion or control. They were to obey all
orders of the surrogate touching the ad-
ministration of the estate committed to
them. What orders was she to obey?
Those that were addressed to her, not
those that were addressed to her co-ad-
ministrator. The object of an administra-
tor's bond is to enforce or insure the dis-
ctiarge of the duty npuseii in the pt-r-
sons appointed. It was not intended, in
requiring such a bond to be executed,
to change the liability or duties of the
persons appointed from- that which ex-,
isted under the provisi,)ns of the statute
independent of the bond. The bond was
not intended to vary their obligation or
their rights and duties as are defined by
law. Their duties were the same after the
bond had been given as they would have
been had no bond been required or execut-
ed. They were, consequently, jointly lia-
ble for joint acts, and severally liable for
their own acts. Rachel Depew and Wi-
nant each signed the bond as principal.
Neither signed it as surety. The defend-
Miit niiiii'd MS surety, and as such slie bn-
came liable for the joint acts of the princi-
pals, and for the individual defaults of
each. It is true they joined in executing a
single bond jointly with sureties. They
doubtless had the right to execute and file
separate bonds ; but this was unnecessary,
for their act in executing the one instru-
ment should be construed as if they had
executed separate bonds. Joint adminis-
trators may be willing to undertake the
trust reposed in them when each knows
that he is responsible only for his own acts
and those in which he joins with his asso-
ciate, when he would not be willing to be-
come surety for the separate acts of his
colleague. The claim that joint liability
for the acts of each other under the bond
will promote diligence on the part of the
principals does not appear to us to be well
founded. It may be true that sureties are
at times without power, by timely intei'-
vention, to prevent waste by one of sever-
al administrators; but such want of pow-
er may be equally true in reference to the
other joint administrators. As we have
seen, one may collect a debt or take into
his possession an asset; and, having re-
duced it to possession, he must be respon-
sible for the proper administration of it.
His associate cannot demand or recover it
from him ; and, should he see fit to ab-
scond or commit waste without the
knowleage of his associate, such associate
would have no other, further, or greater
power to prevent it than the surety.
Other questions were raised upon the ar-
gument in reference to the transfer of this
claim to the plaintiff, but none which we
deem it necessary here to discuss. As to
the appeal of Eliza Mundy, we have not
thought it necessary to consider at this
time. It has done no harm. No motiou
was made to dismiss in this court. Such
motions have been made in the court be-
low, one of which is said to be still pend-
ing. For the reasons already stated the
judgment should be reversed, and a new
trial granted, with costs to abide the
event. All concur, except Follett, C. J.,
and Vann, J., dissenting.
Judgment reversed.
POWERS AND LIABILITIES OF KEPRESEN TAT IVES.
1S3
McKIM, Judge of Probate, t. AULBACH
et al.
(130 Mass. 481.)
Supreme Judicial Court of Massachusetts.
Sufeolk. March 4, 1881.
J. J. Abbott and B. Dean, for plaintifC. A.
Buss and D. A. Dorr, for defendant.
COLT, J. The defendant is sued upon a
probate bond, given by him as one of two ex-
ecutors. A judgment having been ordered
for the penalty of the bond, the question be-
fore us is how much of the penalty is due
in equity and good conscience, for which an
execution should be awarded. Several breach-
es of the bond are assigned. Upon two of
these, namely, the failure to file an invento-
ry, and the failure to render an account with-
in a year, the defendant is liable for nomi-
nal damages.
The principal question arises on an al-
leged breach by the defendant, in negligently
permitting his co-executor Wellbrock to ap-
propriate the personal estate of the testator
to his own use, whereby it was lost. The
bonds given by the two executors were sev-
eral and not joint, and neither is liable for
losses caused exclusively by the default of
the other. In order to charge the defendant,
the bm'den is on the plaintiff to show that,
in the administration of the estate, the de-
fendant was negligent in the performance of
some duty which the law devolves upon him
personally. Austin v. Moore, 7 Mete. (Mass.)
116, 124.
A mortgage due to the testator, in the
state of Ohio, which by his wiU the execu-
tors were authorized to coUect and invest as
they might judge to be for the interest of
the estate, was collected upon a joint release
and discharge, signed by both executors,
which was forwarded to the mortgagor
through an express company. The money
when returned by the express company was
received by the co-executor Wellbrock with-
out the defendant's knowledge, and deposit-
ed by him in a savings bank in goou stand-
ing, partly in his own name and partly in
his name as trustee. He afterwards took the
money from the bank without the knowl-
edge of the defendant, and it was lost to the
estate by his misappropriation of it. It is
sought to charge the defendant for the loss
of this money.
The report finds that Wellbrock had al-
most exclusive management of the estate;
that he was a neighbor and friend of the
testator, and had relations more intimate
than the defendant with parties interested
under the will; and that the defendant was
not familiar with laws and forms of busi-
ness, or with the English language, and
was content to leave the business in the
hands ot his co-executor. It appears that
the defendant accounted for all the estate
which actually came into his individual pos-
session. In then- first account, which was
filed, assented to by the parties iu interest,
and allowed, after the mortgage was collect-
ed, the executors charged, themselves with
the amount paid thereon; and in a few days
after it was allowed, the defendant resigned
his trust. Two other accounts were after-
wards filed by Wellbrock, the remaining ex-
ecutor, which were assented to by the par-
ties in interest, by which he charged himself
with the amount collected on the Ohio mort-
gage.
It was the right of each executor to re-
ceive and hold the funds of the estate. Ed-
monds V. Crenshaw, 14 Pet. 166. Neither
can be held responsible for the waste or mis-
conduct of the other, unless there be some
act or agreement, on the part of the one
sought to be charged, by which the estate
has gone into, or has been negligently suf-
fered to remain in, the exclusive possession
and control of the one by whose misconduct
the loss occurs. Thus both were held liable
in a case where money was delivered to one
executor, and immediately handed over to
the other, who appropriated it to his own
use. Langford v. Gascojme, 11 Ves. 333.
But an executor is not held any farther than
he is shown to have participated in the mis-
appropriation. "Merely permitting his co-
executor to possess the assets, without going
farther and concurring in the application of
them, does not render him answerable for
the receipts of his co-executor. Each execu-
tor is liable only for his own acts, and what
he receives and applies, unless he joins in
the direction and misapplication of the as-
sets." Peter v. Beverly, 10 Pet. 532, 562;
Brazer v. Clark, 5 Pick. 96, 104; Sterrett's
Appeal, 2 Pen. & W.'419.
It is contended that the defendant is lia-
ble in this case, because he must be treated
as having concurred in the wrong, by join-
ing in the release by which his co-executor
was enabled to obtain possession of the
money due on the mortgage and to mingle
it with his own property. The rules which
govern the liability of co-executors follow
in most respects the rules which prevail as
to co-trustees. But, while the latter are not
liable for the money which they have not
received, although they join in receipts given
for the same, it was at one time held that
the former were liable in such cases. The
reason given for this distinction was that co-
executors, unlike co-trustees, have each an
independent power over the personal prop-
erty of the testator, and may dispose of it,
receive, pay and give receipts in their own
names, and therefore, that, if one joins with
his co-executor in giving a receipt, he does
an unmeaning act, unless he intends to ren-
der himself jointly answerable for the mon-
ey. But this rule, which does not seem to
have been maintained with entire uniformity,
is declared in Williams, Ex'rs, (6th Am. Ed.)
1938, to have been greatly relaxed in favor
184
POWEUS AND LIABILITIES OP EEPKESENTATIVES.
of executors; and Lord Eldon, In Shipbrools
V. Hinchinbrook, 16 Ves. 478, declares it to
have been broken down.
Ill Joy V. CampbeU, 1 Schoales & L. 328,
341, Lord Redesdale states the distinction
thus: "If a receipt be given for the mere
purposes of form, then the signing will not
charge the person not receiving." "The true
t[uestion in all those cases seems to have
been, whether the money was under the con-
trol of both executors. If it was so consid-
ered by the person paying the money, then
the joining in the receipt by the executor
who did not actually receive It, amounted
to a direction to pay liis oo-executor;" "he
became responsible for the application of the
money just as if he had received it." In
Hovey v. Blakeman, 4 Ves. 596, 608, Lord
Alvanley, the master of the rolls, referring
to the earlier rule, declared that he would
not consider the fact that an executor joins,
in the receipt as absolutely conclusive; and
in Scurfield v. Howes, 3 Brown, Ch. 91, he
stated his dissent from the rule, when an
executor joins in signing a receipt, if , it ap-
pears that he joined for conformity*) only.
In McNair's Appeal, 4 Kawle, 148, 157, the
supreme court of Pennsylvania declares that
"there is no good reason for making execu-
tors or administrators liable more than trus-
tees for moneys which they have never
actually received, merely because they have
joined in a receipt with the co-executor or
co-administrator who did receive it. The re-
ceipt when proved must always be consid-
ered prima facie evidence against each of
the signers that he received the money; and
if he wishes to avoid the consequent liabili-
ty, it will lie upon him to prove that it was
not received by him." The weight of mod-
ern authority, both Eilglish and American,
is that a joint receipt is only presumptive
evidence that the money came into the pos-
session or under the control of both. Monell
V. Monell, 5 Johns. Ch. 283. And this pre-
sumption may be rebutted by proof that the
money was in fact received by one, and that
the other joined only as matter of form and
for the sake of conformity. See also Mana-
han V. Gibbons, 19 Johns. 427; Ochiltree v.
Wright, 1 Dev. & B. Eq. 336; Perry, Trusts,
§§ 421-426.
It is further contended that, even if the
defendant cannot be charged upon tie
ground of his having joined in the release of
the mortgage, and having. allowed the money
due thereon to be collected and deposited by
Wellbrock alone, yet that the finding of the
master in favor of the plaintiff is supported
by the facts stated in the report, that, in
April 1873, within a month after Wellbrock
received and deposited the money, and before
the greater part of it had been drawn out
again by him, "either the defendant was
warned and put on his guard, as testified to
by one of the parties in interest, or his sus-
picibns were aroused;" and that "since that,
whereas before that time receipts for rent
had been given in the name of WeUbrock
alone, he insisted that thereafter they should
be signed by both of the executors."
But this statement of the master Is too mea-
gre and ambiguous to enable us to come to
a satisfactory conclusion on this branch of
the case; and, for the purpose of a fuller
and clearer ascertaining and statement of the
facts and circumstances relied on to charge
the defendant by reason of negligence and
breach of duty on his part since the original
receipt and deposit of the money by WeU-
brock, the case must be
Recommitted to the master.
WEST PUBLISHING CO.. PBIN TEES AND 8TEBEOTTPEB«. ST. PAUL. MINS.
J_ -
KF 753 A7 J^8
Author Vol.
Mecbem, Floyd Russell
Title Copy
Cases on the lav of succession
to ipruifciX'ti' afLer LLu ileaLli
r
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11